*2 AKIN, Before HOWELL, GUILLOT and case is without merit. charge The set JJ. forth the elements of stand trial in language tracking the statu- AKIN1, Justice. tory definition. TEX.CODE CRIM.PROC. Keith Dwight Manning appeals his con- 46.02(l)(a) (Vernon 1979). ANN. art. This murder, for murder, victions attempted language clearly sets forth those facts three counts aggravated robbery, of all jury stated, which the must find. As so arising hold-up from the of a convenience charge fundamentally was not errone- Manning store. received two life sentences error, any, ous since if deny appеl- did not attempted murder and murder and impartial lant a fair and trial. fifty-year three aggrava- sentences for the Appellant further contends that the robbery ted Appellant convictions. asserts charge failed to properly place the burden grounds error, three of none of which were proof. case, ordinary of In the the burden preserved by proper objection at trial. All proof is on of the defendant to show incom concern claimed errors in the trial court’s petence by preponderance of the evi charge, and all are asserted to be funda- dence. TEX.CODE CRIM.PROC.ANN. mental error. alleged Because none of the (Vernon 46.02(l)(b) 1979). art. That section fundamental, errors are we affirm the of the statute states: judgment of the trial court. (b). presumed A competent defendant is instance, In each apply we must the tests compe- stand trial and shall be found for fundamental error set forth in Alman proved tent to stand trial unless incom- za v. (Tex.Crim.App. petent by preponderance of the evi- 1984). Appellant’s ground first of error is [emphasis dence added]. case, common to all five cases. In each he Appellant apparently complains in his charge given brief jury asserts that the to the Manning’s pretrial competency hearing erroneously presumed that the trial court fundamentally defective because it both incompetence placed the burden of proof” “misstated the burden of proof upon upon the State rather than apply very the law to the facts “fail[ed] provided Ap- defendant as in the statute. of the case.” pellant cannot by erroneously be harmed receiving presumption. the benefit of a charge objected The now to states say, any Needless to such error cannot be pertinent part: fundamentally erroneous. person Under our law no can be tried for Nevertheless, a criminal offense while a state of a differ- dissent raises present tency by the State to n preponderance credible n is, by testimony. incompetency. The competency [*] prove [*] greater weight of the defendant’s in this case is [*] n evidence; upon [*] of ent first mitment to Rusk asserts that argument presented notes that to this due to to stand trial. on behalf of appellant’s previous was based his brief. this presumed Hospital, on finding unvacat- dissent dissent from com- year incompetency, ed the bur- provides person Our law that a is deemed den of incompetent on the issue of to stand trial he does not have present ability sufficient to consult shifts to the State. then fur- The dissent lawyer degree with his with a persua- reasonable ther would hold that the burden of or, understanding; of rational a rational sion is now shifted to the State and that understanding as well as a factual “beyond burden was the a reasonable proceedings against [emphasis him add- doubt” standard rather cases ed]. “by than the the evi- charge given jury dence” standard in the Appellant’s charge contention that apply failed to the law to the fаcts of the here. Because an incorrect standard was opinion originally assigned 1. This to the dissenter. indicate, there
given jury, ney’s questions in the would the dissent question asserts on behalf that funda- as to the effect of such be a error been has shown and that on the burden of prior adjudication jury finding must over- support cases would lend Prior Texas agree. turned. We cannot prior adjudica proposition that such a presump incompetency creates the tion of Initially we notе that is no clear there *3 continuing incompetency. In such a tion of evidence in the record us the before of situation, required would then be the State appellant’s prior of to nature commitment competent the defendant at the prove to competency The Rusk. evidence at State, 583 S.W.2d v. time of trial. exclusively the state- consisted of Schaffer However, witness, 627, (Tex.Crim.App.1979). medical 630 ments of the State’s a specializing psychiatry. by in No of doctor as statеd the Texas Court Criminal banc, any adjudication incompetency of parte in Ex Yar record of en Appeals, sitting testimony in the record. The of the is (Tex.Crim.App. borough, 607 S.W.2d 565 clearly fails to establish the reason witness 1980) change presumption of does not this incarceration at Rusk. change of The State the standard respect, this the doctor testified that sanity ac only need “establish the appellant, year prior in the by preponderance of the evidence.” cusеd a case, tency hearing in this was “sent Yarborough, 607 S.W.2d at 566. in- Hospital criminally for the Rusk State Admittedly, Yarborough is somewhat stayed Fort He there sane from Worth. case. The court in Yar- different from our days when he out of the about 18 broke borough construing previous provi- in building ... and he has not been back which re- sion of the Mental Health Code hospital period since that time.” La- of in- continuing presumption of moved the ter, “[tjhere this witness testified that is no discharge competency upon patient’s indication at all that this man has ever been hospital, that the issue from the mental so mentally During ill.” cross-examination proper standard there did not concern witness, attorney this the defense stated Further, shifts. once the burden that “there was a out of a Fort quoted above refers to sani- the statement him Worth court that sent to Rusk State defendant, competency. not ty of the incompetent; is Hospital that said he was it replied that correct?” The witness Nevertheless, Yarborоugh is pertinent in attorney, The defense later was. First, re- reasons. the cases here for two cross-examination, asked the witness to ex- “beyond for use of upon by lied the dissent judg- plain “why there is that unvacated proper standard doubt” as reasonable incompetency.” The witness re- ment of v. cases. See Morrow insanity all are also plied the doctor in Fort Worth tended 481, State, 21, 224 S.W.2d 154 Tex.Crim. everybody schizophrenic,” “call State, Murray v. (1949); 147 Tex.Crim. 484 with that was sent to Rusk Herring v. 475, (1944); 474, 477 182 S.W.2d diagnosis. 416, State, 281, 148 S.W.2d 141 Tex.Crim. State, v. (1941); 139 Gunter Tex.Crim. If the basis for incarceration 116, (1940). illness,” 145, Other as the witness’s S.W.2d Rusk was “mental v. Glover testimony quoted point above and later include initial cases on this earlier schizophrenia indi regarding 605, statements 125 Tex.Crim. cate, 125, not be a determination this would Witty v. (1934) Tex.Crim. incompetency to stand trial. mental The other 1147-48 153 S.W. (Tex.
Leyva v.
552 S.W.2d
support
its
cited
dissent
case
State, v.
Crim.App.1977); Ainsworth
Tuttle,
contention,
(Tex.Crim.App.1973).
only
(Tex.Crim.App.1969) concerns
and not
to the State
the shift in burden
incompeten
finding
If the
basis
is true
applied.
same
to be
trial,
standard
dissent assumes
cy to stand
as the
the defense attor
responses
and as
Schaffer
Second,
insanity
concerning
the standard of
incompetency
to stand
should,
any
defense cases
different from
thé court of criminal
has rec
cases,
that in
be more strin
ognized that
the statute as then codified
gent
rather than less.
If a
applicable
affected the common law rules
of the evidence is a sufficient burden for
September
to that issue. From 1959 to
issue,
insanity
the State when
is at
no more
when all recent cases relied on
should be
when
is at
Yarborough
Paul as well as
dissent
issue. We need not decide what the stan
decided,
were
article 5547-83 stated:
dard of
should be when the issue
(a)
judicial
determination under this
insanity
raised is the
defense.
It
person mentally incompe-
Code that a
that once
reasonable to hold
presumption
tent
per-
creates
that the
must,
presumed, the
as an element
mentally incompetent
son continues tо be
crime, prove beyond
a reasonable doubt
discharged
until he is
from the mental
that the defendant was sane at the time the
hospital
or until his mental
crime was committed. But
*4
by
redetermined
a court.
crime,
is
stand trial
not an element of a
and
30, 1959,
409,
1,
May
Act of
ch.
§
hearing
on this issue is civil in nature.
887,
by
amended
Tex.Gen.Laws
Act of
State,
Parker v.
(Tex.App.
fense alibi read: notes, at majority the evidence As the A defense submitted the defendant in heаring consisted exclu- this case what known law as an of the State’s witness. sively of statements alibi, is, if the offense was testimony and portions of his The relevant committed, alleged, the defendant follow: was, cross-examination at the time of the commission there- of, place another different from year [appellant] Last witness:] [The that at which such offense was commit- Hospital crimi- to Rusk State for the sent therefore, and, ted and could not not nally from He insane Fort Worth. person have been the who committed the he stayed days there about 18 when same. managed building of the broke out Now, you have a doubt as reasonable scale a fence.... But he did this and he presence of the defendant at the hospital been in the since has not back committed, place where the offense was period of time. committed, if an offense was at the time thereof, you of the will commission then Q right. essentially All The reason guilty. find the defendant not having is be- why we’re this paragraph We hold that the second out cause there was a *5 charge adequately applies the law to Fort Worth Court that sent him to error, any, egre- facts and was not so Hospital he Rusk that said was gious deprived appellant have as to of a incompetent; is that correct? impartial fair and trial. A That’s correct. Appellant’s ground third of error Q why And the reason we’re here is to only aggravated robbery relates to the two again competency? his detеrmine note convictions. We that the court includ Yes, A sir. following ed the definition: “Effective consent” includes consent Q you theory Okay. You said had a person legally authorized to act for the Rusk; why they about sent him to is that owner. if in- Consent is not effective correct. force, duced threat or fraud. Yes, A sir. general statutory This definition of this, Q may regret right. All And I effective consent set forth in the Penal Doctor, but, what basis of that is the TEX. PENAL ANN. Code. CODE that theory? questions That’s one of the 1.07(a)(12)(A)(Vernon 1974). The court’s § here is unva- why we have there is that negative, if error at failure to define incompetency. judgment cated all, category of funda- would not rise your theory as to that? What’s mental error. happen psychiatrist A I to know the Affirmed. him in and he who examined Fort Worth tendency everybody call great has a HOWELL, J., opinion. dissenting files a this, in he did. schizophrenic. And fact Justice, HOWELL, dissenting. And Fort Worth has a little different they use system that use than what we I dissent because I believe that sending in terms of some cases to Rusk. State’s burden of at the hearing governed by sent with that the standard So that he was to Rusk beyond diag- diagnosis. reasonable doubt. Rusk did not find that added) (emphasis nosis at all. appellant’s competency from
The record
appel-
The witness confirmed twice that
during
year previ-
reflects that
subject
trial,
lant was the
of a
adjudicated
ous to his
he was
incom-
insanity”
judgment.
“present
rather
spoke
The witness further confirmed
in terms of
judgment
that the
was unvacated and the
the in
competency,
but
than
terms
рurpose
competency hearing
of the instant
capacity
quiry
identical —the
appellant’s compe-
was to
redetermine
Morrow
time of trial.
the accused at the
tency.
states:
majority
appear
placed the does not
to find
The careful trial court
these statements
sufficient
to constitute
beyond
proof upon the State to show
of
a reasonable doubt
prior adjudication
clear evidence of a
only
appel
not
Rather,
incompetency.
they seem to read
alleged
time of the
lant was sane at the
the statements of the State’s witness that
offense,
but also at the time of
psychiatrist
in Fort
tended
Worth
he had been
on account of the fact that
everybody
schizophrenic”
“call
and that
County
found insane in the Tarrant
diag-
to Rusk with that
was “sent
Court_
instruction
such
We think
judgment
showing
nosis” as
that the
proposition
correct
law.
See
was a
Fort Worth court was without foundation.
145,
v.
Gunter
139 Tex.Cr.R.
We cannot revise
None оf this is relevant.
116;
Tex.
Herring
v.
S.W.2d
court,
final
of the Fort Worth
281,
Prior
the State to
mental
an unvacated
burden
of insanity
presumption
beyond
established a
a reasonable doubt whereas the
continuing insanity,
shifting
thus
prior
defensive
in the absence of
burden of
to the State to establish
adjudication
by
preponderance.
is
Inso-
sanity
prepon-
of the accused
capacity at the time
far as mental
of the
However,
derance
the evidence.
concerned,
requirement
offense is
5547-81(b),
enactment of Article
V.A.C.S.
beyond
рrobably
doubt
a reasonable
presumption
continuing
abolished the
enjoys
protection.
constitutional
Mental
patient
mental
where the
incapaci-
capacity presumed
to exist until
(citations omitted)
discharged,
ty
proven.
destroys
A
presumption
contrary
and creates the
(emphasis
at 566
Yarborough,
part
incapacity.
As a
of its
presumption
added). Although relying on this lan-
prove beyond
constitutional burden
guage,
majority
concedes it to be dicta.
culрa-
the existence of a
reasonable doubt
Dicta,
submitted,
it
should
in-
never be
state,
prove
must
mental
the State
men-
ble
terpreted
overruling
as
established authori-
capacity
tal
at the time
offense
ty.
majority
higher
standard. Our
takes
Yarborough
sup-
Neither do the
citations
position
pre-trial
that at a
on
port a
the evidence
test.
capacity to
the defendant’s mental
stand
Clark, Tuttle, Amos,
simply
and McGee
higher
is not constitu-
standard
prior adjudication
state
shifts the bur-
However,
tionally
Perhaps, so.
mandated.
den to the
already
State.2
noted,
As
the old-
criminal
has made no
the court of
er cases employ the term “insanity” regard-
the burden of
Wherever
distinction.
ing both criminal responsibility (insanity as a
concerning
capacity
has devolved
defense) and competencyto stand
(pres-
trial
imposed
has
upon the
the court
ent insanity). Townsend, 427
61;
S.W.2d at
beyond
doubt. We
test of
a reasonable
Comment,
Both Issues: Insanity and
rulings
disregard the
of that court
cannоt
Incompetency, 22 BAYLOR L.REV. 230
by labeling
“illogical.”
simply
them
(1970). The
Morrow
dealt with men-
significance in the
majority
finds
capacity
tal
both at the time of the offense
of the Men-
article 5547-83
amendment of
*7
and at the time of trial and made no distinc-
say,
the shift-
Health Code. Suffice
tal
tion in
the
standard of
Mor-
long before there
ing burden rule existed
row,
Having con determined wrong proof, such tained the standard of appeal I dissent. The should be abated of Alman light error must be evaluated in the case remanded for a new and (Tex.Crim. za v. 686 S.W.2d tency hearing.4 App.1984) requires which a determination of whether claim of fundamen egregious
tal error is “so created such and appellant fair and
harm that has not had a degree must
impartial trial.” The of harm light jury charge judged in of the entire Almanza, of the evidence. state should hold
higher standard determine, granted question part Iant is now of an 3. The amendment fact, competent whether he was after the Health Code and revision to the Mental overall Garcia lengthy report he was tried and convicted. time legislative filed a committee the along (Tex.Crim.App.1980); adoption. for its a recommendation with (Tex. State, 599 S.W.2d "ambiguous, Brandon v. out- The old code was described dated, (en banc); Crim.App.1979) Caballero v. in- with court decisions and in conflict (Tex.Crim.App.1979). Ret rights." described as ex- volving patient It was depend possible rospective are determinations mentally rights clarifying panding *8 quality ing upon of each case and the facts as an the committee intimate Nowhere does ill. United quantity available. See of evidence objective, revision of the burden Cir.1976), Makris, (5th F.2d 899 States crimi- incapacity connection with U.S. 97 S.Ct. cert. denied ON PUBLIC HOUSE COMM. nal causes. (1977). L.Ed.2d ANALYSIS, HEALTH, 68th TEX. S.B. BILL Therefore, appeal re- Leg. abate the I would the trial case with instructions mand the Brandon, 599 proceed with require in accordance authority court ample 4. There is appel- at 578. fully process met if of due ments