Ricky Lynn Huff v. State

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 art. 4476-15, § 4.051, since repealed and codified at Tex.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).