Sisco v. State

• Decision Date: 06 February 1980
• Docket Number: No. 2,No. 61602,61602,2
• Parties: Larry Wayne SISCO, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 607

599 S.W.2d 607

Larry Wayne SISCO, Appellant, v. The STATE of Texas, Appellee.

No. 61602.

Court of Criminal Appeals of Texas, Panel No. 2.

Feb. 6, 1980.

Rehearing Denied June 18, 1980.

Tomas Garza, Lubbock, for appellant.

John T. Montford, Dist. Atty. and Hollis M. Browning, Asst. Criminal Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of indecency with a child by a jury followed by assessment of punishment by the trial court at confinement for a term of years.

At the outset we are met with appellant's contention that the trial court erred in refusing to impanel a jury to determine the issue of his present competency to stand trial in light of the evidence adduced at a preliminary hearing on that matter. As we believe that the trial court utilized an improper method in determining whether the issue of incompetency was raised in the pretrial hearing, the appeal will be abated and the cause remanded. First, however, the factual setting.

The record reflects that appellant was arrested for the instant offense on May 28, 1978, indictment was returned June 7, 1978, counsel was appointed June 23, 1978; sometime thereafter, not precisely shown by the record before us, appellant's counsel presented a motion for complete psychiatric examination. On September 6, 1978, the trial court granted the motion ¹ and appointed Dr. Preston Shaw of Lubbock for the purpose of determining, inter alia :

"(1) Whether the Defendant is mentally competent to stand trial; . . ."

October 30, 1978, a hearing was held on appellant's motion for a sanity hearing. All documentary evidence and the sole witness were offered by appellant. Dr. Shaw's finding were admitted without objection and provided in pertinent part:

(1) Appellant is now competent to stand trial inasmuch as he has sufficient present ability to consult with his lawyer with a reasonable and rational degree of understanding and a rational, although not a complete factual understanding of the proceedings against him (2) Appellant knows that he is charged with the crime of indecency with a child but cannot verbalize a concept of what that means;

(3) Appellant knows the judge will be at the trial but claimed not to know the difference between a jury and a grand jury;

(4) Appellant gave the appearance of being rather non-responsive with a lack of alertness;

(5) Appellant did not understand why in fact he had been arrested;

(6) Appellant's friends were those he had met at the Special Olympics for the mentally retarded; and

(7) Appellant flatly denied that there was any sexual contact between him and the complainant.

Additionally, defendant's Exhibit No. 1, denominated as "Results of Testing and/or Observations and Recommendations" made by Vernon C. Stafford, appellant's junior high school counselor, was admitted into evidence and noted that appellant's IQ was at or around 63 and he possessed a scholastic ability somewhere between the second and third grades. Appellant's memory was very poor and he was considered in the mildly retarded range both mentally and academically and, finally, he had spent some time in a state mental facility in Stayton, Oregon.

Appellant called Rita Rodriguez, law clerk to his trial counsel, and she recounted that during an interview between appellant and his trial counsel, at which she was an observer, appellant's responses consisted of either shrugging his shoulders or an inability to remember as regards the facts of the instant offense. He did not understand why he was arrested and could not recall his grandmother's name notwithstanding the fact he had lived with her. Over the State's objection, Ms. Rodriguez was allowed to testify that in her opinion, appellant was unable to consult with his lawyer and was unresponsive about relating the facts of the case to his counsel.

At the close of the pretrial hearing, the trial court found that appellant was presently competent to stand trial and in doing so noted:

"I am going to have to find, based upon the doctor's report here, that there is no issue as far as present competency and the Court will find, based upon this report, that in my opinion he is competent, as we know that term to be defined under the laws of the State of Texas at this time . . . (T)herefore, I will deny the request for a separate sanity hearing in front of the Jury . . ." ²

At trial, which commenced promptly thereafter, appellant presented no evidence and was subsequently convicted by a jury. The issue raised herein was renewed at the hearing on appellant's motion for new trial. It was overruled and sentence was imposed.

As pertinent here, at the time of trial Article 46.02, V.A.C.C.P., provided in § 2(a), Raising the Issue of Incompetency to Stand Trial:

"The issue of the defendant's incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency . . ."

and in § 4(a), Incompetency Hearing:

"If the court determines that there is evidence to support a finding of incompetency to stand trial, a jury shall be empaneled to determine the defendant's competency to stand trial. * * *"

Likewise, pertinent here to show consistency, the same underscored evidentiary standard appears in § 2(b) ³ and § 4(c). ⁴

The thrust of appellant's contention is that under Article 46.02, § 2(a), supra, the decision of the trial court is limited to a determination of whether evidence adduced at a pretrial hearing sufficiently raises a question of incompetency so as to warrant submitting the issue of competency to a jury. In making that determination, reasons appellant, the trial court must not, in advance as it were, invade the province of the jury by weighing all evidence presented but must, instead, assay only the evidence tending to prove incompetency in deciding whether to impanel a jury.

For its part the State rejoins that the contention made by appellant "defies reason," arguing that by the process suggested "a naked assertion of incompetency not based on any supporting facts, and in the face of a quantity of expert opinions attesting to the defendant's competency would make mandatory a hearing with a jury to determine the issue." This, the State concludes, "is not the intent of Art. 46.02 . . ."

In advancing and arguing their competing contentions the parties also disagree on whether the trial court is to make its determination against a "bona fide doubt" standard. The focal point of this disagreement is the meaning and application of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) and its construction of the Due Process Clause of the Fourteenth Amendment with respect to determination of competency to stand trial. Consistently with his basic position appellant would reject that test because it permits the trial court to weigh all the evidence. ⁵ The State relies on Johnson v. State, 564 S.W.2d 707 (Tex.Cr.App.1978) for the proposition that application of that test is consistent with the language of Article 46.02.

Simply stated, then, the parties have joined issue on and have called on the Court to decide what standard shall be utilized by a trial court in concluding from evidence presented at a pretrial hearing whether a jury should be impaneled to determine competency of a defendant to stand trial. We now turn to a resolution of the problem.

The present language of Article 46.02 with which we are here concerned was not formulated by the Legislature until it completely revised §§ 2 and 4, as well as others, in 1975. ⁶ Initially, a procedure was judicially created to preserve and implement the statutory imperative of Article 34, V.A.P.C. 1925 and its predecessors, that one shall not be tried for an offense while he is presently insane; then in 1937 ⁷ and again in 1957 ⁸ the Legislature enacted procedures to remedy what were perceived as deficiencies in the system; still again in 1965, with the revised Code of Criminal Procedure, came yet another version in the original Article 46.02. We need not elaborate on these historical developments and the concerns which prompted them for that has been comprehensively done in Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968). The point to be made, however, is that never did the law consistently spell out a criterion or standard by which the trial court in response to a request by a defendant must measure the propriety of impaneling a jury to determine present competency to stand trial ⁹ until, that is, 1975. ¹⁰

In Williams v. State, 543 S.W.2d 385 (Tex.Cr.App.1976) the Court contrasted requirements of the 1975 amendments to Article 46.02 with the prior procedure for raising an issue of incompetency, and pointed out:

"Article 46.02, Sec. 2, V.A.C.C.P., now provides a different method for raising the issue of incompetency to stand trial. Section 2, supra, allows the trial court to determine whether there is any evidence to support a finding of present insanity on its own motion or on written motion by the defendant or his counsel. A proceeding to determine whether such evidence exists would be entirely proper under the current law. If any evidence exists to support a finding of incompetency, a jury must be impaneled pursuant to Art. 46.02, Sec. 4, supra, to determine the issue. If no evidence exists, however, a separate hearing need not be held."

This statement of the "different method" for raising the issue suggests that the Legislature had eyed the civil law in framing the standard to govern the trial court in deciding whether to impanel a jury to determine incompetency. See Rule 279, ¹¹ T.R.C.P. and annotated cases: ¹² Deemed "fundamental" is the proposition that only issues raised by the evidence need be submitted to the jury, but that any probative evidence, "more than a scintilla," tending to support an issue is...