Johnson v. State

564 S.W.2d 707

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault upon a police officer; punishment was assessed at two years.

The sufficiency of the evidence is not challenged; therefore, only a brief version of the facts is necessary. The evidence reflects that Deputy Constable Mike Mason had an outstanding arrest warrant for one Robert Johnson, Jr. On July 1,1975, Mason located appellant at his place of employment, identified himself as a peace officer, and informed appellant that he had a warrant for his arrest. Appellant became agitated and made an unsuccessful attempt to show Mason that he was not the person named in the warrant. Appellant refused to go with Mason in response to the warrant, so Mason attempted to handcuff him. Appellant resisted the arrest, and a five to ten minute struggle ensued during which Mason received a blow to the face and a cut on his hand. Appellant denied striking the officer and testified that he had been jumped by five police officers without just cause. The jury rejected appellant’s defense.

In his brief appellant contends, “The trial court erred in failing to halt the trial on the merits and obtain a finding as to the Appellant’s competency to stand trial.” Citing Bonner v. State, Tex.Cr.App., 520 S.W.2d 901, he argues that where evidence of incompetency becomes manifest during the trial, due process requires the trial judge on his own initiative to halt the trial and conduct a hearing.

At the time of trial in June 1976 this due process requirement had been incorporated into the statutory law of this state. Article 46.02, Sec. 2(b), V.A.C.C.P., provides:

“If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.” (Emphasis added.)

This language is mandatory. The hearing by the court mandated by this provision is not the incompetency hearing itself, but is for the purpose of determining whether an incompetency hearing will be held.¹

In the instant case, during the ten months prior to trial, appellant’s court-appointed counsel filed three separate motions requesting psychiatric examinations, all of which were granted by the trial court. Two psychiatrists reported that appellant was competent to stand trial, even though there were some indications of delusions and paranoia. Another psychiatrist’s report indicated that he believed appellant was competent, but that he had refused to cooperate with the examinations. A clinical psychologist’s report was inconclusive due to appellant’s failure to cooperate. The last of these reports was submitted to the trial court approximately three weeks prior to trial. Defense counsel also filed with the court a motion for a preliminary hearing on the issue of competency to stand trial,² indicating that he was of the opinion that appellant was unable to assist in the preparation of his defense. The record does not reflect that this motion was acted upon by the trial court.

While these pre-trial reports indicate appellant was competent and would be evidence of that fact, the existence of evidence that an accused is competent does not dilute or remove the unambiguous language of Sec. 2(b), supra, that requires a hearing by the court if evidence of incompetency is brought to its attention during the trial. We must therefore look beyond these pretrial reports and examine the evidence appellant contends triggered the due process requirements now found in Sec. 2(b), supra. In weighing this evidence, however, it should be kept in mind that the statutory standard that required the court’s hearing is, “If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source . ” Under prior case law a higher standard governed:

“If the evidence which comes before the Court from any source is sufficient to create in the Judge’s mind a reasonable ground to doubt the competency of the accused to stand trial he should conduct a hearing out of the presence of the jury to determine whether or not there is in fact an issue as to the competency of the accused to stand trial.” (Emphasis added.) Quintanilla v. State, Tex.Cr.App., 508 S.W.2d 647.

Under the plain language of the controlling statute, it is no longer necessary that the evidence be sufficient to create a reasonable doubt in the judge’s mind before a hearing is required; it is sufficient to require such a hearing that any evidence of incompetency from any source is brought to the attention of the court during the trial. We turn now to the evidence presented to the court during the trial.

In the case at bar counsel had indicated his belief that appellant was incompetent prior to trial, and within the first few moments of the trial counsel told the court that he did not believe that appellant “fully realizes the consequences of what could happen to him” concerning pre-trial procedural requirements.

Appellant’s brother, James Johnson, testified that appellant had had several nervous breakdowns; that his condition was “out of control” and that he had been hospitalized in two mental hospitals in California. The brother related that the arrest warrant that officer Mason served was based upon a charge he had filed because “that’s the only way I can seek help for him.”

When testifying in his own behalf, appellant lapsed into a rambling narrative stating that he had been “under surveillance for five years” by certain law enforcement officials; that certain documents and pieces of his private mail had been stolen from him; that there was a conspiracy among certain parties to keep him from informing the public that the “water in the city of Beaumont was drugged,”³ and also that there was a conspiracy among the trial officials, including the trial judge and his attorney, to send him to the penitentiary unjustly. Appellant’s actions and his testimony do not appear to us to be “clear and lucid.”

We hold that under the standard of Art. 46.02, Sec. 2(b), supra, this evidence was sufficient to require the trial court to “conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”

For failure to follow this mandatory statute, the judgment is reversed and the cause remanded.⁴

Before the Court en banc.

1 . Art. 46.02, Sec. 4(a), V.A.C.C.P. provides in part:

“If the court determines that there is evidence to support a finding of incompetency to stand trial, a jury shall be impaneled to determine the defendant’s competency to stand trial.”

2 . See, Art. 46.02, Sec. 2(a), V.A.C.C.P.

3 . During appellant’s diatribe about the “drugging” of the water system, apparently based upon a belief that the water supply in that city was being intentionally polluted, the appellant exhibited a hand-drawn sketch of what he perceived to represent the water table area underlying the city of Beaumont. This document was completely irrelevant and immaterial to any issue in the case, but same was admitted into evidence at appellant’s insistence.

4 . It has been made known to this Court that the appellant has remained in the Jefferson County jail since the date of his arrest and that he has discharged this present sentence. See Article 42.03, Sections 2, 3 and 4, V.A.C.C.P. Since appellant has discharged the sentence in this case, we need not comment as to whether the case could be remanded for a nunc pro tunc hearing to determine petitioner’s competency in a retroactive fashion, at this time. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, at page 909, 43 L.Ed.2d 103; Bruce v. Estelle, 536 F.2d 1051 (5th Cir. 1976).