Ex parte Long

• Decision Date: 19 April 1978
• Docket Number: No. 56264,56264
• Citation: 564 S.W.2d 760
• Parties: Ex parte William G. LONG.
• Court: Texas Court of Criminal Appeals

Page 760

564 S.W.2d 760

Ex parte William G. LONG.

No. 56264.

Court of Criminal Appeals of Texas,En Banc.

April 19, 1978.

Michael W. White and Andrew B. Logan, San Antonio, for appellant.

Bill M. White, Dist. Atty., Douglas C. Young, Alan E. Battaglia and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, for the State.

Before the court en banc.

OPINION ON PETITIONER'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Petitioner contends on motion for rehearing that: (1) "The Court of Criminal Appeals did not have the entire record of the hearing of the writ of habeas corpus in order to review that record in forming its opinion" and (2) That this Court erred in finding the petitioner's contention with regard to the DeWitt County conviction to be without merit "though the 24th District Court in DeWitt County had heard testimony of Petitioner's incompetency to stand trial in Cause No. 5910 (24th District Court number), the Court failed to hold a separate hearing on such issue as required in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 14 L.Ed.2d 815 (1966) even though the testimony raised a bona fide doubt as to Petitioner's competency to stand trial."

The record reflects that at the hearing on petitioner's post conviction writs the transcription of the court reporter's notes of the trial which resulted in a mistrial in Cause No. 56,815 in Bexar County in November, 1958, was introduced into evidence as State's Exhibit No. 8. This exhibit was not in the record when our original opinion was written, although Art. 11.07, § 2(d), V.A.C.C.P., requires that the convicting court transmit to the Court of Criminal Appeals "the petition, any answer filed, any motions filed, transcripts of all depositions and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues." The transcription of the court reporter's notes in the Bexar County mistrial is now before us and we consider petitioner's contentions herein in light of such exhibit.

The two convictions involve the murders of A. B. Lippman and his wife Mary Lippman on May 19, 1958. Petitioner was originally tried for the killing of A. B. Lippman in Cause No. 56,815 in the Criminal District Court of Bexar County with the late Judge M. D. "Buck" Jones presiding, in November, 1958. A mistrial was declared after the jury was unable to reach a verdict. After the mistrial, the court ordered a change of venue, and transferred both cases to the 24th Judicial District Court of DeWitt County. A trial in DeWitt County of Cause No. 56,815 (Bexar County number) resulted in a verdict of guilty, and punishment was assessed at 99 years. After that trial in DeWitt County, the remaining cause, Cause No. 56,816, was transferred back to Bexar County, where the petitioner entered a plea of guilty to the murder of Mary Lippman. Punishment was assessed at 99 years, with the sentence to run consecutively with the DeWitt County sentence. No appeals were taken from either conviction.

Petitioner is challenging both of these convictions. He originally filed separate writs in Bexar and DeWitt Counties. On January 9, 1976, after the post conviction writ was filed in DeWitt County, that cause was transferred to the 144th Judicial District Court of Bexar County (formerly known as the Criminal District Court of Bexar County) by order of the 24th Judicial District Court. Petitioner expressly agreed that both writs should be heard in a joint hearing before the 144th District Court.

In both instances, the petitioner complains of the failure of the trial court to conduct a separate hearing on the issue of his competence to stand trial. This contention is bottomed on the holding of the Supreme Court in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 14 L.Ed.2d 815 (1966). While the petitioner's convictions occurred before the decision in Pate, this Court has held that Pate is retroactive. Ex parte Halford, 536 S.W.2d 230.

After the hearing on the writs, the court filed findings of fact and conclusions of law denying petitioner relief. This Court is not bound by such findings or conclusions of law. Ex parte Hagans, 558 S.W.2d 457, and cases there cited.

Evidence introduced at the hearing includes the transcription of the court reporter's notes from the mistrial in Bexar County and the subsequent plea of guilty to the murder of Mary Lippman in Bexar County. The record reflects that the transcription of the court reporter's notes from the trial in DeWitt County is no longer available.

The holding in Pate v. Robinson, supra, requires the court to hold a hearing on competency to stand trial whenever "the evidence raises a 'bona fide doubt' as to a defendant's competence to stand trial." The petitioner urges that there was sufficient indication of mental problems in each of his convictions to raise a "bona fide doubt" and thus require a hearing.

Since there is no transcription of the court reporter's notes available for the conviction in DeWitt County, the petitioner presented testimony from several sources at the writ hearing to indicate that the evidence bearing on his mental state which was introduced in DeWitt County was substantially the same as that which was introduced at the original trial which resulted in a hung jury in Bexar County. Richard Keene, who was one of petitioner's attorneys at the Bexar County mistrial and the DeWitt County conviction, testified that Mrs. S. R. Turner and Mrs. Ollie M. Wheeler testified at both of the trials. Keene said that their testimony was "substantially the same" at both trials and that he could "recall no basic differences in what they said."

The record of the mistrial in Bexar County reflects that Mrs. S. R. Turner testified that she ran the Lindell Hotel. Mrs. Turner first met the petitioner when he was referred to her by the Alamo Mission. She allowed petitioner to stay in her hotel for four to six weeks and during that time she had the opportunity to observe his actions and his demeanor. Turner had also visited the petitioner "a number of times" while he was in jail awaiting trial. When questioned about petitioner's sanity, she testified as follows:

"Q. And, from all of this, Mrs. Turner, have you formed any opinion as to the sanity or the insanity of Will Long?

"A. Yes.

"Q. What is that opinion?

"A. In my opinion, he is not sane.

"Q. He is not sane?

"A. No, he is not.

"Q. Mrs. Turner, is this your opinion as to his present condition?

"A. Yes, it is."

The record from the mistrial also contains testimony of Mrs. Ollie M. Wheeler, who testified that petitioner had lived in her house with her for three weeks. Mrs. Wheeler testified she had been an attendant at the State Hospital in San Antonio. When asked her opinion of the mental condition of the petitioner, she replied he was "insane."

Keene also testified that the depositions which were introduced and read into evidence before the jury at the mistrial were also introduced in DeWitt County. Upon the proffer of each of the depositions, the prosecutor stated there was no objection by the State.

The first deposition introduced was that of Dr. Warren S. Wille, who was the Medical Director of the Psychiatric Clinic at the State Prison of Southern Michigan in Jackson, Michigan. Attached to the deposition, and read into evidence, was Dr. Wille's "Final Discharge Summary" of the petitioner, dated April 5, 1954, which said, in pertinent part:

" . . . he would be classified as suffering from a sociopathic personality disturbance, antisocial reaction. . . . His ego development has been very inadequate because of the extremely unfavorable home situation in which he grew up. This results in this subject showing some tendencies toward a schizophrenic reaction pattern. However, he has never actually had a psychotic break and cannot be considered insane at this time. Because of his poor ego development and inadequate self-control, his prognosis is very poor for ever making an adequate adjustment in free society."

In the deposition, Dr. Wille said: " . . . this man was not insane as this term is customarily used. However, it was apparent, from information obtained from him during psychiatric interviews, that he was a very maladjusted person who was almost certain to get in trouble again when he returned to free society." Dr. Wille further stated that since he had not recently examined the petitioner he could reach no conclusion on his present mental state.

The deposition of Max Eugene Long, the petitioner's uncle, reflected the following:

" . . . he was very uncooperative. He had a serious accident when he was very small. He has got a scar on his forehead today that he got in infancy; and they didn't think he would live at all at the time. He has never acted completely normal, never been completely normal since he was out of prison. He is very childish for a man of twenty-eight. He acted like a guy ten or eleven years old on a lot of different matters. He actually wanted to play with things kids would play with; go downtown and spend his money on things little children would buy."

Long further stated he considered the petitioner's "conduct and behavior" to be "abnormal."

The deposition of Mrs. Margaret Long Horton, the petitioner's aunt, was introduced. When asked to describe petitioner's "physical or mental condition," Mrs. Horton replied: "Acted childish all the time I knew him; he was injured in the head when young." Mrs. Horton concluded by saying the petitioner's "conduct and behavior was abnormal."

The deposition of William Hugh Long, who identified the petitioner as his nephew, related the seriousness of the head injury to petitioner when he was a child.

The deposition of Thomas George Long, another of petitioner's uncles, was also introduced. In the deposition, Long stated: "In my opinion, he is mentally unbalanced." The deposition further stated that the petitioner's "conduct and behavior from birth has been abnormal."

The final deposition...