Sallings v. State

• Court: Texas Court of Appeals
• Writing for the Court: BAKER
• Citation: Sallings v. State, 789 S.W.2d 408 (Tex. App. 1990)
• Decision Date: 02 May 1990
• Docket Number: No. 05-89-00234-CR,05-89-00234-CR
• Petition History: writ ref'd
• Parties: Joe Truman SALLINGS, Appellant, v. The STATE of Texas, Appellee.

Page 408

789 S.W.2d 408

Joe Truman SALLINGS, Appellant, v. The STATE of Texas, Appellee.

No. 05-89-00234-CR.

Court of Appeals of Texas Dallas.

May 2, 1990.

Tena M. Hollingsworth, Dallas, for appellant.

Yolanda M. Joosten, Dallas, for appellee.

Before WHITTINGTON, BAKER and BURNETT, JJ.

OPINION

BAKER, Justice.

A jury convicted appellant of aggravated sexual assault and assessed a life sentence and a $10,000 fine. In seventeen points of error, appellant complains that there was a fatal variance between the indictment and evidence; the evidence was sufficient to show that he was clearly incompetent to stand trial; and that the trial court erred in: (1) overruling his motions to quash; (2) admitting into evidence appellant's confession, items found pursuant to his confession, his arrest warrant, and items recovered as a result of a search of his home; (3) refusing to allow him to cross-examine the complainant as to her true name; (4) failing to grant his motions for mistrial because of alleged prosecutorial misconduct and improper argument; (5) refusing to allow into evidence impeaching testimony; and (6) allowing a witness to testify who had violated "The Witness Rule." These points are without merit. We affirm the trial court's judgment.

The eighty-one-year-old complainant testified that her name was M___ K___ B___ but that she was using the name Jane Doe for the purposes of the trial. She said that she awoke at 11:00 p.m. on December 25, 1987, to find a man beside her bed. He got into bed with her, struck her repeatedly, breaking her cheek bone and nose, sexually assaulted her, and robbed her. She recognized the man as a neighbor, Joe ("Jody") Truman Sallings, who had done work for her on her home.

COMPETENCY HEARING

In his sixteenth point of error, appellant contends that "the jury's verdict which found the defendant competent to stand trial is contrary to the overwhelming weight of the evidence presented during the competency hearing." The test for competency is whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether the accused has a rational as well as a factual understanding of the proceedings against him. Ex parte Locklin, 583 S.W.2d 787, 789 (Tex.Crim.App.1979); TEX.CODE CRIM.PROC.ANN. art. 46.02(1)(a) (Vernon 1979). ¹ A defendant is presumed competent to stand trial unless he proves his incompetency by a preponderance of the evidence. Code art. 46.02(1)(b). A court reviewing the sufficiency of the evidence to support a competency finding must determine whether, after considering all evidence bearing on competency, the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex.Crim.App.1990).

The record reflects that in February 1989, a competency hearing was conducted before a jury. The State called Dr. James P. Grigson, a psychiatrist. He testified that he examined appellant on October 4, 1988, and again on January 25, 1989. He said appellant comprehended the charges and related the facts of the case. He said appellant gave very knowledgeable answers regarding the functions of the judge, the jury, and the district attorney, and he understood about plea bargaining. In his opinion, appellant had sufficient present mental ability to consult with his attorney with a reasonable degree of rational understanding, that he had a rational as well as factual understanding regarding the proceedings against him, and that he was competent to stand trial. Grigson testified that, in his opinion, appellant was competent and understood what he was charged with, the facts of the offense, and his involvement in it. Appellant was able to give a detailed written statement to the police explaining how he had committed the offense. Appellant was also able to give his personal history to all the health care professionals who examined him. He was cooperative and answered their questions.

Dr. Clay Griffith, a psychiatrist called by appellant, testified that he first examined appellant on December 2, 1988, and again on January 10, 1989. The purpose of the examination was to determine if appellant was competent to stand trial. Griffith said he did a mental status examination, a type of exam that is used by psychiatrists when examining someone for the first time or if it has been some time since the person was last examined. It is a verbal type of examination and requires cooperation of the individual. He explained that the examination and observations are designed to give the examiner the opportunity to detect whether somebody is trying to deceive the examiner.

He testified that appellant is a thirty-one year old man who tried to cooperate with him to the best of his "very limited" ability. He said his mood was variable, from being very blunt to being "flat." Appellant's emotional reactions were also flat during the interview, referring to how appellant said things and how he reacted to certain things. He testified that appellant's production of thought was adequate if you "gave him time," that he stuttered somewhat, and that he had much difficulty in completing sentences or thoughts. Griffith said that when appellant started talking about how he was at the time of the offense, he did not make any sense, he rambled, and his conversation was disjointed. Griffith said appellant was functioning "considerably below average on an intellectual level" and that there were many signs of organic problems or some kind of brain damage. He expressed the opinion that appellant was incompetent to stand trial.

Griffith testified that while appellant was intellectually below average, he was not retarded and had adequate thought production if given enough time. Although Griffith testified that he thought appellant was incompetent, Griffith also testified that appellant told him that he was at his brother's house when he was arrested and that he knew what he was charged with and when he was placed in jail. Griffith obtained appellant's personal history, including appellant's place of birth, education, details of his abuse as a child, and information that appellant had never been in a psychiatric hospital.

Appellant next called Dr. Carolyn Mitchell, a clinical psychologist, who examined appellant on March 31, 1988. She said that he was cooperative and that he answered all of her questions. She gave him a Minnesota Multi-Phasic Personality Inventory, a psychological test. Her initial findings were that appellant had some neurological or organic impairment. She said that in her opinion appellant was not competent to consult with his attorney with a reasonable degree of rational understanding. Mitchell testified that although she thought appellant was incompetent, appellant was able to answer a true or false test and understood the crime for which he was accused.

Next, the defense called King Solomon, an attorney who was originally appointed to represent appellant in the trial court. After consulting with appellant, Solomon requested a mental examination of appellant. He testified that, in his opinion, appellant did not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.

The credibility of any and all witnesses is for the fact finder. Coe v. State, 683 S.W.2d 431, 438 (Tex.Crim.App.1984). The fact finder is free to believe or not believe any portion or all of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). After considering all the evidence on competency, we hold that the jury's finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz, 785 S.W.2d at 155. Appellant's sixteenth point of error is overruled.

PRETRIAL MOTIONS

In points of error one through four, appellant contends that the trial court erred in overruling his motion to quash the indictment. Under his first point, appellant argues that he was denied due process and did not have proper notice of the charges against him because the complainant was identified in the indictment under the pseudonym "Jane Doe" rather than by her true name.

Appellant's claim that the use of the pseudonym violated his due process rights by hindering his trial preparation is without merit. The complainant's true name was disclosed to defense counsel during a pretrial hearing. Both appellant and the State mentioned the complainant's name as a proposed witness during voir dire without identifying her as the victim. The complainant testified before the jury that she was going by the fictitious name of Jane Doe for purposes of this case. During the guilt or innocence phase, appellant testified that he knew the complainant by her correct name, "Mrs. B___." Appellant was not surprised by the complainant's name. The record fails to show that appellant's trial preparation was hindered. Further, the complainant's true name was evidentiary and need not have been pleaded. See Mixon v. State, 632 S.W.2d 836, 837-38 (Tex.App.--Dallas 1982, pet. ref'd).

Appellant also argues under this point that because a pseudonym was used, he cannot plead this judgment in bar of future prosecutions for the same offense. In Bryant v. State, 656 S.W.2d 513 (Tex.App.--Beaumont 1983, pet. ref'd), the court held that an indictment charging the defendant with burglary with intent to commit theft and rape was sufficient to bar a subsequent prosecution for the same offense notwithstanding the fact that the indictment failed to state the name of the intended rape victim. Bryant, 656 S.W.2d at 516. This contention is without merit.

Appellant also argues under this point that the trial court erred in overruling his pretrial motion for continuance. However, the trial court merely overruled the pretrial motion for continuance and gave appellant leave to...