Atomanczyk v. State of Texas

776 S.W.2d 297, 1989 Tex. App. LEXIS 2183, 1989 WL 97955

• Court: Court of Appeals of Texas
• Decided: August 24, 1989
• Docket: 01-86-00546-CR
• Status: Published

Opinions

OPINION ON REMAND

EVANS, Chief Justice.

A jury convicted appellant of murder and assessed his punishment at confinement for life and a fine of $10,000. In his appeal, appellant asserted that the parole charge given to the jury, pursuant to Tex.Code Crim.P.Ann. art. 37.07, sec. 4,¹ violated the Texas Constitution. In an unpublished opinion issued on April 2, 1987, this Court upheld the constitutionality of the statute and overruled these points of error. The Texas Court of Criminal Appeals has vacated the judgment of this Court and remanded the cause to this Court for further consideration.

In his first six points of error, appellant contends the trial court erred in instructing the jury on the issue of parole. Since this Court’s earlier disposition of the case, the Texas Court of Criminal Appeals has ruled the parole statute is unconstitutional. Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988).

In Rose, the Texas Court of Criminal Appeals held that article 37.07, section 4 violated the separation of powers and the due course of law provisions of the Texas Constitution. Rose, 752 S.W.2d at 552. On its own motion for rehearing, the court then held that when the trial court gives a parole charge, the appellate court must apply the rule 81(b)(2) test to determine whether appellant was harmed. Rose, 752 S.W.2d at 553; Tex.R.App.P. 81(b)(2). That rule provides:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

In making its assessment of harm in Rose, the court pointed to a number of different factors in finding the error made no contribution to the punishment assessed: a curative charge given to the jury; the egregious facts of the case; and the defendant’s criminal record. Rose, 752 S.W.2d at 554r-555. The jury convicted Rose of aggravated robbery and assessed the maximum sentence of life imprisonment.

We turn to the facts of this case. In its charge to the jury, the trial court gave the following statutory charge:

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

Compare Rose, 752 S.W.2d at 554. As noted in Rose, we generally presume a jury follows the instructions given by the trial court. Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Crim.App.1983). Although the court did not give the additional curative charge referred to in Rose, we conclude that the statutory charge adequately instructed the jury it was not to consider the manner in which the parole law might be applied to appellant. Appellant has not presented any evidence that rebuts the presumption that the jury followed the court’s charge.

The facts of the murder show that it was senseless and brutal. The victim’s wife testified that she and her husband were asleep in their home when someone knocked on the door about 2 or 3 a.m. They went to the window by the door and saw appellant standing on the front porch under the porchlight. Neither of them knew him. After appellant continued knocking, her husband opened the door. Appellant asked for someone named John. The victim, with his wife standing behind him, told appellant that no one named John lived there. Appellant then took a .38 caliber pistol from his jacket, held it within 24 inches of the victim’s face, and pulled the trigger. The victim fell to the floor, blood flowing from his mouth, and died in his wife’s arms. Appellant fled the scene and was apprehended 10 months later when the victim’s wife identified his picture from a photo array shown to her by the police. A nurse, who had lived with appellant after the victim’s murder, testified that appellant owned and knew how to use a .38 caliber revolver. She said appellant told her he had used the gun to shoot someone in the head, saying “I blow people’s heads off.”

At the punishment phase, the State presented evidence that a jury had previously convicted appellant of attempted capital murder and had assessed punishment at 85 years confinement. Because the indictment alleged no enhancements, the trial court instructed the jury to consider the full range of punishment, five to 99 years or life and a maximum fine of $10,000. In closing arguments, the prosecution asked the jury to assess the maximum punishment. The defense counsel asked the jury to consider the entire range of punishment and be reasonable in light of his other sentence. In his argument, the defense counsel made the following remark regarding parole:

All I’m saying, he’s gone, I don’t know how long, but a long time. Read this Charge. He’s got to serve at least a third of any time and be rehabilitated and he’s gone, got to be in shape to get out. I don’t know if he’ll ever get in shape. The State of Texas may have to care for him until he dies. Is it reasonable to give a huge, long sentence under these circumstances, knowing what each of us now knows [that he is serving an 85-year sentence]? So, simply, I’m asking you, be reasonable in assessing a sentence.

The prosecutor made no mention of parole during his argument.²

The jury deliberated for almost one hour and assessed punishment at confinement for life and a fine of $10,000.

In light of the factors considered in Rose, we find beyond a reasonable doubt that the parole charge did not contribute to the punishment assessed. The facts show that appellant shot the victim from close range without any apparent motive. The State also introduced evidence of appellant’s conviction for attempted capital murder, this second offense occurring within one year of the charged offense. These egregious facts amply justify the jury’s assessment of punishment. In view of the statutory charge given by the court, and the absence of any prosecutorial emphasis on parole, we conclude beyond a reasonable doubt that a rational trier of facts would not have reached a different result if the parole charge had not been given. See Harris v. State, No. 69,366 (Tex.Crim.App., June 28,1989) (not yet reported).

Having decided that appellant’s first six points of error, which were remanded to this Court for reconsideration in the light of Rose, should be overruled, we are inclined to affirm the trial court’s judgment. However, because the dissenting opinion disagrees, not only with our decision on the Rose issues, but also with the court’s earlier opinion regarding appellant’s competence to stand trial and his sanity at the time of the crime, we have decided to reconsider those issues, even though they were not specifically included in the order of remand. See Adkins v. State, 764 S.W.2d 782, 784 (Tex.Crim.App.1988). Having reconsidered these issues in the light of the appellate record before us, we remain of the opinion that both questions were correctly decided by this Court’s earlier opinion.

The record shows that appellant has a mental disorder, diagnosed as chronic, paranoid-type schizophrenia. Because of the severity of that illness in October 1983, he was found incompetent to stand trial and was hospitalized for treatment at Rusk State Hospital. In November 1984, he was again found incompetent to stand trial and was hospitalized a second time at Rusk State Hospital for an indefinite period. On January 24, 1986, the clinical director at Rusk State Hospital advised the trial court that appellant was competent to stand trial and that the court could resume the criminal action pending against him.

On March 5,1986, the trial court granted a joint motion for psychiatric examination of appellant to determine his competency and sanity. In a report dated March 12, 1986, Dr. Jerome B. Brown, a clinical psychologist at the Mental Health and Mental Retardation Authority of Harris County, stated to the court that, in his opinion, appellant should be considered of sound mind at the time of the alleged offense, and that the deterioration in his psychological function came only after his arrest and incarceration, approximately 10 months later. In a separate report, also dated March 12,1986, Dr. Brown advised the court that, in his opinion, appellant should be considered competent to stand trial. Dr. Brown reported that, while appellant was still suspicious and believed he had been mistreated at the hands of the criminal justice system, he was able to consult with his attorney with a reasonable degree of rational understanding “if he decides to do so.” Dr. Brown noted that appellant’s prescription from Rusk State Hospital had expired, and that he was no longer receiving medication.

The court also received another report dated March 12, 1986, from Dr. John D. Nottingham, Jr., a psychiatrist at the Mental Health and Mental Retardation Authority. Dr. Nottingham stated that, in his opinion, appellant was legally sane at the time of the alleged offense.

On May 8,1986, the State and appellant’s counsel agreed to a July 8, 1986 trial setting. On July 2, 1986, appellant’s counsel filed a notice that he planned to invoke the defense of insanity. On July 8, 1986, the day before trial commenced, appellant’s counsel filed a motion to have an independent psychiatric examination of appellant, which the court granted that same day. Appellant also filed an unsworn motion for a continuance to permit the psychiatric examination to be accomplished, but there is no showing that this motion was ever presented to the trial court for a ruling. Appellant made no complaint in the trial court, and makes no complaint on this appeal, that the court abused its discretion in proceeding to trial on July 9,1986. Indeed, the record does not show that the trial court was ever made aware of the appellant’s unsworn motion for continuance, and unless that motion was presented to the court for a ruling, there could be no error. Thus, we need not consider the question, raised only by the dissent, that the trial court was required to consider the unsworn allegations in the motion as raising an issue on appellant’s competency to stand trial. See Tex.R.App.P. 52(a); Johnson v. State, 504 S.W.2d 493, 494 (Tex.Crim.App.1974).

At appellant’s arraignment on July 9, 1986, his trial counsel questioned him at length about his understanding of plea bargain negotiations with the State’s prosecutor, and about counsel’s recommendations to him. During this questioning, appellant’s counsel had considerable difficulty in obtaining appellant’s response to his questions about the plea bargaining negotiations.³ Appellant’s counsel finally asked appellant whether he wished to accept the State’s offer, or whether he wished to go to trial. When appellant did not respond to that question, the court entered a plea of not guilty on his behalf, and the case proceeded to trial. Not once during the course of the trial that followed did appellant’s counsel ever assert his belief that appellant was mentally incompetent to assist in his own defense.

During the guilt-innocence phase of trial, after the State rested its case, appellant’s counsel called Dr. Fred Fason, an independent psychiatrist, who had been appointed by the court to examine appellant. Dr. Fason stated that he diagnosed appellant’s mental disorder as “schizophrenic, paranoid-type chronic,” but he said he had no opinion as to whether appellant was mentally insane at the time of the offense. He said he could not form a conclusion about that issue because he did not have sufficient data to do so. He said he had examined appellant for only 15 minutes that morning. He said it was “possible” that appellant was insane at that time, but he said it was equally possible that appellant was sane.

Dr. Fason testified, in effect, that he had no opinion about appellant’s sanity at the time of the offense, and that he did not disagree with the conclusion expressed by Dr. Brown and Dr. Nottingham that appellant was legally sane at that time. He also conceded that just because a person had committed an apparently senseless criminal act, the commission of the act did not mean that the person was insane. Never once during his direct or cross-examination was Dr. Fason asked if he had an opinion about appellant’s competence to stand trial. Thus, Dr. Fason expressed no opinion on that matter.

The only evidence presented to the court regarding appellant’s competency to stand trial and his sanity at the time of the offense consisted of the two psychiatric evaluations by Dr. Brown and Dr. Nottingham. Dr. Fason testified that he had reviewed both reports and that he had no substantial, disagreement with the conclusions reached. Indeed, he quoted at length from Dr. Nottingham’s report, said he had read it, and agreed with it. Dr. Fason admitted he was unable to reach any conclusion about appellant’s sanity at the time of the offense, and as stated earlier, he was never asked if he considered appellant competent to stand trial. Thus, Dr. Pa-son’s testimony did not raise any issue of fact regarding appellant’s competency to stand trial or his sanity at the time of the offense.

Based on the evidence presented, the court, at the conclusion of trial, entered the following order:

It is the finding of this court that the defendant at an earlier time has been found incompetent to stand trial by a jury and was sent to Rusk State Hospital for further evaluation and treatment. It is the further finding of this court that the defendant was returned to Harris County, Texas, after regaining competency and appeared before this court accompanied by letters from Physicians at Rusk State Hospital stating he had regained competency.

Further, it is the finding of this court that the defendant was evaluated by Physicians in Houston, Texas, and their letters and opinions stating defendant’s competency were presented to the court before commencement of trial.

It is the order of this court that defendant, John Edward Atomanczyk, prior to the commencement of trial, was competent to stand trial.

In determining whether “there is evidence to support a finding of incompetency to stand trial,” a trial court must consider only that evidence tending to show incompetency and put aside “all competing indications of competency.” Sisco v. State, 599 S.W.2d 607, 613 (Tex.Crim.App.1980). Here, the only evidence relating to the issue of competency was that contained in the psychiatric reports of Dr. Brown and Dr. Nottingham. Although some of the factors analyzed in these reports might suggest appellant had a mental disorder, these factors cannot be considered alone and without reference to the doctor’s medical conclusion. The reports show that both doctors reached the same medical conclusion: appellant was then competent to stand trial. This medical conclusion was never refuted by any evidence, and the reports do not reflect “competing indications of competency” within the meaning of Sisco.

In this Court’s earlier opinion, we determined that no evidence was presented to the trial court raising an issue about appellant’s competency to stand trial, or that required the court to instruct the jury on appellant’s claimed insanity at the time of the offense. On remand, having again reviewed the record, we find no basis for disturbing this Court’s decision on these same issues.

The trial court’s judgment is affirmed.

O’CONNOR, J., dissents.

1 . Ch. 576, sec. 1, 1985 Tex.Gen.Laws 2195, amended by ch. 66, sec. 1, 1987 Tex.Gen.Laws 170, amended by ch. 1101, sec. 15,1987 Tex.Gen. Laws 3765.

2 . Counsel’s arguments to the jury about the effect of the parole laws on a defendant's incarceration may constitute a significant factor in considering whether the court’s parole charge could have contributed to the punishment assessed. See Urbano v. State, 760 S.W.2d 33, 39 (Tex.App.—Houston [1st Dist.] 1988, pet. pending); distinguished in Villanueva v. State, 769 S.W.2d 678 (Tex.App.—Houston [1st Dist.], 1989, n.p.h.). But each case must be analyzed on its individual facts, and we do not consider defense counsel's remarks so significant as to rebut the presumption that the jury followed the court’s curative instruction.

3 . The record does not indicate whether appellant's lack of response was due to his inability to comprehend, or if he simply refused to commu-rúcate. The trial court was, of course, in a better position than we are to make such an assessment.