Price v. State

• Decision Date: 07 March 1973
• Docket Number: No. 45817,45817
• Citation: 496 S.W.2d 103
• Parties: Eddie Dean PRICE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 103

496 S.W.2d 103

Eddie Dean PRICE, Appellant, v. The STATE of Texas, Appellee.

No. 45817.

Court of Criminal Appeals of Texas.

March 7, 1973.

Rehearing Denied July 3, 1973.

Kent Wagonseller and Jim R. Wright, Lubbock, for appellant.

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

OPINION

GREEN, Commissioner.

Appellant was convicted by a jury of rape. No jury being requested for the penalty stage, the court fixed the punishment at life.

The sufficiency of the evidence is not challenged. Suffice it is to say that prosecutrix testified of a most brutal attack on her by appellant in her office about 7:00 P.M. on April 30, 1970, while she was working late. While appellant was choking her with a piece of black electrical cord, striking and threatening to kill her if she continued to resist, she passed out, and the first thing she remembered after that was being in the hospital and receiving medical care. As a result of the attack, prosecutrix was confined in a hospital for five days.

A written statement, in which appellant admitted having intercourse with prosecutrix on the occasion in question and striking her three or four times (after the act of intercourse) was admitted in evidence. Other evidence pertinent to appellant's grounds of error will be discussed in connection with the individual grounds.

Appellant's fourth ground of error is that 'defendant's confession was inadmissible since there was no knowing, intelligent and voluntary waiver of his 'rights."

Appellant was arrested within an hour after the rape is alleged to have occurred. He was taken to the police station and questioned by officers. After about 45 minutes of conversation, the appellant made a written confession.

Appellant does not dispute that he was properly warned of his rights in the taking of his confession, as required by Art. 38.22, Vernon's Ann.C.C.P. His contention under this ground of error is that because of his alleged mental deficiency, he did not knowingly and intelligently waive those rights.

'Of course, if the mental subnormality is so great that an accused is incapable of understanding the meaning and effect of his confession, then it would not be admissible. Grayson v. State, 40 Tex.Cr.R. 573, 51 S.W. 246.' Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.).

A hearing on appellant's motion to suppress the statement was had prior to the trial. Public school records were introduced which showed, according to school officials, that appellant, who reached the seventh grade, was below approximately 94 to 87 percent of his peers as measured by accepted intelligence reports. Draft board officials and an army recruiting sergeant testified, as defense witnesses, to appellant's subnormal mental deficiency. Dr. Richard Lee Wall, who qualified as a clinical psychologist, testified as a defense witness that he had examined appellant and found his IQ to be 68, and that an IQ of below 69 indicates that a person is mentally defective, appellant being at the top of that group, with the mentality of a 10 or 11 year old person. Dr. Wall doubted whether appellant could have understood the warnings given by the police officials as they appeared in the complicated sentence structure. His opinion was that appellant understood only as a 10 or 11 year old child would understand, but he declined to state definitely that appellant did not understand the warning given. He stated that appellant knew the difference between right and wrong as a child of 10--11 years would know, and that he was able to communicate with his counsel.

The confession contains the required warnings, and when he signed it appellant swore that he understood those rights and that he was voluntarily waiving them. Officer Hargrave testified that after he had taken the statement from appellant, he pointed out six typing errors to appellant, and asked appellant to initial the mistakes, and that appellant did initial them in his presence. Three officers who witnessed the statement testified that appellant was repeatedly advised of his rights, and repeatedly acknowledged that he understood them.

The court found the confession of the appellant to have been voluntarily made after all proper warnings had been made and waivers obtained. He further found that the appellant knowingly, intelligently and voluntarily waived his rights, and that the confession was freely and voluntarily made.

The evidence given in the hearings before the court was reiterated in the trial before the jury. The jury was properly charged on the issue of voluntariness of the confession, and was also told not to consider same unless they found that appellant was possessed of sufficient mentality to know what he was doing and the nature and effect of his act in making his statement.

In Casias v. State, supra, a contention before this court was that the trial court erred in failing to instruct the jury to disregard the confession if the jury found or had a reasonable doubt that appellant did not have the mental capacity to understand the contents thereof and the warnings allegedly given. (The trial court in the instant case did give such instruction) A psychologist testified that Casias was illiterate, had a limited vocabulary, had an IQ of 68, was retarded, was not able to read, had a mental age of 8 to 10 years, and an education of approximately second grade. This Court, in overruling appellant's ground of error, speaking through Judge (now Presiding Judge) Onion, said in part:

'It has been said that there is a general agreement among courts that a confession of crime is not inadmissible merely because the accused, who was not insane, was of less than normal intelligence, Vasquez v. State, 163 Tex.Cr.R. 16, 288 S.W.2d 100, and mere illiteracy has not been considered as a form of mental subnormality. Berry v. State, 58 Tex.Cr.R. 291, 125 S.W. 580. In Vasquez, the confession was held to be admissible where the accused was shown to have been a 'mentally deficient person between a moron and an imbecile' who had a 'mental age of 4 years and 7 months' . . .'

'While the trial court might have been well advised to have responded to appellant's objection to the charge, we cannot conclude, in light of the evidence offered, the charge on voluntariness and counsel's jury argument on intelligence and mental ability as a factor to be considered in determining voluntariness, that the court's failure to charge as desired was calculated to injure appellant's rights or deprive him of a fair and impartial trial. See Article 38.19, V.A.C.C.P.'

Appellant's fourth ground of error is overruled.

In his fifth ground, appellant states that the trial court violated his rights of due process in not sua sponte ordering a hearing on appellant's mental capacity to stand trial when that issue was raised by the evidence. Again, appellant relies largely on the evidence of Dr. Wall. He cites as his authority Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, and Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824.

These cases are authority for the proposition that where the evidence raises a doubt about the competency of the accused to stand trial, the court should on its own motion conduct a separate hearing on his competency.

In Vardas v. State, 488 S.W.2d 467 (Tex.Cr.App.), we held that the trial court erred in not conducting on his own initiative, during the trial on the merits, a hearing on the issue of the present insanity of the defendant. However, in Vardas, the issue of present insanity was clearly raised by the evidence. The trial court so found and the issue was submitted to the jury along with the issue of guilt. See also Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.) where the court found that a bona fide doubt as to the defendant's competency to stand trial was raised by the evidence.

In the instant case the evidence raised no issue of present incompetency to stand trial. No instruction on present insanity was asked for, or given. Dr. Wall testified that appellant was mentally deficient and below normal, but he also stated on several occasions that appellant was able to assist his counsel and could communicate with them, that he understood about punishment, that he could understand the nature of the proceedings, and knew the difference between right and wrong. Appellant testified in the preliminary hearing on the motion to suppress the confession, and was well able to respond to the questions of his counsel and of the prosecuting attorney. After the hearing on the voluntariness of the confession, the court not only found the appellant competent to make the confession, but also made a finding that he was competent to stand trial.

Appellant was not deprived of due process of law or fundamental fairness by the failure of the trial court, under the evidence, to call for a separate hearing on the issue of present insanity. Boss v. State, 489 S.W.2d 580 (Tex.Cr.App.1972).

Appellant next complains, in ground of error number six, about the admission in evidence through the witness Carley, a police officer, of the 'conclusionary' statement of the prosecutrix: 'I've been raped at the office.' There was no objection to admission of this evidence, and there is consequently nothing to review. Witt v. State, 475 S.W.2d 259 (Tex.Cr.App.); Parsley v. State, 453 S.W.2d 475 (Tex.Cr.App.); Garcia v. State, 428 S.W.2d 334 (Tex.Cr.App.).

However, we do note that this outcry of the prosecutrix was made very shortly after the crime, while she was being taken by a doctor to a hospital, after she had blacked out and while she was suffering from the beating she had received and bleeding profusely. Even over objection, the statement under the circumstances would have been admissible as part of the res gestae or as 'the bare fact of the complaint.' Knox v. State, 487 S.W.2d 322, 327 (Tex.Cr.A...