Brief for the Respondent — Bush v. Texas

co

LIBRARY, . | -

SUPREM = COURT. U, S| |

CINE CA. CLERK

IN THE ss Soa bie res ore

‘teen Comm OF HE

UNITED

’ OCTOBER. TERM, 1

NO. 511

- JAMES E. BUSH.

ee Petitioner:.

THE STATS OF TEXAS,

iaabpiniblienaais Respondent.

ON WRIT OF CERTIORARI TO THE |

a TEXAS COURT ORF CRIMINAL APPEALS ©

BRIEF FOR THE RESPON DENT

WAGGONER Carr -

Attorney General of Texas

. Sam R. WILson |

Assistant Attor ney General

ALLo B. Crow, JR.

Assistant Attorney General”

Linwarp SuHIvers

Assistant Attorney Gener ‘al ;

Capitol Station if is

Austin, Texas mnie eo ee

Bruce ALLEN

County Attorney

“Ellis County

Waxahachie, ‘Texas’

Attorneys for Respondent

9.

Bae re INDEX. OF AUTHORITIES _ eas

nae a : 2 a ee | 7

va Page

Angle vy. Rand Express Lined Inc.y 168 . od 423 pPanerior

Court of New Jersey, 1961) ‘14

¢

~ Carter v: U.S., 252 F. 2d 608 (U.S. Genk a Appeal D.C.

Circuit, 1956) © gr es "14

* Common-Wealth v. Calhoun, 238 Penn. 474, | 86 A: 472 —

(1913) See as ae nie Ss

Ex parte Bush, 313 S S.W. 2d 287 (Texas Criminal Appeals,

m 1958) i . —_ . Le

Gulley v. Common-Wealth, 284 Ky. 98, 143 S.W. 2d 1059

* Fo 8, ; o ‘9

Hopkins v. Uhited States, 275, F. 2d 155, (US. Court: of ..

Apa D.C. Circuit? —: tower renee ike ‘an

: 2 ‘

. Langdon ¥. People, 133 Ill. 382, 24 N.E. 874 (1890) . ~~ 22

Metiarty v. O'Brien, 1 Cir, 188 F. 2d 151, 155 12 ©

Millar’ s Estate; 345 P. 2d 1033 su tae Court. of keine,

1959) - aUaeee ee 14-42

Parker-'v. Guenther, 164 Atlantic 2d 152 neeags Court

‘of Vermont, 1960) 14

Paw lowski v. ait. 1958 A. 2d° 218 (Superior Court of

New a 1960) rth ee

People v. Maynard, 347 Il. 422, 179 N.E. 833 (1932) 22

_ Pollard v. Howfield, 170 F. 24 170 (U.S. Court of

Appeals, D.C. Circuit, 1948) "" "4

iii ~

“‘INDEX.OF AUTHORITIES—Continued. °

Sher v. DeHaven et al., 199 F. 2d 777 (U.S. Court of

Appeals, District of Columbia Circuit, 1952) _

Page

14

Shover v. town Lutheran Hospital, 107 NW. 2d 85. (Su- |

preme Court of Iowa, 1961) |

‘United. States’ ex me. Smith v. Baldi, $44 US. ‘561, 13 S.

". 391 (1953)

Wolfinger v.. Frey, “Tee A. 2d 145 (Court of Appeals of

oe 1960) nek ae eae

.. Constitution and Statutes

Texas Constitution — |

_ Article I, Section 15(a) Prt Sreency

Texas Civil Statutes —

eee Se RE CC Zee

- Article 4495-4512 se Ua Paton.

Texas Code of Criminal Rinscoiens ay . \

Article 501'.......... Ronee Cr er

Article 992-1 Seen

Textbooks. and Periodicals

Mental Health Services, 4th Edition, 1962-1963 ©

More Hands to Help, January 1963 - ;

- iv

es.

u

(14--

15.

8A

ee

.

_IN‘THE

, SUPRER court Of THE

UNITED STATES.

- OCTOBER TERM, 1962 -

NO, 5H - ‘es

_JAMES E. BUSH, tical Sieh

‘ ‘Petitgoner.

- VS.

THE STATE OF TEXAS,

Respondent.

_._ON WRIT OF CERTIORARI TO THE |

TEXAS: COURT OF CRIMINAL APPEALS ,

BRIEF FOR THE RESPONDENT

JURISDICTION

Although .the facts set forth in’ the jurisdictional ;

_, statement in Petitioner’ s brief are true, the Respond-

ent denies that there is a substantial federal question -

_, presented: for review by this Honorable. Court,

QUESTION PRESENTED

“Ina qriminal prosecution of an/indigent defendant

previously adjudicated to be insane, does the -14th

Amendment prohibit the State trial court from find-

ing the Defendant sane based-on t testimony of a

_ medical doctor and a number of lay. witnesses f

STATEMENT OF THE CASE

- Respondent denies every assertion of fact ‘in Peti-

——

ean:

tioner’s : brief except: thiise specifically admitted herein

or supporte “dl by the record,

This isa State ¢ riminal case in which his Petitioner

*was.convitted of. felony theft, habitual eriminal in the

Distriet Court of Eflis County, Texas. The evidence

at the trial showed that Petitiotier r stole a-collection of |

“old eoitis worth about $600 from his @mployer (R 93).

The jury found that Petitioner had been twice previ-

_ ously convieted of felony offenses less than capital and,

therefore, he was sentence ‘ed. to’ life imprisonment, the

| mandatory” sentence under Texas law (R 17-19)

Tue pertinent history. of Petitioner begins on Octo- |

her -26, 1923, when he avas indicted by the grand jury

of Navarro “County, Texas, on three. separate indict- -

ments, ‘one charging theft: of a bale of cotton of the

value of One Hundred (2100) Dollars ; one charging

theft of an automobile, and one charging theft of a

_ truck (R79-87). Before he could be brought to trial on

these jndietments he was brought hefore the C ounty

Court of Navarro County, Texas, on an inquiry of

lunacy and, on Febraary 14, 1924,:-was found to be of

_%Mmsound mind aS ‘the result of an attack of lunacy of.

‘approximately six months duration (R 149). Subse-

quent to this adjudication of lunacy Petitioner was

apparently sent to the Terrell State Hospital for some

period of time arid subsequently discharged therefrom

(R 51; “Appendix ‘A’’ Respondent’s brief in opposi-

tion to Petitioner’s Application for Writ of Certiorari).

After his’ release from the Terrell, State Hospital

Petitioner was convicted of about 24 additional theft

offenses .(R 62, 7: 3). During the trial on the merits of

the cease the Deféndant’s attorney stated that an in-

dictment was introduced which showed that Petitioner

Bae res

had been convicted oy cliarged in 10 or 15 thefts or

theft related cases (R137). One, of the State exhibits,

printed in the record is an indictment which alleges

bao previous conv ictions (R 143).

Petitioner had resided with and worked for the vie-

tim of this crime fox about four months privr to'the

date of the offense, which took place on October 21, 1960

(R 75, 77). The Defendant was arrested in possession,

. of the.stolen coins on October 22, 1960, in-Hurst, Texas,

~¢R 94, 95). On. October 25, 1960, Petitioner accom-

panied the sheriff of Ellis County, ‘Texas, to a remote

area near Arlington, Texas, ind.directed the sheriff to

the location of the metal box in which the victim, had

- kept the coins which were stolen (R 101). At the scene —

‘to which Petitioner had directed*him, the sheriff dis-

covered burned coins, the burnéd remains of the col-

_lector’s albums into which the coins had been placed

/ by the victim, and the burned remains of other ‘papers

which had been in the metal box in which the coin col-

‘ lection had been kept (R- 101). On November. 3, 1960,

the Petitioner was taken to the office of Dr. John Comp- _

ton, the Ellis County Health Officer, ‘and examined for

’ lunaey by Dr. Compton (R 57, 134, 135). Dr. Compton

found the Petitioner to be sane, i.e. that he could dis-

‘ tinguish right from wrong both at the time of the ex-

amination and at the time of the offense, October 21,

1960 (R57, 59).

Thereafter, on February 7, 1961, the ne nner on

which Petitioner was subsequently tried was returned

~ by the Ellis County Grand Jury (R 1-3). The trial was

set for April 24, 1961, and on about April 2, 1961, the

Court. appointed an attorney to ‘represent Petitioner

_ (R 34). On\ April 21, 1961, Dr. Compton, the’ Ellis

County Hegith Officer, examined the Petitioner at the

— 4 ’

Ellis County jail and again concluded that he was. of

~. sound mind ‘((R 57, 59, 135). On the same date, which

was only three davs before the trial date, the Petition-

-er’s attorney made two motions. In each he recited

Petitioner’s prior adjudication of lunacy and alleged

that Petitioner was a pauper. In the first motion he

asked that Petitioner be sent. to a.mental hospital for

diagnosis and dbservation before the trial (R 3-4). In

the second motion he asked that the Court appoint: and

_pay for the services of ‘ta competent ‘independent psy-

chiatrist’” (R d-6). Both motions were: refused.

-Under Texas law the accused in a criminal -ease has

the right to have a pre-trial hearing.on tue question of

_ whether or not he is insane at the time of the hearing

‘

or was insane at the time of the offense for which he

‘is being tried.

On, April 24, 1961, such.a. preliminary a was

held at the request of Petitioner (R 6). At this pre-

liminary hearing, the State had the duty of proving

beyond a reasonable doubt that the Petitioner was sane

at the time of the offense and at the time of the hear-

ing, because, under Texas law, the 1924 adjudication \—

‘Yaised a continuing rebuttal eee ice of insanity.

(R i. pa ae

.. Among the testimony offered by the State at the pre- .

liminary hearing was tlfe testimony’ of rl Compton,

the County Health Officer (R 57-65). *. Compton.

testified that he was a physician of some six years ex-

perience in the practice of medicine (R 57). He testi-

‘tied that he examined Petitioner on Nov ember 3, 1960,

in his office and on April 21, 1961, in the county jail

(R 57). Dr. Compton expressed the opinion that the

Petitioner was of sound mind and oriented as to time,

aw § a= ¢

place, and person on the ‘date of the offense, on the —

date of the examinations and on the date of the pre-

Jiminary trial (Ro 57-58). He testified that, at his tirst

examination, he took Petitioner’s medical history and

examined him on his mental capacity to ascertain if he

“wis oriented and if he was hiving any difficulty with

hallucinations (R 58). Dr.- *Gompton further testified

that his examination consisted .of: questions in refer-

ence to the Respondent’s name, his birthdate, his. age,

(to see if they cor responded, his age with the right

vear), questions as to the location where he was, the

place, the time, the date, the month, the year; general-

ities as to who was President of the U nited States and -

Governor of Texas; his past:medical history, if. he has

had any serious illnesses; as to any hallucinations,

(hearing Voices, seeing things that were ‘not actually

there) ; questions as to any paranoid tendency, (a feel-

ing of evervbody being against him or any threats to

him) ; questions as to his schooling, how far he went in

school; simple mathematieal- problems to'see if he was '

able to keep a train of thought; questions intended to .

test his mente! ability and thought processes (R 63).

Dr. Compton, whose studies in medical school included

psvehiatw (R 64) and who treats patients with emo-

tional problems.in his private practice (R 136) further

testified that, in his opinion, it was not necessary for a

more thorough examination of Petitioner to be con-

ducted by a psychiatrist or psychologist in order té

eliminate the possibility that Petitioner might be ini-

sane (R63). Di. Compton further testified that he was

using the word.*‘insane’’ as meaning unable to distin-

‘guish right from wrong (R 69). In response to ques-

tiohs from the defense Dr.-Compton also testified at

‘length about the nature of kleptémania and mental ill-

nesses generaliy (R 59-64). Specifically, in relation to

4

*-kleptomania, Dr. Compton testified that generally, klep-

tomaniacs regularly steal thfngs that they do not need. —

_ That they will go routinely into stores and take things

that they do not. need and, having stolen those things

just put them up and never use them (R 62). Dr. Comp-

ton further testified that, in his opinion, Petitioner is

not a kleptomaniae (R64).

At the conclusion. 6f Dr. Compton's s testimony a dis:

cussion was had between the Court and counsel which

established that the State had two or three more wit-

nesses: to call and the defense counsel made the follow-

ing motion: ‘Your Honor, in view of this, I would like

to make the motion that the. Court recess in order to

allow a doctor we have got to examine this man and

who hasn’t had the opportunity before, to check with

. him, possibly over-the lunch hour. He just came in.’’

‘ (R 65). The Judge indicated his approval of counsel’s

request and the Court apparently recessed for not Jess

than a 45 minute, lunch period (R 65). After the-recess

the prosecution called two more witnesses - (R 65-68),

both of whom were laymen and both of whom testified

that from their observations, they thought’ that Peti-

- tioner was of, sound, mind both at the time of the pre-

* liminary: hearing and at the time of the offense (R 66-

--68). The State having rested, the defense ‘called as its

first witness Dr. James A. Dyal, aii Assistant Profes-

sor in psychology at Southern Methodist University.

(R 68). Dr. Dyal testified that he has a Ph.D. degree

in psychology from the University of Illinois and has .

done clinical work dealing with mentally der ranged per-

sons (R 68-69). So far as the record reflects Dr. Dyal

is not a physician nor is he licensed to practice medi- |

cine. Dr. Dyal testified that he had examined the Peti-

tioner in a 20 minute interview .(R 69, 70). Dr. Dyal

po

further testified that his examination was not adequate

for Him te'form an opinion about the Petitioner's men-

tal cendition (R 69, 70). The record does: trot retlect

when Dr. Dyal examined Petitioner, where the exam-

ination took place, nor why the examination consisted

-of only a20 minute interview. Dr. Dval then testitied

_as to what, in his opinion, Would constitute an adequate

examination in order to detertuine whether an indi-

vidual is ‘‘insane”’ or not (R 70-72). Dr. Dval further —

testified that a kleptomaniac is a mentally ill person ~

and that **... typically a person who is a kleptomaniae

steals bec: ise: he cannot keep from stealing and does

not attempt to turn whatever’ he steals into gain for

<himself.’? (R73). Dr. Dyal testitied that he did not -

find anv svmptoms of mental illness in Petitioner-and

that, in his Opinion, no one could make such a deci ‘ision

based on such a: ‘brief ex xamination (R 73-74).

At the cone luaion of Dr. Dyal’s testianiery Petition-

er’s attorney called the victim, Mr. L. C. Hackler, as.

‘his next witness (R 75). The victim testified, to the

obvious surprise of the defense attorney, that, in his

opinion, the Petitioner could distinguish right from —

Wrong at the,time of the theft (R 75, 77). At the con-

clusion of the victim’s testimony both the Staté and.

. the defense aynounced that: they were Ainished with

the presentation of evidence (R 78): The Court then

properly. instructed the jury as to their duties and

instructed them that the Defendant was presumed to

be insane until his sanity was shown by the evidence

beyond a reasonable doubt (R 7). The Court also in-

structed the jury as to the legal detinition of insanity

and furnished them with appropriate forms on which

to return whatever verdict they decided to'render (R

7-8). The jury returned a verdict finding that the Peti-

a

tioner was sane both at the time of the offense and at

the time of the pre-trial! hearing (RS). Thereafter, the

Court entered ah appropriate judgme ut on the verdict

ee Sah cara

The next day the ‘trial on the merits commence ved

with an opening statement by the defense attorney to

the jury that the Petitioner’s answer to the indictment

would be a plea of not guilty by reason of insanity at

the tinie of the offense and insanity at the time of the

trial (R 91-92). The evidence forthe State was similar

‘to that which was introdueed tlie day before and estab-

lished beyond doubt that the Petitioner had- stolen sa.

coin collection of a value of ‘approximately $600 from

the victim, Mr. L. C. Hackler; and that the Petitioner |

was the same person whe had been previousleonvicted

of tw vo non-capital fetotiy offeiises (R 92:126).

The defense recalled the victim, Mr. L. C. Hackler,

_ who again reiterated that he thought that ‘the Peti-

_tioner did know right from wrong (R 128). After a

recess during which defense counsel conferred with a

witness, (R 129) the defense called a Mr. P. L. Simms

who had been one of Petitioner’s employers (R 130).

In response to the defense question about whether he

‘thought Petitioner might be mentally defective, Mr.

‘Simms expressed an opinion that Petitioner was not-

mentally defective (R 131). The defense did not recall.

Dr. Dyal nor does the record reflect why he was not

recalled. es

The defense then made a motion that the C urt sus- .

‘pend the proceedings until ‘we send this man to a

mental institution for closer observation, or in the al- |’

ternative we would move that the Court appoint a ‘psy-

chiatrist or psychologist, somebody competent in men-°

ee

-

$

and again expressed his professional opinion,

-* was the same psvchiatric: examination thi

_trist or pstchologist would give (R 135\\ He further

/ (RE 6). He also testified that the type o

tal defeets to examine this defendant and evaluate his

mental condition in view of the previous: conviction of

the judgment of insanity.’ (R131). The Court offered.

to appoint the ¢ ‘ounty Health Officer and when the

defense coutise! indicated that he-would not be. sitistied

with the appointment of arfone except a psyehologist

or psychiatrist, the-Court overruled the motion. (R

151).

After the defense rested, the State inbeodaced the

judgment from the sanity hearing whic h had been con-

ducted the previous day (R134) and introduced evi-

dence of the Petitioner’ s sanity: similar to’ that which

had been-introdue ed the day before with the except ion

~ that one of the laymen who had testitied the di: iv before

was not recalled and the jailer, who had not testified

the day before, was called and expressed an: opinion

that the Petitioner was sane (R 124-125). Dr. C omptonu

again testified about his examinations of Petitioner

iat *Pe-

titioner was of sound mind (R135). He further testi-

fied that the examination that he lad given Petitioner

a psychia- |

testified that he had much occasion to treat) the diseases

of the mind and actually diagnose psychigtric patients

examination

he gave Petitioner would detect a number of different

_ types of mental illness (R 136). In answer to further

questioning Dr. Compton testifi¢d that, applying the

- legal test-of right and wreng he found no instance of -

Petitioner being of unsound mind and did riot believe

that further tests were necessary (R 138-139). Dr.

_ Compton furthertestitied that, when, the Petitioner

first came to hiscoffice for examination, he was brought

a: 7 - —10— e w

in from the jail for Dr. ‘Compton to check him for

Insanity. (R 139).

Both sides avbinas oGigcluded their — ‘tates the

Court charged the jury on the elements: of the offense,

" the burden of proof and. their duty as jurors-(R 11-15).

__‘The-Court further charged the jury that under the ©

law Petitioner was presumed to‘ be insane; that the

- burden was upon the State to prove by legal evidence

hevond a reasonable doubt that the Defendant was sane

at the time of the commission of the offense and that

he was sane at the time of the trial, before the jury

would be warranted in finding that the Petitioner was

of sound mind at either of said times; and that if the -

“State failed to so prove-then the jury was to find that

- the Defendant was insane at both times (R 15-16). The

charge also cautioned the jury that they could not-con- =

sider the failure of the Petitioner to testify as evidence

‘against him and furnished them with appropriate forms

for their verdict (R 16-17). After deliberation, the

‘jury found the Petitioner sane both at the time of the ~

offense and:at the. time of the trial; found that he aas

guilty of the offense with which he was charged and |

found that he had been previously convicted of two

felony offenses less than capital (R 14, 16). Under the

‘Texas law, the mandatory sentence upon such a con-

victjon is confinement in the*penitentiary for life and

-on April 25, 1961, —— was entered: and sentence

pronounced (R 18-19).

Petitioner made a motion for new trial. and. per-

mmge 5 oNGetito as recited in’ the last paragraph on

page 5 of\Petitioner’s brief.

*

aah anid

ARGUMENT

T.

UNDER THE FACTS OF THE INSTANT CASE

THE ST oil TRIAL COURT HAD NOODUTY TO: .

APPOINT. “PSYCHEATRIST™: OR OTHER

SPECIAL tak TECHNICAL ASSISTANTS TO.

THE DEFENSE ( ‘OUNSEL ON R EQU EST, |

It Mundisputed | that the State of Texas does not

have any statutes whi¢h allow the trial court to ap-

point a speeialist or other-technical assistant to the |

defense counsel, In the case at bar, the very ablé and

astute defense counsel, three days prior to the sehed-

uled trial date, filed an. qiniswor n motion signed by him-

self, alleging that the Petitioner was indigent antl ask-

ing the court to “appoint and pay’? for the services of.

an independent “psychiatrist” to make a pre-trial ex-

amination of Petitioner, and that the court suspend

the proceedings until sueh time as the “psychiatrist :

had completed: his examination (R 5-6), The denial of?

this motion is now .alleged to have constituted a de-

privation of Petitioner’s rights under the 14th Amend-

ment to the: Constitution of the United St. ates,

“In United States er rel Smith v. Baldi, 344 c,

561, 73 S. Ct. 391 (1953) this court had before it a case

where the Petitioner Sembeinieid that the failure of the

- Pennsylvania trial court to appoitt a ‘*psyvehiatrist”’

for him deprived him of due process. The trial court

‘had before it the testimony of a ‘‘psvehiatrist’? who |

-examined Smith at the request of the court and the

testimony of two “psychiatrists” called by the defe ‘mst.

id. p. 568 U.S. “In answer to Smith’s contention that

the trial court had a duty to appoint a ‘‘psychiatrist”’

to afford him adequate counsel the court said (at. p.

—_

568 U.S.): '*We ean not say the State has that duty

by constitutional mandate. See" desi v. O ‘Brien,

1 Cir, 188° Fy 2d 151, 1657 |

_ Not only is there no provision in the State Jaw which:

allows the procedure requested by the Petitioner, (R

156-157) but the motion raised an even more: funda-

“mental problem by use of the word *‘psychiatrist.”’ Tn

— a proper ‘licensed physician can treat any dis-—

‘ase, disorder or deformity by any means or-method

ae therefore, can become a‘ psychiatrist” simply by

calling himself one (Article 4495-4512, Texas Civil

Statutes). Under the Texas ‘law psy chiatrists are not

separately licensed ‘nor is there any definition of psy-

chiatry or a psVehiatrist in ‘the Texas statutes. It will, :

therefore, be assumed for the purposes of this brief,

that by the term ‘qualified psychiatrist’? Petitioner's

- counsel meant x physician who was a fellow or member -

of the American Psychiatrie Association.

THE PETITIONER. WAS ACCORDED AN AD-

EQUATE OPPORTUNITY TO: ASSERT THE Is-_

SUE OF HIS ALLEGED INSANITY. AND WAS

EXAMINED BY A QUALIFIED INDEPENDENT

PHYSECIAN WHOSE SERVICES WERE AV AIL-

ABLE TO THE PETITIONER PRIOR TO HIS

WAL... - : ee ae

“4 a

- That the State authorities treated the possibility of

Petitioner being mentally incapacitated with consider-

able seriousness is clearly. ‘illustrated by the record...

A few days after his arrest and return to Ellis County :

the Petitioner was taken from-the jail to the: office. of

Dr. John Compton, the Ellis County Health Officer

who examingd him to deter mine whether he might be

‘ s

a Shae eee

‘insane. (R 57134, 135). This Was no hurried. ox: anima.

tion and observation of Petitioner ina pr Ison cell, with-

out privact or ithe presence of an attorney: : this was

an examination performed by a licerised re putable phy-

sician whose legal dut¥. includes the examination and

treatment of prisoners in the county jail (Article 4427,

Texas C ivil Statutes ). The County He “lth Ottieer, Dr.

Compton, was a physician of some SIX Years expericnee

in the practice of meé ‘divine (R57) whose: studies in’

medical school had included psychiatry (R64) and

who has many occasions to diagnose and treat mental

illness and psychiatric problems in his practice in Ellis °

County. (R 64, 136, 57), The examination Dr. C ompton,

administered) was the Same psyeliiatrie’ examination -

that a gpvehiatrist or psvchologist would give aid ji

- would detect a number of different types of me fal

illness: s including se hizophre hia, a paranoid personality’

or other emotional difficulty (R 136- 137.). The attempt

by Petitioner’s counsel in their brief to east Dr. Comp-

tof-in the role of ignorance and vanity is wholly, un-

“supported by the record:and is an assumption based’

_Upen medical authorities “whose. stated requirements

are far ‘beyond those which’ P etitioner’s own Witness,

Dr. Dy al, testitied would be necessary to adequately

determine Petitioner's sanity. A comparison of the

testimony of Dr. Dyal as to what‘he felt an adequate

. examination would include (R71) with the examina-

tion actually performed by Dr. Comptoir CR! 58-63)

reveals that virtually all of the tests Dr. Dval deseribed

Were actually performed by Dr. Comptow on his pre-

trial examination of Petitioner, It cammot be said that,

as a matter of constitutional law the failure -of Dr.

Compton to be a member of the American Psychiatric

Association and perform ‘the two or three other tests

| eel a TE

ie scribed renders him incompete nt to testify as to his -

tindings. It is the well established rule in the majyrity

of jurisdictions that a physician is entitled to testify,

as an expert. witness, as to the results of his' examina-

tions even though he is not a specialist in treating the

particular portion of the bedy or the particular dis-

order or disease about which he is testifying. See for

example: Parker v. Gueuther, 164 Atlantic 2d 152

(Supreme Court of, Vermont. 1960) ; Shover v. Iowa

Lutheran Hospital, 107 N.W. 2d 85 (Supreme -Court

of Iowa, 1961); Angle v.. Rand Express: Lines, Inc?

“168 A. 2d 423 (Superior Court of. New Jersey, 1961) ;

Pawlowski «. Marino, 1958 A, 2 218 (Superigr Court

‘of New Jersey, 1960) ; Wolfingea.v: Frey, 162: A. 2d

745 (Court of. Appeals of Maryland, 1960); in Re:

., Méllar’s Estate, 345 P. 2d 1038 (Supreme Court .of

Kansas, 1959); Pollard v. “yi field, 170. F. 2d 170,

(U.S. Court of Appeals D.C. Circuit 1948); Sher v.

_ De-Faven et al., 199 F. 2d 777 (U.S. Court of Appeals,

District of Columbia Cireuit 1952).

Although Petitionet’s brief attempts to brush aside

the testimony of the laymen who expressed ati opinion _

as'to Petitioner’s sanity, the Courts have long reeog-

nized that the testimony of even untrained laymen can

’ be of considerable value in determining sanity where

the witness has had prolonged and intimate contact

with the accused. Hopkins v. United States, 275 F. 2d

155 (U.S. Court of Appeals D.C. Circuit, 1959) and,

Carter v. United States, 252 Fed. 2d 608 (U.S. Court

of Appeals D.C. Cireuit, 1956). It cannot be denied:

that the ‘testimony of the vietimg; Mr. L. C.- Hackler,

(R 75, 126) and the testimony -of Mr. P. L. Simm

(R 130) meetthe test.laid,down for the testimony of °

lay witnesses get out by Ge Court in Carter v. US, id

. P 618.

+— 16 — :

Then mere. fact that. i in 1956, 32-vears after Petitioner

, _Wwas committed for lunae ‘y, the State of Texas adopted: .

Se C&a constitutional ame nidtae nt prohibiting - conunitment

exeept on... medical or pavehii ‘ie? testingony «(.Ar-

‘ticle - L,. ‘Bectipn 15(a), Texas. Constitution) aloes nets

mean that a‘ layman's testimony can never form the ,

basis for a sanity verdict. In fact, inethis very case,

‘the Court of ‘Criminal Appeals of ‘Texas he ld that a

defendant in a Texas ¢riminal case may suteessfully

plead insanity in bar to pepsecution orcas a defense or:

as a bar to punishment t iough the evidence in: iy not

be suivh as would authorize bis commitment (Wd My.

ere : “tm te

THE STATE OF TEXAS GAVE PETITIONER

AMPLE OBPORTUNITY TO ASSERT HIS DE-

FENSK OF INSANETY.

9

Petitioner’s mental condition was.a matter of serious

concern to the State’s authorities from the time he wis

arrested for the offense at bar to the present date. .Pe-

titioner was examined by the County Health Officer

shortly after his arrest and return te EK His County and

hefore: he was indieted for the offense. \¢

| The trial court appointed. an “attor nev to represent

“> Petitioner even though Petitioner-had been convicted

of 24 offenses after his adjudication of lundey wh’ -h,

under Texas law, meant that Petitioner had ‘te ‘lear ly

appeared saneYn 24 separate, occasions | Artic le 501,

Texas ode of Criminal Proc cedure ),

Texas law provides for a: pre-tri: i hearing, on the

¢ question of Sanity and, in the casé’ at. bar, Petitioner.

was accorded that right upon his. attorney's request.

Atthe hearing Petitioner's attorney A given a ie _ See

Sa

Oo

eB i

r 4

i have a *doctor’”’ examine Petitioner “(R 69) and,

despite the remoteness “of the adjudication of lunaey,

the jury was instructed that -the State had the burden -

of proving Petitioner’s sanity beyond a reasonable

* doubt “(CR 7-8). i‘

the trial of the cause on the merits was had and Peti-

eason of

te”. On the day following the pretrial wi hearing, | ‘

~~ thoner was allowed -to plead not guilty |

_ insamft both at the time of the offense and at the time—

of thé trial (R91). During the trial on the merits de-

fense counsel moved that the proceedings-he suspended |

~ and Petjtioner be examined for insanity by a psychol-

_ogist or psychiatrist ‘tsomeone competent in mental

“defects’” (R 131). The defense did not suggést’ the’

oy appointment of any one particular person to make this

\ \. . eXamination end the Court offered the services of the

vations have been prev iously discussed (R131). The

defense declined’ the Court’s offer and rested (R131).

pot At the conclusion of the trial on the merits Peti-

tioher was again aveorded the full benefit. of the pre-

sumption of insanity arising from his previous adju-

.. -« dieation ‘of lunacy. The Court instructed the jury.that

the burden wis uponithe State to prove’ Petitioner’s

> sanity bevond a’reasonable doubt and that Petitioner

“ was presumed to be insane and the jury should so find

unless thev ‘were convinced by the. evidence bevond a

“Feasonable doubt of Pefitioner’s sanity (R 15-16).

—*

‘

a ei Even thengh Petitioner is prese ntl? confined in the

Texas prison, he is still a subjeet of-concern to the

State. Tf. at any time, he is found to be mentally ill,

. there is elabor: ate state machinery -hy which the prison

svehiatrist Gan have-him hospitalized (Arti¢le 932-1,

Texas Code of Criminal Procedure).

\ - ‘ounty Health Officer, Dr. John Compton, whose qual-:

+

ies”

, IV. :

THE RULE WHICH PETITIONER URGES.

THIS COURT TO ADORT WOULD PLACK AN

IMPOSSIBLE BURDEN ON, THE STATE OF

TEX AS AND COULD NOT BE ADMINISTERED.

The Texas law does not separately li®ense pve ‘hia-

trists nor does it define psvehiatrists or Tinnit Who may

call himself a psychiatrist. . rie ‘

There are, of course, a number 6f physicians who

. purport to be psychiatrists, some of whom are certitied

inv psychiatry by the Americar soar of Psvehiatry

and Neurology. At the present tQhe there ar@about

399 “*psvehiatrists’’ practicing ine Texas (Mental

Health Services, a directory for Texas, 4th Edition,

1962-1963, prepared by the Division of Mental Health,

Texas Department of Health, and the Texas Associa-

- tiof for Mental Health). These 399 *t psychiatrists”

are located, however, in only 34 Tex: is counties, T here

are 220 “Texas counties which still do not have a. resi-

dent ‘psychiatrist’? (More Hands to Help, published

hy Texas State Department of Health, Division of

Mental Health, January 1965 copied hereits as Appen-

dix A). It would be impersible in the State of Texas

to require the appointment of a ‘tpsychiatrist’? to ex-

amine the Defendant in a criminal case tried in one

of those remote counties. Admittedly, the State has a

duty to furnish all the ¢ ‘onstitutional safegnards ree.

* gardless of the diffie ‘ult y eneounter“d but this illustrates

‘that the Petitioner is advocating an impossible burden

2 and Respondent respect Maly: submits that the Consti”

tution does not require the State to hear 'such an im-

possthle burden. ~. Gi

—_

THE EFFECTIVENESS OF PETITIONER'S.

COUNSEL WAS NOT IMPA IRED BY. THE RE-

FUSAL OF THE COURT TO GRANT HIS MO-

TION FOR THE APPOINTMENT OF A PSYCHI-

ATRIST. °*

Three days before the scheduled Trial date, Peti-

' tioner made a-motion that the trial court “appoint and

lo

pay for a competent independent psychiatrist’s serv-

ices so that the: Defendant can adequately prepare his-~

defense... .”’ This is not a case“where a prosecution,

calling upon the vast resources at its. command, brought

_ forth high priced expert testimony while denying the~

Defendant any form of assistance whatsoever. The ree-

ord reveals that the State relied upon the testimony of -

'. a competent, reputable, independent physician whose

official duties as County Health Officer, required, him

to. examine and treat prisoners in the county jail.

There is no showing in this record that Petitioner or

his counsel requested the assistance of, or consultation -

with the County Health Officer. The record’ does’ not *

reflect any attempt by the Petitioner or his Lounsel to

get the County Heakh Officer to perform. any of the

tests the absence of which ‘Petitioner now contends

renders the County Health Officer’s testimotiy of no

value. In fact, when the court offered to appoint the

County Health Officer to make further studies of Pe-

titiori®#’s mental condition the offer: was declined by

the defense (R131):

Despite Petitioner's solemn avowal before this court

that the denial of court appointed: technical assistance

prejudiced the presentation of his ease in the State-

trial court, a reading of the récord illustrates that Pe-

titioner’s counsel did not seriously want the very tech-

we ie

\)

3 a ‘o : " . 2 . 5 2 “ : . :

nical assistance the absence of whieli he complains

‘about here. At page 35 6f Petitioners brief it is as-

serted that it is ‘ta principal of medical ethies that the —

indigent always have a call on a doctor for his free

services.’ The record before this court does not retlect

that the Petitioner’s counsel made any attempt what-

soever to avail himself of any of the ‘free’ services’

which he now so blandly asserts would be readily avail-

able to an indigent defendant. In fact, there is no show-

ing avhatsogver in the ‘record that Petitioner or his.

counsel made any attempt to obtain the services of a

psychiatrist or psychologist except by virtue of the

motion made by the defense counsel three days before

the scheduled trial date. In addition, however, when,

at the pre-trial héaring, counsel moved the court to re-

cess to allow a-‘*doctor”’ that he had just obtained te -

examine Petitioner over the lunch hour (R65). The

“court granted that reqnest. After lunch the court re-

*

convened, the prosecution presented two more wit-/

nesses and rested, (Ro 65-68). The defense then called

Di. James A. Dyal, a psychologist and an assistant (pro-

fessor of psve holo at Southern Methodist University

who testified that he found no symptoms of mental, ill-

ness or defect in’ Petitioner ay 73), and that he had.

_ been tinable to*form an opinion as to Pétitioner’s sanity.

heeause he had only interviewed Jactitioner for twenty

~minnutes‘at some unspecified previous time (R69, 70),

Dr. Dval also testified that an adequate examination of

-Petitioner would consume ‘two or three | lours of a psv- |

~ ehiatrist’s or psy chologist’ time..." (R72). Inste: ad

of requesting the court te grant Dr. Dval this addi-

tional time whieh, -ac cording te his own testimony,

would have been sufficient for him to form an opinion

as to Petitioner’s sanity, the defense counsel chose to

proceed with the hearing ‘calling an additional witness

/ | | ®

2

=

after the conelusion of the examination of Dr., Dyal

(CR 75, 78). If Petitioner's counsel seriously wanted Dr.

Dyal to perform what ne (Dr. Dyal) would have con-

sidered ah adequate eximination surely counsel would»

have requested the court to grant an additional recess

‘for a¢his purpose. Although Petitioner asserts in his

brief that Dr. Dyal was ‘trequired’’ to make his exam-

ination over the brief luncheon recess, the record re-

flects that the-defense asked for a recess over the lunch=—— -

eon period and the court granted it. In addition, there —

is flo showing in the record that the Petitioner, who

had been confined in the County jail, was not av ailable

for examination on a previous date if counsel had at+

‘tempted to get Dr. Dyal from Dallas te examine Peti- -

- tioner at that time. In fact, the record simply does not

retleect that the recess was-necessary since Dr. Dyal

might well have been ‘available to. examine Petitioner

‘previously if he had been ‘requested to do so. One fur-

ther aspect of the defense handling of Dr. Dyal and

his testimony indieates further that defense counsel —

did not seriously desire his assistance or’ testimony. It

is undisputed that the trial on the merits of this case

was not until the .uext day. Dr. Dyal was obv iously

présent in thd court room up until the time he con-

cluded his testimoniy and the only witness who testified

after him, was Mr. Hackler whose examination must:

have been brief because it only. occupies four pages of

. the record, (R 75-78). The record does not reflect that -

counsel made any attempt to have Dr. Dval conduct an -

examination of Petitioner after the conclusion of the

proceedings on the pre-trial sanity hearing nor is there

any explanation in the record why he could not have

~done.so had he so desired. Respondent submits that this

entire conduct on the part of defense counsel was in-

tended as a matter of trial tactics and shows that coun- .

ra

- sel did not seriously feel the need for the assistanee of

Dr. Dyal. During the trial on the merits, the de ‘Tense.

did not reeall Dr: Dyal nor did the defense attempt to

explain why Dr. Dyal had not examined Petitioner in

the time hetwe ‘ent the pre-trial hearing on, sanity and’

the’ u ial on the nierits, if in fact such an examination

did dotitake plage. During the trial on the merits, how- |

ever, defense cquny el did-clect to move that the pro-

epddibes: be syypendeduntil the Petitioner? could be

vir oa metital institutionor closer observation or |

that the’ court ‘appoint a psyve pants x psychologist

to éxamine the Defendant: The courtofiered to appoint

the County Health’ Officer (R131) a counsel,_know-

ing that the County Health Officer did not claim to be

\ a ‘*psyéhiatrist-or psy chologist,”? declined the oifer (R

| 131). If Petitioner’s counsel! seriously desired the: Sserv--

> jees of a psy hobogiet, why didn’t he make full use of

the services which Dr: Dyal was obviously -willing to

render since he had driven from Dallas to Waxahachie,

the site of the trial, and apparently would have been

. - willing to make the Tull examination? if defense coun-

sel seriously felt that the additional aS 4ey h Dr.

Dyal deseribed-in his testimony (R71), some of which.

had not been performed by Dr. Compton, were neces-

-sary to fully assess the Petitioner’s mental condition,

why didn’t he request that the County Health Officer

perform those tests when the Court offered to appoint

the County Health Officer to make whattver examina-

tion and observation counsel referred to in his motion.

to suspend. the proceedings ?

The entire contention that ‘Petitioner's sanity Was

‘seriously in issue imthis case is the result of a unique

feature of the Texas law which allows 3 Judgment of -

lunaey entered 37 vears before the trial to raise a con-

?r —22—

| tinuing presumption of insanity regardless of its re-

-moteness and regardless of the fact that-it does not:

indicate a permanent type of insanity -but instead, re-

_ cites that Peétitioner has had a number of- Cattacks’’.”

of lunacy. In some jurisdictions the remoteness of the

1924 judication would h have so materially weakened the

_presumption that it would have been practically neu-

’ tralized, for example see: Gulley+v..,Common-Wealth, -

284 Ky. 98, 143 S.W. 2d 1059 (1940) ; Common-W ealth

v. Calhoun, 238 Penn. 474, 86 A. 472 (1913) ; Langdon

', People, 133 Ill. 382, 24 N.E. 874 (1890); People. v.

M ignat A347 IM. 422, — N. KE. 8 33 eee): : — note

hee le n vabtotenky acarded the “full ened of a pre-

sumption of insanity by the courts of Texas, having.

even. obtained his release from the penitentiaryon a

writ of habeas corpus from the Court of Criminal Ap-

peals of Texas because of the failure of a previous

trial court to appoint an attorney to represent him.

Ex parte Bash, 313 S.W, 2d 287 (Texas Criminal Ap-

peals. 1958). .

The record in this case reflects that the Petitioner

was accorded. every possible protection to assure that:

‘he was able to present his defense. He was furnished

counsel ‘ without) showing he «was indigent. Before -

trial, he was given a comprehensive psychiatric exam-

‘ination by a competent, experienced, licensed, inde-

pendent physician whose legal duty was to examine

diim and treat him if he was ill. He was accorded a ks

, trial hearing on insanity, during which his counsel wa

given every opportunity to present any evidence of

‘insanity and, at the conelusion of which, he was given

the benetit of a stronger presumption of insanity than

most jurisdictions recognize. At the trial on the merits

. at pe . . Ht! . ° *,

—S x s 3

a ~ e

the next day he was again given every opportunity to

present_ his .defense,- inehiding The opportunity tore ~ oe Me

“quest further examination by the County Health Office ‘r.

| Respondent respectfully ~ubmits that this Petitioner

-has been accorded every aspect of due process of law

including adequate psychiatric examination,

CONCLUSION:

For the reasons st: ited it is respectfully submitted

that the judgment of the Court of Criminal Appeals

of Texas should be affirmed. |

- Pam | gee Respectfully, submitted,

‘WAGGONER Carr

Attorney General of Texas

Sam R. Witson * |

Assistant Attorney General] :

ALLO B. Crow, JR.

REET ea ; Assistant Attor ney General

== a

Lixw ARD SHIVERS

Assistant Attorney Gene ral |

Capitol Station

«Austin, Texas |

rs Breck ALLEN

(* ounty Attorney

Ellis’ C ounty

Waxahachie, Texas

“Afforneys for’ Respondent -

Ee et

TEXAS STATE DEPARTMENT of HEALTH:

— Division of | Mental Mealth — :

Reprinted from

Texas Health Bulletin

>

e

_

January; 1963

nff'® «

of

The number of psychiatrists prac-

- ticing in Texas increased to a new

high in September, 1962. A recent count,

compiled by the research and epidem-

iology program: of the State Health

Department’s Mental Health Division, |

indicates a total of 399 psychiatrists

who are working in the State.

This total includes all psychiatrists

listed in Mental Health Services: A

Directory for Texas, 1962, published

jointly by the Division of Mental Health

and the Texas Association of Mental

Health. The listing was confirmed by .

comparisons with the List of Fellows

and Members of the American Psycbiat-

ric Association, 1961-62, all the Di-

rectory of Medical Practitioners Author-

ized to Practice Medicine in Texas

compiled as of March, 1962. Also in-

formation was gathered from local com-

munities in which peychiatriste per

ee

-In March, 1961, only 290 sania

trists, were known to be practicing in

Texas.

Approximately | 46 percent (187

doctors) of the 399 psychiatrists in

Texas are known to be practicing in

*full-time institutional settings such as

State or V.A. clinics and hospitals,

military bases, clinics in college health

centers, etc. The remaining 54 yeas.

are in private practice.

Psychiatrists and the Texes Population

Although psychiatrists are located

. . in only 34.of 254, Texas counties, these

: <4 counties contain roughly 66- percent

of the total Texas population.

Institutional settings determine the

lécation of the 46 percent of psychia-

trists who practice in these areas. How-

ever, only four counties (Cherokee,

: Howard, Kaufman, and Kefr—all loca-

oe 4 (Re

meee a

‘tions of a State mental hospital) have

psychiatrists in institutional settings

but. none in private practice—and these:

four counties contain only one percent

of the total State population.

- The overall ratio of psychiatrists to

the State’s population in 196] was one

psychiatrist to 33,650 persons (290°.

psychiatrists contrasted with an esti-

mated State population of 9,743,949.) .

Today, the estimated ratio of psychia-

trists. is one to 25,063 persons (399

psychiatrists contrasted with an‘esti- ~

mated population in excess of 10,000,

000). . ‘

The overall ratio for the entire United

States population in September, 1961,

was about one psychiatrist for 18,000

‘ population. Texas is still

below the

national average of several years ago

even with this recent.

psychiatrists in the State.

It.is encouraging to find that peychia-”

-trists are in private’ practice in 30

Texas counties, and that 65 percent of

the Texas population | lives: i in these 30

counties. - .

increase of

Urbanization and Location of -

Psychiatrists

When counties are grouped on the

basis: of population size we find that -

the. ratio. of psychiatrists to population

' varies, Those counties containing the

latger urban-industrial centers of the

State, such as Dallas, Fort Worth,

Houston, ‘San Antonio and EF! Pees. :

claim the bulk of the State’s psychia-

trists. As a group, these counties have

the most favorable ratio of psychiatrists

to population.

As county population size decreases,

the ratio of psychiatrists to population.

becomes less favorable. However, there

_ are noticeable gaps in this pattern in

Texas. Hidalgo County, ‘for example,-

‘ with a ‘population of well over 100,000

still has no psychiatrist. Three other

counties—Orange, Webb, and Nrai

(except that Beaumont,

Orange County line, has four)— ith:

populations. of 62,043, 66,529, ahd

78,080, respectively,.

psychiatrists at this writing. -

In Texas’ most ‘eparsely vaipelianl

also have no\,

Texas Healt) Bulletin’

| The number of psychiatrists in Texas bas in-

creased drdmatically this past year. The location

of these psychiatrists, in relation to the State's

population, is the subject of this report. |

tr HE

by

_ James Otis Smith

and

Fred R. Crawford

_ Mental Health Division

e | '

counties, considered as a. group, the

ratio: of psychiatrists is one per 508,

735 persons. For the group of counties

“*between 25,000 and 50,000 population,

_the ratio decreases to one per 75,000

persons. In the third group of counties,

those with populations ranging between |

50,000 and 100,000, the ratio psychia-

. .trists is one per 43,375 persons, And

in the group of counties with’ popula-

‘tions ranging over 100 ,000, the ratio is

"hands to help”

- ill.- But,

ae

-yutside urban-industrial centers. with

one psychiatrist per 15,396 persons.

(These ratios are approximations

because there are no current figures for

the county populations as of September,

1962.)

What Does This Mean?

On the basis of these facts, it may

be concluded: that Texas has ‘‘more

than- ever before to

‘serve those: citizens ‘who are inentall y

at thé same: time,

ratio of psychiatrists to the population

is still unfavorable—compared to that

of the nation.

In Texas thete are still vast areas

——

the gross .

: Aran ; “ener .

no ‘psychiatric resources available. ward to a more ‘adequate availability of

And finally, should the trend towards psychiatric ‘skills for Texans in the

an increasing number of psychiatrists. future. :

in Texas continue, we may look for- oog

chotcnesecl ;

& + =e 4 >

\ ig oo mw ao ae

ee ts

/ _ — we

. —_ i oom fcune | aa I Oe f .

ae i ~ 0 bated tod "Ds PS

/ e 7 on) ae fo)

: st - tee ‘s bee! 4 ae . a ‘a gs deers

. pe, ee aes

, ; nal “7 2

vaio as aut ie iuaz

Sey ee 19

| a

ceaes eee oe <5 :

ae

\ = ry

aw a os \\

> te .

ee: DISTRIBUTION OF PSYCHIATRISTS IN TEXAS |

"BY SIZE COUNTY AND PERCENT POPULATION, SEPTEMBER, 1962000

Number PerCent Numberof - - ««.—s Per Cantof => —Ratio of

Sass of of Stotes Counties with | Number of. Psychietrists Psychictrists

County Size Counties I is cecal Paychiatriste® Psychiatrists in Counties to Population

Below 25,000 192 20.9(2,034,939) «4 | ‘ i 1:508, 735

25,000-50,000 34 —12.3(1,200,304) 7 ° aerate te 75,019

$0,000.100,000 11. . 8.5( 824,129) -8 19 4.8 Wy 43,375

Over 100,000 16° $8.3(5,684,577) 15: 360 9.1 | 1n 15,790

TOTAL 253* 100,0(9,743,949) 34 399 100.0 = ys24,421"

Sowce: Populetion Estimetes for Tones Counties, April 1, 1961. Prepored by The Population

' Research Center, Department of Seciolegy, The Uni ver sity of Texes.

Sowce: Montel Health Services: A Directory for Texos, 1962. Published by the Division of Mantel

Health, Texes Stete Heelth Depertment, ond the Texes Asseciction foe Mental Health, Austin, Texes. |

“For Purposes of this enelysis, Potter and Rendall counties neve been combined.

s

7

‘