Ricky Lynn Huff v. The State of Texas--Appeal from 22nd District Court of Caldwell County

CR7-275 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
ON REMAND
NO. 3-87-275-CR
RICKY LYNN HUFF,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 9705, HONORABLE FRED MOORE, JUDGE PRESIDING

PER CURIAM

 

In 1987, a jury convicted appellant of possession of marihuana (greater than five but less than fifty pounds). Texas Controlled Substances Act, 1983 Tex. Gen. Laws, ch. 425, 6, at 2373 (Tex. Rev. Civ. Stat. art. 4476-15, 4.051, since repealed and codified at Tex. Health & Safety Code Ann. 481.115(b)(5) (Pamph. 1991)). The jury found one of two pleaded enhancement allegations true, and sentenced him to 45 years in prison. In our first opinion, we overruled four of appellant's five points of error. (1) We abated the appeal, however, finding that appellant was entitled to a jury determination of his competency to stand trial, and remanded for that determination. After remand, we found the evidence sufficient to support the jury finding of competence. Huff v. State, No. 3-87-275-CR (Tex. App.--Austin, May 5, 1990) (not published). Appellant filed a petition for discretionary review, alleging that he had not been given the opportunity to raise issues in connection with the competency determination. The Court of Criminal Appeals remanded to us to allow him to do so. Huff v. State, 807 S.W.2d 325 (Tex. Crim. App. 1991). We required the trial court to find if appellant was still represented by counsel, and, if not, either to appoint substitute counsel or allow appellant to proceed pro se, which he chose to do. The court found his waiver of an attorney on appeal was made knowingly and intelligently, and approved it.

Appellant now brings twelve points of error, but only two concern the competency determination. As we have previously denied his motion to amend his brief to include points arising out of his trial for the possession of marihuana offense, we will consider only the two points related to the competency hearing. In point of error one, appellant contends that he was deprived of a fair and impartial hearing on the issue of his competency to stand trial in violation of article 46.02 of the Texas Code of Criminal Procedure and Art. I, 19 of the Texas Constitution. In point of error two, appellant contends that he was deprived of a fair and impartial hearing on the issue of his competency to stand trial in violation of the due process and equal protection of law clauses of the fourteenth amendment to the United States Constitution. We will overrule both points of error.

 
VOIR DIRE

Appellant bases both points of error on the same alleged errors occurring both during voir dire and the evidentiary phase of his competency hearing. He contends that error was committed during voir dire when the State told the panel that he was charged with possessing marihuana in a "fairly large amount"; that he had been to prison for "various things"; and that he was "vulnerable to a term up to 99 years or life" in prison. The prosecutor then asked of the prospective jurors: "Is there anybody that doesn't think that's reason enough to feign or fake incompetency?"

A competency determination should be a separate matter from the trial of the offense, "uncluttered by the evidence of the offense itself." Townsend v. State, 427 S.W.2d 55, 63 (Tex. Crim. App. 1968). Not every mention of the crime itself is prejudicial, however. Brandon v. State, 599 S.W.2d 567, 580 (Tex. Crim. App. 1979), vacated on other grounds, 453 U.S. 902 (1981); Martin v. Estelle, 546 F.2d 177 (5th Cir.), cert. denied, 431 U.S. 971 (1977). In Brandon, on which appellant relies, the State's remarks had been that the defendant, charged with murdering a police officer, would go free if found incompetent. The State implied, incorrectly, that if the jury found the defendant incompetent he could never be tried, and would go to the Austin State Hospital, a place from which patients routinely "walked away." Brandon, 599 S.W.2d at 571. The Court said that the probative value of the evidence was outweighed by its prejudicial value. Id. at 572. In this case, we do not have such inflammatory remarks. If the remarks were error, the Court's charge contained an instruction that the underlying offense was no evidence on the issue of competency, which was sufficient to cure any error.

Appellant also points to the question concerning faking incompetence as being improper. It is legitimate for the State to argue the theory that a defendant is feigning incompetence in order to avoid prison. Ex parte Harris, 618 S.W.2d 369, 373 (Tex. Cr. App. 1981) (extraneous offense permissible to show manipulative rather than incompetent). The State's question on voir dire was not improper because the State is entitled to find out if any prospective juror will simply refuse at the outset to consider its theory.

Appellant also contends that the prosecutor denigrated the competency standards by the following:

 

If he understands what is meant by the charge and the functions of the Court, then by my standards and, I think, by the court's standards, he's competent. . . . What I'm trying to do is to get you away from those rather difficult and maybe somewhat long words that are contained in the law and to give you some kind of practical understanding of what I think those words mean and not to be taken in by the fact that the words might be hard to understand.

 

Great latitude is allowed during voir dire. Battie v. State, 551 S.W.2d 401, 404 (Tex. Cr. App. 1977), cert. denied, 434 U.S. 1041 (1978). The above is simply a paraphrase of the more technical language in part of the statute defining competency to stand trial. See Veracruz v. State,713 S.W.2d 745, 747 (Tex. App. 1986, pet. ref'd) (not improper for State to explain spousal privilege on voir dire; i.e., that by law State could not call defendant's spouse to testify but defendant could).

 
EVIDENTIARY PHASE

Appellant contends that the court erred in admitting certain cross-examination testimony from defense witness Robert Hatcher, who was at one time appellant's attorney, was error. The objectionable testimony was that Hatcher had informed appellant of the enhancement allegations, and the corresponding range of punishment, and that Hatcher knew that appellant had been charged with possessing a "backyard full" of marihuana. Appellant also contends that testimony elicited on cross-examination from Leonard Martinez, a defense witness and former attorney for appellant, should not have been allowed. Martinez testified that appellant had been convicted of the underlying offense of possession of marihuana and had appealed the conviction. He also contends that the court erred in allowing Martinez to testify that competency had been raised pre-trial and overruled.

The disposition of all three complaints is the same. The testimony in each instance also had been elicited by appellant's own counsel. (Appellant was represented by counsel at the competency hearing.) Therefore, any error in its admission would have been harmless. Brown v. State, 757 S.W.2d 739 (Tex. Crim. App. 1988); Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986).

We affirm the finding of competency to stand trial and we affirm appellant's conviction.

 

[Before Justices Powers, Aboussie and Kidd]

Affirmed

Filed: September 25, 1991

[Do Not Publish]

1. 1 Appellant contended that the court erred in: (1) denying his request for a jury trial on competency; (2) denying his motion to suppress; (3) overruling his objection to the court's charge; (4) overruling his objection to the State's jury argument; and (5) permitting the introduction into evidence of the "pen packets" used to prove the prior convictions alleged in the enhancement counts of the indictment. Huff v. State, No. 3-87-275-CR (Tex. App.--Austin, August 9, 1989) (not published).