Rodriguez v. State

• Decision Date: 17 May 1995
• Docket Number: No. 71483,71483
• Citation: 899 S.W.2d 658
• Parties: Steve RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 658

899 S.W.2d 658

Steve RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 71483.

Court of Criminal Appeals of Texas En Banc.

May 17, 1995.

George Scharmen, San Antonio, for appellant.

Steven C. Hilbig, Dist. Atty., and Mark Luitjen, Jay Norton and Melissa Barlow, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

OVERSTREET, Judge.

Appellant was convicted by a jury for capital murder committed in the course of burglary and/or robbery. Tex.Penal Code § 19.03(a)(2). The jury answered the submitted special issues affirmatively, and appellant was sentenced to death. Tex.Code Crim.Proc. art. 37.071, § 2(b). Appellant presents eight points of error on appeal.

Appellant pled guilty to the commission of the offense. A recitation of the facts is not necessary to the disposition of the case, therefore, we proceed with appellant's points of error.

I. Appellant's Mental Health Examination

Appellant's first point of error complains he was denied Due Course of Law under article 1, sections 13 and 19 of the Texas Constitution and articles 1.04, 46.02 and 46.03 of the Texas Code of Criminal Procedure. ¹ In his second point of error, he complains he was denied due process of law by access to the courts under the Fifth and Fourteenth Amendments to the U.S. Constitution through the failure of the State to follow its own law under articles 1.04, 46.02 and 46.03 of the Texas Code of Criminal Procedure. ² His third point of error evokes the protection of the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution by the arbitrary refusal of the State to follow these same code provisions. ³

Articles 46.02 and 46.03 govern the examination of a defendant for competency and insanity. Both articles also require a determination of whether a defendant is "mentally retarded" as defined in the Health Code. The points of error raised here rest specifically on appellant's contention that Dr. Sparks' mental retardation evaluation of appellant failed to comply with statutory requirements contained in both the Code of Criminal Procedure and the Texas Health and Safety Code (hereinafter Health Code). Appellant's arguments are based on the mistaken premise that Articles 46.02 and 46.03 are governed by the requirements in the Health Code.

The record establishes that prior to appellant's trial defense counsel notified the trial court that there was some evidence from a previous mental examination that appellant may be mentally deficient. Counsel also filed a notice of his intent to present an insanity defense. Accordingly, on July 31, 1991, the trial court ordered the Bexar County Psychiatrist to perform a competency evaluation of appellant under Article 46.02 and an evaluation concerning appellant's sanity at the time of the offense under Article 46.03. ⁴ Dr. Sparks conducted that examination on December 3, 1991. Pursuant to that order, Dr. Sparks filed a report finding appellant competent to stand trial on December 16, 1991. In that report Dr. Sparks also found appellant not to be mentally retarded.

First, appellant argues that Dr. Sparks' examinations did not comply with the "comprehensive diagnosis and evaluation" requirements guaranteed by the "Bill of Rights of the Mentally Retarded" contained in chapter 592 of the Health Code. The Health and Safety Code does provide a basic Bill of Rights for the mentally retarded. ⁵ The right to a comprehensive diagnosis and evaluation is one of those explicit rights. The code provides:

A person thought to be a person with mental retardation has the right promptly to receive a comprehensive diagnosis and evaluation adapted to that person's cultural background, language, and ethnic origin to determine if the person is in need of mental retardation services as provides by Subchapter A, Chapter 593.

Tex.Health & Safety Code, § 592.018. Nevertheless, nothing in either the Code of Criminal Procedure or in the Health Code indicates that the provisions of the Health Code govern mental retardation determinations made as part of the competency and insanity examinations under the Code of Criminal Procedure.

In support of his argument, appellant notes that articles 46.02 and 46.03 require the psychological examiner to make a determination, in addition to competency and insanity, of whether the defendant is a "mentally retarded person" as defined in article 5547-300, Vernon's Texas Civil Statutes. ⁶ He concludes that through the use of this definition the legislature intended the Health Code to govern these examinations required by the Code of Criminal Procedure. Appellant's argument is unconvincing. The mere use by the legislature of a definition contained in the Health Code does not alone support an assumption that an examination in the Code of Criminal Procedure is governed by the Health Code.

Appellant, however, argues there is more evidence of this legislative intent. He directs our attention to the requirement, in sections 3(e) of both articles 46.02 and 46.03, for an affidavit from facilities run by the Texas Department of Mental Health and Mental Retardation or diagnostic centers approved by that department. Appellant misreads the applicable statutes; the statutes actually support the contrary position. Section 3(e) of article 46.02 provides: ⁷

If the examiner concludes that the defendant is a mentally retarded person and the examination has been conducted at a facility of the Texas Department of Mental Health and Mental Retardation or at a diagnostic center approved by the Texas Department of Mental Health and Mental Retardation, the examiner shall submit to the court an affidavit setting forth the conclusions reached as a result of the diagnostic examination.

(emphasis added). The statute clearly requires an affidavit only if the examination occurs at a department facility or department approved facility. ⁸ The conditionality of the statutory language itself contemplates an examination of a defendant at a facility that is not run or approved by the department. ⁹ The language of the code does not compel mental retardation determinations be governed by the Health Code. In fact, the language of the Code of Criminal Procedure contradicts appellant's arguments.

Appellant's second line of argument contends that the Health Code itself asserts that its provisions govern all mental retardation examinations, and, alternatively, that the Bill of Rights of the Mentally Retarded creates an independent right to a comprehensive examination pursuant to the Health Code. Again, we disagree; nothing in the Health and Safety Code mentions mental retardation examinations for defendants.

The Health Code provisions for a diagnosis and evaluation, upon which appellant relies, are applicable to a determination of whether a person is mentally retarded when individuals thought to be mentally retarded are to be provided with certain services. The Health Code contemplates the protection of mentally retarded individuals, seeking to insure services and to place them in settings least restrictive of their rights. E.g., Tex.Health & Safety Code, §§ 592.012 (Protection from Exploitation and Abuse); 592.013 (Least Restrictive Living Environment); 592.014 (Education); 592.015 (Employment); 592.016 (Housing). None of those provisions are applicable to individuals under criminal indictment. E.g., Tex.Health and Safety Code, Chapter 593, Subchapter B (Application and Admission to Voluntary Mental Retardation Services) and Subchapter C (Commitment to Residential Care Facility). The Health Code itself provides that an order for commitment for mental retardation service "is not an adjudication of mental incompetency." Tex.Health and Safety Code, § 593.054.

Nothing in the provisions of the Texas Health and Safety Code indicates that it governs competency, insanity, or mental retardation proceedings under the Code of Criminal Procedure. Appellant was not entitled to a "comprehensive diagnosis and evaluation" guaranteed by the "Bill of Rights of the mentally retarded" pursuant to chapter 592 of the Texas Health and Safety Code. The trial court and Dr. Sparks properly followed the provisions in the Code of Criminal Procedure which provide for the examination of a defendant for competency and insanity.

Finally, appellant complains of Dr. Sparks' delay in examining appellant and in complying with the trial court's order. Dr. Sparks' examination was conducted five months after the trial court's order. Under Articles 46.02 and 46.03, a written report of his examination was to be forwarded to the trial court within 30 days of the order. Appellant complains of Dr. Sparks' five-month delay in conducting the examination. The State responds appellant's failure to object to Dr. Sparks' compliance with the time table forfeits his right to complain on appeal. See Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993); Tex.R.App.Proc. 52(a). Appellant, also citing to Marin, supra, argues that no objection is necessary. We agree with the State that appellant has forfeited his right to complain of Dr. Sparks' delay on appeal.

The delay in the independent examination of a defendant only peripherally affects the rights of the litigants. For example, the parties could argue that they were denied adequate preparation time for trial because of the delay or that the information from the examination was necessary to assist in forming the parties' theory of the case. We believe these to be adequate concerns for the individual parties in a criminal trial. However, if the mental health expert's delay will affect the litigants, it is incumbent upon them to bring the delay to the attention of the trial court. ¹⁰ Absent such action, failure to object will forfeit a party's right to complain on appeal. Appellant's failure to object to the delay of Dr. Sparks has forfeited his right to complain of the delay on appeal. See Marin, supra; ...