Gilstrap v. State

945 S.W.2d 192, 1997 Tex. App. LEXIS 2524, 1997 WL 232754
CourtCourt of Appeals of Texas
DecidedMarch 27, 1997
DocketNo. 2-96-117-CR
StatusPublished
Cited by1 cases

This text of 945 S.W.2d 192 (Gilstrap v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilstrap v. State, 945 S.W.2d 192, 1997 Tex. App. LEXIS 2524, 1997 WL 232754 (Tex. Ct. App. 1997).

Opinion

OPINION

PER CURIAM.

Levoy Carl Gilstrap, Appellant, was charged by information with the misdemean- or offense of Assault-Bodily Injury. The appellant entered his plea of not guilty but a jury found him guilty of Assault-Bodily Injury. The jury also assessed his punishment at 30 days in jail and a $450.00 fine. The appellant perfected his appeal and brings three points of error for our consideration. In his first two points of error the appellant complains that the court did not permit him to cross-examine the complainant concerning her belief that the appellant’s sister had placed a “witchcraft hex” on the complainant’s parakeet. In the third point of error the appellant complains of the court’s failure to enforce a plea bargain he alleges he made with the State. The appellant contends the Court erred in failing to dismiss the case or in failing to require the State to specifically perform on the alleged plea bargain. Finding that the court did not err by limiting the appellant’s cross-examination, or by failing to dismiss the information or specifically enforce the plea bargain, we overrule all points of error and affirm the judgment.

Since the appellant does not contest the sufficiency of the evidence our factual rendition will be brief. Suffice it to say that the jury believed that the appellant hit and slapped his ex-girlfriend, Donna Dunaway, as alleged in the information. Dunaway also testified that the appellant twisted her arm and threw her to the ground. She sought medical attention for injuries to her head, her shoulder and her hand. An Emergency Medical Technician testified that he treated Dunaway for her injuries. She was hospitalized for about six hours.

During the cross-examination of Dunaway, she was asked about a phone message she left on the appellant’s answering machine about two weeks after the assault. The State objected to the line of questioning, the jury was retired, and the appellant then was permitted to question Dunaway about the call. When asked if she left a message on the appellant’s answering machine accusing [194]*194his sister of killing one of her parakeets with a voodoo hex, Dunaway could not recall making such allegations. The appellant then played the recorded phone message in court, and Dunaway admitted it was her voice, but she did not recall when she left the message. The portion of the record quoted in the State’s brief, indicates that Dunaway (1) admitted it was her voice on the tape and (2) that she “left”, i.e., made the call. She merely stated that she did not remember the date she left the message. The recording did contain an allegation that the appellant’s sister killed one of Dunaway’s parakeets with witchcraft hexes. At the conclusion of the hearing the State renewed its objection to any questions concerning Dunaway’s opinion of how her bird died. The objection was sustained and the appellant perfected his bill.

In his first point of error the appellant contends the trial court erred in denying him the opportunity to cross-examine Duna-way concerning her statement that her bird had been killed by the appellant’s sister placing a hex on it. The appellant contends such a belief is relevant to Dunaway’s credibility because it reflects on her mental capacity.1 The appellant noted at trial that he did not seek to attack Dunaway’s veracity or truthfulness. He therefore concludes that Rule 608(b) Tex.R.CRIM. Evid. does not preclude his cross-examining Dunaway on this specific act. Since Dunaway’s statement concerning the bird was the only evidence the appellant offered concerning Dunaway’s mental capacity, the appellant contends the court did not unduly limit his cross-examination, but rather totally precluded his cross-examination on the issue of Dunaway’s mental capacity.

The appellant contends that a witness’ mental capacity is a proper subject for cross-examination and defects in mental capacity can be shown by extrinsic evidence. Virts v. State, 739 S.W.2d 25, 29 (Tex.Crim.App.1987). He also notes that “the feeble-minded condition of the witness may be shown to impair or impeach his credit as a witness.” Bouldin v. State, 87 Tex.Crim. 419, 222 S.W. 555, 557 (Tex.Crim.App.1920). The trial judge determines the competency of the witness, but the jury is entitled to hear evidence as to the mental status of the witness. Saucier v. State, 156 Tex.Crim. 301, 235 S.W.2d 903, 915 (Tex.Crim.App.1950), cert. denied, 341 U.S. 949, 71 S.Ct. 1016, 95 L.Ed. 1372 (1951).

The State does not disagree with the appellant’s basic premise that there is precedent which supports a party’s right to impeach a witness on perceptual incapacity caused by mental illness. The State contends, however, that the appellant failed to establish a nexus between Dunaway’s statement that a hex killed her bird and an inability on Dunaway’s part to accurately observe the facts surrounding the assault, to remember the facts, and accurately and truthfully relate them in court. The State contends that the appellant failed to demonstrate that Dunaway was mentally incapacitated at the time of the assault or at the time of trial. Ramirez v. State, 802 S.W.2d 674, 676 (Tex.Crim.App.1990); Virts, 739 S.W.2d at 30; Drone v. State, 906 S.W.2d 608, 615-16 (Tex. App.—Austin 1995, pet ref'd).

The State also contends that there is no evidence that a belief in “hexes” is any evidence of mental incapacity or mental illness. The State argues that simply because a witness has beliefs at odds with modern dogma is no evidence of mental illness. The appellant argues however, that mental illness need not rise to the level of treatment or confinement for it to be a matter of relevant inquiry on cross-examination. United States v. Moore, 786 F.2d 1308 (5th Cir.1986); Virts, 739 S.W.2d at 30. Thus evidence of mental illness is admissible “provided that such mental illness or disturbance is such that it might tend to reflect upon the witness’ credibility.” Virts, 739 S.W.2d at 30. We therefore find the State to be correct in focusing our attention not on the witness’ belief, but rather on the evidence that the belief would inhibit her ability to comprehend the facts she observed [195]*195and then be able to rationally and accurately relate those facts in court.

The term mental illness is relative in force, there being a wide range of severity, from mere nervousness and mild transient situation personality disorders through the psycho-neuroses to the thoroughly debilitating psychoses. Id. at 30. In deciding whether evidence concerning the fact that the witness has suffered a recent mental illness is admissible, great deference must be given to the trial judge’s initial decision, given the imponderables of mental illness and mental disturbances. Each case must therefore be decided on an ad hoc basis. Id. at 28.

Viewing Dunaway’s condition in the light of the teachings of Virts, we find no other evidence of mental illness or mental disturbance other than her belief that her bird died as a result of the appellant’s sister placing a hex on the bird.

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Bluebook (online)
945 S.W.2d 192, 1997 Tex. App. LEXIS 2524, 1997 WL 232754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilstrap-v-state-texapp-1997.