Wagner v. State , 1984 Tex. Crim. App. LEXIS 586 ( 1984 )

OPINION

W.C. DAVIS, Judge.

A jury found appellant guilty of murder and assessed punishment at eighty-five years’ confinement. Appellant alleges eleven grounds of error.

Several of those grounds concern his Motion for Continuance and Notice of Possible Insanity Defense. This motion involved three issues: continuance, a competency hearing, and notice of insanity defense. The court overruled the motion for a continuance, which appellant claimed was needed in order to obtain additional psychiatric testing of appellant “as to his mental condition.”

The record shows that the docket sheets contain a notation that appellant was arraigned on February 17, 1978 and the case set for trial April 10, 1978. The case was then reset for trial on June 19, 1978 and June 26, 1978. Appellant’s motion was filed June 16, 1978. The clerk for the 260th District Court of Orange County testified that a copy of the criminal docket of the 260th District Court was mailed to appellant’s counsel May 19, 1978, and that it contained a paragraph stating that any motions for continuance must be filed by May 31, 1978. Appellant’s counsel did not dispute this testimony. The motion was untimely filed; the court did not abuse its discretion in overruling the motion for continuance. Hernandez v. State, 643 S.W.2d 397 (Tex.Cr.App.1982); Taylor v. State, 612 S.W.2d 566, 570 (Tex.Cr.App.1981).

The trial court granted appellant’s motion for a competency hearing and denied his motion for the insanity defense because it was untimely filed in violation of Art. 46.03, § 2, V.A.C.C.P. Appellant claims that the trial court abused its discretion in failing to allow appellant to present evidence about the issue of insanity because the notice of insanity defense was filed ten days before the case actually went to trial.

Once again we note the pertinent dates involved: the case was originally set for trial April 10, 1978 and then set for June 19, 1978 and June 26, 1978. Appellant filed his notice of insanity defense June 16,1978. Art. 46.03, § 2, V.A.C.C.P. states in pertinent part:

(a) A defendant planning to offer evidence of the insanity defense shall file a notice of his intention to offer such evidence with the court and the prosecuting attorney:

(1) at least 10 days prior to the date the case is set for trial;

(b) Unless notice is timely filed pursuant to Subsection (a) of this section, evidence on the insanity defense is not admissible unless the court finds that good cause exists for failure to give notice. [Emphasis added]

At the time appellant’s motion was heard, June 16, the case was set for trial on June 19. Because the court then held a competency hearing, the case did not go to trial on the merits until June 26. The case was set to go to trial on June 19 at the time appellant’s motion was filed on June 16. Since the June 16 filing was not ten days prior to June 19 trial setting, we find that the trial court correctly held that the notice of insanity defense was untimely filed. See Schaffer v. State, 590 S.W.2d 490 (Tex.Cr.App.1979). The trial court has the discretion to decide whether good cause is present for failure to file timely. Schaf-fer, supra. No evidence was presented by appellant explaining why he waited until June 16 to file notice. No abuse of discretion is shown. This ground of error is overruled.

In a related ground of error appellant claims that the trial court erred in overruling his motion for psychiatric examination filed the day the trial began, June 26, 1978. At a hearing on June 19 a jury found appellant competent to stand trial. Appellant’s notice of insanity defense had been rejected for being untimely filed, and no good cause was shown for the untimely filing. Then on June 26 appellant filed this motion for psychiatric examination to determine “whether defendant was sane at the time of the offense.” (Emphasis added) The court had already ruled out the insanity defense, therefore, as the State notes, any motion “pertaining to the defense of insanity was rendered moot.” The court did not abuse its discretion in overruling appellant’s motion. See Hammett v. State, 578 S.W.2d 699, 707 (Tex.Cr.App.1979); Porter v. State, 623 S.W.2d 374, 380 (Tex.Cr.App.1981).

The trial court granted appellant’s motion for a competency hearing. Appellant now claims that this hearing violated due process because the trial court failed “to allow appellant sufficient time to obtain the necessary psychiatric testimony necessary to the presentation of his case on competency.”

Appellant’s motion for continuance encompassed his motion for a competency hearing by stating that “the people doing the testing are of the opinion that further testing is needed to reach a complete well-reasoned opinion.” It states further that “there is a question” as to the competency of appellant to stand trial. The court then held a competency hearing. Appellant made no objections before, during or after the hearing to suggest that the psychiatric evaluation used for the competency hearing was incomplete. Appellant’s bill of exceptions made after the hearing simply produced testimony of a defense witness that there was a need for more treatment for appellant’s mental illness. No mention was made of any need for psychiatric testing for competency.

The objection offered on appeal was not presented to the trial court. A specific objection raised on appeal will not be considered if it varies from the specific objection made at trial. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979); Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976). Nothing is presented for review.

Appellant claims that the court erred in admitting testimony at the competency hearing concerning a statement appellant gave police because this evidence was not relevant to competency and was prejudicial to appellant.

As the State points out, the details and substance of the statement were not made known to the jury and the statement was never referred to as a confession. The testimony involved only appellant’s understanding of the proceedings and his ability to communicate with others. In addition, appellant objected specifically on the grounds of the issue of the voluntariness of the confession and not on relevance grounds. Appellant may not now assert this contention for the first time on appeal. Carillo, supra; Bouchillon, supra. This ground of error is overruled.

We will address three related grounds of error together. Appellant claims that his confession should not have been admitted at trial because appellant had not knowingly and intelligently waived his right, Art. 38.22, V.A.C.C.P., and because he was not taken before a magistrate before giving the confession, Art. 15.17, Y.A.C.C.P. Appellant also argues that the court should have charged the jury on the issue of the voluntariness of the confession.

The trial court held a hearing on appellant’s motion to suppress his confession. The testimony showed, and the trial court made written findings of fact to the effect that, the confession was voluntary, that Art. 38.22 had been followed, and that appellant intelligently and knowingly waived his rights under Art. 38.22.

The fact that appellant was not taken before a magistrate until after he had given his statement does not render the confession invalid absent a showing of a causal connection between the confession and the failure to take him before a magistrate. Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978). Appellant did not show any such connection. These grounds of error are overruled.

The last confession related error concerns the court’s denial of appellant’s requested charge to the jury on the issue of the voluntariness of the confession. If the evidence offered before the jury did not raise the issue of voluntariness appellant was not entitled to a jury charge on the matter. Brook v. State, 567 S.W.2d (Tex.Cr.App.1978). Appellant does not cite the record regarding evidence heard by the jury concerning voluntariness, nor does our review of the record reveal such evidence. The State’s evidence showed that the confession was voluntary. This evidence was not undermined or rebutted before the jury in any way. Appellant’s ground of error is overruled.

Appellant also complains of the denial of another of his requested charges. He requested a charge on the issue of common law marriage between a State’s witness and appellant. See Tex.Fam.Code Ann. § 1.91 (Vernon 1975). Again appellant does not cite us to any place in the record where the issue was raised before the jury, nor did our examination of the record reveal such evidence. This ground of error is overruled. Brook, supra.

Appellant contends that exclusion of evidence of a physical condition of appellant, during the trial on the merits, was error. The evidence consisted of testimony and x-rays to show that shotgun pellets were situated somewhere in appellant’s head and that his frontal sinuses are somewhat larger than usual. Appellant appears somewhat confused in his use of Cowles v. State, 510 S.W.2d 608 (Tex.Cr.App.1974) to assert the claim that where specific intent is involved as an element of the crime, evidence of mental weakness falling short of legal insanity is admissible at the guilt-innocence phase of the trial. While the foregoing statement is correct, appellant is mistaken in claiming that specific intent was an issue in his case. Appellant was charged with intentionally or knowingly causing the victim’s death. In Womble v. State, 618 S.W.2d 59, 64 (Tex.Cr.App.1981) a defendant was also charged with intentionally or knowingly causing a person’s death. He requested a charge stating that if the jury found that he did not specifically intend to hit the victim he should be acquitted. The Court quoted Dockery v. State, 542 S.W.2d 644 (Tex.Cr.App.1975) (opinion on Motion for Rehearing) and discussed the fact that an unintentional act can still be a criminal offense if done with knowledge, recklessness or negligence. His charge on specific intent was denied. Appellant’s situation is similar. No specific intent need be proved, knowledge will suffice.¹

One of appellant’s witnesses stated that appellant was not insane but that he might have problems with impulse control and that he was aware of what was happening but that his emotional contact was a bit displaced. In Cowles, supra, the court stated:

[w]hen an expert witness for the defense testifies that the accused was legally sane at the commission of the act, and the offense is not one where specific intent is an element of the crime, an offer of testimony by that witness as to the mental aberration or the emotional problems of the accused should be rejected at the guilt-innocence stage of the trial.

510 S.W.2d at 610.

The trial court correctly excluded the testimony. The ground of error is overruled.

Appellant’s last ground of error is that a state reputation witness was shown to be incompetent to testify to appellant’s reputation in the community because he based his testimony on a single specific act of appellant.

In Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975) the Court clarified the requisites for reputation witnesses. The two-prong qualification requirement consists of (1) testimony by the witness that he has discussed or heard of appellant’s reputation with other people; and (2) the discussion cannot be based on the particular offense for which appellant is on trial, although it can be based upon the offense for which the defendant is on trial and a discussion of matters other than the instant offense. Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1979) (opinion on rehearing 1980).

Officer Ray Long testified on voir dire as follows:

Q. Mr. Long, when — I presume that you are here to testify about the reputation of Onnie Mack Wagner, is that correct?

A. Yes, sir.

Q. In the community?

A. Yes, sir.

Q. What do you base that testimony on?

A. On information received from another member of the community.

A. We discussed the fact that Mr. Gans stated that he and his wife had been— their lives had been threatened by Mr. Wagner.

Q. Anything else?

A. I can’t recall.

Q. In other words, it’s in relation to this specific act, is when you interviewed Mr. Gans, is that correct?

A. It was in relation to a terroristic threat and it was in relation to a—

Q. That and that only, is that correct?

A. Yes, sir, that’s what Charles discussed with me.

Q. You didn’t discuss anything else other than that threat?

A. That’s all we discussed.

Crawford v. State, 480 S.W.2d 724 (Tex.Cr.App.1972) discussed the qualifications for reputation witnesses and addressed appellant’s identical contention. The court said:

Although the officers could not testify to specific acts, it is not improper for them to discuss specific acts with other persons as a basis for determining what appellant’s reputation is in the community. The appellant’s cross-examination of the officers did not show them to be unqualified to testify concerning the appellant’s bad reputation. See and compare Frison and Watts v. State, 473 S.W.2d 479 (Tex.Cr.App.1971).

480 S.W.2d at 726-27.

Appellant’s last ground of error is overruled. The judgment is affirmed.

1 . See generally LaFave and Scott, Criminal Law § 28 (1972).