Delton Wayne Simecek v. The State of Texas--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-99-151-CR

DELTON WAYNE SIMECEK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 98-12-13173-BCCR

O P I N I O N

Delton Wayne Simecek was convicted by a jury of the offense of aggravated assault after a plea of not guilty by reason of insanity. The jury assessed punishment at 15 years imprisonment. On appeal, he raises three issues: (1) the trial court erred in failing to order, sua sponte, a competency hearing; (2) the jury s finding rejecting his affirmative defense of insanity is against the great weight and preponderance of the evidence; and (3) the trial court erred in limiting the cross-examination of an expert witness. We affirm the judgment of the trial court.

Issue Two: Insanity

In the second issue, Simecek contends that the finding of the jury rejecting his affirmative defense of insanity is against the great weight and preponderance of the evidence so as to be manifestly unjust. Simecek argues that, given the testimony heard by the jury concerning his mental condition, the defense proved insanity by a preponderance of the evidence and the conviction should be overturned and the case remanded for a new trial. We do not agree.

Section 8.01 of the Penal Code provides for the affirmative defense of insanity:

(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

Tex. Pen. Code 8.01 (Vernon Supp. 2000). Ultimately the issue of insanity at the time of the offense excusing criminal responsibility lies in the province of the jury, not only as to the credibility of the witnesses and the weight of the evidence, but also as to the limits of the defense itself. Bigby v. State, 892 S.W.2d 864, 877 (Tex. Crim. App. 1994) (quoting Graham v. State, 566 S.W.2d 941, 948-49 (Tex. Crim. App. 1978).

The issue of insanity is not strictly medical; it also invokes both legal and ethical considerations. Id. Medically, an individual may be insane from a mental disease or defect yet, legally, he is not relieved of the criminal responsibility for that crime unless his mental condition reached the point where he was unable to distinguish right from wrong. Graham, 566 S.W.2d at 948. Expert witnesses, although capable of giving testimony that may aid the jury in determining the issue, do not dictate the result. Id. And in deciding the ultimate issue of sanity, only the jury can consider the non-medical components that must be considered in deciding the ultimate issue. Bigby, 892 S.W.2d at 877.

The Court of Criminal Appeals held that when a Court of Appeals is called upon to review whether the defendant has proved his affirmative defense and where the law has designated that the defendant has the burden of proof by a preponderance of the evidence, the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Patel v. State, 787 S.W.2d 410, 411 (Tex. Crim. App. 1990); Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990). This includes the matter of the affirmative defense of insanity, as the appellant attempted to prove in the instant case. Id.

Evidence of Insanity

The circumstances of the crime itself are always important in determining the mental state of the accused at the commission of the offense. Ross v. State, 153 Tex. Crim. 312, 220 S.W.2d 137, 139 (1948). Vernon Sears testified that on the night of the shooting, he and Simecek were sitting around the table at Simecek s house talking when Simecek went and got a loaded shotgun, started talking about killing himself and put the gun underneath his chin. Simecek s uncle, Cas Thompson, tried to get the gun away from him but was unsuccessful. Sears testified that Simecek said the three shotgun shells were one for each Sears, Thompson, and himself.

After things seemed to calm down, Sears decided to spend the night since they had been drinking. Just as he dosed off, Simecek came in and asked Sears if he was ready to die. Simecek then proceeded to shoot Sears wounding him. Thompson tried to get Simecek to stop, but Simecek just said, Fuck the son of a bitch, let him die. Sears testified that he then begged for his life as Simecek put the barrel of the shotgun between his eyes. Somehow he finally managed to take the gun from Simecek who then took off running and screaming.

Dr. Richard Schmitt, a licensed psychologist, and Dr. David Skelton, Simecek s family doctor, testified for the defense on the sanity issue. In sum, both experts testified that Simecek suffered from depression and that, on December 7, 1998, when Simecek shot Sears, he did not know that his conduct was wrong. Skelton based his opinion on his treatment of Simecek since 1990, personal observations and records from Simecek s recent treatment for depression at All Saints Hospital. Schmitt based his testimony on five different visits with Simecek, personal observations, interviews with Simecek, Dr. Cathal Grant s psychological evaluation and Simecek s records from All Saints Hospital in Fort Worth.

Dr. Grant was appointed by the court as a disinterested expert to determine whether Simecek was competent to stand trial. When called by the State, Grant agreed with Simecek s expert witnesses that Simecek was suffering from depression at the time of the shooting. However, she disagreed with the ultimate findings of these two experts and opined that Simecek was sane at the time of the shooting. Grant believed that the alcohol Simecek consumed only caused him to do something that he still knew was wrong. The testimony was as follows:

Defense: If in his condition, major depression, and alcohol, and his perception of an agreement, if Mr. Sears had, in fact, said if you are going to shoot someone, shoot me, would this trigger his discharge of the weapon at Vernon Sears?

Grant: This is my opinion in this scenario that you are representing, is the alcohol would have a more profound influence than the depression. When you are very intoxicated, and have a gun, and someone said if you are going to shoot someone, shoot me, you are more likely to do it if you are intoxicated. If you are severely depressed, you are more likely to shoot yourself.

In the present case, the jury s responsibility was to determine whether Simecek s evidence or the State s evidence was more credible and the weight to be given to that evidence on the issue of insanity whether Simecek, as a result of mental defect or illness at the time he shot Sears, did not know that his conduct was wrong. Simecek did present evidence of abnormal behavior, as well as lay and expert opinion that he was insane at the time of the assault on Sears. There was also, however, expert testimony that while Simecek was suffering from depression, he was not legally insane when the incident took place. The jury could have believed that although Simecek believed that Sears wanted to die, he retained the mental capacity to conform his actions to the law. Accordingly, we determine the jury s finding against Simecek on the insanity defense was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Issue two is overruled.

Issue One: Incompetency

In his first issue, Simecek contends that the trial court abused its discretion by failing to sua sponte conduct a hearing to determine whether there was evidence to support a finding of his incompetency to stand trial. We disagree.

It is well-settled that the conviction of one who is legally incompetent to stand trial violates due process of law. Alcott v. State, 1999 WL 1041137 (Tex. App. Waco 1999, pet. granted). A person is incompetent to stand trial if he does not have "(1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against him." Tex. Code Crim. Proc. Ann. art. 46.02 1(a) (Vernon Supp. 2000). Article 46.02, section 2(b) provides that if during trial, evidence of defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial. Tex. Code Crim. Proc. Ann. art. 46.02 2 (Vernon Supp. 2000). The competency hearing, or section 2(b) hearing, is not required unless the evidence is sufficient to create a bona fide doubt in the mind of the judge whether the defendant meets the test of legal competence. Ex Parte Thomas, 906 S.W.2d 22, 25 (1995), cert. denied, 518 U.S. 1021, 116 S. Ct. 2556, 135 L. Ed. 2d 1074 (1996); Mata v. State, 632 S.W.2d 355, 357 (Tex. Crim. App. 1982). A defendant is presumed to be legally competent unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46.02 1(b) (Vernon Supp. 2000). In determining whether the trial court erred by not conducting a competency hearing, we review the trial court s actions using an abuse of discretion standard. Thompson v. State, 915 S.W.2d 897, 901 (Tex. App. Houston [1st Dist.] 1996, pet. ref d.).

Evidence of mental impairment alone does not create a bona fide doubt about a defendant s legal competence where none of the evidence indicates that a defendant is incapable of consulting with counsel or understanding the proceedings against him. See Townsend v. State, 949 S.W.2d 24, 26-27 (Tex. App. San Antonio 1997, no pet.) (evidence that defendant was depressed and suicidal did not warrant an incompetency hearing); Gilbert v. State, 852 S.W.2d 623, 627 (Tex. App. Amarillo 1993, no pet.) (fact that defendant had been treated by psychiatrist not evidence of incompetency to stand trial); Koehler v. State, 830 S.W.2d 665, 666-67 (Tex. App. San Antonio 1992, no pet.) (judicial determination that person incompetent to handle own affairs not evidence of incompetency to stand trial); O Neil v. State, 642 S.W.2d 259, 260 (Tex. App. Houston [14th Dist.] 1982, no pet.) (characterization of defendant as having mental problem and being crazy did not relate to statutory test of incompetency); Leyva v. State, 552 S.W.2d 158, 160 (Tex. Crim. App. 1977) (even judicial determination that a person is mentally ill is not determination of mental incompetency).

Thus, to raise an issue of incompetence there must be evidence of recent, severe mental illness or bizarre acts by the defendant, or moderate retardation. Mata v. State, 632 S.W.2d 355, 359 (Tex. Crim. App. 1982). Psychiatric examinations ordered by a court do not establish an evidentiary issue on the defendant's competency to stand trial. See Gardner v. State, 733 S.W.2d 195, 199-200 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 1034, 102 L. Ed. 2d 979, 109 S. Ct. 848 (1989); Valdes-Fuerte v. State, 892 S.W.2d 103, 107 (Tex. App. San Antonio 1994, no pet.). Rather, the court-ordered psychiatric evaluation helps the trial court determine the possible existence of evidence showing incompetence. See Gardner, 733 S.W.2d at 199-200; Brown v. State, 871 S.W.2d 852, 858 (Tex. App. Corpus Christi 1994, pet. ref'd). The trial court may rely upon personal observations, known facts, evidence presented, motions, affidavits, or any reasonable claim or credible source creating a bona fide doubt about the defendant s competency to stand trial. Townsend v. State, 427 S.W.2d 55, 57 (Tex. Crim. App. 1968).

Evidence of Incompetency

Approximately two months prior to trial, Simecek gave notice of his intention to present evidence of insanity. At a pretrial hearing, the state requested and the court ordered, pursuant to Article 46.02 3 of the Texas Code of Criminal Procedure, that Simecek undergo an examination by a disinterested expert in the mental health field to ascertain whether he was competent to stand trial. See Tex. Code Crim. Proc. Ann. art. 46.02 3(a) (Vernon Supp. 2000). Cathal P. Grant, M.D.P.A., a practicing psychiatrist, was appointed as the disinterested expert. Dr. Grant filed one report entitled Competency and Sanity Evaluation with the clerk. In this report, Dr. Grant stated that Simecek was competent to stand trial and was sane at the time of the alleged offense by virtue of his intoxication. Also, this report addressed Simecek s knowledge of the participants in the court system as follows:

Attorney: He is defending me.

District Attorney: He is trying to hang me.

Judge: He is the one that sentences me, I guess.

Jury: Guilty or not guilty.

Dr. Grant testified that Simecek had left school in the fifth grade and presumed that Simecek could read and write his own name. He also testified in describing his observations of Simecek that Simecek was somewhat disheveled; slow quiet speech and extremely slow thought form; felt somewhat unfairly treated by the justice system; felt life was unfair and not worth living; suicidal; his mood and self-esteem were very low; had a limited grasp of current affairs; and, had great difficulty performing simple mathematical calculations.

Two expert witnesses testified for Simecek. First, Dr. Skelton, Simecek s family doctor, testified that Simecek became profoundly depressed during the illnesses and subsequent deaths of his mother and wife. He testified that this depression lasted longer than the normal two to three months bereavement period, the depression was considered pathological and Simecek had a mental disease. Skelton further testified about Simecek s suicidal tendencies and his suicide attempt. He also testified that he had prescribed Paxil and that one of his partners prescribed Prozac for Simecek s depression.

Skelton saw Simecek on January 22, 1999 while he was in jail and referred him to a psychiatrist for admittance at All Saints Hospital in Fort Worth, Texas. The psychiatrist confirmed Dr. Skelton s diagnosis of a mental disease and referred Simecek back to Dr. Skelton. Dr. Skelton continued Simecek on his psychiatric drugs and referred him to Dr. Schmitt, Ph.D., a licensed psychologist. Dr. Schmitt was the second expert to testify for Simecek. In Dr. Schmitt s opinion, Simecek qualified as meeting the criteria for diagnosis of a severe depression called major depression recurrent.

Billy Hawkins, a longtime friend, testified that within the last year, Simecek was extremely depressed, his actions had changed, and that he was having a hard time coping with the deaths. On cross-examination by the State, Hawkins testified that he thought that Simecek was only competent to a certain degree. Bennett Morrow, the justice of the peace that conducted Simecek s examining trial, testified that he was concerned about Simecek and that he did not want him released if he was suicidal. Finally, during his opening statement on punishment, Simecek s attorney stated that Simecek would not testify, because in his opinion Simecek could not competently or intelligently understand the events leading up to the matter.

Although Simecek presented considerable evidence of the psychological difficulties arising from his condition, none of the evidence raised any concern that, when he appeared in court, he did not have either (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding or (2) a rational as well as a factual understanding of the proceedings against him. Courts have held that a trial court is within its power to find a defendant competent without a section 2(b) hearing despite evidence of depression or prior hospitalization when such evidence fails to indicate adequately either severe mental illness or recent impairment. Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999).

Nothing in the record indicates that the anti-depressive medications prescribed were not working at the time of Simecek s trial. Simecek s attorney did not complain of any inability to communicate with him and there was nothing in the record indicating that Simecek s appearance or demeanor during his trial was out of the ordinary. Thus, no evidence was brought to the trial court s attention regarding Simecek s ability in March of 1999 to consult with his lawyer and understand the proceedings against him as required by article 46.02. Tex. Code Crim. Proc. Ann. art. 46.02, 1 (Vernon Supp. 2000). Accordingly, the trial court did not err by not sua sponte holding a section 2(b) hearing to determine Simecek s competency to stand trial. Issue one is overruled.

Issue Three: Offer of Proof

In his third issue, Simecek argues that the trial court erred in limiting his cross-examination of the State s expert witness in violation of Article 6 of the U.S. Constitution and Article 1 of the Texas Constitution. We disagree. A defendant generally must make an offer of proof to preserve any error in refusing to admit evidence. Canto-Deport v. State, 751 S.W.2d 698, 700 (Tex. App. Houston [1st Dist.] 1988, pet. ref d). Texas Rule of Evidence 103(a)(2) provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. Tex. R. Evid. 103(a)(2) (Vernon Supp. 2000). An offer of proof may be in question-and-answer form, or it may be in the form of a concise statement by counsel. Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993); Tex. R. Evid. 103(b). Simecek did not make an offer of proof and the testimony sought to be elicited from the expert was not apparent from the context. Thus, Simecek does not present anything for our review. Accordingly, issue three is overruled.

Conclusion

Having resolved all three issues against Simecek, we affirm the judgment of the trial court.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed on October 4, 2000

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