Zink v. Estelle, Civ. A. No. 74-G-157.

• Decision Date: 30 October 1975
• Docket Number: Civ. A. No. 74-G-157.
• Citation: 403 F. Supp. 656
• Parties: James Douglas ZINK, Petitioner, v. W. J. ESTELLE, Jr., Director Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

403 F. Supp. 656

James Douglas ZINK, Petitioner, v. W. J. ESTELLE, Jr., Director Texas Department of Corrections, Respondent.

Civ. A. No. 74-G-157.

United States District Court, S. D. Texas, Galveston Division.

October 30, 1975.

Ted Redington, Staff Counsel for Inmates, Huntsville, Tex., for petitioner.

John L. Hill, Atty. Gen. of Texas, Larry F. York, First Asst. Atty. Gen., Houston, Tex., for respondent.

MEMORANDUM AND ORDER

NOEL, District Judge.

Petitioner was convicted of the offense of murder with malice in the 10th Judicial District Court of Galveston County, Texas, in Cause No. 31,615, after a plea of not guilty and a trial by jury. A sentence of life imprisonment was imposed. As far as can be ascertained from the record, the state trial court made no determination of petitioner's competency to stand trial.

In his application for writ of habeas corpus, petitioner Zink contends (1) that Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), required the state trial court to conduct sua sponte an inquiry into his competency to stand trial; (2) that even if the state trial court was not required under the facts of this case to conduct a sua sponte inquiry into Zink's competency to stand trial, Zink is now entitled to a nunc pro tunc determination of whether he was in fact incompetent to stand trial in 1973; and (3) that the state trial court's denial of an application for a continuance so that additional psychiatric examinations could be made rendered it impossible for his counsel to provide effective assistance.

These same allegations have been presented to the state courts in habeas corpus proceedings. By written order of June 25, 1974, the 10th Judicial District Court of Galveston County, Texas denied petitioner's application for writ of habeas corpus without holding an evidentiary hearing. The Texas Court of Criminal Appeals then denied petitioner's application without written order on July 17, 1974.

Petitioner's first allegation is based on the twin holdings of the Supreme Court in Pate v. Robinson that (1) the states must provide a procedure constitutionally adequate to protect a defendant's right not to be tried while legally incompetent, and (2) the failure of the state courts to follow such a procedure, once provided, deprives the defendant of his due process right to a fair trial. Pate v. Robinson, 383 U.S. at 385, 86 S. Ct. 836; see also, Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

The Texas Court of Criminal Appeals responded to Pate v. Robinson by holding in Townsend v. Texas, 427 S.W.2d 55, 63 (Tex.Crim.App.1968) that:

if the trial judge learns from personal observations, or facts known to him, or from evidence presented, or by motion of the accused or his counsel, or by affidavit, or from any reasonable claim or credible source that there is a bona fide doubt as to the accused's condition to comprehend his situation or make his defense, a duty devolves upon the trial judge to cause a sanity hearing on that issue . . . .

In Wages v. Texas, 501 S.W.2d 105, 107 (1973) the Court of Criminal Appeals made clear ". . . that even where no request for a separate competency hearing is made there must be such hearing if evidence of the accused's present incompetency becomes sufficiently manifest during the trial." See also, Ainsworth v. Texas, 493 S.W.2d 517 (Tex.Crim.App.1973); Perryman v. Texas, 494 S.W.2d 542 (Tex.Crim.Ap. 1973); Price v. Texas, 496 S.W.2d 103, 105 (Tex.Crim.App.1973). This procedure was fashioned from the Illinois procedure that the Supreme Court expressly approved in Pate v. Robinson, supra, and therefore is clearly constitutionally adequate.

In the instant case, however, the state habeas courts failed to apply the standard laid down by the Texas Court of Criminal Appeals in Townsend. The state district court denied petitioner's application for writ of habeas corpus by written order of June 25, 1974, finding "that no suggestion of incompetency was filed prior to trial and that no request was made before or during the trial to hear evidence thereon." Thus, the state court apparently ignored the possibility that a sua sponte competency hearing might have been required under the rule of Townsend. Whether the circumstances were such as to necessitate a sua sponte competency hearing at Zink's trial in 1973 is a factual issue that cannot be resolved by an examination of the state court records. An evidentiary hearing must, therefore, be held to develop the relevant facts.

If it is determined at the evidentiary hearing that a sua sponte competency hearing was required, a second determination must then be made as to whether it is feasible to determine nunc pro tunc whether Zink was in fact incompetent to stand trial in 1973. If it is not, Zink must be re-tried within a reasonable time by the State of Texas or released from custody. If, on the other hand, it is possible to determine nunc pro tunc Zink's competency in 1973, then the evidentiary hearing should include a development of the facts necessary to resolve that issue. See, Lee v. Alabama, 386 F.2d 97, 108 (5th Cir. 1967); Carroll v. Beto, 421 F.2d 1065 (5th Cir. 1970).

Even if it is determined that the state trial judge was not under a duty under the rule of Townsend v. Texas to conduct a sua sponte competency hearing at the time of Zink's trial in 1973, Zink is nevertheless entitled to a nunc pro tunc determination of whether he was in fact incompetent to stand trial, if the facts elicited at the hearing are sufficient to create a real, substantial and legitimate doubt as to his competency to stand trial. See, Nathaniel v. Estelle, 493 F.2d 794 (5th Cir. 1974). This related issue, therefore, must also be factually developed and resolved at the evidentiary hearing.

The state court records also provide an inadequate basis for this Court to resolve the final issue raised by petitioner concerning whether the state trial court's denial of an application for a continuance for time to conduct an additional psychiatric examination deprived Zink of his federal right to the effective assistance of counsel. See Hintz v. Beto...