Jaime Nacianceno v. The State of Texas--Appeal from 278th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-94-219-CR

JAIME NACIANCENO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 278th District Court

Madison County, Texas

Trial Court # 9231

O P I N I O N

A jury rejected Jaime Nacianceno's plea of not guilty by reason of insanity and convicted him of murder. Tex. Penal Code Ann. 19.02 (Vernon 1994). The court assessed punishment of fifty years' incarceration. He complains that the court refused to hold a second competency hearing, based on a new expert witness' opinion that he was not competent to stand trial and argues that the evidence is factually insufficient to support the jury's rejection of his insanity defense. Concluding that the court did not abuse its discretion when it denied his request for a second competency hearing and the jury was not bound by the unanimous expert-witness evidence supporting his plea, we overrule his points and affirm the judgment.

On the morning of May 9, 1993, Nacianceno bought a large butcher knife at the Brookshire Brothers' store in Madisonville. Taking the knife, he walked a mile to the residence of Pedro Reyes, a causal acquaintance. After being in the house for some period of time, Nacianceno attacked Reyes with the knife. Reyes ran out to the highway in front of his home with Nacianceno in pursuit. Nacianceno caught Reyes by his mailbox and stabbed him to death. Three men in two cars driving on the highway witnessed the stabbing. Carl Haire called the police while Vernon Baker and Jesse Baker, two brothers, followed Nacianceno as he walked away from Reyes. Madisonville Police Officer Steven Davis, responding to Haire's call, intercepted Nacianceno walking along the highway, disarmed him and placed him under arrest. On May 17, 1994, the court held a hearing to determine Nacianceno's competency to stand trial. Tex. Code Crim. Proc. Ann. art. 46.02 (Vernon 1979 & Supp. 1996). The only witness at the hearing, Dr. Walter Quijano, a clinical psychologist, testified that, in his opinion, Nacianceno was competent to stand trial. The jury accepted this testimony and found Nacianceno competent.

The next day, Dr. Gary Newsom, a psychiatrist, examined Nacianceno at the request of the State. Dr. Newsom concluded that Nacianceno was not competent to stand trial and stated this opinion in his letter to the court dated May 19. Based on this report, Nacianceno requested a second competency hearing by a motion filed on May 24. On the morning of May 25, at the start of voir dire, his lawyer urged the court to seat a jury for a second competency hearing and delay the trial on the merits. The court denied his motion and ordered the trial to proceed. Nacianceno claims that the court's ruling on this motion was erroneous.

We measure the court's decision to deny Nacianceno a second competency hearing under the abuse of discretion standard. Mines v. State, 852 S.W.2d 941, 947 (Tex. Crim. App. 1992), vacated, ___ U.S. ___, 114 S. Ct. 42, 126 L. Ed. 2d 13 (1993), aff'd, 888 S.W.2d 816 (Tex. Crim. App. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1978, 131 L. Ed. 2d 866 (1995); Meraz v. State, 714 S.W.2d 108, 115 (Tex. App. El Paso 1986), aff'd, 785 S.W.2d 146 (Tex. Crim. App. 1990). At a minimum, he must show either evidence of a subsequent change in his competency or some "new evidence", measured under the "newly discovered evidence" standard applicable to motions for a new trial, regarding competency. Meraz, 714 S.W.2d at 115; Miles v. State, 688 S.W.2d 219, 224 (Tex. App. El Paso 1985, pet. ref'd).

Nacianceno did not claim that his condition changed between the initial competency hearing and his request for a second hearing, but relied on the "new evidence" of Dr. Newsom's contrary opinion. Thus, he must show: (1) the newly discovered evidence was unknown to him at the time of the first competency hearing; (2) his failure to discover the evidence was not due to his want of diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably bring about a different result at a new hearing. Ashcraft v. State, 918 S.W.2d 648, 653 (Tex. App. Waco 1996, pet. ref'd) (citing Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 909, 130 L. Ed. 2d 791 (1995); State v. Gonzalez, 855 S.W.2d 692, 697 n.1 (Tex. Crim. App. 1993) (Meyers, J., concurring); Eddlemon v. State, 591 S.W.2d 847, 849 (Tex. Crim. App. [Panel Op.] 1979)). "Nevertheless, should it appear to the trial court that under the circumstances of the particular case the . . . weight of the new evidence is not such as would probably bring about a different result upon a new trial, it is within its discretion to deny the motion." Jones v. State, 711 S.W.2d 35, 36-37 (Tex. Crim. App. 1986).

We do not believe that Nacianceno has shown that the court's ruling was unreasonable. Ashcraft, 918 S.W.2d 652. Dr. Newsom's opinion was formed the day after the jury found Nacianceno competent to stand trial. See Mines, 852 S.W.2d at 947. The court had the opportunity to view Nacianceno's behavior and demeanor at the competency hearing and could have reasonably concluded that Dr. Newsom's testimony was not so strong as to probably bring about a different result in a new hearing. Ashcraft, 918 S.W.2d at 653; also Elledge v. State, 890 S.W.2d 843, 846 (Tex. App. Austin 1994, pet. ref'd) ("whether the newly discovered evidence would likely produce a different result must be viewed in the light of the whole case"). The record does not mandate a contrary result. Thus, we overrule point one.

By his second point, Nacianceno claims that the evidence was insufficient to support the jury's rejection of his insanity defense. Because he had the burden of proving his insanity defense by a preponderance of the evidence, we review the record under a factual sufficiency standard; thus, we must determine if, after considering all the evidence relevant to the issue, the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App. 1990).

Nacianceno claims that the evidence is insufficient because both of the expert witnesses who testified were of the opinion that he was not legally sane at the time he murdered Reyes and the State was not able to produce a contrary expert opinion. However, as we have observed:

The issue of insanity is not strictly medical, and expert witnesses, although capable of giving testimony that may aid the fact-finder in its determination of the ultimate issue, are not capable of dictating determination of that issue. . . . Ultimately, the issue of insanity at the time of the offense lies in the province of the fact-finder, not only as to the credibility of the witnesses and weight of the evidence, but also as to the limits of the defense itself. . . . Expert testimony, even if uncontradicted, does not establish insanity as a matter of law. Such unrebutted testimony only raises an issue of fact to be resolved by the trier of fact.

Brooks v. State, 719 S.W.2d 259, 262-63 (Tex. App. Waco 1986, pet. ref'd) (citations omitted).

The State adduce testimony from two of the eyewitnesses, the arresting officer, the jailer who "booked" Nacianceno into the county jail, and an officer who knew Nacianceno before the offense and observed and talked with him the night of the offense, each of whom testified that, in his opinion, Nacianceno knew that his actions were wrong. The State also vigorously cross-examined the experts, pointing out to the jury what information each failed to take into account when forming his opinion. For instance, the State demonstrated that neither expert was aware that Nacianceno knew his victim prior to the attack, held the knife down by his side as if attempting to conceal the weapon after the stabbing, and kept looking around as if to see if he was being followed when he was walking away from the murder scene. Neither expert interviewed the eyewitnesses, performed any objective testing, or spent more than three hours with Nacianceno before forming his opinion. We conclude that the jury's verdict is not against the great weight and preponderance of the evidence. Meraz, 785 S.W.2d at 154-55; Brooks, 719 S.W.2d at 262-63. Point two is overruled.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 30, 1996

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