CONNALLY, District Judge:
This is an appeal, in forma pauperis, from the denial by the District Court of Daugherty’s application for the writ of habeas corpus. As was the case in the District Court, appellant attacks two convictions for robbery by assault had in the District Court of Haskell County, Texas. After a full evidentiary hearing on the points raised here, as well as others not now urged,1 the District Court found the appellant not to be confined in violation of his constitutional rights.
Appellant’s personal history is dotted with a series of convictions and other confrontations with the law, as well as with certain bizarre behavior evidencing a state of mental and emotional instability, the significance of which will more fully appear hereafter. His criminal record reveals that he was sentenced to one year in a reformatory school at the age of 15, was convicted on separate occasions of automobile theft and murder, and was subsequently arrested and charged with driving while intoxicated, assault, and assault with intent to murder. Finally, in December of 1959, he was arrested [812]*812and charged with robbery by firearms in two counts, and kidnapping. On a plea of guilty being entered to two offenses of robbery by assault, the two robbery by firearms charges were reduced to the lesser included offenses; the allegation of a prior felony conviction (for enhancement of punishment) was dropped; and the kidnapping charge dismissed.
While serving an earlier sentence for murder in the state penitentiary, appellant was examined by a psychiatrist and was administered a course of shock treatments. He cut off one of his own fingers, cut his heel tendons several times, slashed his wrists, and intentionally fractured his forearm while in prison. In July of 1959, two doctors examined appellant and determined that he was mentally ill and required “observation and/or treatment.” The County Court of Dickens County, Texas issued an order adjudicating him “mentally ill” under Vernon’s Annotated Civil Statutes of Texas, art. 5547-31 et seq.2 Appellant was committed to the Big Springs State Hospital, but escaped shortly thereafter. In October of 1959 he was again brought into custody, examined, adjudged “mentally ill” and committed to the hospital. He escaped the day after his commitment and remained at large until arrested and charged with the armed robbery counts now under attack, which were committed December 23, 1959.
The state trial court appointed William P. Ratliff, Esq., to represent appellant in the trial of the cases. The attorney conferred with Daugherty for approximately 15 to 20 minutes on the date of appointment, well in advance of trial, during which time he advised him fully of his rights in the matter, including the right to trial by a jury. Daugherty did not suggest a defense based on insanity, although his commitment to the hospital was discussed, but made it clear that he intended to plead guilty and was himself negotiating with the prosecutor over the sentence to be recommended. The conversation further divulged the fact that Daugherty had previously signed a confession admitting the commission of the offenses.
Prior to arraignment, the prosecuting attorney and Mr. Ratliff discussed the matter of appellant’s competency with the trial judge, Honorable Ben C. Chapman. According to the statement of Judge Chapman, both attorneys assured him that the defendant gave every appearance of complete sanity. At arraignment, appellant revealed to the Court his wish to plead guilty. The Court made full inquiry of both counsel as to the defendant’s mental condition. Daugherty assured the Court that he was of sound mind, knew the difference between right and wrong, and knew what he was doing when he committed the robberies. Thereupon the Judge declared that he appeared sane,3 and the plea was accepted.
Appellant contends primarily that he was denied the effective assistance of counsel, and that the District Court’s contrary conclusion was erroneous. In support of his position he argues (1) that the brevity of consultation between Daugherty and his attorney is sufficient to indicate inadequate preparation for the defense of a charge of such a serious na-. ture and (2) that counsel’s failure to assert the defense of insanity, though fully advised as to the availability of such strategy, is further evidence that the representation was only perfunctory or pro forma.
Mr. Ratliff, at the time of his appointment, was a highly respected attorney, experienced in both civil and crim[813]*813inal matters. Although this fact alone does not establish his effectiveness in a particular case, neither does brevity of consultation, without more, establish ineffectiveness. Williams v. Cox, 350 F.2d 847 (10th Cir. 1965). Cf. Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). Furthermore, counsel’s failure to assert mental imcompetence as a defense appears to have been a strategical move, the propriety of which is not open to question under these circumstances. In light of Daugherty’s apparent mental awareness and the seriousness of the punishment should the defense fail,4 it cannot be said that the decision was inadvisedly made. Under the tests outlined in Williams v. Beto, supra, it appears that Ratliff’s representation was more than sufficient to meet the constitutional requirements.
“ * * * relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.” 354 F.2d at 704.
Appellant’s second contention concerns a matter of some importance to the administration of criminal justice in the courts of Texas.5 As is sometimes the case, the problem may best be illustrated by setting forth, at the outset, what is not in issue. Unlike the majority of habeas corpus cases of this nature, the precise question of appellant’s mental competence at the time of his trial in the state court is not before us now, nor was it before the District Court. It was specifically excluded by petitioner’s counsel.6 The issue we decide is this: Whether, in light of Daugherty’s psychiatric history, the failure of the state trial court to conduct a hearing, sua sponte, and over the protest of the defendant and his counsel, to determine his mental competence to stand trial operated to deprive him of his constitutional right to a fair trial.
On the question of incompetence to stand trial, Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), establishes as the test:
“[Wjhether he (the defendant) has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.”
Pate v. Robinson, 383 U.S. 375, 86 S.Ct.
Free access — add to your briefcase to read the full text and ask questions with AI
CONNALLY, District Judge:
This is an appeal, in forma pauperis, from the denial by the District Court of Daugherty’s application for the writ of habeas corpus. As was the case in the District Court, appellant attacks two convictions for robbery by assault had in the District Court of Haskell County, Texas. After a full evidentiary hearing on the points raised here, as well as others not now urged,1 the District Court found the appellant not to be confined in violation of his constitutional rights.
Appellant’s personal history is dotted with a series of convictions and other confrontations with the law, as well as with certain bizarre behavior evidencing a state of mental and emotional instability, the significance of which will more fully appear hereafter. His criminal record reveals that he was sentenced to one year in a reformatory school at the age of 15, was convicted on separate occasions of automobile theft and murder, and was subsequently arrested and charged with driving while intoxicated, assault, and assault with intent to murder. Finally, in December of 1959, he was arrested [812]*812and charged with robbery by firearms in two counts, and kidnapping. On a plea of guilty being entered to two offenses of robbery by assault, the two robbery by firearms charges were reduced to the lesser included offenses; the allegation of a prior felony conviction (for enhancement of punishment) was dropped; and the kidnapping charge dismissed.
While serving an earlier sentence for murder in the state penitentiary, appellant was examined by a psychiatrist and was administered a course of shock treatments. He cut off one of his own fingers, cut his heel tendons several times, slashed his wrists, and intentionally fractured his forearm while in prison. In July of 1959, two doctors examined appellant and determined that he was mentally ill and required “observation and/or treatment.” The County Court of Dickens County, Texas issued an order adjudicating him “mentally ill” under Vernon’s Annotated Civil Statutes of Texas, art. 5547-31 et seq.2 Appellant was committed to the Big Springs State Hospital, but escaped shortly thereafter. In October of 1959 he was again brought into custody, examined, adjudged “mentally ill” and committed to the hospital. He escaped the day after his commitment and remained at large until arrested and charged with the armed robbery counts now under attack, which were committed December 23, 1959.
The state trial court appointed William P. Ratliff, Esq., to represent appellant in the trial of the cases. The attorney conferred with Daugherty for approximately 15 to 20 minutes on the date of appointment, well in advance of trial, during which time he advised him fully of his rights in the matter, including the right to trial by a jury. Daugherty did not suggest a defense based on insanity, although his commitment to the hospital was discussed, but made it clear that he intended to plead guilty and was himself negotiating with the prosecutor over the sentence to be recommended. The conversation further divulged the fact that Daugherty had previously signed a confession admitting the commission of the offenses.
Prior to arraignment, the prosecuting attorney and Mr. Ratliff discussed the matter of appellant’s competency with the trial judge, Honorable Ben C. Chapman. According to the statement of Judge Chapman, both attorneys assured him that the defendant gave every appearance of complete sanity. At arraignment, appellant revealed to the Court his wish to plead guilty. The Court made full inquiry of both counsel as to the defendant’s mental condition. Daugherty assured the Court that he was of sound mind, knew the difference between right and wrong, and knew what he was doing when he committed the robberies. Thereupon the Judge declared that he appeared sane,3 and the plea was accepted.
Appellant contends primarily that he was denied the effective assistance of counsel, and that the District Court’s contrary conclusion was erroneous. In support of his position he argues (1) that the brevity of consultation between Daugherty and his attorney is sufficient to indicate inadequate preparation for the defense of a charge of such a serious na-. ture and (2) that counsel’s failure to assert the defense of insanity, though fully advised as to the availability of such strategy, is further evidence that the representation was only perfunctory or pro forma.
Mr. Ratliff, at the time of his appointment, was a highly respected attorney, experienced in both civil and crim[813]*813inal matters. Although this fact alone does not establish his effectiveness in a particular case, neither does brevity of consultation, without more, establish ineffectiveness. Williams v. Cox, 350 F.2d 847 (10th Cir. 1965). Cf. Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). Furthermore, counsel’s failure to assert mental imcompetence as a defense appears to have been a strategical move, the propriety of which is not open to question under these circumstances. In light of Daugherty’s apparent mental awareness and the seriousness of the punishment should the defense fail,4 it cannot be said that the decision was inadvisedly made. Under the tests outlined in Williams v. Beto, supra, it appears that Ratliff’s representation was more than sufficient to meet the constitutional requirements.
“ * * * relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.” 354 F.2d at 704.
Appellant’s second contention concerns a matter of some importance to the administration of criminal justice in the courts of Texas.5 As is sometimes the case, the problem may best be illustrated by setting forth, at the outset, what is not in issue. Unlike the majority of habeas corpus cases of this nature, the precise question of appellant’s mental competence at the time of his trial in the state court is not before us now, nor was it before the District Court. It was specifically excluded by petitioner’s counsel.6 The issue we decide is this: Whether, in light of Daugherty’s psychiatric history, the failure of the state trial court to conduct a hearing, sua sponte, and over the protest of the defendant and his counsel, to determine his mental competence to stand trial operated to deprive him of his constitutional right to a fair trial.
On the question of incompetence to stand trial, Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), establishes as the test:
“[Wjhether he (the defendant) has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.”
Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), teaches that on a showing of sufficiently strong facts it may become the duty of the trial judge to conduct a hearing on such issue on his own initiative; and that a failure to do so, where justified by the facts, deprives the defendant of a constitutionally fair trial.
Before it may be said that the trial judge denied the petitioner a fair [814]*814trial, it must appear that the facts and circumstances which came to his attention were sufficient to indicate the necessity of a hearing (see dissenting opinion of Mr. Justice Harlan in Pate v. Robinson, 383 U.S. at p. 388, 86 S.Ct. 836). We hold that this is not such a case. There is not the slightest indication that at the time of trial Daugherty was unable rationally and understandingly to consult with his counsel, or that he did not have a rational and factual understanding of the charges against him. He consulted not only with his attorney, but he was able as well to “consult” with the district attorney in his own behalf, repeatedly and at length. He was able to understand the charges against him sufficiently to bargain, and to bargain effectively, with respect to them, as result of which some were reduced and another dismissed. Further, the state trial judge made a determination that the petitioner was mentally competent to stand trial. He was aware of the question; inquired into the matter with all counsel and with petitioner personally; was familiar with the facts x-ecited above as to petitioner’s sometimes irrational behavior; and ordered that the case proceed. (See, for comparison, State of Texas v. Graves, 380 F.2d 676 (5th Cir. July 14, 1967), on the question of voluntariness of a confession.)
Unfortunately, we know that self-mutilation by convicts, to escape arduous prison labor, is not an uncommon practice. The early diagnosis that petitioner needed “observation and/or treatment” means little, as he escaped from the hospital on each occasion shortly after commitment, and no in depth study of his condition was ever reported. This set of facts is to be contrasted with the long history of bizarre and criminal episodes found in Pate and with the stronger set of facts in Lee v. Alabama, 386 F.2d 97 (5th Cir. June 27, 1967).
Of course, Daugherty does not now seek a return to the status of his case which prevailed at the beginning of the trial when he was charged with three capital offenses He does not desire that his competence be determined now. He desires a new trial now, only on the two reduced charges to which he entered the plea of guilty.
Concluding, we observe that here, as in every case where competence to stand trial is suggested, there is a temptation to return the case to the district court for a hearing on this question of competence. If what has been said above does not preclude this action, then the appellant’s position which he has steadfastly maintained should do so. He seeks only a holding that the state trial judge, on the facts then before him, should have held some further hearing on his own motion, and that he be tried again on the two charges to which he plead guilty. The facts here do not warrant such action.
The action of the trial court was right and is
Affirmed.