Benjamin Hernandez v. The State of Texas--Appeal from 77th District Court of Limestone County

AFFIRMED

NOVEMBER 8, 1990

NO. 10-89-094-CR

Trial Court

# 7265-A

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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BENJAMIN HERNANDEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 77th Judicial District Court

Limestone County, Texas

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O P I N I O N

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This case was remanded for the trial court to determine if a retrospective competency hearing could be possible and, if so, to conduct such a hearing. The trial court determined that a hearing was possible and impaneled a jury. The jury found that Benjamin Hernandez, Appellant, was competent at the time he stood trial.

Appellant now complains of reversible error in three points in his supplemental brief. First, he insists that this court erred in abating the appeal because a retrospective competency determination was "impossible and unduly speculative." He additionally claims in this first point that the trial court erred in holding the competency hearing because Appellant was deprived of his "federal and state constitutional right of due process" and because he was deprived of "vital medical and mental expert evidence not available," thus granting an unfair advantage to the State. In his next point Appellant maintains that the trial court erred in denying his motion to abate the competency proceedings and by refusing to find that a retrospective competency hearing was impossible. In his final point Appellant alleges that the trial court erred in refusing to grant his motion for a mistrial.

We shall consider together Appellant's first two complaints (actually labeled points three and four in the supplemental brief) because they address the same question: was a retrospective competency hearing impossible? Appellant insists that a retrospective hearing should not have been allowed because there was no expert testimony in the trial record based upon a psychiatric examination. This meant that the competency jury was able to consider only the evidence admitted at the first trial and the testimony given at the competency trial, based upon the first trial's evidence.

However, Appellant orally asked for a psychiatric examination on the date the case was set for trial, and the court denied this request as untimely. The request for a medical examination should not be confused with the fact that the testimony that Appellant did offer, and that the trial judge did allow, raised the issue of his competency to stand trial. Because there was some evidence that he was incompetent to stand trial, the trial court should have allowed a jury to determine if there was enough evidence to prove him incompetent. See Hawkins v. State, 660 S.W.2d 65, 82-85 (Tex. Crim. App. 1983). But the burden was on Appellant to prove his incompetency. See TEX. CODE CRIM. PROC. ANN. art. 46.02 1(b) (Vernon 1979). Clearly, Section three of Article 46.02 gives the trial court the discretion to appoint disinterested experts to examine a defendant with regard to his competency to stand trial and to allow their testimony upon this issue. Id. at 3(a). Further, Section 3(h) of Article 46.02 provides that, upon a timely request for an examination by an expert, the court shall give the examiner a reasonable opportunity to examine the defendant. Id. at 3(h). Because of the untimely manner in which the competency issue was raised and the request for the medical examination was made, the denial of the request for a medical examination was within the court's discretion. In fact, the court had the discretion to deny any testimony whatsoever on the issue based upon the untimeliness of the request. See Nelson v. State, 629 S.W.2d 888, 889 (Tex. App.--Fort Worth 1982, no pet.).

The court, however, did proceed to hear testimony which raised the issue of competency, and it only erred when it failed to allow a jury to determine if Appellant was incompetent to stand trial. None of the cases cited by Appellant involve a defendant's asking for a medical examination on the day of trial and being refused such a request. Appellant was afforded due process of law. The law affords a medical examination; it merely requires a timely request. The denial of the medical examination was within the court's discretion, and the record that the competency jury reviewed was not inadequate merely because it failed to contain any evidence based upon a psychiatric examination of Appellant.

While Appellant is correct that the evidence in the record is "speculative" as to whether or not he was competent to stand trial, it is only speculative because his evidence did not clearly rebut the presumption that he was competent to stand trial. The competency trial was held approximately a year after the trial resulting in Appellant's conviction. Compare Carroll v. Beto, 330 F. Supp. 71 (N.D. Tex. 1971), aff'd, 446 F.2d 648 (5th Cir. 1971)(holding meaningful hearing possible 23 years after trial). Also, there was a complete record of all the evidence that Appellant presented for the competency jury to review. There was no error in holding the retrospective hearing. The jury found the evidence did not prove that Appellant was incompetent, and there being no point of error on the sufficiency of the evidence, we will not disturb this finding. Appellant's first two points in his supplemental brief are overruled.

Appellant's last point, based upon the prosecutor's comment that there had been a finding that he was competent to stand trial, is overruled because the comment was harmless beyond a reasonable doubt. See Tex. R. App. P. 81(b)(2). Although the comment was made in the jury's presence, it was not made to the jury. The statement was made to the court during an objection to one of Appellant's questions to a witness. The jury was aware that this was a retrospective competency hearing, that Appellant had already presented evidence on his competency at the time of the original trial, and that the court proceeded with a trial on Appellant's guilt. In the State's opening statement to the competency jury, the prosecutor informed the jury that the judge, at the time of Appellant's original trial, "saw through" Appellant's allegation of incompetency, and there was no objection by Appellant to this comment. The competency jury knew that its only function was to make a determination, based upon the evidence presented, of Appellant's competence at the time he stood trial on his guilt. We conclude that the prosecutor's comment had no effect on the jury's decision. See id. The judgment is affirmed.

TERRY R. MEANS

DO NOT PUBLISH Justice