Finch v. State, 2-81-074-CR

• Decision Date: 03 March 1982
• Docket Number: No. 2-81-074-CR,2-81-074-CR
• Parties: Bobby Dale FINCH, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 876

629 S.W.2d 876

Bobby Dale FINCH, Appellant, v. The STATE of Texas, State.

No. 2-81-074-CR.

Court of Appeals of Texas, Fort Worth.

March 3, 1982.

Rehearing Denied March 31, 1982.

McMillan & Lewellen, P. C., and Martin L. Peterson, Stephenville, for appellant.

Wayne Hughes, Dist. Atty., Granbury, for State.

Before HUGHES, JORDAN and RICHARD L. BROWN, JJ.

OPINION

JORDAN, Justice.

Bobby Dale Finch was indicted on April 5, 1977, for the offense of murder alleged to have been committed by him on March 5, 1977. He was tried and convicted by jury on July 26, 1979, and his punishment assessed at life imprisonment in the Texas Department of Corrections.

We affirm.

The appeal is based on eight alleged grounds of error.

The evidence shows that on the night of March 5, 1977, appellant, who had spent the evening drinking at the "Ship's Wheel", a private club in Granbury, Texas, stabbed one Bill Estes from behind nine times, causing his death on the same evening. The deceased's heart, right aorta, and liver were all punctured by this attack.

The fact that the murder took place, as briefly outlined above, was never disputed, and appellant's defense at the time of trial in July of 1979 was insanity. Prior to that, on May 26, 1977, appellant was found incompetent to stand trial at that time by a jury, and was committed by the Court to the Rusk Mental Facility for a period of 12 months. Following that, on July 12, 1978, appellant was again found incompetent to stand trial and was recommitted to Rusk for an indefinite period of time.

The record does not contain the court reporter's notes, or a statement of facts, of either the 1977 or 1978 competency hearing. There is a statement of facts concerning the 1979 competency hearing, held immediately prior to trial on July 26, 1979. This statement of facts shows that this hearing was held on June 11, 1979. There are, however, references in the briefs of the parties that indicate that it was actually held just before trial on the merits on July 26, 1979. At this time the appellant was found competent to stand trial.

In his first ground of error, appellant contends that because he was not tried until July of 1979, the Speedy Trial Act, V.A.C.C.P. art. 32A.02, was violated. He seems to base this contention on alleged errors in the second competency proceeding of July 13, 1978. He alleges failure on the part of the State to follow the statutory proceedings in determining his competency to stand trial, as well as errors in the Court's charge in that proceeding. The theory seems to be that since the July 13, 1978, competency hearing was tainted with illegality that that hearing and finding of the jury that appellant was incompetent to stand trial should be disregarded in calculating the time in which appellant should have been put to trial by the State.

Since there is no court reporter's notes or statement of facts of the competency hearing on July 12, 1978, nothing is presented in this court for review. It is impossible to tell whether there is any merit in appellant's contentions or not, since there is no record of the proceedings in question.

Moreover, the motion to dismiss, which urges, among other things, a violation of appellant's speedy trial rights, though filed, apparently, on the 11th day of June, 1979, was not presented to nor heard by the court until the day of the trial on the merits, July 26, 1979. At no time before this did appellant assert any violation of his rights under V.A.C.C.P. art. 32A.02. Section 3 of this article provides that the failure of a defendant to move for discharge under the provisions of this article prior to trial constitutes a waiver of the rights afforded by this article. We therefore hold that appellant has waived any contention that he was not timely tried within the provisions of the Speedy Trial Act.

Appellant's first ground of error is overruled.

Appellant's second ground of error is a very general and very broad assertion that the verdict of the jury, on the trial on the merits on July 26, 1979, that the appellant was sane at the time of the commission of the offense was against the overwhelming weight and preponderance of the evidence. Appellant does not favor us with any discussion or explanation of why he makes this assertion, or why or in what manner the finding was against the overwhelming weight of the evidence. This ground may be disposed of by stating that we have reviewed the record and find that there was ample evidence in support of the finding that defendant was sane at the time of the commission of the offense. It is true that Dr. Holbrook, a psychiatrist, testified that in his opinion, though appellant was competent to stand trial, he was, at the time of the commission of the offense, suffering from a mental disease or mental defect to the extent that he was insane, incapable of distinguishing right from wrong, at the time of the offense. However, there was testimony from several lay witnesses, who were in the "Ship's Wheel" on the night of this murder, who testified as to appellant's demeanor prior to and at the time of the murder. The testimony of the expert witness, Dr. Holbrook, of course, is not binding on the jury and the jury was free to, as it...