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

• Decision Date: 11 August 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 215

638 S.W.2d 215

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

No. 2-81-074-CR.

Court of Appeals of Texas Fort Worth.

Aug. 11, 1982.

Rehearing Denied Sept. 15, 1982.

McMillan & Lewellen and Gary Lewellen, Stephenville, for appellant.

Randolph Chandler, Dist. Atty., Granbury, for the State.

Before HUGHES, JORDAN and BROWN, JJ.

OPINION

JORDAN, Justice.

Reference Finch v. State, 629 S.W.2d 876 (Tex. Cr. App. 1982).

Bobby Dale Finch was convicted of the offense of murder by a jury on July 26, 1979, and his punishment assessed at life imprisonment in the Texas Department of Corrections. On original appeal to this court appellant urged eight separate grounds of error, all of which, for reasons disclosed in our original opinion, were overruled. By an opinion dated March 3, 1982, we affirmed appellant's conviction.

The Court of Criminal Appeals granted discretionary review of our opinion in this case and by an En Banc Per Curiam opinion delivered June 23, 1982, decreed that this court was in error in holding that two of appellant's eight grounds of error were not properly raised for consideration on appeal. More specifically, the Court of Criminal Appeals held, contrary to our ruling, that appellant's contention of denial of his right to a speedy trial under V.A.C.C.P. art. 32A.02 was timely raised in the trial court and that this ground of error should be considered and ruled on by this court. The court also held that appellant's contention that his right to a speedy trial under both the Texas and United States Constitutions, raised in his brief, and which was not discussed in our original opinion, should be considered and ruled on.

The Court of Criminal Appeals also held that appellant's fourth ground of error, complaining of limitation by the trial court of appellant's alleged right on voir dire examination to determine the attitude of the jurors with respect to the possible disposition of the appellant if he were found not guilty by reason of insanity, under V.A.C.C.P. art. 46.03, sec. 4, must be considered by this court. We had originally held that this ground of error was not properly raised on appeal because appellant had failed to point out where, how, or in what manner he had been deprived of such right.

In compliance with the directions of the Court of Criminal Appeals in its Per Curiam opinion (June 23, 1982), we proceed to discuss and decide these two grounds of error.

As reflected in our original opinion, appellant, although he was arrested on March 5, 1977 and not tried until July 26, 1979, was twice found incompetent to stand trial by two different juries, as a result of which he was confined to Rusk Mental Facility for all but 97 days of the time between March 5, 1977 and July 26, 1979. He was afforded a third competency hearing in July 1979, immediately before he was tried for the offense of murder, and at that time was found by a jury to be competent to stand trial.

Appellant was found incompetent to stand trial by a jury on May 26, 1977, and confined at Rusk for a little over a year, and was again found incompetent to stand trial by a jury on July 13, 1978. He was confined again at Rusk for another year, and in July of 1979 was found competent to stand trial.

It is appellant's contentions that his right to speedy trial under V.A.C.C.P. art. 32A.02 was denied primarily because of the State's failure to follow certain statutory proceedings under V.A.C.C.P. art. 46.02, particularly sections 2, 3, 4, 5, and 6, and because of errors in the court's charge at the July 1978 hearing.

Appellant theorizes that since the July 13, 1978 hearing was defective and invalid because of failure to follow certain statutory proceedings, and because of errors in the court's charge, that the year's confinement at Rusk because of this hearing cannot be counted against him insofar as his rights under the speedy trial act are concerned. There is no record of either the 1977 or 1978 incompetency hearings and accordingly, as pointed out in our original opinion, any error in these proceedings, as far as the hearing itself is concerned, is waived. It is impossible for us to determine if there were any procedural or substantive errors in either of these proceedings.

As far as we can tell, from the record before us (which does not include the July 13, 1978 competency hearing) and from the court's charge, there was no error in that proceeding, at which appellant was for the second time found incompetent to stand trial.

Appellant also complains of the court's charge at the July 13, 1978 competency hearing because it did not define the terms "mentally ill" and "mentally incompetent", and because the charge did not require the jury to find competency or incompetency "beyond any reasonable doubt" instead of from a preponderance of the evidence.

At the outset it is noted that at the hearing of July 13, 1978 (insofar as the record before us shows) appellant made...