Newton v. State, 48196

• Decision Date: 22 May 1974
• Docket Number: No. 48196,48196
• Citation: 509 S.W.2d 610
• Parties: Dewey Carl NEWTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 610

509 S.W.2d 610

Dewey Carl NEWTON, Appellant, v. The STATE of Texas, Appellee.

No. 48196.

Court of Criminal Appeals of Texas.

May 22, 1974.

Britt Thurman, Abilene, for appellant.

Ed Paynter, Dist. Atty. & Billy John Edwards, Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted of felony theft; punishment, enhanced under Article 63, Vernon's Ann.P.C., is life.

In his first four grounds of error appellant raises various contentions concerning a sanity hearing held June 20, 1973, challenging the sufficiency of the evidence therein on the issue of guilt, challenging the charge on insanity at the time of the offense, and contending the sanity hearing constituted prior jeopardy barring his subsequent trial on the merits. Before discussing these contentions we will outline the order of proceedings in this unusual case.

On May 8, 1973, appellant filed his 'Motion for Sanity Examination,' alleging (1) present insanity 'under the legal definition of Insanity,' (2) insanity at the time of the alleged offense, and (3) inability to assist counsel in preparing a defense; and requesting that a competent psychiatrist be appointed by the court to examine him. This is not a demand for trial of the issue of present insanity in advance of trial on the merits as contemplated by Article 46.02, Sec. 1, Vernon's Ann.C.C.P., but rather, appears to be a motion that the court exercise its discretion under Article 46.02, Sec. 2(f)(1), supra.

By order entered May 8, 1973, the court acted upon appellant's motion, ordering that appellant be delivered to the Big Spring State Hospital for examination to determine his sanity at the time of the alleged offense and at the time of the examination, and if he be found insane at either such time, to determine whether hospitalization be then required. It was further ordered:

'At the completion of such examination the psychiatrist or psychiatrists who conducted same shall make a written report of their findings to this Court.'

No such written report appears in the record before us and in fact no further instruments of any kind after May 8 appear until the instruments relating to the sanity hearing conducted June 20, 1973.

The first docket entry following the notation of the May 8, 1973, order for a mental examination, is that of June 20, 1973, noting:

'Hearing on insanity motion both as to present sanity and to sanity at time of offense. Jury selected, testimony heard, and charge prepared. Arguments had and Jury retired to consider its verdict. Jury returned its verdict finding the defendant sane at the time of the commission and at the present time.'

The record also contains jury lists for the June 20 hearing, the court's charge, appellant's objections thereto, and the verdict. Also contained is the question and answer statement of facts of testimony presented at the hearing, which reflects that the jury was sworn following which the indictment was read and appellant's plea of not guilty by reason of insanity was received.

The authority under which the June 20 hearing was held is not clear from the record. No order stating that the hearing was being held upon appellant's motion pursuant to Article 46.02, Sec. 1, supra, or upon motion under Article 46.02, Sec. 2, is to be found in the record. Neither is there any order in the record, nor any facts, such as would suggest a sua sponte finding that the issue of appellant's competency to stand trial had arisen in the mind of the court. Cf. Carpenter v. State, Tex.Cr.App., 507 S.W.2d 794 (1974); Noble v. State, Tex.Cr.App., 505 S.W.2d 543; Perryman v. State, Tex.Cr.App., 494 S.W.2d 542. The docket entry, however, states the hearing was held 'on insanity motion' suggesting that the court was proceeding upon appellant's May 8 motion for appointment of a psychiatrist as though it were a motion under Article 46.02, Sec. 1, for a pretrial sanity hearing. The conclusion that said motion was the basis for conducting the June 20 hearing is further supported by the fact that appellant read the May 8 motion to the jury at the outset of the hearing as his pleading.

Turning now to appellant's first three grounds of error, no appeal lies from a preliminary trial on the issue of insanity regarding procedural matters. E.g., Taylor v. State, Tex.Cr.App., 420 S.W.2d 601; Bush v. State, 172 Tex.Cr.R. 54, 353 S.2d 855. On the other hand, appellant's claim of double jeopardy raises a matter of constitutional magnitude and may be considered by this court. See, e.g., Carpenter; Noble; Perryman, all supra, wherein constitutional issues concerning pre-trial sanity proceedings were considered by this court.

In his fourth ground of error, appellant contends that jeopardy attached at the June 20 hearing, and that therefore the trial on June 25 constituted an unconstitutional placing of him twice in jeopardy for the same offense.

This Court has held:

'A person is in legal jeopardy when he is put upon trial in a court of competent jurisdiction upon a pleading sufficient in form and substance to sustain a conviction, when a jury has been charged with his deliverance and when the indictment or information has been read to the jury, and the plea of the accused heard.' Rameriz v. State, 171 Tex.Cr.R. 507, 352 S.W.2d 131.

In State v. Olsen, Tex., 360 S.W.2d 398, the Supreme Court of Texas, in a proceeding brought for writ of mandamus to compel the judge of the 109th District Court to vacate a judgment and proceed to trial in a criminal cause wherein a previous judgment of insane at the commission of the offense had been entered upon a jury's verdict received in a pre-trial hearing on the question of insanity at the time of the offense, stated:

'The District Court of the 109th Judicial District undoubtedly had jurisdiction of the case of the State of Texas vs. John Mack Herring pending on its criminal docket. It also had potential jurisdiction under Article 932b to try, in a preliminary trial, the issue of the defendant's insanity at the time of the commission of the offense charged in the indictment. But jurisdiction thus conceded does not foreclose the question before us. Jurisdiction of a court must be legally invoked; and when not legally invoked, the power to act is as absent as if it did not exist.'

After discussion of the statute and prior decisions, that court concluded:

'We hold that jurisdiction of a court to try issues of insanity before a trial of the main charge can be invoked by or on behalf of a defendant only by a motion or request for a trial of the issue of present insanity. It follows that jurisdiction of the 109th District Court to order and hold a preliminary trial on the issues of insanity in State of Texas vs. John Mack Herring was never legally invoked and that the judgment rendered by it is therefore void.' 360 S.W.2d, at 402.

At the time of that decision, Article 932b, V.A.C.C.P., now Article 46.02, V.A.C.C.P., provided in part:

'In any case where the question of the insanity of a defendant is raised and that issue is tried alone before...