Garcia v. State

• Citation: 595 S.W.2d 538
• Decision Date: 19 March 1980
• Docket Number: No. 2,No. 61902,61902,2
• Parties: Joe Antonio GARCIA, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 538

595 S.W.2d 538

Joe Antonio GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 61902.

Court of Criminal Appeals of Texas, Panel No. 2.

March 19, 1980.

Ronald B. Walker, on appeal only, Victoria, for appellant.

Knute L. Dietze, Dist. Atty., Victoria, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and CLINTON, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation. On January 6, 1972, appellant pleaded guilty to the felony offense of possession of marihuana; punishment was assessed at 10 years' probation. On September 21, 1978, appellant's probation was revoked; appellant was sentenced to six years' imprisonment.

At the probation revocation hearing, defense counsel expressed doubt about appellant's competency and filed a written motion for appointment of a psychiatrist. In support of this motion defense counsel presented two witnesses. The court granted the motion and recessed the hearing. During this recess a psychiatrist examined appellant and submitted a report to the court.

When the hearing resumed, the court permitted both sides to introduce evidence on the issue of competency. Although the court's procedures were less formal than contemplated by Article 46.02(2)(b), V.A.C.C.P., ¹ the court clearly conducted a hearing on competency within the meaning of this statute. ² At the close of this judicial inquiry into competency, the court ruled the evidence insufficient to support a finding of incompetency to stand trial; it refused to impanel a jury. See Article 46.02(4)(a), V.A.C.C.P. ³

Appellant contends that the court's failure to find the evidence sufficient to impanel a jury on the competency issue constituted error. We agree.

Defense counsel presented four witnesses who testified that appellant was suffering from psychological problems. Appellant's mother testified that her son previously was hospitalized and treated for a nervous breakdown and that his present behavior evidenced a recurrence. Appellant's wife testified that her husband's present behavior was the same as his behavior at the time of his nervous breakdown. Appellant's mother and wife both testified that they had trouble communicating with him.

One of the defense attorneys testified that appellant was "almost to the point of being catatonic." The attorney further testified that defense counsel were unable to discuss the facts and the seriousness of the case with appellant. The attorney also stated that appellant believed he could open the jailhouse doors by tying knots in a string. Because of this irrational belief, the attorney thought appellant "was losing touch with reality."

William Pryor, minister of the First Presbyterian Church in Victoria, testified about his experiences with appellant while visiting him in jail. Reverend Pryor first explained that he had extensive training in the mental health field and had regularly visited at the jail for three years. He then gave the details of a conversation he had with appellant.

Q Did you ever have or did Joe ever have a conversation with you about tying knots into string?

A Yes.

Q And opening jailhouse doors?

A Yes.

Q What was that, Reverend Pryor?

A He thought on the 14th of June that he had been able to tie some strings together in such a manner that they were kind of a magic symbol for him or something that would keep him safe if he touched a certain knot and would open jailhouse doors.

Q Did you take this to be rational behavior?

A No, sir.

Based on this and other behavior, Reverend Pryor concluded that appellant was "out of touch with reality" and "incompetent to act in a rational way."

To rebut the testimony of these four witnesses, which tended to show that appellant was incompetent to stand trial, the State introduced only the testimony of Herbert Arrellano, a jailer. Arrellano testified that he frequently saw appellant at the jail and never observed any unusual behavior. On cross-examination, however, Arrellano admitted that he never had a conversation with appellant.

Q How many conversations a day did you say you had with Mr. Garcia?

A Well

Q Approximately.

A Well, I see him I don't have conversations with him, but I do see him at least three times a day.

Q Do you ever have any conversations with him?

A Well, I give him his medication, but really, we don't converse; I just give him the medication.

Q Do you ever have any conversation with Joe Garcia?

A No, I sure don't.

During the judicial inquiry into competency, the court stated that the psychiatrist who examined appellant concluded he was competent to stand trial. The record reflects that the court's decision not to impanel a jury was based on the psychiatrist's conclusion. Nonetheless, the State failed to have the psychiatrist testify about his conclusion. Moreover, the psychiatrist's report was neither admitted into evidence nor included in the record. Although the court referred to the psychiatrist's conclusion, no evidence of this conclusion or its underlying basis was ever admitted.

The decision whether to hold a judicial inquiry into competency is distinct from the decision whether to impanel a jury on the competency issue. Statutory provisions require that different evidentiary procedures be followed in making each of these decisions. In this case there was a failure to follow the proper evidentiary procedures, and this failure resulted in error.

Article 46.02(2)(b), supra, provides that under certain circumstances a trial court must conduct a hearing to determine whether evidence exists to support a finding of incompetency to stand trial. This Court has held that such a hearing is required only when the evidence is of sufficient force to create reasonable grounds to doubt a defendant's competency. Johnson v. State, 564 S.W.2d 707 (Tex.Cr.App.1978). Article 46.02(2)(b) further provides that in deciding whether to hold a judicial inquiry into the competency issue, the court can rely on "evidence of the defendant's incompetency . . . from any source." We have construed this provision to mean that a trial court's decision to hold a competency inquiry can stem "from personal observations, or facts known to (it), or from evidence presented, or by motion of the accused or his counsel, or by affidavit or from any reasonable claim or credible source." Johnson v. State, supra (quoting from Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968)).

Once a court decides to hold a judicial inquiry into competency, however, more formal evidentiary procedures are required. The court can no longer rely on "evidence . . . from any source." This restriction is implicit in Article 46.02(2)(b) and in the very essence of a hearing. Moreover, it is consonant with the statutory pattern that requires progressively greater formalities as a defendant satisfies the conditions for obtaining a jury determination of the competency issue.

At the close of a judicial inquiry into competency, the trial court must determine whether evidence exists to support a finding of incompetency to stand trial. See Article 46.02, Sections (2)(b) and (4)(a). When this Court reviews a trial court's determination of this issue, the applicable standard is whether the trial court abused its discretion. Auldridge v. State, 533 S.W.2d 821 (Tex.Cr.App.1976); Noble v. State, 505 S.W.2d 543 (Tex.Cr.App.1974).

In the present case, in making its determination at the judicial inquiry into competency, the court relied on a psychiatrist's conclusion that was not admitted into evidence. We think this reliance is inconsistent with the more formal evidentiary procedures that a hearing requires. Furthermore, from an appellate perspective, the trial court's informal approach provides an inadequate basis for determining whether it properly exercised its discretion. As an appellate court evaluating a trial court's exercise of discretion, we are unable to consider a psychiatrist's report that was neither admitted into evidence nor included in the record. A mere reference to the conclusion of this report, without more, likewise provides no basis for exercising appellate review. Since this reference is unsupported by any evidence in the record, we decline to consider it in evaluating the trial court's exercise of discretion. People v. Abney, 90 Ill.App.2d 235, 232 N.E.2d 784 (1967) (where no psychiatrist testified about the defendant's mental condition and no psychiatric reports were introduced into evidence, the trial court's findings and judgment were not sustained by the record); Sutton v. State, 242 S.W.2d 420 (Tex.Cr.App.1951) (matters referred to but not included in the record will not be considered in determining the sufficiency of the evidence).

We now determine whether the record in this case sustains the trial court's decision not to impanel a jury on the competency issue. In making this determination, we exclude from consideration the trial court's reference to the psychiatrist's conclusion.

The testimony of appellant's four witnesses would support a finding of incompetency to stand trial. The only evidence presented by the State, the testimony of a jailer, had little probative value on the competency issue. Since there was no other evidence to rebut the evidence presented by appellant, we hold that the trial court abused its discretion in refusing to impanel a jury.

In Brandon v. State, --- S.W.2d --- (Tex.Cr.App., No. 59,348, decided April 25, 1979), where we found that the defendant was denied a fair hearing on his competency to stand trial, we remanded the cause to the trial court with instructions to hold a retrospective competency hearing. In the present case, based on a review of the record and a consideration of the time elapsed since the probation revocation hearing, we conclude that a retrospective competency hearing is feasible. See Caballero v. State, 587 S.W.2d 741 (Tex.Cr.App.1979). Accordingly, we remand the cause to the trial court for a retrospective...