Ballard v. State

MORRISON, Judge

(concurring).

While I agree with the results reached by my brother Roberts, I feel that it is imperative to spell out the. exact manner in which the statute was violated.

The record reflects that the trial court and the special prosecutor were familiar with the statute in question, Article 46.02, Sec. 2(f)(4), V.A.C.C.P., but, if we properly analyze their approach to the problem, they construed the statute only to prohibit the court-appointed psychiatrist from testifying that the accused, while being questioned by the psychiatrist, admitted he committed the crime, and not to prohibit testimony concerning other phases of the examination which did not involve direct admission of guilt.

The special prosecutor stated to the court in the absence of the jury that he intended to offer the testimony of Dr. Krei-meyer (the court-appointed psychiatrist), “for impeachment purposes only”, to rebut four parts of appellant’s testimony. Specifically :

a) He had never claimed to have amnesia with regard to the events occurring from mid-November to mid-December.

b) Floyd Palmer (a co-conspirator) had not been in his house on the day of the robbery-murder. 1

c) He had never heard of any plan to rob the deceased.

d) He went down into the brush around Big Lake shortly after the time of the offense for the specific purpose of checking an oil pipeline. 2

Over repeated objections, Dr. Kreimeyer was permitted to testify that, during the course of his psychiatric examination 3 of appellant, appellant denied any recollection or else had poor recollection of events from mid-November until about December 12. He testified that appellant told him that Floyd Palmer had visited him on December 2 (but the purpose of this visit was not discussed) and that he had several times been offered a part in the plan to rob deceased, but had consistently refused. Dr. Kreimeyer also testified that appellant related to him some incident of wandering around in the brush which took place during this same period of time, but he did not seem to know what he was doing out there.

*430 Article 46.02, Sec. 2(f)(4), supra, provides in part:

“No statement made by a defendant during examination (by a court appointed qualified expert) into his competency shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding no matter under what circumstances such examination take place.”

Although appellant did not tell Dr. Krei-meyer that he had participated in the robbery and murder of the deceased, and the doctor did not so testify, his testimony about his interview is used in rebuttal to appellant’s defense and is just as damning and certainly is prohibited by the statute.

For the reasons stated, I concur in the opinion setting aside our prior opinion affirming the case and in ordering the cause reversed and remanded.

. Janie Montgomery, whom appellant claimed to be his common-law wife, testified under a grant of immunity that Floyd Palmer came to the house where she and appellant lived on the evening of December 2, and from there appellant and Palmer left to “pull the job.”

. It was the State’s theory that after the offense occurred appellant was separated from the rest of the group and wandered around in the nearby brush for three days before he was retrieved by Janie Montgomery.

. As authorized by Article 46.02, Sec. 2(f) (1), V.A.C.C.P.