Abshire v. State

438 S.W.2d 928, 1969 Tex. Crim. App. LEXIS 1061

• Court: Court of Criminal Appeals of Texas
• Decided: February 19, 1969
• Docket: No. 41803
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is fondling; the punishment, twenty years.

We will summarize the grounds of error raised by appellant’s court appointed attorney on appeal. He first contends that the appellant’s employed trial counsel was incompetent because he did not interpose the defense of insanity. He next contends that the trial court erred in not granting his motion for new trial ánd several other motions for hearings, including a motion for psychiatric examination, on the question of appellant’s sanity. He has prepared a scholarly brief in support of his contention that such hearings should have been granted on his own sworn motion to reduce sentence which recites, in part:

“The defendant, Alfred Abshire, has previously sought medical attention from psychiatric experts at the Veterans Administration Hospital in an effort to prove his psychological incapacity to commit a crime such as that with which he was charged.”

This is the only matter which was presented to the trial court and to this Court showing that appellant is or was of unsound mind.

We decline to agree that all indecent fondlers are, per se, of unsound mind. Just because appellant is now indigent does not entitle him to a hearing to see if he can now raise the question of his sanity without some proof to show that a hearing is required.

We find ourselves in accord with a statement found in the State’s brief:

“It is submitted that Appellant’s court appointed counsel has, by reason of his great diligence, attempted to create error where none is reflected in the record, and that he now protests because the trial court did not join in his effort.”

Finding no reversible error, the judgment of the trial court is affirmed.

DOUGLAS, J., not participating.