Ex parte Watson

• Decision Date: 22 October 1980
• Docket Number: No. 65267,65267
• Citation: 606 S.W.2d 902
• Parties: Ex parte Jerry D. WATSON.
• Court: Texas Court of Criminal Appeals

Page 902

606 S.W.2d 902

Ex parte Jerry D. WATSON.

No. 65267.

Court of Criminal Appeals of Texas, En Banc.

Oct. 22, 1980.

Jimmy B. Wright, Tahoka, for appellant.

Joe Smith, Dist. Atty., and Ricky Smith, Asst. Dist. Atty., Seminole, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PHILLIPS, Judge.

This is an application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

On January 4, 1972, petitioner pleaded guilty to the offense of murder and was assessed a life sentence. Prior to petitioner's entry of the guilty plea a jury found him presently sane to enter the plea. On July 3, 1979, the Court considered petitioner's writ of habeas corpus, and ordered that a retrospective competency hearing be held. On October 3, 1979, the retrospective hearing was held, and the jury found that petitioner was competent at the time he entered his guilty plea. Petitioner attacks the retrospective finding of competency on numerous grounds.

Petitioner contends that the trial court erred in overruling petitioner's motion to quash the jury because it contained no blacks and no persons 18-21 years of age. Petitioner asserts that he has established a prima facie case of exclusion of these groups. In support of his argument petitioner points out that the panel was selected from county voter registration lists.

We have held that the selection of jurors from voter registration lists does not in itself show a systematic exclusion of a class. Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976). Petitioner failed to show that state officials discriminated against blacks or 18-21 year olds in calling people for jury duty. Johnson v. State, 548 S.W.2d 700 (Tex.Cr.App.1977); see also Curtis v. State, 573 S.W.2d 219 (Tex.Cr.App.1979). In addition, petitioner failed to file his motion to quash the jury until after the jury had been selected, impaneled, and sworn. See Article 35.06, V.A.C.C.P.; Ramsour v. State, 165 Tex.Cr.R. 481, 308 S.W.2d 56 (1957); Resendez v. State, 80 Tex.Cr.R. 26, 207 S.W.2d 91 (1948). No error is shown.

Petitioner next contends that the trial court erred in admitting, over objection, medical records concerning petitioner's mental health. Petitioner asserts that the admission of this evidence violated the physician/patient privilege established by Article 5561h, V.A.C.S. At trial petitioner also objected to testimony of the state's expert psychiatric witness on the ground that the testimony was based on the medical records. The records were admitted as business records pursuant to Article 3737e, V.A.C.S.

Under common law, there is no confidential relationship between physicians and patients. Granviel, supra; Caddo Grocery & Ice v. Carpenter, 285 S.W.2d 470 (Tex.Civ.App.-Austin 1955, no writ). However, Article 5561h, supra, establishes as a matter of statutory law a confidential relationship in regard to mental health care. Communications between the patient and mental health "professional," as defined in the statute, are made privileged. The privilege extends to the patient's identity, diagnosis, evaluation, and treatment. Certain exceptions to the privilege exist in court proceedings. Suffice it to say that none of the exemptions applies to the case before us. Nonetheless, we find that the statute was not violated by the admission of the medical records.

The statute became effective August 27, 1979. The initial competency hearing for petitioner occurred on November 4, 1971. At that hearing, the medical records in question were admitted in evidence. The records were properly admitted because at that time communications between petitioner and the psychiatrist were not privileged. Any confidentiality that may have existed was removed by the admission of the records in evidence at the 1971 hearing. Because the records were revealed prior to the effective date of the statute, they do not constitute confidential communications under the statute. The records were admissible. Petitioner's grounds of error are overruled.

Petitioner complains that a letter allegedly written by him was admitted without the proper predicate as to authentication. Petitioner's trial objection was overruled. The record reveals that only evidence of authorship was from petitioner's brother, who testified that the writing "looks like" petitioner's handwriting.

It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Article 38.27, V.A.C.C.P. In our case, the jury had the opportunity to determine the authenticity of the letter by comparing it with other of petitioner's writings that were already in evidence. Since petitioner never contested the authenticity of the letter under oath, the only proof needed was the comparison with the other samples. Article 38.27, supra; see also Tex.R.Civ.P. 93(h); Herndon v. State, 543 S.W.2d 109 (Tex.Cr.App.1976). No error is shown in admitting the letter.

In this same ground of error, petitioner contends that the court erred in admitting an affidavit signed by petitioner. The affidavit stated that, contrary to advice of counsel, petitioner was pleading guilty to murder. Petitioner contends that the affidavit was inadmissible to show his competency because it was dictated by petitioner's counsel rather than by petitioner himself.

Although there was evidence that petitioner did not dictate the affidavit, there was evidence that petitioner read the affidavit and corrected parts of it. The jury reasonably could have believed that petitioner had contributed to the affidavit, or at least was competent enough to understand the nature of the affidavit. This is especially true since petitioner himself made the decision to plead guilty against his own attorney's advice. All of the evidence as to the authorship of the affidavit was before the jury. Even if the affidavit were dictated by petitioner's attorney, the circumstances surrounding the composing of the affidavit were of sufficient probative force to justify its admission on the issue of petitioner's competency.

As a general rule, any ultimate fact may be established by circumstantial evidence from which the jury may draw reasonable inferences. Gregory v. Texas Employers Insurance Association, 530 S.W.2d 105 (Tex.1975); Azores v. Samson, 434 S.W.2d 401 (Tex.Civ.App.-Dallas 1968, no writ). In the end, petitioner is attacking the credibility of the affidavit, not its admissibility. As the factfinder, the jury is the sole determiner of the credibility of the evidence. Kentucky Central Life Insurance Company v. Fannin, 575 S.W.2d 76 (Tex.Civ.App.-Amarillo 1978, no writ). The admission of the affidavit was not error.

Under the same ground of error, petitioner contends that the court erred in admitting his high school report card in evidence. According to petitioner the report card, dated 1955-59, is too remote to have any bearing on his competency in 1972. The purpose of admitting evidence of petitioner's educational background was to show his ability to comprehend different subject areas. The psychiatrist testified that the report card demonstrated petitioner's capability to comprehend a subject matter and deal with it. We have held that such evidence is relevant to the determination of a defendant's sanity. Thomas v. State, 97 Tex.Cr.R. 432, 262 S.W. 84 (1924). Moreover, the report card was part of a string of evidence that established a consistent pattern of behavior on the part of petitioner. As such, it aided the psychiatrist in forming an opinion concerning petitioner's competency. See Miguez v. Miguez, 221 S.W.2d 293 (Tex.Civ.App.-Beaumont 1949, no writ). The report card was admissible.

Next petitioner contends that the verdict is contrary to the great weight of the evidence. Relying on the direct testimony of his brother, aunt, and uncle, petitioner claims to have established his incompetency by a preponderance of the evidence. Further, petitioner argues that the state failed to rebut that evidence.

We initially are confronted with the question whether this Court is empowered to consider petitioner's claim. In White v State, 591 S.W.2d 851 (Tex.Cr.App.1979), it was held that, unlike the Courts of Civil Appeals, this Court does not have fact jurisdiction. The Court held that it could not consider a contention that the jury's finding of competency was against the great weight and preponderance of the evidence. We are constrained to follow that decision.

Moreover, we note that the state provided ample evidence to contradict petitioner's claim of...