Townsend v. State

• Decision Date: 24 April 1968
• Docket Number: No. 41126,41126
• Citation: 427 S.W.2d 55
• Parties: Jewel David TOWNSEND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 55

427 S.W.2d 55

Jewel David TOWNSEND, Appellant, v. The STATE of Texas, Appellee.

No. 41126.

Court of Criminal Appeals of Texas.

April 24, 1968.

Dan Sullivan, Robert E. Barber, Andrews, for appellant.

Don M. Nugent, Dist. Atty., Kermit, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Burglary with Intent to Commit Theft; the punishment, enhanced under the provisions of Article 63, Vernon's Ann.P.C., life.

We are squarely confronted at the outset with the most serious question in the case. Did the trial judge err in refusing appellant's timely presented demand, supported by affidavit, for a preliminary hearing upon the sole issue of his competency to stand trial (present insanity)?

Prior to the effective date of the 1965 Code of Criminal Procedure such refusal would have constituted reversible error. See Ex Parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581, and cases therein cited.

In the case at bar, appellant's court appointed counsel, prior to trial, presented to the court a written motion requesting such hearing. Said motion was supported by the affidavit of Dr. Marvin Grice ¹ that he had examined the appellant two days earlier and was of the opinion that appellant was 'presently insane.'

Upon the District Attorney's refusal to consent to such proceeding, the trial court, in accordance with Article 46.02, Sec. 1, Vernon's Ann.C.C.P., 1965, ² overruled the motion, to which action appellant duly excepted.

Thereafter, appellant filed no motion for mistrial, as required by Article 46.02, Sec. 2, V.A.C.C.P., 1965, in effect at time of appellant's trial, and made no further effort to raise the issue of present competency or the issue of insanity as a defense or to have either issue presented to the trial jury.

In support of his first ground of error appellant relies upon the provisions of Article 34, V.A.P.C. and the decision of the United States Supreme Court in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815.

In Pate the Supreme Court made clear 'that the conviction of an accused person while he is legally incompetent violates due process, * * * and that state procedures must be adequate to protect this right.'

The Court in Pate did not reveal the extent of inquiry to satisfy due process requirements, but it would appear at the minimum that a separate hearing for determination of competency is obligatory though not necessarily a preliminary one. While Pate would not require a jury trial on such issue, it would appear that Texas law would. ³

Article 34, V.A.P.C. provides:

'No act done in a state of insanity can be punished as an offense. No person who becomes insane after he committed an offense shall be tried for the same while in such condition. No person who becomes insane after he is found guilty shall be punished while in such condition.' (emphasis supplied)

'The rule against trying an incompetent person is long established and can be traced from the earliest common law times to the presently prevailing view in this country. * * * Probably 'the chief rationale on which the competency doctrine has been founded is the notion of a 'fair trial." 18 Baylor L.Rev. 22, 28. See also Sanders v. Allen, 69 App.D.C. 307, 100 F.2d 717; United States v. Chisolm, 149 F. 284 (S.D.Ala. 1906); Youtsey v. United States, 97 F. 937 (6th Cir., 1899); 45 Tex.L.R. 565; 81 Harv.L.Rev. 454. The protection afforded by the rule has been considered vital and basic enough to receive Constitutional protection under the due process of the law requirement. See Pate v. Robinson, supra; 18 Baylor L.R. 22.

This rule was long ago made a part of the Texas Penal Code, and when a forerunner of present Article 34, supra, (Art. 41, Pas. Dig., p. 399, art. 1643, 4th ed., 1873) was interpreted in 1874, the Supreme Court of Texas, which then had criminal jurisdiction, held that the statute, making 'insanity' a bar to prosecution, afforded a defendant upon timely demand a right to a trial on the issue of present insanity before trial of the criminal charge for the purpose of determining whether he was mentally competent to make a rational defense to the criminal charge, regardless of the absence of any statutory provisions for the same. Guagando v. State, 41 Tex. 626. Guagando made clear also that the failure to grant a preliminary hearing upon proper request therefor is not cured by trying the issue of present insanity after trial and conviction. See also Holland v. State, 52 Tex.Cr.R. 160, 105 S.W. 812; Witty v. State, 69 Tex.Cr.R. 125, 153 S.W. 1146.

This holding has been described as a '(j)udicial invention of a procedural device for assertion of the right not to be tried while insane (which) was essential to preservation of the right.' State v. Olsen, Tex., 360 S.W.2d 398.

In discussing the Guagando decision, Presiding Judge Woodley, in his article on 'Insanity As A Bar to Criminal Prosecution,' 3 South Texas Law Journal 204, said:

'This holding has been consistently followed, (Amos v. State (155 Tex.Cr.R. 488), 237 S.W.2d 305; Chapman v. State (136 Tex.Cr.R. 285), 124 S.W.2d 112; Pickett v. State (113 Tex.Cr.R. 395), 22 S.W.2d 136; Ray v. State (110 Tex.Cr.R. 31), 7 S.W.2d 93; Ramirez v. State (92 Tex.Cr.R. 38), 241 S.W. 1020; Witty v. State (69 Tex.Cr.R. 125), 153 S.W. 1146) and it has been held that the provisions of Article 34 are mandatory and are binding upon the courts and prosecuting officers. (Lindsey v. State (97 Tex.Cr.R. 300), 260 S.W. 862).

'It has been held, however, that where the issue is raised after the main trial begins, the present insanity of the defendant may, upon request, be submitted with instruction to the jury that if they find the defendant presently insane they will so state in their verdict and consider no other issue. (Chapman v. State (136 Tex.Cr.R. 285), 124 S.W.2d 112, rehearing denied (136 Tex.Cr.R. 285), 124 S.W.2d 996; Wilson v. State (58 Tex.Cr.R. 596), 127 S.W. 548) But the court declined to approve submission of the issue of present insanity at the main trial as a substitute for a preliminary trial, observing that much confusion would arise if both insanity as a defense and present insanity were submitted at the same trial (Ramirez v. State, 241 S.W. 1020).'

The rule of Guagando did not, however, entitle an accused to a preliminary trial on the issue of insanity as a defense (insanity at the time of the commission of the offense).

Prior to 1937 there was no provision in the Code of Criminal Procedure for a trial of the defensive issue of insanity in a separate preliminary trial and no need for such hearing to protect the right given by the first sentence of Article 34. It was clearly recognized that insanity at the time the offense was alleged to have been committed was a defense to the criminal charge and was to be tried like other defenses at the main trial under a plea of not guilty. Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020; McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707.

The distinction between the two issues of present insanity or incompetency to stand trial and insanity as defense or criminal responsibility, 'and the rationale for according them different procedural treatment was recognized in Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020. * * *' State v. Olsen, supra.

In 1937 and again in 1957, the Legislature, while recognizing the judicially invented preliminary trial on the issue of competency to stand trial, made some interesting changes which are best described in the Texas Supreme Court's opinion in State v. Olsen, supra, as follows:

'In 1937 the Legislature enacted Article 932a, Vernon's Code of Criminal Procedure. See Acts 1937, 45th Leg., p. 1172, ch. 466. As noted above, there was at that time no legal procedure, statutory or decisional, by which a trial court could try the issue of insanity at the time of the act in advance of a trial on the main charge, and no procedure by which a court could try the issue of present insanity, over the objection of the defendant, on the trial of the main charge. By enactment of Article 932a the Legislature supplied a procedure to remedy both deficiencies. Whether it was wise in so doing is not for us to speculate. In Section 1 provision was made for the submission of issues and form of verdicts in any case when the issue of insanity was tried 'before the main charge,' and in Section 2 provision was made for the submission of issues and form of verdicts when the issue of insanity was tried on 'the trial of the main charge.' Issues and verdicts on insanity at the time of commission of the alleged offense and at the time of trial were required in both instances. But in that statute, as in Article 932b which repealed and displaced Article 932a, the Legislature did not purport to state when or under what circumstances a preliminary trial was to be had, or how jurisdiction to order it was invoked. We must assume that both Article 932a and Article 932b were enacted by the Legislature with full knowledge that under court decisions jurisdiction of a trial court to grant a preliminary trial on the issue of insanity could be invoked by or on behalf of a defendant only by a motion or request therefor based upon allegations that because of present insanity the defendant was unable to prepare a rational defense to the main charge.'

The Olsen decision made clear that the jurisdiction of a court to try issues of insanity before the trial of the main charge can be invoked by or on behalf of the defendant only by motion or request for trial on the issue of present insanity and not on the issue of insanity as a defense alone. In other words, insanity at the time of the commission of the act could be submitted as a second issue at a preliminary trial, but could not be the sole issue at such hearing.

In discussing the 1957 enactment of Article 932b, V.A.C.C.P., Judge Woodley in his South Texas Law Journal treatise, supra, said:

'The new act (Article 932b) makes such...