Hogan v. State

• Decision Date: 03 July 1973
• Docket Number: No. 46278,46278
• Citation: 496 S.W.2d 594
• Parties: W. B. HOGAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 594

496 S.W.2d 594

W. B. HOGAN, Appellant, v. The STATE of Texas, Appellee.

No. 46278.

Court of Criminal Appeals of Texas.

July 3, 1973.

Daniel H. Benson, Lubbock, for appellant.

Blair Cherry, Jr., Dist. Atty., Ronald M. Jackson, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Punishment was assessed by the jury at twenty years.

The evidence shows that Caroline Hogan, ex-wife of appellant, and the deceased went to Mrs. Hogan's home in Lubbock about 1:00 A.M., on September 25, 1971. Shortly thereafter, 'kicking, banging and hollering' were heard at the front door. Mrs. Hogan identified the voice at the front door as belonging to appellant and testified he said, 'Come here you S.O.B. I have something for you.' She told the deceased that it was appellant and urged the deceased not to go to the door. Mrs. Hogan's testimony further reflects that deceased went to the front door and, immediately after she heard him 'flip this lock,' a 'shot gun blast' came through the door and struck deceased in the chest. Dr. Richard Keffler, a pathologist, testified that deceased died from internal hemorrhage caused by shotgun pellets.

In his first contention, appellant urges that he was indigent and confined in the county jail at the time a motion for psychological examination and evaluation was filed, and that the court was in error in not appointing a qualified practicing psychiatrist.

The State points to appellant's motion in which it was alleged that appellant was probably insane at the time the offense was committed and requested a psychological examination and evaluation. Appellant's motion recommended that 'Dr. Dick Wall, a qualified practicing psychologist, be named to conduct such examination.' The court granted appellant's motion, ordered that Dr. Wall conduct the examination, and further ordered that Dr. Wall's fee be paid out of the general fund of Lubbock County.

Appellant argues that his failure to insist upon the appointment of a qualified psychiatrist, rather than a clinical psychologist, did not relieve the court of its responsibility to insure that an indigent appellant would not be put to trial without an opportunity to prepare and present an adequate defense based upon insanity at the time of the alleged offense. Appellant urges that the court's failure to appoint a practicing psychiatrist deprived him of due process of law, equal protection of the law and effective assistance of counsel, all in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States.

Dr. Wall testified that, in his opinion, appellant was in a psychotic state at the time of the shooting and did not have the ability to distinguish the difference between right and wrong.

The court charged the jury on the defense of insanity at the time of the alleged murder.

Dr. Wall's qualifications were listed as a B.A. degree in psychology, a Masters degree in general psychology, a Ph.D. degree in clinical psychology, a year of internship in a medical school, a second internship in a VA Hospital, work with the Big Spring State Hospital, consultant for South Plains Guidance Center, certification by the Texas State Psychological Board of Examiners. At the time of trial, Dr. Wall was engaged in private practice as a clinical psychologist in Lubbock.

In McCollum v. Bush, 344 F.2d 672 (5th Cir. 1965), cited by appellant, it was stated: 'It seems clear to us, Under the facts of and circumstances of this case, that in adjudicating Bush guilty and sentencing him to life imprisonment without any psychiatric testimony, the state denied Bush both a fair trial and the effective assistance of counsel.' (emphasis supplied) A footnote in McCollum v. Bush, supra, reflects that the only testimony came from a clinical psychologist whose sole examination was made during a noon recess while trial was in progress.

In Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965), also relied on by appellant, it was stated: 'In the circumstances shown, a substantial question having arisen as to the defendant's mental capacity at the time of trial, the appointment of a psychiatrist at government expense was required.' The only expert in Jacobs was a clinical psychologist, employed at the Atlanta Penitentiary, called as a witness by the government and who possessed nothing more than a routine prison examination upon which to base his opinion testimony at trial.

Appellant urges that only his inability to pay for the services of a psychiatrist prevented a proper presentation of his case. See Jacobs v. United States, supra. Appellant cites Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1961), for the proposition that in criminal proceedings discrimination between indigents and those who possess the means to protect their rights will not be tolerated. We find appellant's reliance on the foregoing authorities to be misplaced, since the court in the instant case appointed Dr. Wall, the person appellant had recommended for the examination and evaluation in his motion. It is not logical to conclude that appellant's recommendation of Dr. Wall was prompted by his financial inability to personally hire a doctor. No request was made by appellant for further examination and evaluation at the time of the appointment or through the course of the trial. Complaint was made for the first time in a motion for new trial. See Burton v. State, Tex.Cr.App., 471 S.W.2d 817.

In Watson v. State, 161 Tex.Cr.R. 5, 273 S.W.2d 879, this Court, while noting that a psychiatrist is best qualified to pass upon a question of mental illness, stated that a practicing psychologist who had considerable training and experience in analyzing motivation for human conduct should be classified as an expert. Art. 46.02, Section 2(f), Vernon's Ann.C.C.P., provides that: 'The court may, at its discretion, appoint disinterested qualified experts to examine the defendant with regard to his present competency to stand trial and to his sanity, and to testify thereto at any trial or hearing in connection to the accusation against the accused; . . .' Dr. Wall defined clinical psychology as 'the profession of diagnosing of psychological trouble through test and interview.' The education and experience of Dr. Wall would clearly appear to qualify him as an expert in the field of clinical psychology.

The extensive testimony of Dr. Wall in which he related his evaluations and opinions based on interview and test of appellant is in contrast to the cursory examinations in McCollum v. Bush, 344 F.2d 672 (5th Cir. 1965) and Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965).

Under the circumstances of this case, we conclude that the court did not err in not appointing a psychiatrist on its own motion to examine appellant.

Appellant contends that the verdict was contrary to the evidence in that a preponderance of the evidence showed that appellant was insane at the time of the offense.

The burden of proof as to insanity, absent an unvacated adjudication of insanity, is upon accused by a preponderance of the evidence. Burton v. State, Tex.Cr.App., 471 S.W.2d 817; Fuller v. State, Tex.Cr.App., 423 S.W.2d 924; Cross v. State, Tex.Cr.App., 446 S.W.2d 314; Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137.

In addition to the testimony of Dr. Wall, appellant's niece testified that appellant was so obsessed with his former wife that he could not concentrate on anything for a period of time, and when she visited appellant at the jail thirty-two to thirty-four hours after the homicide his eyes had 'a wild look,' and he could not carry on a rational conversation. Appellant's former lawyer testified that appellant was unable to talk about anything other than his exwife.

John Hildreth testified that appellant came to his home about 2:00 A.M., on September 25, 1971, and told him, 'I just shot a man.' Hildreth stated that he had never seen appellant look or act like he did on that occasion, but, when he was asked if there could have been anything wrong with appellant other than being drunk, Hildreth stated that he didn't know. Hildreth stated that he had been around appellant in the two or three weeks before the homicide, and he had not observed any change in his pesonality nor had he noted that appellant had lost his ability to concentrate.

Officer Coleman, of the Lubbock Police Department, arrested appellant about 4:00 A.M., on September 25, 1971. Coleman testified that appellant's speech was slurred, but that he appeared to know what was going on.

The range of evidence regarding appellant's conduct before and after the offense in question is wide; however, as the court stated in its charge, 'The insanity must have existed at the very time of the commission of the offense, and the mind must have been so dethroned of reason as to deprive the person accused of a knowledge of the right and wrong as to the particular act done.'

We find that the jury's rejection of appellant's plea of insanity at the time of the commission of the offense is supported by the evidence. See Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137.

Appellant next contends that the jury verdict is contrary to the law and the evidence in that the evidence is insufficient to show the death of the victim named in the indictment and further that it was not shown that the death of deceased was the result of any act of the appellant.

Caroline Hogan recognized appellant's voice at the door at the time of the shooting. The testimony of Hildreth reflects that appellant came to his house at 2:00 A.M. on the morning in question and said, 'I just shot a man.' Appellant left...