White v. State

• Decision Date: 12 December 1979
• Docket Number: No. 57998,57998
• Parties: Robert Lee WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 851

591 S.W.2d 851

Robert Lee WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 57998.

Court of Criminal Appeals of Texas, En Banc.

Dec. 12, 1979.

Rehearing Denied Jan. 16, 1980.

John A. Mann, Amarillo, Robert Michael Brown, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., C. Michael Ward, Asst. Dist. Atty., Lubbock, and Robert Huttash, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder committed in the course of committing the offense of robbery. V.T.C.A., Penal Code, § 1903. The punishment was assessed by the court at life imprisonment in response to the jurors' answers submitted to them under Article 37.071, V.A.C.C.P.

On appeal appellant raises the question of how many peremptory challenges he is entitled in a competency to stand trial hearing, contends the verdict at the competency hearing was contrary to the great weight and preponderance of evidence and was manifestly wrong, contends the court erred in excusing five prospective jurors for "economic reasons" without his presence or consent in violation of Article 2120, V.A.C.S., urges that a State's challenge for cause was improperly sustained when the prospective juror was not disqualified under the test of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), contends the court erred in admitting into evidence his extrajudicial confession, and challenges the sufficiency of the evidence to sustain the conviction.

Appellant raises a question of first impression which was sure to follow, sooner or later, in the wake of Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App.1977). Appellant contends the court erred in refusing his request for fifteen peremptory challenges during the voir dire examination of prospective jurors at the competency to stand trial hearing. Appellant argues that since he was charged with capital murder and was entitled to fifteen peremptory challenges on the trial on the merits, Article 35.15(a), V.A.C.C.P., he was likewise entitled to the same number of such challenges at a pre-trial competency hearing. The trial court gave the appellant ten peremptory challenges. ¹

Neither Article 46.02, V.A.C.C.P., nor any other part of the 1965 Code of Criminal Procedure specifies the number of peremptory challenges in a competency hearing. The former Codes of Criminal Procedure likewise did not specify any such number. Further, no decisional law developed in this area because until Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App.1977), there was no appellate review of competency hearings. As noted in Jackson, the earlier cases dealt solely with attempted direct appeals from a judgment entered in a competency hearing or attempted appeals from sanity hearings After a conviction. These cases held that there were no appeals from these hearings because the Court of Criminal Appeals had no jurisdiction in light of Article V, § 5, Texas Constitution, as there was no punishment assessed, no conviction was being appealed, and therefore the case was not a "criminal case" in light of Article V, § 5, Texas Constitution. See, i.e., Griffin v. State, 29 S.W.2d 349 (Tex.Cr.App.1930); Hardin v. State, 157 Tex.Cr.R. 283, 248 S.W.2d 487 (1952). The question of whether the issues involved in a competency hearing could be reviewed if the hearing was brought up on appeal from a conviction was left open. Griffin v. State, supra. This question was foreclosed, however, by Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355 (1959), holding no appeal would lie even if brought up on appeal of a conviction on the trial on the merits. Jackson, however, overturned Pena and its progeny, and held that there could be appellate review where the competency hearing is brought forward with an appeal from a conviction on the trial on the merits and an issue as to the competency hearing is duly raised. It was inevitable that in light of Jackson a question such as now presented would arise. A study of some of the records before this court reflects that in the past when there was no appellate review of competency hearing that the number of peremptory challenges permitted often varied from district court to district court. Some judges permitted fifteen peremptory challenges if the defendant was charged with a capital felony and ten peremptory challenges if the defendant was charged with a non-capital felony. See Article 35.15(a) and (b), supra. Still others, relying upon the nature of the proceedings, concluded that six peremptory challenges as permitted in civil cases were the proper number of such challenges to be permitted. See Rule 233, Texas Rules of Civil Procedure.

Article 46.02, § 4, V.A.C.C.P., makes it clear that a competency hearing is to be a separate and independent hearing before a different jury than the one on the trial on the merits. Cavender v. State, 515 S.W.2d 277 (Tex.Cr.App.1974); Perryman v. State, 494 S.W.2d 542 (Tex.Cr.App.1973).

While Jackson referred to the competency hearing as "quasi-criminal in a sense" and Pena referred to such hearing as "another separate trial, not strictly criminal in nature . . .," neither explored at length the nature of the hearing. Hardin noted, however, that such hearing was not a "criminal case."

Article 46.02, § 4(d)(1) and (2), V.A.C.C.P. (Acts 1975, 64th Leg., p. 1095, ch. 415), ² sets forth the issues to be submitted to the jury at a competency hearing:

"(1) whether the defendant is incompetent to stand trial; and

"(2) if found incompetent to stand trial, whether there is no substantial probability that the defendant will attain the competency to stand trial within the foreseeable future."

These issues are not criminal in nature. While a defendant may be under pending criminal charges, the issue of his guilt or innocence is not to be determined and punishment is not to be assessed at the competency hearing, therefore the issues to be determined are neither capital nor non-capital in the sense those terms are normally used.

Further, Article 46.02, § 1(b), as amended provides:

"A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence."

Thus, the burden of proof in a regular competency hearing will be on the defendant and not the State. We conclude after consideration of the nature of a competency hearing, that although ancillary to a criminal charge, the hearing is civil in nature, and therefore Rule 233 of the Texas Rules of Civil Procedure should control and that the defendant and the State should be permitted six peremptory challenges each. We reject the argument that the number of peremptory challenges in a competency hearing should vary depending upon whether the felony charge is capital or non-capital. ³ The appellant relies upon Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976). Batten did not deal with a competency hearing but with a trial on the merits on a charge of capital murder. Batten held a defendant was still entitled to fifteen peremptory challenges despite the highly unusual fact situation where the State had been presumed to have waived the death penalty. Reliance on Batten Is misplaced.

In the instant case, appellant was accorded four more peremptory challenges than he was entitled to under said Rule 233. His contention is overruled.

In another ground of error, appellant asserts that the jury's verdict at the competency hearing was "so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust."

Appellant candidly argues that he does not contend there is not some probative evidence in support of the verdict, but contends it is so contrary to the great weight and preponderance of the evidence the verdict must be set aside by this court.

Appellant presented the testimony of a psychiatrist, two clinical psychologists, one of his counsel and a lay witness who was a jail visitor. The State offered the testimony of a neurologist and a radiologist. Appellant argues that his psychiatrist and the two clinical psychologists were well qualified to express an opinion as to his competency because of their training, background and experience and in light of the tests administered to him by them. He observes that the two doctors called by the State were experts in neurology and radiology but they were not even asked whether in their opinion he was competent or not. The appellant notes that the testimony of the State's lay witnesses was contrary to his medical testimony, but contends his witnesses had a better opportunity to observe him than the lay witnesses for the State.

What appellant is asking this court to do is to consider all the evidence that which supports the verdict and that which does not and to set aside the verdict if we conclude that it is so against the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, regardless of whether there is evidence of probative force to support it. This is the standard of review requested.

Although appellant does not brief this ground of error along these lines, he is apparently asking this court to consider this ground as a fact issue question ⁴ rather than as a law issue question. This court has no jurisdiction to do what the appellant requests as would a Court of Civil Appeals because of a somewhat peculiar constitutional provision applicable to Courts of Civil Appeals. Article V, § 6 (Courts of Civil Appeals), states in part:

"Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error. . . . " See also Article 1820, V.A.C.S., Texas Rules of Civil Procedure 451, 453, 455.

It has been said that a "no evidence" question is a question of law while an "insufficient evidence" question is a question of fact before the Courts of Civil Appeals. Calvert " 'No Evidence' and 'Insufficient Evidence' Points of Law," 38...