Killingsworth v. State

654 S.W.2d 724, 1983 Tex. App. LEXIS 4108

• Court: Court of Appeals of Texas
• Decided: March 10, 1983
• Docket: No. B14-81-767CR
• Status: Published

Opinions

MAJORITY OPINION

ROBERTSON, Justice.

Appellant’s appeals from convictions for forgery (331,542) and theft (334,603) have been consolidated. In each case, he entered a plea of nolo contendere and a plea of true to a previous conviction; his punishment was assessed at twenty years confinement. At issue on appeal is the propriety of the court in accepting such pleas prior to the receipt of a court ordered competency examination. We affirm.

On March 18, 1981, a complaint (Cause No. 331,542) was filed against appellant charging him with forgery. The next day he appeared in court for a “probable cause” hearing and, being without counsel, Ron Hayes was appointed. An indictment was returned on April 1, 1981, and on April 10, 1981, the case was reset for a pre-trial conference to be held on May 12,1981. On that day, a motion signed by both Mr. Hayes and the prosecutor alleging only

COMES NOW, the defendant, by and through his attorney and moves this Court to order that a member of Harris County Forensic Psychiatry Unit conduct an examination of the above named defendant

was granted by the court. The order of the court reads:

MOTION GRANTED AS PRAYED FOR and it is hereby ordered that the above named defendant be transferred to the Harris County Forensic Psychiatry Unit of the Jefferson Davis Hospital on the date and the time designated by the Director of the Forensic Psychiatry Unit [for] examination and that he remain there until the examination is completed and that a copy of the examination report be filed in the official papers of this cause by 7/1, A.D.1981.

On May 13, 1981, another complaint (Cause No. 334,603) was filed against appellant charging him with felony theft, and he appeared in court the next day for a “probable cause” hearing. Again, appellant being without counsel, Mr. Hayes was appointed to represent him. An indictment charging this offense was returned May 28, 1981. Appellant and his counsel appeared in court on this case on June 11, 1981, and July 13, 1981 trial date was set. Although this case was not pending when the “motion” for psychiatric examination was made, such a motion was never filed in this case concerning appellant’s competency. On July 13, 1981, both the theft case and the forgery case were disposed of as above stated.

In his first ground of error, appellant contends “the court erred in accepting his pleas of nolo contendere and true prior to submission to the court of a written report of appellant’s court ordered examination for competency to stand trial.” Following the usual admonitions required to be given, and given in fact by the trial court, the following occurred:

THE COURT: Have you ever been treated for a mental illness or mental defect, sir?

THE DEFENDANT: No, sir.

THE COURT: Will Defense Counsel identify himself for-the Record, please.

MR. HAYES: Yes, Your Honor. Ron Hayes.

THE COURT: You’ve had an opportunity to confer with the Defendant during this Representation?

MR. HAYES: Yes, I have, Your Honor.

THE COURT: Has he been able to give you a reasonable degree of assistance in the preparation of this case?

MR. HAYES: Yes, he has, Your Honor.

THE COURT: Do you feel that he understands the true nature and consequences of the charge pending against him?

MR. HAYES: I do, Your Honor.

THE COURT: Do you further believe that the Defendant is presently competent to stand trial?

MR. HAYES: Yes, Your Honor. And for purposes of the Record, the — uh—the clerk’s file should reflect a result of competency examination that was administered by the Jeff Davis, Harris County Psychiatric Unit, dated — I’m sorry, Your Honor. I don’t have a copy of the current one, but he was sent to Jeff Davis Hospital. I understand there is a copy of [sic] the clerk’s file to show that he was found competent. That was subsequent to my appointment on these two cases.

THE COURT: All right.

Further, the judgment in each case recites that it plainly appeared to the court that the defendant was mentally competent.

While conceding that the motion for psychiatric examination was not “a perfect motion,” appellant argues it was sufficient and, by granting it, the court “inferentially found sufficient evidence to justify a psychiatric examination” on the issue of competency. We do not agree. We construe the court’s order to be nothing more than it purports to be — a vehicle to have appellant removed from the Harris County Jail to the Harris County Psychiatric Unit for an examination requested by appellant’s counsel and agreed to by the prosecutor. This motion did not raise the issue of competency and that portion of the proceedings, as set out above, concerning appellant’s competency, conclusively shows that the issue was never raised at the time of appellant’s plea. Further, in accordance with Tex.Code Crim. Pro.Ann. art. 26.13(b) (Vernon Supp.1982-1983), the court found appellant competent to stand trial. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends the court erred in denying his “timely filed objection to the record on appeal where appellant properly requested inclusion in the record of his court-ordered examination for competency to stand trial.” This complained of report was never introduced into evidence at trial or on motion for new trial. It, therefore, was not a part of the appellate record. Appellant’s second ground of error is overruled.

The judgments are affirmed.