Smith v. State

• Decision Date: 17 January 1984
• Docket Number: No. 05-82-01204-CR,05-82-01204-CR
• Citation: 667 S.W.2d 836
• Parties: Donald Aaron SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 836

667 S.W.2d 836

Donald Aaron SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 05-82-01204-CR.

Court of Appeals of Texas,

Dallas.

Jan. 17, 1984.

Rehearing Denied Feb. 15, 1984.

William A. Bratton, Dallas, for appellant.

Henry Wade, Dist. Atty., Tom Streeter, Asst. Dist. Atty., for appellee.

Before STEPHENS, GUILLOT and ROWE, JJ.

ROWE, Justice.

Appellant was convicted before a jury of the offense of murder. Punishment was assessed at confinement for 50 years in the Texas Department of Corrections. In ten grounds of error appellant contends the trial court committed reversible error. For reasons below stated, we overrule all these contentions and affirm.

In his first four grounds of error, appellant complains that the trial judge unduly restricted his rights on voir dire examination to individually question members of the jury panel about four different subjects: (1) materials they had read about the defense of insanity; (2) their thoughts about the defense of insanity; (3) their exposure to any publicity about the case; and (4) their thoughts about punishment and its purposes. These restrictions are claimed to have violated appellant's right to counsel as guaranteed by Article 1, Section 10 of the Texas Constitution. Under the facts in this record, we disagree. This is not a capital felony case controlled by TEX.CODE CRIM.PROC.ANN. article 35.17(2) (Vernon Supp. 1982-1983). Rather, this is a non-capital felony case in which individual or panel voir dire examination is a matter within the trial court's discretion. Robles v. State, 627 S.W.2d 466, 467 (Tex.App.--Houston [1st Dist.] 1981, no pet.). The action of the trial court in controlling voir dire interrogation of prospective jurors is subject to review only to determine whether the court abused its discretion. Cook v. State, 398 S.W.2d 284, 288 (Tex.Cr.App.1965), cert. denied, 384 U.S. 966, 86 S.Ct. 1599, 16 L.Ed.2d 678 (1966). Appellant has not assigned abuse of discretion as error, and we find none. The rulings complained of occurred toward the end of a lengthy interrogation by appellant's counsel. The trial judge expressed time considerations as the reason for his requiring at that stage of the trial that certain questions be directed to the whole panel rather than to individual members. Prior to that series of rulings, numerous questions of individual members on other subjects had been allowed. On one occasion after the ruling when counsel declined to pursue a particular line of questioning to the panel as a whole, the trial judge pursued the matter on his own initiative. Appellant does not assert, and indeed would be unjustified in asserting, that the trial judge placed unreasonably meager time limits on interrogation. When the voir dire examination is considered as a whole, appellant's complaint that he was denied his constitutional right to counsel is not well taken. Appellant's first through fourth points of error are overruled.

By his fifth ground of error, appellant contends that because no written order had been entered authorizing a mental status examination of him under TEX.REV.CIV.STAT.ANN. art. 5561h, § 4(a)(4) (Vernon Supp. 1982-1983), the testimony of Dr. Clay Griffith concerning appellant's sanity was erroneously admitted over appellant's claim of privilege. Art. 5561h, the psychotherapist-patient privilege statute, provides that "[c]ommunication between a patient/client and a professional is confidential and shall not be disclosed except as provided in Section 4 of this act." The State contends that by admitting the doctor's testimony over appellant's claim of privilege the trial judge impliedly found that the privilege had been waived under the exception appearing in Article 5561h, section 4(a)(4), which provides:

Section 4(a). Exceptions to the privilege in court proceedings exist:

(4) when the judge finds the patient/client after having been previously informed that communications would not be privileged has made communications to a professional in the course of a court-ordered examination relating to the patient's/client's mental or emotional condition or disorder....

We agree initially with the State's position as to the effect of the trial judge's action. Cf. Simpson v. State, 603 S.W.2d 862 (Tex.Cr.App.1980) (holding that a trial judge's admission into evidence of a confession objected to as being involuntary is tantamount to a finding by the court that the confession was voluntary). Still to be considered, however, is the legal and factual propriety of such a ruling.

While the record contains no written order, the trial judge, prior to ruling that the doctor's testimony was admissible, heard evidence sufficient to establish that at least an oral order had been pronounced. Dr. Griffith testified that he was ordered by the court to make the examination and that in proceeding to do so he warned the appellant concerning the loss of confidentiality resulting from an Article 5561h examination. Dr. Griffith's report was addressed to the court and his fees were paid by Dallas County. Although the trial judge acknowledged that he had no independent recollection of any particular order, he stated that his general practice was to order a mental status examination every time when, as here, a notice of insanity was filed. Consequently, the trial judge's implied finding on the factual issue undergirding his admission of Dr. Griffith's testimony must stand, and the sole question for our determination is the legal issue of whether the examination in question qualified as being a "court ordered examination" when the order regarding it is merely oral.

Our supreme court put to rest the question of the validity of oral pronouncements from the bench first in Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex.1969), and subsequently in Walker v. Harrison, 597 S.W.2d 913, 915 (Tex.1980). The validity of such judgments was held to be recognized by Rule 306a of the Texas Rules of Civil Procedure, which provides that all judgments and orders shall be reduced to writing but that "absence of any...