Wagner v. State

687 S.W.2d 303, 1984 Tex. Crim. App. LEXIS 586
CourtCourt of Criminal Appeals of Texas
DecidedFebruary 1, 1984
Docket61601
StatusPublished
Cited by105 cases

This text of 687 S.W.2d 303 (Wagner v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wagner v. State, 687 S.W.2d 303, 1984 Tex. Crim. App. LEXIS 586 (Tex. 1984).

Opinions

OPINION

W.C. DAVIS, Judge.

A jury found appellant guilty of murder and assessed punishment at eighty-five years’ confinement. Appellant alleges eleven grounds of error.

Several of those grounds concern his Motion for Continuance and Notice of Possible Insanity Defense. This motion involved three issues: continuance, a competency hearing, and notice of insanity defense. The court overruled the motion for a continuance, which appellant claimed was needed in order to obtain additional psychiatric testing of appellant “as to his mental condition.”

The record shows that the docket sheets contain a notation that appellant was arraigned on February 17, 1978 and the case set for trial April 10, 1978. The case was then reset for trial on June 19, 1978 and June 26, 1978. Appellant’s motion was filed June 16, 1978. The clerk for the 260th District Court of Orange County testified that a copy of the criminal docket of the 260th District Court was mailed to appellant’s counsel May 19, 1978, and that it contained a paragraph stating that any motions for continuance must be filed by May 31, 1978. Appellant’s counsel did not dispute this testimony. The motion was untimely filed; the court did not abuse its discretion in overruling the motion for continuance. Hernandez v. State, 643 S.W.2d 397 (Tex.Cr.App.1982); Taylor v. State, 612 S.W.2d 566, 570 (Tex.Cr.App.1981).

[306]*306The trial court granted appellant’s motion for a competency hearing and denied his motion for the insanity defense because it was untimely filed in violation of Art. 46.03, § 2, V.A.C.C.P. Appellant claims that the trial court abused its discretion in failing to allow appellant to present evidence about the issue of insanity because the notice of insanity defense was filed ten days before the case actually went to trial.

Once again we note the pertinent dates involved: the case was originally set for trial April 10, 1978 and then set for June 19, 1978 and June 26, 1978. Appellant filed his notice of insanity defense June 16,1978. Art. 46.03, § 2, V.A.C.C.P. states in pertinent part:

(a) A defendant planning to offer evidence of the insanity defense shall file a notice of his intention to offer such evidence with the court and the prosecuting attorney:
(1) at least 10 days prior to the date the case is set for trial;
(b) Unless notice is timely filed pursuant to Subsection (a) of this section, evidence on the insanity defense is not admissible unless the court finds that good cause exists for failure to give notice. [Emphasis added]

At the time appellant’s motion was heard, June 16, the case was set for trial on June 19. Because the court then held a competency hearing, the case did not go to trial on the merits until June 26. The case was set to go to trial on June 19 at the time appellant’s motion was filed on June 16. Since the June 16 filing was not ten days prior to June 19 trial setting, we find that the trial court correctly held that the notice of insanity defense was untimely filed. See Schaffer v. State, 590 S.W.2d 490 (Tex.Cr.App.1979). The trial court has the discretion to decide whether good cause is present for failure to file timely. Schaf-fer, supra. No evidence was presented by appellant explaining why he waited until June 16 to file notice. No abuse of discretion is shown. This ground of error is overruled.

In a related ground of error appellant claims that the trial court erred in overruling his motion for psychiatric examination filed the day the trial began, June 26, 1978. At a hearing on June 19 a jury found appellant competent to stand trial. Appellant’s notice of insanity defense had been rejected for being untimely filed, and no good cause was shown for the untimely filing. Then on June 26 appellant filed this motion for psychiatric examination to determine “whether defendant was sane at the time of the offense.” (Emphasis added) The court had already ruled out the insanity defense, therefore, as the State notes, any motion “pertaining to the defense of insanity was rendered moot.” The court did not abuse its discretion in overruling appellant’s motion. See Hammett v. State, 578 S.W.2d 699, 707 (Tex.Cr.App.1979); Porter v. State, 623 S.W.2d 374, 380 (Tex.Cr.App.1981).

The trial court granted appellant’s motion for a competency hearing. Appellant now claims that this hearing violated due process because the trial court failed “to allow appellant sufficient time to obtain the necessary psychiatric testimony necessary to the presentation of his case on competency.”

Appellant’s motion for continuance encompassed his motion for a competency hearing by stating that “the people doing the testing are of the opinion that further testing is needed to reach a complete well-reasoned opinion.” It states further that “there is a question” as to the competency of appellant to stand trial. The court then held a competency hearing. Appellant made no objections before, during or after the hearing to suggest that the psychiatric evaluation used for the competency hearing was incomplete. Appellant’s bill of exceptions made after the hearing simply produced testimony of a defense witness that there was a need for more treatment for appellant’s mental illness. No mention was made of any need for psychiatric testing for competency.

The objection offered on appeal was not presented to the trial court. A specific [307]*307objection raised on appeal will not be considered if it varies from the specific objection made at trial. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979); Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976). Nothing is presented for review.

Appellant claims that the court erred in admitting testimony at the competency hearing concerning a statement appellant gave police because this evidence was not relevant to competency and was prejudicial to appellant.

As the State points out, the details and substance of the statement were not made known to the jury and the statement was never referred to as a confession. The testimony involved only appellant’s understanding of the proceedings and his ability to communicate with others. In addition, appellant objected specifically on the grounds of the issue of the voluntariness of the confession and not on relevance grounds. Appellant may not now assert this contention for the first time on appeal. Carillo, supra; Bouchillon, supra. This ground of error is overruled.

We will address three related grounds of error together. Appellant claims that his confession should not have been admitted at trial because appellant had not knowingly and intelligently waived his right, Art. 38.22, V.A.C.C.P., and because he was not taken before a magistrate before giving the confession, Art. 15.17, Y.A.C.C.P. Appellant also argues that the court should have charged the jury on the issue of the voluntariness of the confession.

The trial court held a hearing on appellant’s motion to suppress his confession.

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Bluebook (online)
687 S.W.2d 303, 1984 Tex. Crim. App. LEXIS 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-state-texcrimapp-1984.