De Freece v. State, 08-91-00033-CR
| Citation | 829 S.W.2d 251 |
| Decision Date | 05 February 1992 |
| Docket Number | No. 08-91-00033-CR,08-91-00033-CR |
| Parties | Harold Lindsay De FREECE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas |
Martin Underwood, Comstock, Mark Stevens, San Antonio, for appellant.
Thomas F. Lee, Dist. Atty., Del Rio, for State.
Before OSBORN, C.J., and WOODARD and KOEHLER, JJ.
A jury convicted Harold Lindsay De Freece, Appellant, of murder with a deadly weapon, and the trial court assessed punishment at 60 years' confinement in the Texas Department of Criminal Justice. In eight points of error, Appellant seeks review of the trial court's concomitant judgment. We affirm.
Each of Appellant's points of error, allege violations of either the United States Constitution (Points of Error Nos. One, Three, Five and Seven) or the Texas Constitution (Points of Error Nos. Two, Four, Six and Eight). Points of Error Nos. One and Two argue that the trial court's failure to appoint an expert to assist Appellant in evaluating, preparing and presenting his defense of insanity violated his rights to due process. Similarly, Points of Error Nos. Three and Four assert that the trial court's failure deprived Appellant of equal protection. Points of Error Nos. Five and Six contend that trial counsel was rendered ineffective in presenting Appellant's case due to the lack of expert psychiatric assistance. In Points of Error Nos. Seven and Eight, Appellant argues that the trial court's failure denied him the right of compulsory process. Since Appellant's sole argument under each point is premised entirely upon whether the trial court erred in failing to appoint a psychiatric expert to assist him prior to and at trial, resolution of this issue is dispositive of each of the points of error. As a result, we will address the points simultaneously in that context.
Prior to trial, the State requested that Appellant be examined to determine his competency to stand trial. Within its motion, the State recognized that at the time of the offense, Appellant was under the care of the Eagle Pass Mental Health Mental Retardation Center. In compliance with Tex.Code Crim.Proc.Ann. arts. 46.02 and 46.03 (Vernon 1979), the trial court ordered that a disinterested expert, experienced and qualified in mental health, be appointed to examine Appellant with regard to his competency to stand trial and sanity at the time of the offense. Accordingly, Appellant was psychologically evaluated at the Vernon State Hospital from which voluminous written reports were submitted to the trial court. After a jury found Appellant incompetent to stand trial, he was returned to Vernon State Hospital for restoration. Subsequently, Appellant was found competent to stand trial, and trial on the merits was scheduled.
Prior to trial, Appellant filed Defendant's Motion for Provision of Psychiatric Expert to Assist Defense and for Diagnostic Testing to Prepare Effective Defense which stated that he would pursue an insanity defense. The motion requested the appointment of an additional, but unspecified, psychiatrist in order to assist defense counsel in trial preparation. In support of his motion, Appellant argued that the United States Supreme Court, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), stated that due process required appointment of such a psychiatric expert as "a member of the defense team, to serve the defendant's interest in the context of the adversarial system."
On the day Appellant's cause was called to trial, Appellant announced by written motion that he was not ready for trial suggesting that the court's failure to appoint an additional psychiatrist would cause Appellant to be ineffectively assisted by counsel. In re-urging his prior motion based upon Ake, Appellant sought support in a United States Supreme Court dissenting opinion in which Justice Marshall, the author of Ake, stated the "Texas' provision of a 'disinterested' expert ... does not satisfy Ake." Granviel v. Texas, 495 U.S. 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990). Marshall's dissent was in response to the Court's denial of certiorari regarding the Fifth Circuit's opinion in Granviel v. Lynaugh, 881 F.2d 185 (5th Cir.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990). The trial court overruled Appellant's motion.
In his brief, Appellant argues that we must, in accordance with Ake, determine whether the State must provide access to an expert who is designated to assist the defense. In short, Appellant requests this Court to declare the Texas statutes inadequate to pass constitutional muster in the appointment of psychiatric assistance to indigents. The Supreme Court has interpreted the due process mandates of the United States Constitution to require that:
[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
. . . . .
Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right. Ake, 470 U.S. at 83, 105 S.Ct. at 1096, 84 L.Ed.2d at 66 (1985).
In Granviel, the Fifth Circuit noted that the accused's "ability to uncover the truth concerning his sanity is not prejudiced by a court-appointed, neutral expert." 1 881 F.2d at 192.
Texas law requires that when "the issue of the defendant's incompetency to stand trial is raised ...," Tex.Code Crim.Proc.Ann. art. 46.02, § 3(a), or when "notice of intention to raise the insanity defense is filed," Id. at art. 46.03, § 3(a), "the court may, ... appoint disinterested experts experienced and qualified in mental health and mental retardation to examine the defendant ..." with regard to either competency to stand trial or sanity at the time of the offense. Tex.Code Crim.Proc.Ann. arts. 46.02 and 46.03, respectively. Each statutory provision also instructs the expert examiners to be prepared to testify regarding their examination of the accused. In Granviel, the Court found that "[t]he Texas procedure complies with the mandate of the Constitution." Id. at 192. In denying certiorari, a majority of the Supreme Court deemed it unnecessary to disturb the lower court's ruling. As an intermediate appellate court, we are in no position to contradict the highest court of the land, and we find the Texas statutory scheme constitutionally adequate.
We further find that the facts of the instant case also command that Appellant received ample expert examination and assistance. The trial court ordered examination of both Appellant's competence to stand trial and sanity at the time of the offense. Pursuant to the statutes, the court advised the mental health facility that Appellant had been charged with a homicide which occurred on February 17, 1989. The court also enunciated the legal definition of competency to stand trial, and the order requested that Appellant be examined to determine whether or not, due to mental disease or defect, he knew his conduct was wrong. After the initial examination, Appellant was declared incompetent to stand trial. However, the director of psychiatric services at vernon State Hospital recommended that Appellant be committed to the hospital for treatment and restoration pursuant to Tex.Code Crim.Proc.Ann. art. 46.02, § 5 (Vernon 1979 and Supp.1991).
After a jury found Appellant presently incompetent but possessing the capability to attain competence, the trial court ordered Appellant committed to a mental health facility for individual treatment for 18 months. The court instructed that the Appellant's examiners were to notify the court as soon as they were of the opinion that he had attained competency or if there was no substantial probability that competency to stand trial could be attained. Reports were submitted to the trial court on December 7, 1989 and March 12, 1990, both of which stated Appellant had yet to attain competence. Subsequently, the director of psychiatric services reported on June 1, 1990, that Appellant had attained competency to stand trial. Throughout the process, numerous lengthy reports were filed by experts who examined Appellant including: Denicia Martinez, M.D.; Fini E. Heynen, Ph.D.; William Swart, D.O.; and Danny Slappey.
At trial, Appellant testified on his own behalf and introduced numerous hospital records to attempt to prove his insanity at the time of the offense. Appellant detailed his youth, his military history, a previous marriage, his Christian conversion, his prolonged drug abuse and his past mental health problems, including the medications prescribed to alleviate his mental problems. He stated that while he saw "visions," he was not "crazy." On the day of the offense, Appellant took his medication and smoked some marihuana prior to attempting to catch up with his wife (the deceased) and her family who were driving from Eagle Pass to Pecos. Appellant testified that he was afraid that they were going to Pecos to attempt to sell an infant child belonging to him and his wife. Appellant took some more medicine and smoked some more marihuana prior to starting his own fateful trip toward Pecos. Stating that all he wanted to do was get his baby, Appellant testified that he drove for a couple of hours prior to catching up with the family and that he had heard voices that he could not overcome that told Appellant to "kill, kill." When Appellant caught up with the family, he ran their vehicle off the road, and when the family exited the vehicle, the deceased approached Appellant with the child. Appellant stabbed her with a knife repeatedly and cut...
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De Freece v. State
...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 ......