Hill v. State

• Decision Date: 12 June 1968
• Docket Number: No. 41310,41310
• Citation: 429 S.W.2d 481
• Parties: Jackie Carver HILL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 481

429 S.W.2d 481

Jackie Carver HILL, Appellant, v. The STATE of Texas, Appellee.

No. 41310.

Court of Criminal Appeals of Texas.

June 12, 1968.

Rehearing Denied July 24, 1968.

James E. (Bud) Jones, Dallas, for appellant.

Henry Wade, Dist. Atty., Douglas Mulder, Malcolm Dade, Kerry P. FitzGerald and Camille Elliott, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is felony theft; the punishment, enhanced under the provisions of Article 63, Vernon's Ann.P.C., life.

At the outset appellant contends the trial court erred in its refusal to grant his written 'Motion for Continuance and for a Mental Examination' filed the day the trial began.

The motion alleged that appellant was too poor to employ a doctor and requested that the court appoint one for the purpose of the mental examination. The basis of the motion was that a subsequent indictment had enhanced the probability of the appellant's insanity and that the appellant's 'youth and the number of offenses he has committed raised the question of insanity.'

The motion was not sworn to as required by Article 29.08, Vernon's Ann.C.C.P., and the court did not err in overruling it as a motion for continuance.

Though appellant alleged that he was unable to employ a doctor, it does not appear that at that time he was represented by a court appointed counsel or that the court had determined he was indigent.

No evidence appears to have been adduced in support of such motion, no request for a separate sanity hearing was made, and there is no showing that appellant had a history of mental disorder, had ever been adjudicated insane, nor was there any other evidence which indicates that this appellant should have alleged a defense of insanity. No claim was advanced that without the examination appellant would be unable to adequately prepare his defense or that he was mentally incompetent to stand trial.

In Hawks v. Peyton, 370 F.2d 123 (4th Cir., 1966), the Court made clear that 'a simple suggestion of mental deficiency is not enough to require deferment of the trial' for an examination.

In Tyler v. Beto, 391 F.2d 993 (5th Cir., March 8, 1968), the Court said:

'It has been widely recognized that Pate v. Robinson (383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815) does not create an absolute right to a psychiatric examination, Greer v. Beto (5 Cir., 379 F.2d 923), supra; Wilson v. Bailey, 4 Cir., 1967, 375 F.2d 663; Powell v. United States, 125 U.S.App.D.C. 364, 373 F.2d 225. The real issue to be resolved in cases such as this is whether the evidence presented to the trial judge is sufficient to raise a 'bonafide doubt' as to the defendant's competence to stand trial, Pate v. Robinson, supra. In other words, there must be some indication to the trial judge that competency to stand trial is a Substantial issue before a referral of the defendant to a psychiatric examination is required.

'The minimum showing required for an examination must turn on the issue raised and facts presented.'

We are not unmindful of the holdings of Bush v. McCollum, 231 F.Supp. 560 (N.D.Tex.1964) affirmed 344 F.2d 672 (5th--1965), Hintz v. Beto, 5th Cir., 1967, 379 F.2d 937, and Greer v. Beto, 5th Cir., 1967, 379 F.2d 923, to the effect that the refusal of the State Court to appoint a psychiatrist and to conduct a psychiatric examination pursuant to a motion by an indigent defendant therefor is a denial of due process and the effective assistance of counsel. We distinguish those cases as they were distinguished in Tyler v. Beto, supra. In each of those cases there was a showing that the indigent accused had been previously adjudged insane which adjudication had never been set aside, or had been committed as a mentally ill person, or had a long history of mental illness.

Under the circumstances presented, the trial court did not err in overruling the motion for a mental examination. Tyler v. Beto, supra. Ground of error #1 is overruled.

It is interesting to observe that since the time of appellant's trial Article 46.02, V.A.C.C.P., has been amended ¹ to permit the trial court At its discretion to appoint disinterested qualified experts to make mental examinations of the defendant.

In his second ground of error appellant challenges the sufficiency of the evidence to support the verdict, contending that the written confession of the appellant was not sufficiently corroborated. We reject such contention.

Isham P. Nelson testified that he parked his 1964 blue Chrysler of the approximate value of $1500 in a parking lot in downtown Dallas about 2:30 p.m. on February 24, 1967. When he returned to the lot at 9:30 p.m. that night the car was missing and he reported the theft to the police immediately. He related that he did not give the appellant, whom he did not know, nor anyone else permission or consent to take his automobile.

The following morning a police officer discovered appellant in possession of the 1964 Chrysler at a service station in the City of Dallas where he was attempting to sell a television set. The automobile contained at the time a television stand and a record player. The record does not show that appellant made any explanation at the time of his arrest as to his possession of the Chrysler.

The State offered into evidence appellant's written confession that he alone had stolen the automobile from the parking lot in question.

While not testifying in his own behalf, appellant called one Walter Burleson who related that he, and not the appellant, had stolen the Nelson vehicle, and he had permitted the appellant to drive the car the next morning and had instructed that appellant to sell the items found in the car which he (Burleson) had stolen in several burglaries. ²

Evidence showing the commission of the offense and appellant's unexplained possession of the recently stolen motor vehicle was sufficient to corroborate appellant's confession, and together they clearly support the jury's verdict. Ground of error #2 is overruled.

In his third ground of error appellant contends that his confession was inadmissible as it was elicited from him while he was attempting to acquire counsel and such action violates his federal and state constitutional right to counsel.

Shortly after appellant's arrest on February 25, 1967, he was brought before a magistrate who properly warned him. Two days later prior to his interrogation and subsequent confession he was again warned by Police Officer Thomas D. McMillion. These warnings appear to be in full compliance with the provisions of Articles 15.17 and 38.22, V.A.C.C.P., in effect at the time of the arrest and trial, as well as the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We do not understand appellant to contend otherwise. After appellant was warned by the magistrate as to his right to retained or appointed counsel, he declined an attorney and stated to the magistrate 'he didn't need one.' Nevertheless, he contends that subsequent thereto and prior to the confession he informed Officer McMillion, who had permitted him to make a number of telephone calls, that he was attempting, through his girlfriend, to secure a lawyer. The fact that he had informed McMillion was established by cross-examination of the officer as appellant did not testify or offer any evidence at the separate hearing on the admissibility of the confession conducted in the absence of the jury. McMillion testified he interpreted the effort as one to secure a bond. It is not clear from the record just when McMillion was so informed, though it was not the day the confession was taken (February 27).

It does not clearly appear that appellant was being interrogated at the time he informed McMillion of his effort to secure a lawyer, nor did he state that he did not desire to talk further or have counsel present before further interrogation. Be that as it may, there is no showing that any interrogation designed to elicit incriminating statements followed appellant's announcement.

The record does not reveal who initiated the conversation on February 27, at approximately 10:30 a.m., but it does show that appellant told Officer McMillion 'Man, you all really got me on it anyhow, I might at well just tell you all about it and get this stuff all straightened up.' The statement appears to be entirely unsolicited.

Thereafter he was orally given the Miranda warnings and he then orally waived his right to counsel. Prior to signing the statement it was read to him by McMillion, then the appellant read the statement, and signed it at 11:12 a.m. in the presence of a non-police witness.

The confession reads as follows:

'VOLUNTARY STATEMENT

'DATE 27 February, 1967. TIME 11:00 A.M. PLACE Room 313, 106 S. Harwood, Dallas, Texas. I, Jackie Carver Hill, am 23 years old and I live at 3723 Nomas. On the 25th day of February, 1967, at 11:10 A.M. I was taken before H. C. Dimon, a magistrate, at Corporation Court #5, City of Dallas, Texas, who informed me that I was accused of the crime of Theft Over $50.00 (Auto), and of the affidavit, if any, filed in support of such accusation, and of my right to an examining trial. I was further told by this magistrate of my right to obtain a lawyer, and of my right to request the appointment of a lawyer if I were unable to hire one. The same magistrate also told me that I was not required to make any statement, and that any statement I make may be used against me.

'The person to whom I give this statement, Detective Thomas D. McMillion, who has identified himself as City Detective, Dallas Police Department, Dallas, Texas, also warned me that I did not have to make any statement at all and that any statement I make could be used against me on the trial or trials for the offense or offenses concerning which this statement is herein made, and of my right to the advice of a lawyer before making any statement.

'Nobody has mistreated, threatened...