Sensabaugh v. Beto

• Citation: 343 F. Supp. 563
• Decision Date: 28 March 1972
• Docket Number: Civ. No. 4-1416.
• Parties: Freeman Weldon SENSABAUGH v. Dr. George J. BETO, Director, Texas Department of Corrections.
• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas

343 F. Supp. 563

Freeman Weldon SENSABAUGH v. Dr. George J. BETO, Director, Texas Department of Corrections.

Civ. No. 4-1416.

United States District Court, N. D. Texas, Fort Worth Division.

March 28, 1972.

Sam R. Wilson, Houston, Tex., for petitioner.

Howard Fender, Austin, Tex., Rufus Adcock, Fort Worth, Tex., for respondent.

MEMORANDUM OPINION

BREWSTER, District Judge.

The petitioner received an indeterminate sentence of not less than two years nor more than life upon his conviction by a jury of murder with malice aforethought in Cause No. 73499, State of Texas v. Freeman Weldon Sensabaugh, in the Criminal District Court No. 2 of Tarrant County, Texas. The conviction was affirmed in Sensabaugh v. State, Tex.Cr.App., 426 S.W.2d 224.

The present petition for writ of habeas corpus, prepared by employed counsel,¹ seeks to set aside such judgment and sentence upon several grounds, but the only question of constitutional dimension supported by evidence sufficient to warrant discussion relates to the petitioner's mental competency to stand trial.²

Petitioner's first habeas corpus application in this Court was dismissed without prejudice for his failure to exhaust state remedies. He has now met that requirement, and is back before this Court after the Court of Criminal Appeals of Texas has upheld the convicting court's denial of his post-conviction motion without a hearing. Two preliminary pre-trial conferences have been held to decide whether the questions involved could be determined without a plenary hearing. The Court concluded that such a hearing should be held with petitioner present.

A full evidentiary hearing has now been held, with petitioner and his employed counsel present and participating. The hearing lasted a good part of a day. Several witnesses, including petitioner, testified in person, and considerable documentary evidence was received. The main thrust of the argument for petitioner was that the judge of the convicting court had sufficient information to require him, sua sponte, to order an examination to determine petitioner's mental competency to stand trial and to hold a hearing on that issue, and that petitioner's constitutional rights were violated by the judge's failure to do so. At the conclusion of the hearing, the Court was of the opinion that petitioner had failed to prove that the state judge had sufficient information to require him to act on his own initiative, and indicated that it felt that the present petition should be denied. Since that time, the Court has studied the case more thoroughly; and, while its opinion about sua sponte action on the part of the judge of the convicting court has not changed, it has reached the conclusion that, aside from that question, the petitioner has produced sufficient evidence to entitle him to a hearing on the question of his mental competency at the time of his murder trial.

Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815, 818 (1966), holds that "the conviction of an accused person while he is legally incompetent violates due process, Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956)." The question may be raised in two ways in a post-conviction proceeding: (1) The record in the criminal trial may manifest a bona fide doubt about the mental competence of the accused to stand trial that required the trial court to conduct a hearing on that question on its own initiative. Pate v. Robinson, supra, was that kind of case. (2) Without any showing of mental incompetency in the record of the criminal case, the petitioner may attack his conviction on the ground that he was in fact mentally incompetent to stand trial.³ Carroll v. Beto, D.C.Tex., 330 F.Supp. 71 (1971), affirmed, 446 F.2d 648, was a case where there was no indication in the record of the proceedings in Carroll's murder case that he was mentally incompetent to stand trial. In the first writ of habeas corpus hearing attacking the validity of the murder conviction on the ground of the incompetency of the accused to stand trial, this Court denied the petition. The Court of Appeals quoted the following from Lee v. Alabama, 5 Cir., 386 F.2d 97, 105 (1967), as authority for requiring a hearing to determine Carroll's competency to stand trial (421 F.2d 1065, at p. 1067):

". . . When a prisoner, either state or federal, seeking post-conviction relief, asserts with substantial facts to back up his allegation, that at the time of the trial he was not mentally competent to stand trial, and that there was no resolution of that precise issue before he was tried, convicted and sentenced, the protection of the Fourteenth Amendment to the Constitution requires that such conviction and sentence be set aside unless upon adequate hearing it is shown that he was mentally competent to stand trial."

The petitioner testified on the present hearing that the man he killed was just an "old wino". It is plain from the evidence that petitioner was one, too, and that he was the kind whose reaction to alcohol was meanness and violence. Petitioner and the deceased had been on a friendly basis for a long time, but they began feuding with each other for some period before the killing. On the afternoon of November 30, 1966, petitioner went to the home of deceased. When he reached the yard, the deceased, standing on the porch of his house, warned him not to come closer. Petitioner ignored the warning, and deceased fired a shot from a single-barreled shotgun. Prosecution testimony indicated that it was fired at a 30° angle away from petitioner. Petitioner claimed that it was directly at him. Petitioner got to deceased with a knife before he could reload the shotgun, and stabbed him seven times in the ensuing struggle. Deceased fell to the ground mortally wounded. Petitioner left the scene immediately, secured some clean clothes, and pulled off and hid the ones with deceased's blood on them.

On the trial of the murder case, the petitioner sought to justify the killing on the ground of self-defense. With the deceased having fired the shot at the time he did, the defense might well have prevailed except for the facts (1) that it was apparently difficult to understand how deceased could have missed the petitioner with a shotgun at almost point blank range if he had wanted to kill him, and (2) that a week before the killing petitioner had shown a woman a knife which he said he was going to use to kill deceased. The threat was communicated to deceased. Petitioner and his counsel⁴ knew that the prosecution would have the testimony from the woman about the threat, but they thought her credibility⁵ could be successfully attacked. The attempt was unsuccessful.

There is nothing in the record of the trial of the murder case that was in any way calculated to raise any doubt whatever as to the mental competency of the accused to stand trial. There was no motion, formal or informal, written or oral, requesting an examination or a hearing to determine mental competency. There was no mention of any history of mental problems, nor was there any conduct on the part of the accused during the trial that might have been suggestive of incompetency. From the record of the trial, the court had before it a defendant represented by a competent lawyer, selected and employed by him, with his case well investigated, prepared and presented. There was never any complaint by able counsel of any problems with his client that would suggest inability to co-operate with counsel, or lack of understanding of the nature of the charges or the facts of the transaction. Prior to the trial, the Court granted three out-of-the-ordinary defense motions described in footnote 4. Those rulings show clearly that the trial judge was scrupulously attempting to see that the defendant got a fair trial, and it is only logical to conclude that he would have granted a request for a mental examination, if it had been made.

The petitioner does not argue about these facts. He says that the trial judge is bound to have read certain newspaper articles about a controversy between the County Veterans Officer and Dr. David Muller, Chief of the Psychiatric Staff at John Peter Smith Hospital (a large charity hospital supported by the City of Fort Worth and Tarrant County) which contained information about the petitioner's mental or emotional problems that put the judge under duty, sua sponte, to order a psychiatric examination and a hearing to determine petitioner's mental competency. Judge Winters, the trial judge, did not testify on this hearing. Unknown to this Court at the time the hearing was commenced, Judge Winters was away from the city on vacation. At the conclusion of the hearing, the Court stated that he would be willing to recess it until Judge Winters returned, but petitioner's employed counsel opposed such an action. He apparently did not want Judge Winters' testimony.

No authorities have been cited, and none has been found, holding that a court should assume that another judge read certain newspaper articles relevant to a crime for which a person was later tried in his court. There are too many judges like the author of this opinion who do not read such articles. It may be because they hear enough in trials before them about the morbid details of crimes, or because they would rather not receive news media information about a matter that could possibly be the subject of a trial before them. In some instances, it may be both. At any rate, it would be a most unsound principle of law for a court to hold in a collateral action that a judge of another court should have acted sua sponte on the basis of newspaper articles. The record must show that there were substantial facts before the judge of the convicting court sufficient to raise a bona fide doubt about the mental competency of the accused to stand trial before the judge is required to act on his own initiative.⁶

Even if Judge Winters read the articles, he had a...