Richard Larry HENSARLING, Appellant, v. The STATE of Texas, Appellee.
No. 129-91.
Court of Criminal Appeals of Texas, En Banc.
March 25, 1992.
Rehearing Denied May 6, 1992.
828 S.W.2d 168
WHITE, J.; MCCORMICK, P.J.; MILLER, J.; CLINTON, J.; MALONEY, J.
The judgment below is reversed and the cause remanded for further proceedings consistent with this opinion.
WHITE, J., concurs in the result.
MCCORMICK, Presiding Judge, dissenting.
A prima facie case has been defined as one
“[s]uch as will suffice until contradicted and overcome by other evidence. [citation omitted]. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded. [citation omitted].” Blacks Law Dictionary, 4th Edition.
As the majority correctly notes, the defendant must establish a “prima facie case that the prosecutor in fact made racially motivated strikes against eligible veniremembers” before the prosecutor must explain the use of his peremptory strikes. In reviewing the “relevant circumstances” presented by the instant record, I cannot conclude that a prima facie case is made. The only evidence presented was that four of six black venirepersons were struck peremptorily by the prosecutor.
Absent any other factors, it cannot be said that such statistics reasonably establish an inference of purposeful discrimination on the part of the State. It seems grossly unfair to engage in such a presumption against any officer of the court.
It seems well settled that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), holds that, after establishing that the defendant is a member of a cognizable racial group and that the trial prosecutor has exercised his peremptory challenges in order to remove from the venire members of the defendant‘s race, in order to establish a prima facie case of purposeful racial discrimination on the part of the trial prosecutor in the exercise of his peremptory challenges, a defendant must then also show that these facts and circumstances raise an inference that the trial prosecutor used that practice to exclude the veniremembers from the petit jury on account of their race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723.
In the case at bar, appellant has failed to show the facts presented raise such an inference. The third prong of Batson has not been satisfied.
I respectfully dissent.
John R. Heath, Nacogdoches, for appellant.
Clyde M. Herrington, Dist. Atty. and Julie A. Alston, Asst. Dist. Atty., Lufkin, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
MILLER, Judge.
A jury convicted appellant of the murder of his estranged wife, finding he used a deadly weapon, a gun, in the commission of this offense. The jury also assessed appellant‘s punishment at 99 years imprisonment in the Texas Department of Correc
We now find that our decision to grant appellant‘s petition for discretionary review on the first and third grounds for review, listed above, was improvident.
Appellant‘s first competency hearing began on April 9, 1990, with Judge Wilson presiding over the proceedings. On April 12, 1990, after seven hours of jury deliberations, Judge Wilson declared a mistrial in this cause. Subsequently, a second competency hearing was held on April 30, 1990, and this jury returned a verdict on May 2, 1990. The jury found appellant was not incompetent to stand trial in September of 1988.
Judge Walker, who presided over appellant‘s criminal trial, testified without objection at appellant‘s retrospective competency hearing. On appeal, appellant complained the trial court erred in allowing Judge Walker to testify at the competency hearing in violation of
The purpose of [Rule 605] is to prevent the impartial referee of the trial from placing his seal of approval on one side in the eyes of the jury. See Brown v. Lynaugh, 843 F.2d 849 (5th Cir.1988). We hold Rule 605 does not apply because Judge Walker was not the presiding judge at the competency hearing. Point of error one is overruled.
Hensarling, slip op. at p. 2.
In his brief before this Court, appellant asserts his due process rights were violated by the allowance of Judge Walker‘s testimony at the competency hearing. Appellant argues that permitting this testimony “allowed the State to reap a direct benefit from Judge Walker‘s error in not holding a timely competency hearing”4 and that if a timely hearing had been held, i.e., before the criminal trial on the merits, Rule 605 would have prohibited Judge Walker from testifying at the hearing. Appellant thus contends Rule 605 should be made applicable to retrospective competency hearings. We find appellant‘s contention without merit.
The Texas Rules of Criminal Evidence were promulgated by this Court and became effective September 1, 1986. Rule 605 states in full:
RULE 605. COMPETENCY OF JUDGE AS WITNESS
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
The language of Rule 605 is unambiguous, and construing this rule according to rules of grammar and common usage leads to only one interpretation of the rule. The phrase “the judge presiding at the trial may not testify in that trial” means that the judge who is presiding over a proceeding may not “step down from the bench” and become a witness in the very same proceeding over which he is currently presiding. Rule 605 addresses only that specific situation; the rule does not encompass any future proceedings in which the judge is participating but not over which the
A judge who testifies, for example, might be required to evaluate his own testimony in the course of deciding a motion for a directed verdict. Furthermore, the aura of impartiality surrounding the judge will likely cause the jury to give undue credence to his testimony. Opposing counsel might well be hesitant to attack the judge on cross-examination for fear of alienating either the judge or jury. Finally, practical problems inhere in such judicial testimony. Who, for example, will rule on objections?
See Goode, Wellborn and Sharlot, Texas Rules of Evidence: Civil and Criminal, 33 Texas Practice § 605.1, p. 384 (footnotes omitted).
In the present cause, Judge Wilson presided over the competency hearing in which Judge Walker was a witness. Under these facts, we hold there was no error under Rule 605. Appellant‘s second ground for review is overruled.
The judgment of the court of appeals is therefore affirmed.
CLINTON, J., dissents to dismissal of grounds 1 and 3, and joins the judgment of affirmance.
MALONEY, Judge, dissenting.
Appellant, after having been denied a competency hearing by the trial judge, the Honorable David Walker, was tried on a murder indictment alleging the conduct to have occurred on the 12th of November, 1987. The trial ended on September 8, 1988, with the jury assessing punishment at 99 years imprisonment in the Texas Department of Corrections and a $5,000.00 fine. On direct appeal, in an unpublished opinion on January 24, 1990, the court of appeals abated the appeal and remanded the case to the trial court for a jury trial on the issue of competency to stand trial. See Barber v. State, 737 S.W.2d 824 (Tex.Cr.App.1987), cert. den., 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989).
Introduction of evidence in the competency hearing began on April 9, 1990 and continued until April 12, 1990; however, after several hours of deliberation, the jury was unable to reach a verdict and a mistrial was declared.
On April 30, 1990, evidence was presented to a new jury and on May 2, 1990, the jury found that the defendant was competent at the time he was tried on the indictment in 1988.
After the court of appeals affirmed appellant‘s conviction, we granted appellant‘s petition for discretionary review on three grounds of review. The majority has found that we improvidently granted grounds one and three for review and has overruled ground of review two. I dissent to this court‘s determination that ground of review one was improvidently granted and that ground of review two should be overruled.
During the competency hearing at the behest of the prosecuting attorney, Judge David Walker, the presiding judge who had denied the defendant‘s motion for a competency hearing in 1988 and who presided during that part of the proceedings dealing with guilt/innocence and punishment, testified as a witness. Judge Walker testified, in part, as follows:
Q. ... based upon your observations of [the defendant]—how would you characterize his understanding of the proceedings?
A. I think he understood everything that went on ... he asked intelligent questions, and he responded to what I did intelligently so, you know, there was just no opinion I could come up with except that he understood what was going on ... [a]nd he was competent.
Judge Walker further testified that “I never, in my opinion, saw anything really that [the defendant] said or acted during the
Q. ... Did his questions indicate a lack of touch with reality or that he was having any kind of delusions or anything of that nature?
A. Absolutely not.
Q. ... is there anything in regard to the questioning of the witnesses that sticks out in your mind that indicates that Mr. Hensarling was not rational or didn‘t understand what was going on or didn‘t understand what the witness was saying?
A. Absolutely not.
When questioned about his decision not to empanel a jury to determine the issue of the defendant‘s competency, Judge Walker testified as follows:
Q. And you did not feel like that it should be submitted to a jury as to whether or not he was competent?
A. That‘s right. That‘s right. And as I recall even Mr. Hensarling wanted to go ahead and go to trial, too, after we‘d gotten that far.
In ground of review number two, appellant complains that Judge Walker was disqualified as a witness under Texas Rule of Criminal Evidence 605. The majority holds that Rule 605 is inapplicable to Judge Walker‘s testimony because, they reason, the competency hearing is a different “proceeding” than the trial on the merits and Rule 605 only prevents the judge from stepping down from the bench and testifying in a proceeding over which he is currently presiding.
The majority‘s view fails to recognize that a competency hearing is part of the same criminal proceeding as the trial on the merits. A competency hearing has been recognized as “ancillary to the main criminal proceeding” and likened to hearings on motions to suppress evidence and motions to quash an indictment. Jackson v. State, 548 S.W.2d 685, 690 (Tex.Cr.App.1977); see also Arnold v. State, 719 S.W.2d 590, 593 (Tex.Cr.App.1986), overruled on other grounds, Meraz v. State, 785 S.W.2d 146, 155 (Tex.Cr.App.1990). In fact, a defendant cannot directly appeal issues raised in a competency hearing, but must wait and raise those issues in an appeal on the trial on the merits. Jackson, 548 S.W.2d at 690. As noted in Arnold, a competency hearing is “part of a criminal case ... [b]ut for the criminal offense, the competency provisions of Art. 46.02 V.A.C.C.P., are not applicable.” Arnold, 719 S.W.2d at 592, n. 1. Here, Judge Walker was the presiding judge during the guilt/innocence and punishment portions of this criminal proceeding. He should not be allowed to testify under Rule 605 in a hearing in the same criminal proceeding. By doing so, he places his “seal of approval” on the side of the state.
It is not uncommon for more than one judge to preside over various portions of a single criminal proceeding. The majority‘s interpretation of Rule 605 would tolerate the testimony of any number of judges who had presided over previous portions of a trial as to their opinion of facts related to issues on which they had previously ruled, regardless of whether or not a new jury were empaneled for purposes of the subsequent proceeding.
In ground of review one, appellant complains that his constitutionally protected right to due process was violated in that the judgment of competency, being based upon the testimony of Judge Walker, was manifestly unjust.1 Although both appellant and the state fully briefed the issue of whether it was fundamental error to allow the testimony of Judge Walker, the court of appeals, relying on the failure of appellant to preserve error, did not address the issue. However, the testimony of Judge Walker amounted to fundamental error of the nature that requires review even in the absence of an objection at trial and accord
This court has recognized that once jurisdiction attaches, this and other appellate courts in Texas have a “broad scope of review and discretion,” and may review issues of unassigned error. Carter v. State, 656 S.W.2d 468, 469 (Tex.Cr.App.1983); see also Moreno v. State, 114 Tex.Cr.R. 559, 26 S.W.2d 652 (Tex.Cr.App.1930) (Holding that “this court can only sit in review upon matters of error either fundamental or which are properly raised upon the trial“). Certain due process violations have been recognized as so fundamental as to require review by an appellate court, even in the absence of objection during trial or a ground of error raised on appeal. Skelton v. State2, 655 S.W.2d 302, 304 (Tex.App.—Tyler 1983, pet. ref‘d); see also Howeth v. State3, 645 S.W.2d 787, 788 (Tex.Cr.App.1983). This court should review appellant‘s ground of review one although not objected to at trial since the alleged error is such that it calls into question whether the accused received a fair and impartial trial and “implicates the due course of law clause of the Texas Constitution.” Howeth, supra; see also Skelton, supra. The testimony of the trial judge for the state in a subsequent hearing in the same criminal proceeding in which the judge had earlier presided also implicates due process concerns. Brown v. Lynaugh, 843 F.2d 849 (5th Cir.1988).
In Brown v. Lynaugh, the Fifth Circuit addressed whether the state‘s use of the presiding judge as a witness amounted to a denial of the defendant‘s due process rights. Id. During proceedings relating to a motion for new trial following the conviction of a felony, the defendant, Brown, bolted from the courtroom and escaped. Id. The subsequent trial for the felony of escape from custody was held before Judge Walter Smith, the same judge who had presided over the proceedings in which the defendant had escaped. The state called Judge Smith as a witness, whereupon he testified as to facts establishing essential elements of the offense of escape.5 In holding that Judge Smith‘s testimony denied Brown a fair trial, the Fifth Circuit stated that:
It is difficult to see how the neutral role of the court could be more compromised, or more blurred with the prosecutor‘s role than when the judge serves as a witness for the state. One of the fundamental tenants of our jury system is a strong trial judge. Under that system, the trial judge is properly presented to the jury as the ultimate authority figure, imbued with unquestioned respectability and impartiality. For this reason, juries are traditionally ‘highly sensitive to ev
ery utterance of the trial judge.’
Id. at 850 (citations omitted). The Fifth Circuit concluded that the state‘s use of the trial judge‘s testimony to establish essential elements of the subject offense deprived the defendant of his right to a fair trial.4
Although Judge Walker did not preside over the competency hearing at which he testified, the same concerns expressed by the Fifth Circuit in Brown are nevertheless present. Judge Walker was identified in the competency hearing as the presiding judge during the guilt/innocence and punishment portions of the trial. It was clear to the jury that Judge Walker would in fact be presiding over the competency proceedings but for the fact that he was now a “Senior Judge.” Judge Walker was presented to the jury as an ultimate and impartial authority on the competency of the defendant to stand trial. He was presented as “the ultimate authority figure, imbued with unquestioned respectability and impartiality.” As stated in Brown, “it is difficult to see how the role of the court could be more compromised” than here where the judge who presided in the guilt/innocence and punishment portions of the same proceedings is now aligned with the state.6
In Brown, the Fifth Circuit found that due process was denied where the judge testified as to facts constituting elements of the subject offense. Here, Judge Walker testified as to his opinion about the competency of the defendant. The denial of due process is even more disturbing here than in Brown, as opinion testimony is less susceptible to scrutiny than testimony pertaining to verifiable facts. Further, Judge Walker, whose ruling on the competency hearing had been overturned, was not an impartial observer on this issue. To allow the trial judge to testify in a competency hearing as to his opinion of the competency of a defendant when that same judge had previously ruled in error that a competency hearing on this defendant‘s competency to stand trial was not called for is so contrary to the concept of “fundamental fairness” as to amount to a denial of due process.
For the reasons herein stated I respectfully dissent. I would reverse the decision of the court of appeals on either ground of review one or ground of review two and remand this cause for a new hearing on the competency of appellant to stand trial.
BAIRD and OVERSTREET, JJ., join.
Benito TALAMANTEZ, Appellant, v. The STATE of Texas, Appellee.
No. 171-91.
Court of Criminal Appeals of Texas, En Banc.
March 25, 1992.