Noble v. State
Decision Date | 20 February 1974 |
Docket Number | No. 47219,47219 |
Citation | 505 S.W.2d 543 |
Parties | Jessie Lee NOBLE, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Don R. Stodghill, Leon A. Smith, Rockwall, for appellant.
W. I. Lofland, County Atty., Rockwall, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
This appeal is taken from a conviction for robbery by assault with a deadly weapon. The punishment was assessed by the jury at forty (40) years' confinement in the Texas Department of Corrections.
Appellant's first conviction for this offense was reversed by this court because of the admission in evidence of items obtained as a result of a statement given without the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Article 15.17, Vernon's Ann.C.C.P. See Noble v. State, 478 S.W.2d 83 (Tex.Cr.App.1972). That error was avoid at appellant's second trial.
We are confronted at the outset with the procedure used in passing upon the competency to stand trial utilized in the instant case.
Following the reversal of the first conviction and prior to the second trial, appellant's counsel filed a motion for a psychiatric examination of the appellant on August 2, 1972. Said motion was granted and on August 4, 1972, Dr. H. F. Tauber's letter to the trial court concerning his examination of the appellant was filed among the papers of the cause. The essence of the letter is as follows:
On August 7, 1972, appellant's counsel filed a motion entitled 'Motion To Try Defendant's Present Sanity on Main Trial.' Said motion alleged the appellant was 'of unsound mind at this time' and 'at the time of the alleged commission of the offense' and prayed the court 'hear evidence as to the present and past insanity of the Defendant and declare a mistrial because of such present insanity.'
It is not reflected whether such motion was ever called to the trial court's attention.
At the trial the appellant called Dr. Tauber as a witness, who related that the appellant was suffering from schizophrenia, paranoid type of a serious nature and that he had been suffering from this illness for 'a number of years.'
At this point in the doctor's testimony the appellant made an 'outburst' 1 in the presence of the jury. Thereupon, the jury was removed and a motion for mistrial was made. In connection therewith, the doctor was interrogated and related that appellant's condition would make it 'hard to defend him and hard for him to assist.' He further testified, 'Hypothetically, I could state if he continues outbursts like this during the rest of the trial, I would have to state that he would be unable to assist his own defense.'
In other testimony the doctor related the appellant knew the difference between right and wrong and that the outburst may have been calculated to benefit him.
In response to the court's question the doctor testified:
'I sincerely believe that he's capable of defending himself.'
The motion for mistrial was overruled and the jury returned. The doctor then testified as follows:
Thereafter, the court, apparently considering the issue of present competency to stand trial was raised, submitted that issue to the jury on the trial on the merits with the conditional submission of guilt or innocence.
In view of the fact situation before us, what this court recently wrote in Perryman v. State, 494 S.W.2d 542 (Tex.Cr.App.1973), is clearly applicable. There we said:
'In Townsend v. State, Tex.Cr.App., 427 S.W.2d 55, this court approved the language of Van Dusen v. State, 197 Kan. 718, 421 P.2d 197, wherein that court stated:
"It is the trial court in whose mind a real doubt of sanity or mental capacity to properly defend must be created before that court is required to order an inquiry solely on its own initiative . . .'
'That the conviction of an accused person while he is legally incompetent violates due process, 1 and that state procedures
cedures must be adequate to protect this right is settled. 2 And as was observed
in Townsend v. State, supra, the Supreme Court:
'Recently, in Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517 (1973), we discussed what is necessary to bring into play the due process requirement of a separate hearing:
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