Gary Dwayne Jackson v. State ( 2005 )

Opinion filed October 6, 2005

Opinion filed October 6, 2005

                                                         In The

                     Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00016-CR

                                                    __________

                               GARY DWAYNE JACKSON, Appellant

                                                             V.

                                    THE STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                Trial Court Cause No. CR 16-914

                                                                   O P I N I O N

The jury convicted Gary Dwayne Jackson of the second degree felony offense of aggravated assault, found that appellant used or exhibited a deadly weapon during the commission of the offense, and assessed punishment at 15 years confinement.  The trial court sentenced appellant in accordance with the jury=s assessment.  In his sole issue, appellant argues that the trial court erred in depriving him of the opportunity to present an insanity defense with respect to the aggravated assault charge.  We affirm.

                                                            Trial Court Proceedings

The indictment alleged that appellant, on or about August 26, 2003, intentionally, knowingly, or recklessly caused serious bodily injury to Joe Williams Stephens by shooting him.  The indictment further alleged that appellant used or exhibited a deadly weapon B a firearm B during the commission of the assault.

Appellant=s counsel filed a pretrial motion seeking the appointment of a disinterested expert to examine appellant with regard to his competency to stand trial and his insanity defense. See former TEX. CODE CRIM. PRO. art 46.02, ' 3(a) (2001); former TEX. CODE CRIM. PRO. art. 46.03, ' 3(a) (2003).^[1]  The trial court entered an order granting the motion and appointing Dr. Anita Cave Deanda, a psychiatrist, to examine appellant on these issues.  Dr. Deanda examined appellant and found that appellant was competent to stand trial and that appellant was not entitled to assert an insanity defense. Dr. Deanda reported her findings in a letter to the trial court.  During pretrial proceedings, appellant=s counsel did not request the trial court to appoint another disinterested expert or an expert to assist in the evaluation, preparation, and presentation of an insanity defense under the principles set forth in Ake v. Oklahoma, 470 U.S. 68 (1985).

The evidence at trial established that appellant gave $100 to Stephens to purchase an air conditioner for appellant.  Stephens did not get the air conditioner for appellant or return the money to him. Kayla Jackson, appellant=s daughter, testified that appellant told her and others that he was going to shoot Stephens in the leg because Stephens owed him money.  Julie Jackson, appellant=s daughter, testified that appellant told her that he was going to shoot Stephens if Stephens did not get the air conditioner or return the money. Appellant went to Stephens=s house and demanded Stephens to have his money by the next day at 5:00 p.m.  The next day, Stephens was at Tracey Woody=s house.  Appellant went to Woody=s house and yelled A[t]ell [Stephens] to come out here with my $100.00 or I=m going to shoot him in the leg.@  Stephens ran out of the house when appellant attempted to enter it.  As Stephens was running away, appellant shot him in the leg.

After appellant shot Stephens, appellant drove back to his apartment complex.  Teresa Freeman saw appellant when he arrived. Appellant told her that he had shot Stephens because Stephens owed him $100 for an air conditioner.  Appellant said that he did not intend to kill Stephens, but that he wanted to slow Stephens down so that he could assault him. Appellant told Freeman that he thought the police would be coming to arrest him and then take him away. 

Brown County Deputy Sheriff Brian Lundy testified that, after the shooting, he and other officers went to appellant=s apartment complex to look for appellant=s vehicle.  Deputy Lundy and the other officers approached an open door at the complex.  Appellant stepped out of the apartment with his hands held up.  Appellant told the officers that he had thrown the gun into some brush.  He showed the officers where the gun was located.  Appellant gave a written statement admitting that he had shot Stephens.

The State called Dr. Deanda as a witness.  She testified that, in her opinion, appellant did not suffer from a mental illness or defect at the time of the offense and that appellant knew that his act of shooting Stephens was wrong.  Dr. Deanda testified that appellant was legally sane at the time of the commission of the offense. 

Appellant presented evidence that he had a stroke about a year before the incident.  Howard Dwayne Burnett testified that he noticed a personality change in appellant some time after the stroke occurred.  Burnett said that, after the stroke, appellant was mad at somebody on a regular basis.  Julie  testified that appellant=s personality changed after the stroke and that he was mad all of the time after the stroke.  The State objected when appellant=s counsel asked Burnett and Julie whether they thought that appellant knew right from wrong.  The State argued that Burnett and Julie, as lay witnesses, were not qualified to give opinion testimony as to whether appellant knew right from wrong.  The trial court sustained the objections.

The jury found appellant guilty of aggravated assault, and the case proceeded to the punishment phase.  After the close of evidence at the punishment phase, appellant=s counsel moved for a mistrial, based in part, on the ground that Dr. Deanda had performed an insufficient examination of appellant.  Appellant=s counsel argued that the insufficient examination had prevented appellant from presenting an insanity defense.  In connection with the motion for mistrial, appellant=s counsel requested the trial court to appoint another expert on the issue of appellant=s insanity defense.  The trial court denied appellant=s motion for mistrial.

                                                                  Issue Presented

Appellant argues that the trial court=s failure to appoint a disinterested expert to examine appellant, coupled with the trial court=s refusal to admit lay opinion testimony on the issue of appellant=s insanity, deprived him of the right to assert an adequate insanity defense.

                                                 Appointment of a Disinterested Expert

The decisions whether to appoint a disinterested expert on the issue of the competency to stand trial under former Article 46.02, section 3(a) and on the issue of an insanity defense under former Article 46.03, section 3(a) were left to the sound discretion of the trial court.  Bigby v. State, 892 S.W.2d 864, 885 (Tex.Cr.App.1994)(competency to stand trial); Caldwell v. State, 696 S.W.2d 606, 608 (Tex.App. -  Beaumont 1985, pet=n ref=d), cert. den=d, 481 U.S. 1019 (1987) (insanity issue); Wynne v. State, 676 S.W.2d 650, 656 (Tex.App. - Fort Worth 1984, pet=n ref=d)(insanity issue).  That decision was reversible only where the trial court abused its discretion.  Bigby v. State, supra.  In this case, the trial court appointed Dr. Deanda as a disinterested expert.  Dr. Deanda examined appellant and determined that appellant was legally sane at the time of the offense.  After the punishment phase evidence, appellant=s counsel moved the trial court to appoint Aanother psychiatrist@ to examine appellant.  Nothing in the record indicates that a second disinterested expert would have made findings that were different from Dr. Deanda=s findings.  Additionally, the evidence at trial showed that appellant knew right from wrong.  After shooting Stephens, appellant told Freeman that the police would be coming to arrest him.  Appellant also came out of his apartment with his arms in the air when the police officers arrived at his apartment complex.  The record does not contain any support for the contention that the trial court abused its discretion in denying appellant=s request for appointment of a second disinterested expert.

If a defendant makes a preliminary showing that insanity will be a significant factor at trial, a trial court abuses its discretion by failing to appoint, or in failing to give defense counsel prior approval to incur reasonable expenses to obtain, a competent psychiatrist to assist in the evaluation, preparation, and presentation of an insanity defense.  See Ake v. Oklahoma, supra; De Freece v. State, 848 S.W.2d 150, 159 (Tex.Cr.App.), cert. den=d, 510 U.S. 905 (1993).  To make this preliminary showing, a defendant must offer more Athan undeveloped assertions that the requested assistance would be beneficial.@ Williams v. State, 958 S.W.2d 186, 192 (Tex.Cr.App. 997); Rey v. State, 897 S.W.2d 333 (Tex.Cr.App.1995). Additionally, if an examination by the court=s disinterested expert indicates that insanity will not be a significant factor at trial, a defendant does not have a due process right to the assistance of a psychiatrist to assist in the evaluation, preparation, and presentation of the defendant=s case.  De Freece v. State, supra at 159; Knight v. State, 868 S.W.2d 21, 23 (Tex.App. - Houston [1st Dist.] 1993, pet=n ref=d).

Appellant neither moved for the appointment of an expert under Ake nor made a preliminary showing required for the appointment of an expert.  Moreover, the examination by Dr. Deanda showed that insanity would not be a significant factor at trial.  Appellant did not have a due process right to the assistance of a psychiatrist to assist in the evaluation, preparation, and presentation of his insanity defense.  De Freece v. State, supra at 159; Knight v. State, supra at 23. 

Appellant did not complain about Dr. Deanda=s examination of him or Dr. Deanda=s status as a disinterested expert during the guilt/innocence phase of the trial. Appellant raised his complaint about Dr. Deanda for the first time after the close of the punishment phase evidence. By failing to object at trial, appellant waived any appellate complaint that the trial court failed to appoint a disinterested expert.  See Giron v. State, 19 S.W.3d 572, 575 (Tex.App. - Beaumont 2000, pet=n ref=d).

                                                      Lay Witness Opinion Testimony

Appellant argues that the trial court erred in excluding lay witness opinion testimony on the issue of his insanity.  Properly admitted opinion testimony of lay witnesses is sufficient to support a finding of insanity.  Pacheco v. State, 757 S.W.2d 729, 733 (Tex.Cr.App.1988).  A qualified lay witness may express an opinion as to whether the defendant knows right from wrong.  Fuller v. State, 423 S.W.2d 924 (Tex.Cr.App.1968);  Jones v. State, 699 S.W.2d 580, 582 (Tex.App. - Texarkana 1985, no pet=n).

Appellant=s counsel asked Burnett and Julie whether appellant knew right from wrong and whether the stroke had affected appellant=s ability to conform his conduct to the requirements of the law.  The State objected, in part, on the ground that Burnett and Julie were not qualified to answer these questions.  The trial court sustained the State=s objections.

Appellant did not make an offer of proof of the excluded testimony.  Error may not be predicated on a ruling excluding evidence unless the substance of the evidence was made known to the trial court by an offer of proof or bill of exceptions or was apparent from the context of the record. TEX.R.EVID. 103(b); Guidry v. State, 9 S.W.3d 133, 153 (Tex.Cr.App.1999), cert. den=d, 531 U.S. 837 (2000).  The record in this case does not indicate how the witnesses would have answered the questions.  Absent a showing of what such testimony would have been or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review.  Guidry v. State, supra.  Appellant waived any complaint on the issue of the excluded testimony because he did not make an offer of proof.  Appellant=s sole issue is overruled.

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.        

TERRY McCALL

JUSTICE

October 6, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consist of:  Wright, C.J., and McCall, J.

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     ^[1]We note that the legislature repealed Article 46.02 effective January 1, 2004, and replaced it with TEX. CODE CRIM. PRO. ANN. ch. 46B (Vernon Pamph. Supp. 2004 - 2005).  The legislature also recently  repealed and replaced Article 46.03 by Act of May 27,  2005, 79th Leg., R.S., ch. 831, 2005 Tex. Sess. Law Serv. 3563 (Vernon)(to be codified at TEX. CODE CRIM. PRO. ANN. ch. 46C), effective September 1, 2005.