Kizzee, Darrick Marciano v. State ( 2003 )

Opinion issued December 4, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00892-CR

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DARRICK MARCIANO KIZZEE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 39,686

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MEMORANDUM OPINION

          A jury convicted appellant, Darrick Marciano Kizzee, of assault on a correctional officer, found the enhancement allegation in the indictment true, and assessed punishment at three years and six months confinement. On appeal, appellant contends (1) the court appointed expert rendered incompetent assistance, and (2) the trial court erred in failing to conduct an inquiry as to whether a jury hearing was necessary to decide appellant’s competence to stand trial.

          We affirm.

FACTS AND PROCEDURAL HISTORY

A.      The Offense

          Appellant is a prisoner in the custody of the Texas Department of Criminal Justice–Institutional Division (TDCJ–ID). On April 9, 2000, appellant was escorted from his cell at the Darrington Unit of TDCJ–ID to make a phone call. Appellant’s hands were handcuffed behind his back as he was escorted from his cell to the supervisory office from which he was to make his call. Once in the supervisory office, Officer Landry Cooper, complainant, removed one of appellant’s handcuffs; appellant repositioned his arms to his front; and Officer Cooper replaced the handcuffs. Appellant then made his phone call. After appellant finished his call, Officer Cooper removed appellant’s handcuffs so that he could once again handcuff appellant’s hands behind appellant’s back. While appellant’s hands were free, appellant struck Officer Cooper in the nose with his fist.

  B.      Examination as to Insanity

          A jury trial began on June 4, 2002 to determine appellant’s guilt. Prior to trial, on May 22, 2001, appellant filed a “Motion for Expert Examination of Defendant as to Insanity at the time of the Offense.” In this motion appellant prayed as follows:

WHEREFORE, the defendant prays the court grant this motion and appoint a disinterested expert experienced and qualified in mental health to examine the defendant with regard to the defendant’s insanity at the time the offense was committed.

          The trial court granted appellant’s motion and appointed Dr. Windel Dickerson, a psychologist, to conduct the examination. The trial court’s order stated that the examination was for the “sole purpose of determining whether the defendant was insane at the time of the offense.” The order required Dr. Dickerson to submit a written report of the examination to the court. Dr. Dickerson’s report, dated December 4, 2001, indicated that appellant was suffering from schizo-affective disorder at the time of the offense. The report further indicated that there was reason to assume that appellant was legally insane at the time of the offense.

C.      Examination as to Competency

          On May 22, 2001, appellant also filed a “Motion for Expert Examination of Defendant as to Competency to Stand Trial” as well as a “Motion for Hearing on Incompetency to Stand Trial.” The latter motion, however, was withdrawn on May 13, 2002, before a hearing could be held.

          In response to appellant’s request for an examination as to competency, the trial court again appointed Dr. Dickerson to conduct an examination. The court further required that Dr. Dickerson submit a report on appellant’s competency that was distinct and separate from the report concerning appellant’s sanity at the time of the offense. Dr. Dickerson’s report concerning appellant’s competency, dated December 4, 2001, indicated that appellant was competent to stand trial. On June 3, 2002, at a pretrial hearing, both appellant and trial counsel confirmed Dr. Dickerson’s diagnosis and acknowledged that appellant was competent to stand trial.

INCOMPETENT ASSISTANCE OF EXPERT WITNESS

          In his first point of error, appellant contends that, under Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985), he was entitled to a competent psychologist to aid him in presenting his insanity defense. Appellant further contends that Dr. Dickerson was not competent, alleging several instances when Dr. Dickerson’s assistance was either incompetent or incomplete. Appellant concludes that the trial court committed error by not providing him with a competent expert.

          Appellant is correct to the extent that the State must assure a defendant access to a competent psychologist as a matter of due process, when the defendant demonstrates to the trial judge that the defendant’s sanity at the time of the offense is to be a significant factor at trial. Ake, 470 U.S. at 83, 105 S. Ct. at 1096. However, appellant confuses the “competent psychologist” provided for by Ake with the “disinterested expert” provided for by article 46.03 of the Code of Criminal Procedure. See De Freece v. State, 848 S.W.2d 150, 159 (Tex. Crim. App. 1993); see also, Tex. Code Crim. Proc. Ann. art. 46.03, § 3(a) (Vernon Supp. 2004). The experts provided for by these two authorities differ in two important aspects.

           First, there is a difference in the capacities in which the experts serve. The competent psychologist provided for by the Supreme Court’s decision in Ake participates with the defendant as a partisan in the case. See Ake, 470 U.S. at 84, 105 S. Ct. at 1096. This expert is to provide “technical assistance to the accused, to help evaluate the strength of his defense, to offer his own expert diagnosis at trial if it is favorable to the defense and to identify the weaknesses in the State’s case, if any, by testifying himself and/or preparing counsel to cross-examine opposing experts.” De Freece, 848 S.W.2d at 159. On the other hand, the disinterested expert provided for by article 46.03 does not serve as the expert of the State or the defense but rather as the court’s disinterested witness. Id. at 154. The main purpose of the disinterested expert is to aid the trial court in a preliminary examination as to whether insanity is to be a significant factor in the case. Id. at 159. However, as a person with knowledge pertinent to the case, a disinterested expert can still be called to testify at a hearing or trial by either the State or the defendant. See Tex. Code Crim. Proc. art. 46.03, §3(a).

          Second, the standards by which the trial court determines the need for the respective experts differ. If Ake is applicable to a given case, the trial court is required to appoint a competent psychologist. Ake, 470 U.S. at 83, 105 S. Ct. at 1096. For Ake to be applicable, however, a defendant must make a sufficient threshold showing that (1) an expert’s assistance is needed and (2) the expert’s testimony is likely to be a significant factor at trial. Deason v. State, 84 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). On the other hand, the trial court has discretion—upon its own motion or a motion by the defendant, his counsel, or the prosecuting attorney—as to whether a disinterested expert is to be appointed under

article 46.03. Tex. Code. Crim. Proc. art. 46.03, § 3(a). The trial court need only exercise this discretion once a notice of intention to raise the insanity defense is filed. Id.

          Appellant’s “Motion for Expert Examination of Defendant as to Insanity at the Time of the Offense” unequivocally limited itself to a request for a disinterested expert. Indeed, the language of appellant’s motion specifically tracked the language of article 46.03, section 3(a). Appellant made no other motion requesting an expert to assist in his insanity defense. We need not speculate as to why appellant did not request a competent expert under Ake; it is enough that he did not. We hold that, because he never requested access to a competent psychologist under Ake, appellant may not now complain on appeal that he was denied the assistance of a competent psychologist. Tex. R. App. P. 33.1; Robinson v. State, 16 S.W.3d 808, 809 (Tex. Crim. App. 2000).

          Appellant’s first point of error is overruled.

COMPETENCY INQUIRY

          In his second point of error appellant contends that, when a defendant files a motion before trial raising the issue of competency, the court is required to hold an inquiry to determine if a jury hearing on competency is warranted. Appellant further contends that his “Motion for Expert Examination of Defendant as to Competency to Stand Trial” and “Motion for Hearing on Incompetency to Stand Trial” raised the issue of competency. Therefore, appellant concludes that the trial court erred in failing to conduct an inquiry as to whether a jury hearing was necessary to decide appellant’s competence to stand trial.  

          To find a defendant incompetent to stand trial, a trial court must follow a process consisting of four stages. Rice v. State, 991 S.W.2d 953, 956 (Tex. App.—Fort Worth 1999, pet. ref’d). First, the trial court must be presented with evidence raising a bona fide doubt as to the defendant’s competency. Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997). Second, once the question of a defendant’s competency is sufficiently raised, the court must conduct an inquiry to determine whether any evidence exists that may rationally lead to a conclusion of incompetency. Tex. Code Crim. Proc. Ann. art. 46.02, § 2(a), (b) (Vernon Supp. 2004); Rice, 991 S.W.2d at 956. Third, if any evidence of incompetency is presented during the inquiry, the court must then impanel a separate jury to decide the issue of competency. Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980). Finally, the impaneled jury must determine that the preponderance of the evidence shows the defendant to be incompetent to stand trial. Tex. Code. Crim. Proc. art. 46.02, § 2(b).

          Appellant’s contention that he was entitled to an inquiry concerning his competency merely by virtue of his pretrial motions is erroneous. See Alcott v. State, 51 S.W.3d 596, 600 (Tex. Crim. App. 2001). For a defendant to be entitled to an inquiry, evidence must be presented sufficient to “create a bona fide doubt in the mind of the court whether the defendant meets the test of legal competence.” Rice,

991 S.W.2d at 956. In general, a bona fide doubt is raised only if the evidence indicates recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant. Collier, 959 S.W.2d at 625.

          “The courts of this state have consistently maintained that the test is not whether the accused labored under some mental behavioral, or psychological impairment; rather, the critical inquiry is whether the accused had the ability to consult with his attorney with a reasonable degree of rational understanding and had a rational as well as factual understanding of the proceedings against him.” Rice, 991 S.W.2d at 957. Therefore, evidence that a defendant suffered from earlier psychological problems is not sufficient to require an inquiry. See Porter v. State, 623 S.W.2d 374, 380 (Tex. Crim. App. 1981). Similarly, evidence of a person’s mental status at the time of the offense is not evidence of incompetency to stand trial. Valdes-Fuerte v. State, 892 S.W.2d 103, 108 (Tex. App.—San Antonio 1994, no pet.).

          A defendant’s competence is presumed; therefore, a defendant seeking an inquiry as to competence has the burden of presenting evidence sufficient to raise a bona fide doubt as to competency. See Rice, 991 S.W.2d at 958. “Evidence capable of creating a bona fide doubt about a defendant’s competency may come from the trial court’s own observations, known facts, evidence presented, motions, affidavits, or any other claim or credible source.” Brown v. State, 960 S.W.2d 772, 774 (Tex. App.—Dallas 1997, pet. ref’d). When evidence is presented and the trial court refuses

or otherwise fails to conduct an inquiry, we review the trial court’s decision under an abuse of discretion standard. Thompson v. State, 915 S.W.2d 897, 901 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).

          In the instant case, the trial court granted appellant’s request for an evaluation regarding his competency. The trial court appointed Dr. Dickerson to conduct the evaluation. Dr. Dickerson concluded that appellant was sufficiently competent to consult with his attorney with a reasonable degree of rational understanding and had a rational as well as a factual understanding of the proceedings against him. During a pretrial hearing, conducted the day before trial began, both appellant and trial counsel represented to the court that appellant was competent to stand trial. Although there was evidence that appellant had suffered from psychological problems in the past and that he suffered from schizo-affective disorder at the time of the offense, such evidence was not dispositive of appellant’s mental faculties at the time of trial. The record indicates that appellant was lucid at the time of trial and had a reasonable understanding of the proceedings against him. We conclude that appellant did not present evidence to the trial court sufficient to raise a bona fide doubt as to his competency to stand trial.

          We hold that the trial court did not abuse its discretion by not holding an inquiry concerning appellant’s competency to stand trial.

          Appellant’s second point of error is overruled.

  CONCLUSION

          We affirm the judgment of the trial court.

                                                             Laura Carter Higley

                                                             Justice

Panel consists of Justices Hedges, Nuchia, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).