Hawkins v. State

• Decision Date: 14 January 1981
• Docket Number: No. 62534,62534
• Citation: 613 S.W.2d 720
• Parties: Samuel HAWKINS, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 720

613 S.W.2d 720

Samuel HAWKINS, v. The STATE of Texas, Appellee.

No. 62534.

Court of Criminal Appeals of Texas, En Banc.

Jan. 14, 1981.

Appellant's Amicus Curiae Rehearing Denied Feb. 4, 1981.

Samuel Hawkins, pro se.

Selden Hale, Amarillo, court appointed, for appellant.

Thomas Curtis, Dist. Atty., John Byron Reese, Asst. Dist. Atty., Amarillo, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

CLINTON, Judge.

Our opinion on original submission is withdrawn. In it, responsive to contentions made in an amicus curiae brief, the Court reversed the judgment of conviction and remanded the cause for a new trial on the twin conclusions that neither the standard for waiver of counsel nor the standard for self-representation were satisfied in the trial court. This the Court was authorized to do in the interest of justice by Article 40.09, § 13, V.A.C.C.P.

The opinion and judgment of the Court have at once received support and have come under heavy attack, according to the lights of respective interested parties. But none is more vehement than appellant, who is undertaking to represent himself on this appeal. ¹ In his "motion and answer" to the State's motion for rehearing, appellant expressly agrees that rehearing should be granted and insists that the Court "reverse its decision and rehear this case in full compliance with Article 40.09 C.C.P. and rule on the pro se brief" on the merits of his appeal. ² Indeed, in another response appellant asserts that by not considering the grounds of error in his pro se brief according to Article 37.071, ³ V.A.C.C.P., we are denying him due process of law.

The Court is thus confronted with a demand that rehearing be granted by an appellant whose exercise of self-representation beginning in September 1978 has been seriously questioned. However, those questions and the conclusions reached on original submission are based on a record of proceedings that were held more than two years ago. We judicially know that on or about October 1, 1980, after the opinion in this case on original submission, this Court granted a motion of appellant for leave to proceed pro se in our Cause No. 65,000 ⁴ after a hearing in the trial court, ordered by the Court for that purpose, established conclusively that appellant is well advised as to his right to counsel and the dangers and disadvantages of self-representation, and knowingly and intelligently waived the right and insisted on risking the potential detriment of representing himself. ⁵ So, applying the rationale of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), as was done in Webb v. State, 533 S.W.2d 780, 784 (Tex.Cr.App.1976), we are satisfied that before this Court appellant has effectively asserted his right to self-representation on appeal in this cause.

What is presented, then, are a State's motion for rehearing asserting that the findings and conclusions of the Court are erroneous and an appellant's motion and answer in propria persona that, in effect, concedes the errors asserted by the State. A confession of error by the State, though uncommon, is ordinarily accepted, e. g., Miller v. State, 460 S.W.2d 427 (Tex.Cr.App.1970); Arsiaga v. State, 372 S.W.2d 538 (Tex.Cr.App.1963); Crain v. State, 253 S.W.2d 867 (Tex.Cr.App.1953); Ramiriz v. State, 155 Tex.Cr.R. 206, 233 S.W.2d 307 (1950); Anderson v. State, 154 Tex.Cr.R. 372, 227 S.W.2d 815 (1950), and there would appear to be no impediment to an appellant's doing the same, if so advised. Certainly, an appellant may deliberately waive possible grounds of error simply by not asserting them in his appellate brief, cf. Article 40.09, § 9, ⁶ or by failing to brief one that is assigned, e. g., Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974). It occurs to us that an appellant may still agree with the State that a certain issue is, or is not, in the case, Downes v. State, 22 Tex.App. 393, 3 S.W. 242, 243 ⁷ (1886), and do so effectively by asserting his agreement in a pro se pleading.

Accordingly the State's motion for rehearing is granted, and we shall now address such of appellant's seventeen grounds of error as may be required. ⁸ In a cluster are grounds raising questions about the soundness and reliability of certain psychiatric testimony, but the one that concerns us most is his ground of error number nine. It reads: "Court erred when overruling Appellant's objection to the State witness Dr. Grigson." This broad assertion must be put in perspective.

The offense in the case at bar is alleged to have occurred February 3, 1976. Appellant was arrested the morning of June 30, 1977, and held without bail. ⁹ Indictment was returned July 28, 1977. ¹⁰ August 8, 1977, on motion of appellant through court-appointed attorney, the trial court ordered Dr. Hugh A. Pennal, an Amarillo psychiatrist, "to determine the mental competency" of appellant to stand trial. Reports from Dr. Pennal to the trial court are dated December 29, 1977, ¹¹ January 31, 1978 ¹² and February 8, 1978. ¹³ In June 1978 appellant filed a pro se motion for hearing on his competency to stand trial, and on October 3 gave written notice that the issue of insanity at the time of the offense may be raised in the case. At a pretrial hearing October 12, 1978 appellant announced his waiver of proceeding on the competency motion but the cautious trial court permitted the prosecutor to develop testimony from Dr. Pennal that in his opinion appellant was completely competent to stand trial. At the conclusion of the hearing the trial court ruled that "there is no evidence to support a finding of incompetency," and followed that oral pronouncement with a written order dated October 17, 1978, denying a jury determination of the matter. Thus, more than a month before the trial began that present competency was not an issue in the case was clearly ruled and understood. ¹⁴

As made clear in the opinion on original submission, the matter of appellant representing himself came up several times before a patient trial judge, and finally that right was accorded to him, to be exercised with or without assistance of a court-appointed "standby" attorney as appellant desired. November 27, 1978 the case was called for trial, ¹⁵ and after it had been assembled the trial court propounded to the panel of prospective jurors what was characterized as "certain principles of law applicable to this case." Inter alia, the trial court alluded to the fact that appellant was representing himself, outlined the law in that respect, mentioned admonishments given appellant and concluded by instructing the panel:

"You will not consider the Defendant's having elected to act as his own trial Counsel as any evidence for or against the Defendant or the State in this trial." ¹⁶

Each juror who was ultimately selected was thoroughly qualified by the prosecuting attorney on the matter of appellant representing himself. ¹⁷ Appellant often followed up with one or two questions on the point. ¹⁸

Before the State commenced to present its case, then, two ground rules for conduct of the trial were explicit: one, present competency of appellant was not at issue and, two, the fact that appellant was representing himself was not a matter for jury consideration.

The State called its first witness December 4, 1978. He and the others presented by the State during its case in chief testified to certain facts surrounding the offense as well as the subsequent arrest of and statement by appellant concerning it, the final witness being a pathologist who gave his opinion as to the cause of death of the victim.

In presenting his defense, appellant testified ¹⁹ and then ²⁰ called Richard Lee Wall, PhD, a Clinical Psychologist, who had interviewed and tested him January 16 and 17, 1978. His initial diagnosis was paranoia, but about three weeks later, after assaying other information, Dr. Wall changed it from paranoia to the less severe "paranoid condition." ²¹ At the end of Dr. Wall's testimony appellant rested his case.

Dr. Grigson was called by the State as its first rebuttal witness. ²² Ground of error number nine, though inartfully drawn, is clarified by a paraphrase of portions of the record that are specifically cited, viz :

"Q: Would you tell the Jury your impression of that document which was delivered to a clinical psychologist named Dr. Wall in connection with his examination of the Defendant?

A: Yes. This is if you read it, you find that this is an absolute manipulation on Mr. Hawkins' part, to say, 'See, I must be sick, something is wrong with me.'

Now, what he is doing, as most sociopaths will do, they will make minor concessions such as he doesn't mind telling you about his horrible sexual drive and all of the terrible things which he has done, but what he hopes to gain from this is a major concession.

The con job is, 'You have got to see how crazy I am and how sick I am. You can't consider finding me guilty because of what I am.'

But this is simply manipulation on his part.

MR. HAWKINS: Judge, I object to Dr. Grigson's opinion because he only saw that for a few minutes ago (sic).

And as I shared with the Court earlier, I had a subpoena form to back up everything that is in there, and the State and the Court were the ones that refused the subpoena form which I have here to prove these situations.

So Dr. Grigson doesn't have the authority to say this isn't true.

THE COURT: I will overrule your objection.

You can proceed.

Q: (By Mr. Curtis) Doctor, as you observed the Defendant just at that time, was he displaying some evidence of anxiety as he stood up and made that objection?

A: Well, he, one, is trying to get attention and play like an attorney. This feeds his ego.

MR. HAWKINS: Judge, I still object to Dr. Grigson's opinion as to what feeds my ego. He should deal with the examination on this case, Judge, with...