Vigneault v. State

• Decision Date: 11 June 1980
• Docket Number: No. 64068,64068
• Citation: 600 S.W.2d 318
• Parties: Donald Lee VIGNEAULT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 318

600 S.W.2d 318

Donald Lee VIGNEAULT, Appellant, v. The STATE of Texas, Appellee.

No. 64068.

Court of Criminal Appeals of Texas, En Banc.

June 11, 1980.

Ken D. Lipscombe, Wharton, Richard L. Manske, El Campo, for appellant.

Jack Salyer, Dist. Atty., Bay City, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

CLINTON, Judge.

Automatic appeal ¹ is taken from a conviction for the offense of capital murder pursuant to V.T.C.A. Penal Code, § 19.03(a)(2). ² The jury returned an affirmative finding to each of the two special issues submitted under Article 37.071(b), V.A.C.C.P., and appellant's punishment was consequently assessed at death. Article 37.071(e), supra.

In the early morning hours of April 26, 1978, appellant, armed with a .45 caliber automatic pistol, entered a 7-11 convenience store in Bay City; the 18 year old deceased, Loretta Jones, was on duty alone in the store. Upon taking the coins and currency from the cash register a total of approximately $43.00 appellant forced Mrs. Jones at gunpoint to enter his car on the driver's side, and drive across town to the house in which appellant sublet a room. Appellant then directed Mrs. Jones into his bedroom and ordered her to undress. Thereafter, appellant twice had sexual intercourse with the deceased.

Later in the morning, appellant attempted to strangle Mrs. Jones, but, according to his confession, "she put up a big fight and . . . screamed," scratching appellant on his cheek and under his right arm. Appellant hit her in the mouth with his fist, and when his landlord, Kim Thompson, came down the stairs to investigate, appellant came out of the bedroom explaining that nothing was wrong and that Thompson should go back to bed.

At daybreak, appellant advised the deceased that he was going to drop her off out in the country and she would from there have to make her way home. Armed with the .45 automatic pistol, appellant drove the deceased seventeen miles east and then south of Bay City, to a remote rice farming area, and stopped the car. At gunpoint, appellant then forced Mrs. Jones out of the passenger side of the car and directed her to take his penis in her mouth. As Loretta Jones knelt, yielding to this command appellant shot her squarely between the eyes at point blank range. ³

Appellant shot deceased again, in the neck, and a third time, in the back of the head; then the pistol jammed.

At approximately 7:00 a. m., appellant arrived home, and walked into the house with the .45 automatic pistol in his hand. According to Kim Thompson, there was blood all over appellant's pants, some on his shirt and "lots of blood splattered on his hands." He said to Dwane Rickman, another housemate, "Take this piece of junk and fix it" as he handed Rickman the pistol. Thompson asked appellant what had happened, to which he replied, "I just wasted somebody." Appellant then described the abduction, robbery, rape and murder of Loretta Jones to his housemates in detail.

Rickman unloaded and "field stripped" his pistol, giving the barrel to Thompson. Appellant threatened his housemates that he would kill them or have them killed if they "narked on" him. The three then discussed and decided upon an alibi for appellant. Appellant gave Thompson $20.00 of the robbery proceeds to pay off a debt. Appellant and Thompson then left in the latter's car ⁴ for the South Texas Nuclear Project site where appellant was employed as a construction worker, to pick up his paycheck. ⁵

The two stopped at a local elementary school and threw the contents of a small bag of change taken in the robbery across the playground. On the way to the nuclear power plant, Thompson turned off the main road and stopped at the top of a small wooden bridge where he threw the barrel of the pistol into a creek. Later that evening, Rickman became concerned that the spent shell casings might have fingerprints on them, so he and appellant went to look for the body of the deceased, but were unable to find it.

The next day, Thompson again drove appellant to the nuclear project site where appellant obtained his paycheck. Appellant cashed the check and gave Thompson some money in payment for the car. He washed the car, and shortly before noon appellant left for North Carolina. Thereafter, on Sunday, April 30, appellant was arrested in Carthage, North Carolina, at the home of his fiancee, pursuant to a Matagorda County warrant for his arrest. Appellant waived extradition and was returned to Bay City on or about May 4, 1978. On appellant's motion for change of venue, the trial court ordered appellant's trial moved to Wharton County.

By his first ground of error, appellant complains of the trial court's failure to impanel a jury for the purpose of determining his competence to stand trial, presumably, pursuant to Article 46.02, V.A.C.C.P. ⁶

The record reflects that appellant filed a timely motion for psychiatric examination and "pre-trial hearing on defendant's competency." The trial court pursuant thereto entered an order directing that two psychiatric examinations of appellant be conducted by different psychiatrists: Neil D. Buie, M.D., and John Nottingham, M.D. The order directed that the purposes of such examinations were to be for determining appellant's present competency to stand trial ⁷ and his sanity at the time of commission of the offense, and further, that written reports of the respective physicians' examinations be filed with the court within thirty days of September 18, 1978, the day of the order. ⁸

Some ten months later on the day the cause was set for trial June 12, 1979, the defense filed a "motion for pre-trial hearing to determine the defendant's competency to stand trial," as well as a written "notice of intention to raise evidence of insanity defense." The trial court thereupon convened a hearing at which defense counsel urged the impanelment of a jury for determination of the issue of appellant's competence to stand trial, offering as "evidence to support a finding of incompetency to stand trial" ⁹ the following:

(1) that appellant had given conflicting accounts of the offense, and was unable to assist his attorneys in preparation of a defense. Stated counsel, "As for example, yesterday making the suggestion that he should ask the court to fire both of his defense attorneys . . . and ask the court that he be allowed to represent himself in a capital murder case;"

(2) that defense counsel had received an oral report from "the psychiatrist" the previous day, but did not know what the psychiatric testimony would be; counsel had not "seen the report;"

(3) that appellant was discharged from the military because of mental illness, and that "during his military service, (he) spent a considerable amount of time in confinement for mental disease or problems;"

(4) that appellant was presently taking 40 milligrams of valium per day;

(5) that a probation report regarding appellant from the State of Virginia reflects that appellant suffered mental instability, depression and was a drug abuser;

(6) that "the psychiatrist who examined (appellant) last week" stated that appellant was a "textbook schizophrenic."

None of these assertions was supported by either documentary evidence or sworn testimony; the psychiatrists mentioned remained nameless. The trial judge denied the motion for a competence hearing "at this time," emphasizing such qualification of the denial. ¹⁰

Article 46.02, § 2(a), supra, provides that, upon written pretrial motion by the defense, the trial court is to determine whether evidence exists which would support a finding that the accused is incompetent to stand trial; if such evidence is extant, the trial court must impanel a jury to resolve the issue, without regard to the existence, or for that matter, the clear preponderance, of evidence presented to support a finding of competence. See Williams v. State, 543 S.W.2d 385, n. 2 (Tex.Cr.App.1976).

In the instant case, the only things which could be characterized as "evidence" presented to the trial judge for his determination were defense counsel's statements that appellant had given conflicting versions of the offense and had expressed a desire to represent himself in the capital murder proceeding. It is implicit in the denial of appellant's motion for a pretrial competency determination by a jury that the trial court found there was no "evidence to support a finding of incompetency to stand trial." Thus there was no issue to present to a pretrial jury panel for resolution in this regard.

We agree with the trial court that no evidence was presented which would indicate the necessity of a jury determination of appellant's competence at the time of trial as discussed above, and we so hold. Article 46.02, § 2(a), supra; Ramsey v. State, 563 S.W.2d 616 (Tex.Cr.App.1979); Williams v. State, supra. This first ground of error is overruled.

Next, appellant complains of the failure of the trial court to grant his motion for continuance based upon newly discovered evidence as to the defense of insanity.

As noted ante, appellant filed a written notice of intention to raise insanity as a defense on the day this cause was set for trial. A search of the record reveals no written motion for continuance filed on that day, nor any motion for continuance on the ground now urged at all. The transcription of the court reporter's notes reveals only this statement by defense counsel in this vein:

I have filed defendant's notice of intention to raise evidence of the insanity defense, and I would like the record to reflect that it was filed on this date, June the 12th, 1979. And the reason that it was filed on the date of trial was that it was just learned by defense counsel yesterday that that would be a defense in this cause.

Thus, we find that no motion for continuance was presented to the trial court in any form; accordingly, nothing is presented for review. This ground of error is...