Moore v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: KELLER, J., delivered the opinion of the Court, in which McCORMICK, P.J. and PRICE, HOLLAND, WOMACK, and KEASLER, JJ., joined. MANSFIELD
• Citation: Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999)
• Decision Date: 21 April 1999
• Parties: (Tex.Crim.App. 1999) JOHNATHAN MOORE, Appellant v. THE STATE OF TEXAS NO.72638

Page 385

999 S.W.2d 385 (Tex.Crim.App. 1999)

JOHNATHAN MOORE, Appellant v. THE STATE OF TEXAS

NO.72638

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

April 21, 1999

Rehearing Denied Oct. 6, 1999.

ON DIRECT APPEAL FROM BEXAR COUNTY

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[Copyrighted Material Omitted] KELLER, J., delivered the opinion of the Court, in which McCORMICK, P.J. and PRICE, HOLLAND, WOMACK, and KEASLER, JJ., joined. MANSFIELD, J. concurred in point of error twelve and otherwise joined the opinion of the Court. MEYERS and JOHNSON, JJ. concurred in the result.

O P I N I O N

Appellant was convicted of the offense of capital murder, committed January 15, 1995. See Tex. Penal Code Ann. 19.03(a)(1) and (2).¹ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 2(g).² Direct appeal to this Court is automatic. Article 37.071 2(h). Thirty-seven points of error are advanced by the appellant on direct appeal. We will affirm.

Appellant was charged in a two paragraph indictment with committing the capital murder of Fabian Dominguez. The first paragraph alleged murder of a peace officer acting in the lawful discharge of an official duty. The second paragraph alleged murder in the course of burglary of a habitation.

Statement of Facts

On January 15, 1995, at approximately 5:00 a.m., San Antonio police officer Fabian Dominguez went off duty and began driving home in his personal vehicle. Officer Dominguez lived in San Antonio with his wife and infant twin daughters. Officer Dominguez was a few blocks from home when he noticed suspicious activity at the residence of William Braden. Based on what Officer Dominguez observed, he took action to investigate what appeared to be a burglary in progress. When he pulled into the Braden driveway, blocking in the suspects' vehicle, Paul Cameron, Pete Dowdle, and appellant were concluding their second trip to burglarize the Braden home.

In his voluntary written statement to Detective James Holguin, appellant described the sequence of events leading up to the murder of Officer Dominguez.

For some dumb reason we decided to go back to the house on Country Flower. We went in Pete's grandmother's car. . . . Pete drove. I was in the front passenger side of the car and Paul was in the backseat. Pete backed the car into the driveway. Pete stayed out in the car. We had accidently left the front door wide open the first time. Me and Paul went in through the front door. We didn't have any problem with the dog. All three of us were wearing gloves again. We had left some guns and a compound bow were left (sic) from the first time. We got those things. Me and Paul decided to split form (sic) the inside. We walked outside and we saw a car passing by. The car stopped and I saw the reverse lights come on. We all got into the car. Pete was behind the wheel. I was in the front passenger seat and Paul was in the backseat. The car pulled into the driveway and pretty much blocked us in. The police officer got out of the car and had his gun pointing at Pete. I could see that this guy was wear ing a police uniform. The officer said get out of the car now. I had my window rolled down. The officer kept repeating "get out of the car". . . . . I kept telling Pete let's split but he would not do it. By the time the officer walked up to the car and had the gun pointed at my head. (sic) The officer was on the passenger side of Pete's car. The officer told Pete to give him the car keys and Pete gave it to him. I scooted the officer's pistol away and I pulled out my gun and shot at him. I believe I shot at him three times. The officer fell to the ground. I already had my gun in my hand when the officer walked up. My gun is a .25 caliber automatic. It's plated and it's a Lorcin brand. After I shot the officer his gun fell into the front rear seat of Pete's car. I got out of the car and I got the car keys and gave them to Pete. I got the officer's gun and shot the officer three times in the head. I got back in the car and Pete split. Paul was in the backseat during the whole time. Pete didn't want to get into trouble after I shot the cop so he drove away.

Neighbors across the street heard gunfire coming from the Braden home. Upon receiving a 911 call, police and emergency personnel were immediately dispatched. Officer Dominguez was dead by the time firemen arrived on the scene. The coroner later determined that Officer Dominguez died from multiple gunshot wounds to the head. Ballistics established that the wounds were inflicted by one shot from appellant's .25 caliber handgun, and three shots from Officer Dominguez's .40 caliber service weapon.

After leaving the scene of the crime, appellant, Cameron, Dowdle, and appellant's girlfriend, Meredith Nichols, traveled to a plot of land near Pipe Creek, Texas, where they disposed of both murder weapons and the items stolen from the Braden residence.

The following day appellant was developed as a suspect in the burglary. He was subsequently located and seen driving a vehicle that belonged to Nichols. Nichols was a passenger in the vehicle. While under police surveillance, appellant committed numerous traffic violations. When police officers signaled him to pull to the side of the road, a high speed chase ensued. Twenty miles later, appellant and Nichols were captured after appellant careened to the side of the road. After a brief struggle, San Antonio police officers arrested appellant and took him into custody. In his voluntary statement to Detective Holguin appellant explained his flight from authorities, stating, "I figured pretty much that the cops knew that I was the one that shot the cop."

I. Competency

In his first three points of error appellant claims the trial court erred in failing to empanel a jury to determine his competency to stand trial.

Article 46.02, 1 of the Texas Code of Criminal Procedure provides:

(a) A person is incompetent to stand trial if he does not have:

(1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or

(2) a rational as well as factual understanding of the proceedings against him.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

If the court determines that there is evidence to support a finding of incompetency to stand trial, a jury is to be impaneled to determine the defendant's competency to stand trial. This determination shall be made by a jury that has not been selected to determine the guilt or innocence of the defendant. Article 46.02.

In determining whether evidence requires empaneling a separate jury to conduct a competency hearing, the trial court is to consider only the evidence tending to show incompetency, and not evidence showing competency, in order to find whether there is some evidence, a quantity more than none or a scintilla, that rationally could lead to a determination of incompetency. Sisco v. State, 599 S.W.2d 607 (Tex.Crim.App.1980). The same standard is applied whether the issue of competency is presented pre-trial or during trial. Williams v. State, 663 S.W.2d 832 (Tex.Crim.App.1984). A competency hearing is not required unless the evidence is sufficient to create a bona fide doubt in the mind of the judge whether the defendant meets the test of legal competence. Ex Parte Thomas, 906 S.W.2d 22, 25 (1995), cert. denied, 116 S.Ct. 2556, 135 L.Ed. 2d 1074 (1996); Mata v. State, 632 S.W.2d 355, 357 (Tex.Crim.App. 1982). On appeal the standard of review is whether the trial court abused its discretion by failing to empanel a jury for the purpose of conducting a competency hearing. Garcia v. State, 595 S.W.2d 538 (Tex.Crim.App.1980).

In the case at bar, the issue of competency was first raised during a pretrial hearing on a motion to suppress evidence. During an ex parte hearing before the trial judge in May of 1996, defense counsel requested that proceedings be halted until a psychiatrist examined appellant. The trial court declined to halt proceedings but agreed to appoint Dr. Michael Arambula to evaluate appellant's competency and to report his findings. Four months later the trial court proceeded to voir dire. During the interim between the pre-trial ex parte hearing and voir dire, Dr. Arambula's report was not submitted to the court, nor was Dr. Arambula called to provide pretrial testimony as to the appellant's competency to stand trial.³ At voir dire, the defense announced its intent to present an insanity defense. The State responded by requesting that the court appoint Dr. John Sparks to evaluate appellant for the purpose of determining competency and sanity. After conducting an examination, Dr. Sparks came to theconclusion that the appellant was both sane at the time of the killing and competent to stand trial.

On appeal, it is asserted that (1) appellant's comments and outbursts, (2) mental health history, and (3) decision to represent himself during portions of the trial constituted evidence warranting a competency hearing.

A. Comments and Outbursts by the Appellant

During the pretrial hearing, defense counsel relayed their difficulty in communicating with appellant. The record reveals that defense counsel stated:

"Just so that there is an adequate record for the Court's information, it's not just the blurting out in court. It's that I'm sure the Court has observed after each one of those instances counsel, both counsel, trying to discuss the matter with the client. And although I can't go into the exchange that takes place, I can do and do, as an officer of this court, tell you that that (sic) I'm talking in apples and the responses are in oranges. . . . . [I]n my opinion as a layman, he does...