De Freece v. State, 502-92

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation848 S.W.2d 150
Docket NumberNo. 502-92,502-92
PartiesHarold Lindsay DE FREECE, Appellant, v. The STATE of Texas, Appellee.
Decision Date24 February 1993

Mark Stevens, San Antonio, Martin Underwood, Comstock, for appellant.

Thomas F. Lee, Dist. Atty., Del Rio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.



Appellant was convicted by a jury of the offense of murder and his punishment assessed by the trial court at 60 years confinement in the penitentiary. On appeal he argued that the trial court erred in failing to appoint an expert to assist him in evaluation, preparation, and presentation of his insanity defense, in violation of his constitutional rights to due process, equal protection, effective assistance of counsel and compulsory process. The Eighth Court of Appeals disagreed, holding, inter alia, that appellant received all the expert assistance he was constitutionally entitled to under the provisions of Article 46.03, § 3, V.A.C.C.P. De Freece v. State, 829 S.W.2d 251 (Tex.App.--El Paso 1992). In his petition for discretionary review appellant reiterates his claim that under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), he was entitled to more than just the "disinterested experts" provided for by Article 46.03, § 3, supra. We granted the petition to address this claim. Tex.R.App.Pro., Rule 200(c)(2).


Appellant and the deceased, Juanita Rodriguez, had a five month old son. On the morning of February 17, 1989, appellant went to the home of Juanita's parents in Eagle Pass, where she and the baby were staying. Appellant was told by Juanita's sister that Juanita and her parents and brother had left that morning to drive to Pecos. Based upon statements he claimed Juanita's mother had made on prior occasions, appellant decided that the group intended to sell the baby in Pecos, and set out after them. He caught up with them on Highway 90 between Dryden and Sanderson, and ran them off the road. According to his testimony, at this time appellant heard voices he "couldn't overcome" which commanded him to "kill, kill." He forced Juanita into his car, where he stabbed her numerous times in the chest and abdomen, and then cut her throat. Texas Rangers apprehended him the next day a mile from the scene, and he readily confessed. The grand jury indicted him on March 20, 1989.

On June 23, 1989, the State filed a motion requesting that appellant be examined both for competency to stand trial and sanity at the time of the offense. Pursuant to Articles 46.02 and 46.03, V.A.C.C.P., the trial court ordered appellant sent to Vernon State Hospital "for observation, examination and treatment." There, Dr. D.F. Martinez, a psychiatrist, diagnosed him as suffering from "Schizophrenia, Chronic, Undifferentiated Type." Dr. F.E. Heynen, a clinical psychologist, opined that appellant was incompetent to stand trial, but that at the time of the offense he "had substantial capacity to appreciate the wrongfulness of his behavior and understood that his behavior was unlawful." On September 11, 1989, a jury found appellant presently incompetent, but capable of attaining competency in the foreseeable future; judgment to that effect was entered on September 13, 1989. Accordingly, appellant was returned to Vernon State Hospital, where he was re-evaluated every ninety days. See Article 46.02, §§ 4(g) & 5(c), supra. On December 7, 1989, and again on March 12, 1990, the hospital reported that appellant had not yet attained competency, apparently on recommendations from Dr. Martinez. Finally, on June 1, 1990, the trial court was notified that appellant was competent to stand trial, although Dr. Martinez advised that "he should continue his present medications consisting of neuroleptics and antidepressants."

On August 20, 1990, counsel for appellant filed a motion requesting the appointment of a psychiatric expert to assist in preparing and presenting his insanity defense. The trial court took the motion under advisement. On September 18, 1990, counsel filed another motion urging his incompetency to try the case without expert assistance, and essentially requesting a continuance. A hearing was held during which counsel for appellant argued that the trial court had misconstrued his August 20 motion as a request for a specific expert. Counsel clarified that he sought no particular expert, but simply any competent psychiatrist who:

"would be a member of the defense team, would be available for helping preparation of the case, preparation for cross examination, deciding which tests were needed, range and form, that sort of thing, as well as being present during trial to help the defendant."

The trial court stated, inter alia, that "I've already appointed a psychiatrist to conduct an evaluation, and I don't feel I have to appoint another one[.]" Instead, the court assured appellant's counsel that he would be afforded an opportunity to interview Dr. Heynen, who was scheduled to testify for the State, prior to cross-examining her. Counsel for appellant complained that he

"[did] not believe the ability to speak to this one doctor solves the problem, because number one, she's already on record in writing as supporting the State's position, and number two, she will give no assistance in how to cross-examine her.... We think that we still need the expert on the defense team."

The trial court denied both appellant's motions.

Trial commenced that same day. Other than his testimony that he had heard voices commanding him to "kill, kill," appellant presented no direct evidence to show he was insane at the time of the offense. In rebuttal the State put Dr. Heynen on the witness stand to testify that any voices appellant may have heard would not be "sufficiently compelling to cause him to forget that this was a wrongful thing to do." After reading a number of reports from other clinics, conducting a battery of tests, and consulting with other staff members at Vernon State Hospital, she concluded that appellant had known the difference between right and wrong when he committed the offense. See V.T.C.A. Penal Code, § 8.01. After this testimony the trial court adjourned for the day, and Dr. Heynen assured the trial court that she would be available to consult with appellant's counsel.

The next morning counsel took Dr. Heynen on cross-examination. She agreed that appellant's records from his stay at Vernon State Hospital "weigh several pounds." Out of the presence of the jury appellant then renewed his motion for expert assistance to help him interpret those voluminous records with a view to cross-examining Dr. Heynen. Once again the trial court asked counsel:

"... Do you want to talk with [Dr. Heynen] some more if you have problems, because I think the lady would be happy to go over all this with you.

[DEFENSE COUNSEL]: Your Honor, my greatest need is to be able to impeach her testimony and to discredit it, and of course, she's not available for that. That's what I need for cross examination, so I see no benefit in talking to her.

THE COURT: I thought you said you were incompetent and couldn't understand these records.


THE COURT: I'm offering, if she can help you with any terms or--she said she would stay over yesterday.

[DEFENSE COUNSEL]: My problem is to point out where she's wrong, Your Honor. I don't believe she's available for that."

The trial court again denied the motion.

As cross-examination continued, Dr. Heynen verified that Dr. Martinez had diagnosed appellant as suffering from undifferentiated schizophrenia, organic brain syndrome, and extreme psychosocial stressors. Dr. Heynen admitted that she herself had found that appellant had "diffuse organic brain damage." She believed his earlier history of commitment to mental hospitals, however, was "generally because of drug abuse." Disagreeing with Dr. Martinez' evaluation of appellant as schizophrenic, Dr. Heynen opined that her own diagnostic skills "far exceed those of Dr. Martinez." She acknowledged that another doctor had earlier found in appellant "the capacity ... to decompensate and to be a danger to himself and others." She pointed out, however, that this doctor did not "give any reason why he thought he had decompensated." On redirect examination Dr. Heynen noted several typical characteristics of schizophrenia (e.g., incoherence, impaired personal hygiene, "flat affect") that appellant did not manifest.

During final argument appellant's counsel conceded that the evidence showed appellant caused the death of Rodriguez. Emphasizing appellant's history of mental health commitments and his apparently delusional belief that Rodriguez' family intended to sell his baby, counsel argued that the jury should find that when appellant killed Rodriguez, he did not appreciate the wrongfulness of his conduct. In rebuttal, the State stressed Dr. Heynen's testimony that appellant could distinguish right from wrong when he committed the offense. After deliberating for five hours, the jury returned a guilty verdict.

The court of appeals held that failure of the trial court to grant appellant's persistent motions to appoint an independent psychiatric expert to assist him was not error. The reasoning of the court of appeals was threefold, as we understand it. First, the court of appeals observed that the trial court had appointed "disinterested experts" in accordance with Article 46.03, supra, which statutory scheme has been found by the United States Fifth Circuit Court of Appeals to satisfy constitutional requirements of Ake v. Oklahoma, supra. 1 See Granviel v. Lynaugh, 881 F.2d 185, at 191-92 (CA5 1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990). Second, the court of appeals believed that by his "admirable" cross-examination of Dr. Heynen, counsel for appellant succeeded in impeaching her without the...

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