Parker v. State, No. 58329

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: ONION
• Citation: 594 S.W.2d 419
• Parties: James Ray PARKER, Appellant, v. The STATE of Texas, Appellee
• Decision Date: 23 January 1980
• Docket Number: No. 58329,No. 1

Page 419

594 S.W.2d 419 James Ray PARKER, Appellant,
v.
The STATE of Texas, Appellee. No. 58329. Court of Criminal Appeals of Texas, Panel No. 1. Jan. 23, 1980.
Rehearing Denied March 12, 1980.

Page 420

Michael E. Grimes, Round Rock, for appellant.

Edward J. Walsh, Dist. Atty., Georgetown, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.

Page 421

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for burglary of a habitation with intent to commit rape. Punishment was enhanced under V.T.C.A., Penal Code, § 12.42(c), and assessed by the jury at ninety-nine (99) years.

In his first four grounds of error, appellant alleges reversible error was committed by the trial court in refusing to suppress the testimony before the jury of Dr. John Holbrook, a psychiatrist who testified for the State. By two other grounds of error, appellant complains of the trial court's failure to include his special requested instructions in the court's charge to the jury, and alleges reversible error in the court's charge as presented to the jury.

The record in this cause shows that during the early morning hours of September 5, 1976, a person admitted to be appellant unlawfully entered the prosecutrix' apartment and attempted to rape her. Appellant was arrested within minutes thereafter. No error is alleged regarding the sufficiency of the evidence.

On January 12, 1977, appellant's court-appointed counsel filed a "Motion for Complete Medical Examination," which included a request for psychiatric evaluation, directed toward helping to determine both competency to stand trial and sanity at the time of the alleged offense. This was followed by a motion for a hearing on competency to stand trial, filed January 26, 1977. Also on January 26, the State filed a "Motion Requesting Appointment of Psychiatrist." In response to these motions, and by agreement between the State and appellant, the trial court on February 7, 1977 appointed Dr. Richard Coons to make a psychiatric evaluation of appellant, both as to competency and sanity.

Dr. Coons examined appellant on February 7, 1977, the same day he was appointed. On February 10, 1977, appellant's counsel filed a "Notice of Intention to Raise Insanity Defense." On March 11, 1977, Dr. Coons filed with the trial court his report of examination, dated February 28, 1977. He stated therein his opinion that appellant had been legally insane at the time of the alleged offense.

On March 7, 1977, at the request of the State and without court order, appellant was examined by Dr. John Holbrook, a Dallas psychiatrist, and was found by Dr. Holbrook not to have been insane at the time of the alleged crime. It is this examination upon which appellant bases his major grounds of error.

Appellant first contends that reversible error was committed by the trial court in allowing Dr. Holbrook to testify regarding his examination of appellant and conclusions reached regarding the appellant's sanity at the time of the alleged offense. Appellant states that Article 46.03, V.A.C.C.P., provides the exclusive means by which a psychiatrist can gain access to a criminal defendant in custody, and that any potential testimony derived through non-compliance with that statute must be excluded.

Beginning in 1965, the Legislature provided a comprehensive statutory scheme for disposition of questions of both mental competency of a criminal defendant to stand trial and sanity at the time of the alleged offense. Initially, both issues were dealt with in one statute, Article 46.02, V.A.C.C.P. However, in 1975, the Legislature saw fit to split former Article 46.02, V.A.C.C.P., into Articles 46.02 and 46.03, V.A.C.C.P., addressing, respectively, a defendant's competency to stand trial and insanity at the time of commission of the offense. ¹ Due to this common derivation, cases interpreting the pre-1975 Article 46.02 are instructive in resolving the issue now before us.

In Patterson v. State, 509 S.W.2d 857 (Tex.Cr.App.1974), complaint was made of the testimony of a psychiatrist who was called by the State to rebut the defense expert's testimony that the particular crime in question would be out of character for appellant's type of personality. The State's expert had conducted a pre-trial examination of appellant at the State's request and

Page 422

without court appointment, as in the instant case. He was permitted to testify, in rebuttal to the above-stated defense testimony, that the appellant had a sociopathic personality, was extremely hostile toward women, and was prone to commit exactly the type of crime for which he was charged. We held such testimony to be proper rebuttal evidence, although the psychiatrist in question had not been appointed by the trial court. We stated that the predecessor of Article 46.03 then in effect "should not be interpreted as an exclusive procedure." 509 S.W.2d at 862.

In Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976), there was a challenge to the admissibility of the testimony of Dr. James Grigson regarding his psychiatric evaluation of appellant Gholson. Although Dr. Grigson had been appointed by the court solely to determine appellant Gholson's competency to stand trial, he was permitted to testify at the punishment stage of the trial regarding the "dangerousness" of appellant Gholson under Article 37.071(b) (2), V.A.C.C.P. We held that, although the testimony encompassed matters beyond the scope of the original appointment, it was not rendered inadmissible for non-compliance with the then-applicable statute.

We do not read Stultz v. State, 500 S.W.2d 853 (Tex.Cr.App.1973), and Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1977), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977), as mandating the position sought by appellant. In Stultz, appellant challenged the psychiatric testimony of expert witnesses because the examinations had taken place without the presence of appellant's counsel. Granviel raised a slightly different issue, appellant therein contending that the same Dr. Holbrook whose testimony is...