COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-305-CR
LEE
WAYNE LAWRENCE APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 30TH DISTRICT COURT OF WICHITA COUNTY
OPINION
I. Introduction
Appellant
Lee Wayne Lawrence appeals his convictions for possession of a prohibited weapon
and two counts of aggravated assault. After a jury found Lawrence guilty on all
counts, the trial court assessed his punishment at twenty-five years’
confinement on the possession of a prohibited weapon count and forty years’
confinement, to be served concurrently, on each of the aggravated assault
counts. In two points, Lawrence contends that (1) Texas Code of Criminal
Procedure 46B.004 applies to him and required the trial court on its own motion
to conduct a competency inquiry and (2) the evidence is legally and factually
insufficient to establish that the PVC pipe bomb Lawrence possessed was an
explosive weapon designed, made, or adapted for the purpose of inflicting bodily
injury, death, or substantial property damage. We will affirm.
II. Factual
Background
On
December 7, 2002, Lawrence dressed in full military fatigues and went to a
gentleman’s club where his daughter was working. He brandished a Bowie knife
with a nine-inch blade and threatened to blow up the club with a pipe bomb he
wore on a chain around his neck. Lawrence eventually surrendered to the police
after he poured out the contents of the PVC pipe bomb—rusted nails, screws,
shotgun shot, and shotgun powder.
III. Competency
To Stand Trial
In
his first point, Lawrence argues that article 46B of the code of criminal
procedure governs the determination of whether he was competent to stand trial,
not former article 46.02, and that the trial court failed to comply with the
requisites of article 46B by failing to sua sponte conduct an informal
inquiry into his competency. Tex. Code
Crim. Proc. Ann. art. 46B (Vernon Supp. 2004-05). The State argues that
former article 46.02 applies to the determination of whether Lawrence was
competent. Effective January 1, 2004, the legislature repealed code of criminal
procedure article 46.02 and replaced it with article 46B. See Act of
April 30, 2003, 78th Leg., R.S., Ch. 35, §§ 15-17, 2003 Tex. Gen. Laws 57, 72 (current version
at Tex. Code Crim. Proc. Ann. art.
46B (Vernon Supp. 2004-05)). Section 16 of the Act of April 30, 2003 provides,
The change in law made by this Act applies only to a defendant against whom
proceedings have not been initiated under Article 46.02, Code of Criminal
Procedure, before the effective date of this Act. The determination of
incompetency for a defendant against whom proceedings have been initiated under
Article 46.02, Code of Criminal Procedure, before the effective date of this Act
is covered by the law in effect when the proceedings were initiated, and the
former law is continued in effect for this purpose.
Id.
The State contends that proceedings were initiated against Lawrence when the
indictment charging him was filed, that is, on August 6, 2003. The
“proceedings” referenced by the legislature in section 16 of the Act,
however, are specifically identified as competency proceedings—“proceedings
. . . under Article 46.02”—not criminal proceedings generally. Id.
Because no competency proceedings were initiated in this case prior to January
1, 2004, we hold that article 46B of the code of criminal procedure applies to
Lawrence. See Richardson v. State, No. 01-04-00281-CR, 2005 WL
267708, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 3, 2005, no pet.) (mem.
op.) (applying Chapter 46B to case in which court inquired into appellant’s
competence before accepting his guilty plea at hearing held on January 26,
2004). But see Myers v. State, No. 06-04-00033-CR, 2004 WL 2214081,
*1 n.1 (Tex. App.—Texarkana Oct. 5, 2004, no pet.) (mem. op.) (applying
repealed article 46.02 because “the proceedings were originally initiated in
this matter by the filing of the indictment” but noting that both parties
agreed that article 46.02 applied).
We
review a trial court’s decision not to conduct a competency hearing for an
abuse of discretion. See Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim.
App. 1999), cert. denied, 530 U.S. 1216 (2000). A trial court
abuses its discretion if its decision is arbitrary or unreasonable. Lewis
v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).
Article
46B.004 is titled “Raising Issue of Incompetency to Stand Trial” and
provides,
(a) Either party may suggest by motion, or the trial court may suggest on its
own motion, that the defendant may be incompetent to stand trial. A motion
suggesting that the defendant may be incompetent to stand trial may be supported
by affidavits setting out the facts on which the suggestion is made.
(b)
If evidence suggesting the defendant may be incompetent to stand trial comes to
the attention of the court, the court on its own motion shall suggest that the
defendant may be incompetent to stand trial.
(c)
On suggestion that the defendant may be incompetent to stand trial, the court
shall determine by informal inquiry whether there is some evidence from any
source that would support a finding that the defendant may be incompetent to
stand trial.
(d)
If the court determines there is evidence to support a finding of incompetency,
the court, except as provided by Article 46B.005(d), shall stay all other
proceedings in the case.
Tex. Code Crim. Proc. Ann. art.
46B.004. If, under subsection (b), evidence comes to the trial court’s
attention suggesting that the defendant may be incompetent to stand trial, then,
under subsection (c), the trial court is required to determine by informal
inquiry whether there is some evidence that would support a finding that the
defendant may be incompetent to stand trial. Id.
A
person is incompetent to stand trial if he does not have sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding or a rational, as well as factual, understanding of the
proceedings against him. Id. art. 46B.003(a). If, after an
informal inquiry, the court determines that evidence exists to support a finding
of incompetency, the court shall order an examination to determine whether the
defendant is incompetent to stand trial. Id. art. 46B.005(a).
Furthermore, generally, if the court determines that evidence exists to support
a finding of incompetency, the court shall hold a hearing before determining
whether the defendant is incompetent to stand trial, and, on the request of
either party or on the court’s motion, a jury shall make the determination as
to whether the defendant is incompetent. Id. arts. 46B.005(b),
46B.051.
Lawrence
claims that evidence suggesting he might be incompetent to stand trial came to
the trial court’s attention during the pretrial, the guilt-innocence, and the
punishment portions of trial. He argues that his statements and testimony
displayed a pattern of rambling speech, confused thoughts, and incomprehensible
answers of a most bizarre quality. We have thoroughly reviewed the record,
and it does demonstrate that Lawrence provided rambling and often nonresponsive
answers to questions that he was asked. But most of Lawrence’s testimony and
his answers to counsels’ questions reveal that he simply wanted his day in
court and wanted an opportunity to tell his story his way. His lengthy
answers to direct questions from counsel demonstrate his penchant for describing
the details of the offenses and the details of his thoughts during and after the
offenses for which he was charged and convicted. Lawrence’s testimony
shows not that he could not consult with his attorney or that he lacked a
rational and factual understanding of the proceedings against him, but simply
that he cared deeply about his daughter’s welfare and was willing to implement
a dramatic plan in an effort to “save her.” Though his plan for saving
his daughter was unusual and unlawful, it does not demonstrate incompetence as
that term is defined. See id. art. 46B.003(a); see also Luke v.
State, No. 07-02-00397-CR, 2003 WL 21981940, at *4 (Tex. App.—Amarillo
Aug. 19, 2003, no pet.) (mem. op.). Cf. Clark v. State, 47 S.W.3d
211, 218 (Tex. App.—Beaumont 2001, no pet.) (appellant’s conduct at pretrial
hearing was bizarre; he kept repeating that he wanted to go to Skyview
psychiatric unit and said that he had no case pending and no attorney).
Because nothing in the record raised the issue of Lawrence’s ability to
consult with his counsel or his ability to understand the proceedings and the
charges against him at anytime during the proceedings, we hold that the evidence
presented during the pretrial, the guilt-innocence, and the punishment portions
of the trial was insufficient to suggest that Lawrence was incompetent to stand
trial. See Tex. Code Crim.
Proc. Ann. arts. 46B.003(a), 46B.004(c).
In
Richardson, the Houston First Court of Appeals held that “the
requirement concerning a trial judge’s duty to conduct an informal competency
inquiry in Chapter 46B is substantively similar to the requirement set forth in
former article 46.02.” 2005 WL 267708, at *2 n.3. Accordingly, the
Houston court applied the “raises a bona fide doubt . . . about the
defendant’s competency” case law to determine whether evidence “suggesting
incompetency” came to the trial court’s attention under article
46B.004(b). Id. Lawrence argues that article 46B.004(b)’s
“evidence suggesting” incompetency language creates a new, lower evidentiary
threshold for trial courts in determining the necessity of an informal inquiry
concerning competency. We do not address this issue because even giving
article 46B.004(b)’s “evidence suggesting” language a broad
interpretation, no evidence of “incompetency,” as that term is statutorily
defined, exists in the record before us.
If
Lawrence’s rambling, nonresponsive testimony could be construed as “evidence
suggesting” incompetency, the record reveals that the trial court conducted
the statutorily mandated “informal inquiry” immediately prior to trial:
THE COURT: This is Cause No. 40,339-A, The State of Texas vs. Lee Wayne
Lawrence. The matter is set for jury trial in just a few minutes. I
do need to do an arraignment and also determine any remaining pretrial issues.
Sir,
is your name Lee Wayne Lawrence?
THE
DEFENDANT: Yes, Your Honor.
THE
COURT: Mr. Lawrence, you’re before the Court today; you’re charged in this
case by grand jury indictment with the offense of possession of a prohibited
weapon and aggravated assault, two counts. Also there are two enhancement
paragraphs in the indictment.
In
the indictment your name is set out as Lee, L-e-e, Wayne, W-a-y-n-e, Lawrence,
L-a-w-r-e-n-c-e. Is that your correct name?
THE
DEFENDANT: Yes.
THE
COURT: Is it spelled correctly?
THE
COURT: Mr. Lawrence, have you ever been hospitalized for any mental disease or
defect or treated by a psychiatrist?
THE
DEFENDANT: I’ve been treated for depression.
THE
COURT: By a psychiatrist?
THE
COURT: Have you told your attorney so he can advise you as to whether that has
any affect on this morning’s proceedings?
THE
COURT: Okay. Now, while this case has been pending against you have you
always understood the nature of these charges.
THE
DEFENDANT: No, sir. I’ve had three different lawyers on my case, and
I’ve never met this man before.
THE
COURT: Okay. We’re going to take that up in a minute. I’m just
asking about the charges themselves. Have you understood what you’re
charged with? Not necessarily why you’re charged, and I’m not asking
you certainly if you agree with it. But do you understand the charges that
you’re facing, possession of a prohibited weapon and the two counts of
aggravated assault?
THE
DEFENDANT: Yes, sir.
THE
COURT: Okay. And in talking with your attorneys -- I’m not asking
whether you agree with your attorneys at this time, but in talking with your
attorneys have you understood those conversations?
THE
DEFENDANT: No, sir, not -- I sure haven’t because I’ve been told that
there’s going to be witnesses gonna appear for the defense all the way up
until yesterday and then yesterday whoever I talked to that said they was the
lawyer on the phone told me that no, that I didn’t have none. And I just
got through asking my attorney back there. I said, well, what about those
ones that the investigator talked to that said that they was gonna
testify? How come they’re not here? And he said, well, we can’t
find nobody.
THE
COURT: But did you understand those conversations? Again, I’m not asking
you if you agree with that, but did you understand what they’re telling you?
THE
DEFENDANT: Well, not really because the investigator was telling me one thing
about all of the testimony that’s gonna go for me. And then whoever I
was talking to that said that they was my lawyer on the phone, I would talk to
them later and he’d tell me something else that was contrary. And so it
went back and forth, and I don’t -- I don’t -- I really don’t understand
what’s happening.
THE
COURT: Have you been able to explain to your attorney your side of the case?
THE
DEFENDANT: I’ve never really talked to him about it, but I’ve talked to the
investigator about it. And he’s the only one that I’ve really talked
to about the case.
THE
COURT: But have you been able to explain that to the folks in your attorney’s
office?
THE
DEFENDANT: Well, whoever I was talking to on the phone that said they was my
attorney, every time I tried to explain what happened I was told that it was
irrelevant.
THE
COURT: Mr. Curry, do you believe that your client is presently competent to
stand trial?
[DEFENSE
COUNSEL]: Your Honor, we had an ex parte evaluation of Mr. Lawrence done in the
summer of last year, and the finding in that was that he was competent to stand
trial. In my conversations with him, although we disagreed about matters,
I think he’s understood what I’ve said. He’s been able to relate to
me appropriate questions with regards to his situation. So, I mean, I
can’t speak to what’s in his -- going on with him right at this moment, but
I have not had a question about his competency up to this point.
THE
COURT: Okay. What are your opinions as we sit here this morning?
[DEFENSE
COUNSEL]: In any conversation with him on the phone yesterday and in
conversation with him this morning I still -- there’s been nothing said to me
that based on my experience would suggest that he’s not competent.
The
trial court then took up the State’s motion in limine, followed at length by
testimony from Lawrence on his request for new counsel, which the trial court
denied. With regard to Lawrence’s request to find witnesses, the trial
court allowed time for the defense to draft a motion for continuance, which was
granted.
After
reviewing the entire record from the pretrial hearing, the guilt-innocence
phase, and the punishment phase of trial, we cannot say that the trial court
abused its discretion by failing to conduct further inquiry into Lawrence’s
competency. See Donnell v. State, 148 S.W.3d 674, 676 (Tex.
App.—Beaumont 2004, no pet.). The trial court’s informal inquiry set
forth above established that Lawrence was not suffering from recent severe
mental illness or moderate retardation, that he understood the charges that he
was facing, that he had been able to communicate in a meaningful way with his
attorneys, that an ex parte evaluation had found him competent to stand trial,
and that his own counsel had no question about his competence to stand
trial. Although Lawrence’s appellate counsel urged during oral argument
that the trial court should have had additional dialog beyond just whether
Lawrence understood the charges against him and could communicate meaningfully
with his attorney, we cannot agree. The informal competence inquiry
conducted by the trial court satisfied Chapter 46B. Although the trial
court certainly could have conducted a more detailed inquiry,1
the inquiry it did conduct was not so deficient that it constituted an abuse of
discretion. See Lewis, 911 S.W.2d at 7.
We
overrule Lawrence’s first point.
IV. Legally and
Factually Sufficient Evidence of
Explosive
Weapon’s Capabilities
In
his second point, Lawrence argues that the evidence is legally and factually
insufficient to establish that the “explosive weapon” he was charged with
possessing—the pipe bomb worn around his neck—was designed, made, or adapted
for the purpose of inflicting bodily injury, death, or substantial property
damage. The State contends that the testimony of their expert witness and
of Lawrence himself proved that the device was capable of causing an explosion
that would cause serious bodily injury.
A. Legal
Sufficiency Standard
In
reviewing the legal sufficiency of the evidence to support a conviction, we view
all the evidence in the light most favorable to the verdict in order to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Ross v. State, 133 S.W.3d
618, 620 (Tex. Crim. App. 2004).
This
standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319,
99 S. Ct. at 2789. The trier of fact is the sole judge of the weight and
credibility of the evidence. See Tex.
Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State,
34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the fact finder. Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529
U.S. 1131 (2000). We must resolve any inconsistencies in the evidence in favor
of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.
2000).
B. Factual
Sufficiency Standard
In
reviewing the factual sufficiency of the evidence to support a conviction, we
are to view all the evidence in a neutral light, favoring neither party. See
Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). The only
question to be answered in a factual sufficiency review is whether, considering
the evidence in a neutral light, the fact finder was rationally justified in
finding guilt beyond a reasonable doubt. Id. at 484. There
are two ways evidence may be factually insufficient: (1) the evidence supporting
the verdict or judgment, considered by itself, is too weak to support the
finding of guilt beyond a reasonable doubt; or (2) when there is evidence both
supporting and contradicting the verdict or judgment, weighing all of the
evidence, the contrary evidence is so strong that guilt cannot be proven beyond
a reasonable doubt. Id. at 484-85. “This standard
acknowledges that evidence of guilt can ‘preponderate’ in favor of
conviction but still be insufficient to prove the elements of the crime beyond a
reasonable doubt.” Id. at 485. In other words, evidence
supporting a guilty finding can outweigh the contrary proof but still be
insufficient to prove the elements of an offense beyond a reasonable
doubt. Id.
In
performing a factual sufficiency review, we are to give deference to the fact
finder’s determinations, including determinations involving the credibility
and demeanor of witnesses. Id. at 481; Cain v. State, 958
S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment
for that of the fact finder’s. Zuniga, 144 S.W.3d at 482.
A
proper factual sufficiency review requires an examination of all the
evidence. Id. at 484, 486-87. An opinion addressing factual
sufficiency must include a discussion of the most important and relevant
evidence that supports the appellant’s complaint on appeal. Sims v.
State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
C. Analysis
Texas
Penal Code section 46.01(2) defines “explosive weapon” as “any explosive
or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted
for the purpose of inflicting serious bodily injury, death, or substantial
property damage.” Tex. Penal Code Ann.
§ 46.01(2) (Vernon 2003).
Here,
the record demonstrates that the State’s expert testified as follows:
[PROSECUTOR:] Now, from that sample of what you collected from State’s
[Exhibit No.] 14, did you have an opportunity to test that and see if it was
capable of causing an explosion?
[DR.
JOHN RHOADS:2] I did.
Q.
And what was your result of that test?
A.
The material -- the powder that was separated from the shot did explode.
Q.
Now, have you also had an opportunity to see this piece of PVC pipe that’s
been admitted as State’s Exhibit No. 5?
A.
I did.
Q.
And based on the tests that you performed on the sample that you took and your
knowledge, your training, and your experience in the field of physics, do you
have an opinion as to whether this PVC pipe, if it was filed [sic] with the
substance that you tested and capped with a primer from a shotgun shell on the
top, whether that was capable of causing an explosion?
A.
In my opinion it would have, yes.
Q.
Doctor Rhoads, we hear a lot about pipe bombs and how people make homemade pipe
bombs. What is it about a pipe joint that makes it conducive as a homemade
bomb?
A.
The device needs to contain the expanding gases to propel material and the
device.
Q.
All right. Now, if this device, State’s [Exhibit No.] 5, was filled with the
screws and the nails, the shotgun shot and the powder that are shown in
State’s Exhibit No. 3, and if that had been exploded, in your opinion would
that have hurled the nails and screws outside at a pretty high velocity?
A.
In my opinion it would, yes.
Q.
Would it have placed anybody in the near proximity in danger?
A.
I would not want to have been in the room.
Witnesses
testified that Lawrence threatened to blow up the building. The disk jockey from
the club testified that Lawrence held a lit cigar over the top of the pipe bomb
and asked if the disk jockey was “ready to f---ing die.” Officer Beggs
testified that “[w]hat this gentleman had in his bomb would have hurt somebody
severely with the fragmentation and just the pressure in the pipe
itself.” Based on his training, Officer Beggs had no doubt in his mind
that the PVC pipe bomb, as it was constructed with the primer on the end and the
gunpowder and shotgun shot inside, was an explosive weapon. Lawrence
himself testified concerning the explosive attributes of and the potential harm
that could result from the pipe bomb:
If I did get a chance to set that thing off all it’s gonna do is that shell
deal on the top . . . would . . . shoot out. I mean, it would pop straight up
because when the -- when the shell goes off it’s gonna shoot down. And
because the deal is loose, it’s just gonna fly up like that (indicating) and
whatever’s in the pipe is gonna just try to fly out the top of it because it
has nothing to control the perimeter to cause the pipe to explode. I mean,
that’s common physics.
.
. . .
Only
thing that’s gonna happen with that piece of pipe if I was to be able to set
that thing off is that dad-gum thing is gonna fly up there to the ceiling and
then whatever is inside that pipe and just gonna fly up in your face and then
you’re gonna look pretty bad the rest of your life wherever you’re at, in
prison or wherever. You’re not gonna die. . . . I mean, you’re not
gonna want to maim yourself.
The
important and relevant evidence supporting Lawrence’s factual sufficiency
complaint was provided by Lawrence. Lawrence repeatedly told the jury that he
was merely trying to get a point across and that he was not trying to blow up
the building. He explained that he had to make the pipe bomb look
legitimate and menacing and that he threatened to light it with the cigar to
make the people in the club think he was serious. He said that he really
did not want anybody to get hurt.
Viewing
the evidence in the light most favorable to the verdict, we hold that a rational
trier of fact could have found the pipe bomb to be an “explosive weapon”
that was designed, made, or adapted for the purpose of inflicting serious bodily
injury, death, or substantial property damage. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789. Furthermore, viewing all the evidence in a neutral
light, favoring neither party, we also conclude that the evidence supporting the
verdict, taken alone, is not too weak to support the finding of guilt beyond a
reasonable doubt and that the contrary evidence is not so strong that guilt
cannot be proven beyond a reasonable doubt. Dotson v. State, 146 S.W.3d
285, 295 (Tex. App.—Fort Worth 2004, pet. ref’d). Accordingly, we hold that
the evidence is both legally and factually sufficient to support Lawrence’s
conviction for possession of an explosive weapon. See McWilliams v. State,
No. 13-97-00830-CR, 1999 WL 33757429, at *3 (Tex. App.—Corpus Christi Apr. 22,
1999, no pet.) (not designated for publication) (holding evidence legally and
factually sufficient to establish elements of possession of an explosive weapon
beyond a reasonable doubt). We overrule Lawrence’s second point.
V. Conclusion
Having
overruled each of Lawrence’s two points, we affirm the trial court’s
judgment.
SUE
WALKER
JUSTICE
PANEL
A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
PUBLISH
DELIVERED:
June 9, 2005
NOTES
1.
During oral argument, Lawrence’s counsel argued that the trial court should be
required to make a finding of competence on the record and that an adequate
informal inquiry into a defendant’s competence should include questioning
jailers about the defendant’s behavior while in jail, questioning the
defendant’s family members about the defendant’s mental status, conducting
an en camera review of any ex parte psychological evaluations of the
defendant, and even asking the defendant what offense he is charged with to test
his understanding of the proceedings against him. Although we decline to
hold that these inquiries by the trial court are required in an informal
inquiry, they do constitute useful, nonexclusive sources of information
available to the trial court in making such an inquiry.
2.
Dr. Rhoads is a professor of physics at Midwestern State University. He
received his PhD from Oklahoma State University after completing his
dissertation on the radiation defects introduced by electronics on solid
material. Lawrence did not object to Dr. Rhoads’s testimony or his
qualifications during the trial.