Gardner v. State

• Decision Date: 08 April 1987
• Docket Number: No. 68856,68856
• Parties: David Allen GARDNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 195

733 S.W.2d 195

David Allen GARDNER, Appellant, v. The STATE of Texas, Appellee.

No. 68856.

Court of Criminal Appeals of Texas, En Banc.

April 8, 1987.

Jack V. Strickland, Fort Worth, for appellant.

Mac Smith, Dist. Atty. and Dan Carney, Asst. Dist. Atty., Weatherford, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

This is an appeal from a conviction for capital murder. Punishment was assessed at death.

On August 26, 1980, two fourteen year old runaways, Rocky Allen Crecy and Kandi Kae Reynolds, were hitchhiking along an interstate highway near Weatherford. Apellant, who was driving by, stopped and picked the teenagers up. Appellant drove the pair down the interstate and eventually turned down a gravel road. He pulled off the road beside a bridge and told the teenagers to get out of the car. The trio walked down the embankment. There the appellant stabbed Crecy numerous times and left him there. He took Reynolds to a location near Lake Weatherford where he stabbed her numerous times, hit her in the head with a rock and then abandoned her. Meanwhile, Crecy had made his way to a farmhouse. Help was summoned and he was taken to a hospital. He survived his wounds. Reynolds died from her wounds. On August 29, 1980, appellant was arrested. After his arrest, he led officers to Reynolds' body. Appellant was charged with killing Reynolds in the course of a kidnapping.

In his first seven points of error, appellant challenges the admission of the psychiatric testimony of Dr. Clay Griffith during the punishment phase of the trial. Appellant filed a motion to suppress testimony concerning the psychiatric examination. A hearing was held outside the jury's presence on appellant's motion. The trial court denied appellant's motion and during the punishment phase of the trial Dr. Griffith testified that he was one hundred percent certain that appellant would kill again.

The record shows that on or about September 2, 1980, shortly after appellant's arrest for this offense but before his indictment, a justice of the peace appointed an attorney by the name of Ed Todd to represent appellant. Todd immediately began investigating the case and after talking with appellant's mother he came to the conclusion that appellant should be examined by a psychiatrist, a psychologist and perhaps even a neurologist. On several occasions over the next few days he discussed the possibility of such an examination with members of the district attorney's staff. These conversations encompassed the possibility of an insanity defense, Todd's belief that appellant might be incompetent to stand trial and appellant's suicidal tendencies. During at least one of these conversations several names were discussed including Dr. Clay Griffith of Dallas and Dr. James Grigson of Dallas. ¹ One of these conversations occurred in the trial judge's chambers with Todd, the district attorney and the trial judge present, at which time the judge was informed that a psychiatric examination was going to be requested.

On September 22, 1980, the district attorney sent Todd a copy of a proposed motion and order for psychiatric examination and asked him to sign it if he was in agreement. Todd informed the district attorney that although he would not oppose such an examination, he did not want to formally join in the motion for the reason that it might preclude any attorney who might be appointed to represent appellant in the future from obtaining further examination by a psychiatrist of his or her own choosing. When asked specifically at the hearing on appellant's motion to suppress if he was in agreement with the State's request for a psychiatric examination, Todd replied as follows:

"Both the District Attorney's staff, as well as myself, felt like there was a need for this. When you talk about in terms of an agreement, I would not consider that all of the loose ends were tied up enough to say we had an agreement; but certainly, we all felt like there was a need for a psychiatric examination."

At that time the district attorney informed Todd that he was going to go ahead and request a psychiatric examination. On September 29, 1980, pursuant to a motion by the State, the trial court signed an order for appellant to be examined by Dr. Griffith and Dr. Grigson. ² Todd received a copy of this order around 10 a.m. on September 30, 1980. He immediately called the Parker County Jail and was informed that appellant had already left for Dallas.

Appellant was examined for two hours during the evening of September 30 at the Dallas County jail by Drs. Griffith and Grigson. Griffith testified that, before the examination began, appellant's rights were read to him, including the fact that Judge Hopkins had ordered him to undergo a psychiatric examination. The appellant was told that a final report would be sent to the court outlining the doctors' findings regarding appellant's competency to stand trial and his sanity at the time of the offense. Appellant was also told that anything he said could be used against him or could be used for him at some later date in the courtroom. Thus he had a right to remain silent and a right to consult with his attorney about the examination. When the doctors asked appellant if he had any questions regarding his rights, he replied that he understood them and wished to proceed with the examination.

Appellant was indicted for the offense of capital murder on November 13, 1980. Thereafter, on November 17, 1980, Jack Strickland was appointed to defend appellant in place of Todd. On December 30, 1980, Strickland, on behalf of appellant, filed a motion for another psychiatric examination to again determine appellant's competency to stand trial. This motion was granted. On that same date, Strickland also gave written notice of his intention to present the defense of insanity at trial. ³ On January 23, 1981, Strickland filed a motion for a psychological examination of appellant again for the purpose of determining appellant's competency. The court also granted this motion. Jury selection in this case began on January 27, 1981.

In his first point of error appellant contends that the trial court violated Article 46.02, V.A.C.C.P., by ordering a psychiatric examination where no written motion requesting such an examination had been filed by appellant prior to the trial of this case. Article 46.02, supra, the statute dealing with incompetency to stand trial provides in pertinent part:

"Sec. 2. (a) The issue of the defendant's incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.

"(b) If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

"Sec. 3. (a) At any time the issue of the defendant's incompetency to stand trial is raised, the court may, on its own motion or motion by the defendant, his counsel, or the prosecuting attorney, appoint disinterested experts experienced and qualified in mental health or mental retardation to examine the defendant with regard to his competency to stand trial and to testify at any trial or hearing on this issue." (Emphasis added)?

Appellant maintains that Section 2 of Article 46.02, supra, provides that such an examination of a defendant can only occur if the defendant files a motion to determine competency before trial or if the court on its own motion determines there is evidence to support a finding of incompetency. We disagree with appellant's assertion. Our reading of the statute indicates that Section 2, supra, covers the legal determination of the issue of appellant's competency to stand trial. This may encompass hearing evidence from any source, including psychiatric or psychological examination. Section 2, however, does not govern the appointment of experts to conduct such an examination. Appointment of such experts is covered by Section 3. Clearly, any time the issue is raised by the court or any party the court may appoint experts to examine the defendant. The fact that psychiatric examinations are ordered by a court does not constitute a determination that an issue as to the defendant's competency exists. Johnson v. State, 564 S.W.2d 707, 711 (Tex.Cr.App.1978) (Opinion on Rehearing). Only when the requirements of Sec. 2 are met is the judge required "to measure the propriety of impaneling a jury to determine present competency to stand trial." Sisco v. State, 599 S.W.2d 607, 610 (Tex.Cr.App.1980). In the instant case, no request for such a determination was filed by appellant nor did the trial court apparently feel that there was evidence to support a finding of incompetency to stand trial. However, based upon the information available to the trial court prior to the examination, we find that the trial court acted properly in appointing Drs. Griffith and Grigson to examine appellant. ⁴ This point of error is overruled.

In his second point of error, appellant argues that Article 46.02, supra, was violated when the trial judge allowed the psychiatric examination of appellant to take place when no order was filed or signed by the court and no motion was entered in the papers of the court before the date of the examination. The record clearly shows that the order for the psychiatric examination was signed by the trial judge on September 29, 1980, one day before the examination occurred. The State's motion and the accompanying order were not filed in the court records however, until February 18, 1981. Article...