Gregory Scott Goddard v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00042-CR Gregory Scott Goddard, Appellant v. The State of Texas, Appellee From the 220th District Court Bosque County, Texas Trial Court No. 04-05-13760-BCCR MEMORANDUM Opinion Appellant has filed a motion to dismiss this appeal. See Tex. R. App. P. 42.2(a); McClain v. State, 17 S.W.3d 310, 311 (Tex. App.—Waco 2000, no pet.). We have not issued a decision in this appeal. Appellant personally signed the motion. Accordingly, the appeal is dismissed. PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna Appeal dismissed Opinion delivered and filed November 2, 2005 Do not publish [CR25] denied this request as untimely. The request for a medical examination should not be confused with the fact that the testimony that Appellant did offer, and that the trial judge did allow, raised the issue of his competency to stand trial. Because there was some evidence that he was incompetent to stand trial, the trial court should have allowed a jury to determine if there was enough evidence to prove him incompetent. See Hawkins v. State, 660 S.W.2d 65, 82-85 (Tex. Crim. App. 1983). But the burden was on Appellant to prove his incompetency. See TEX. CODE CRIM. PROC. ANN. art. 46.02 § 1(b) (Vernon 1979). Clearly, Section three of Article 46.02 gives the trial court the discretion to appoint disinterested experts to examine a defendant with regard to his competency to stand trial and to allow their testimony upon this issue. Id. at § 3(a). Further, Section 3(h) of Article 46.02 provides that, upon a timely request for an examination by an expert, the court shall give the examiner a reasonable opportunity to examine the defendant. Id. at §3(h). Because of the untimely manner in which the competency issue was raised and the request for the medical examination was made, the denial of the request for a medical examination was within the court's discretion. In fact, the court had the discretion to deny any testimony whatsoever on the issue based upon the untimeliness of the request. See Nelson v. State, 629 S.W.2d 888, 889 (Tex. App.--Fort Worth 1982, no pet.). The court, however, did proceed to hear testimony which raised the issue of competency, and it only erred when it failed to allow a jury to determine if Appellant was incompetent to stand trial. None of the cases cited by Appellant involve a defendant's asking for a medical examination on the day of trial and being refused such a request. Appellant was afforded due process of law. The law affords a medical examination; it merely requires a timely request. The denial of the medical examination was within the court's discretion, and the record that the competency jury reviewed was not inadequate merely because it failed to contain any evidence based upon a psychiatric examination of Appellant. While Appellant is correct that the evidence in the record is "speculative" as to whether or not he was competent to stand trial, it is only speculative because his evidence did not clearly rebut the presumption that he was competent to stand trial. The competency trial was held approximately a year after the trial resulting in Appellant's conviction. Compare Carroll v. Beto, 330 F. Supp. 71 (N.D. Tex. 1971), aff'd, 446 F.2d 648 (5th Cir. 1971)(holding meaningful hearing possible 23 years after trial). Also, there was a complete record of all the evidence that Appellant presented for the competency jury to review. There was no error in holding the retrospective hearing. The jury found the evidence did not prove that Appellant was incompetent, and there being no point of error on the sufficiency of the evidence, we will not disturb this finding. Appellant's first two points in his supplemental brief are overruled. Appellant's last point, based upon the prosecutor's comment that there had been a finding that he was competent to stand trial, is overruled because the comment was harmless beyond a reasonable doubt. See Tex. R. App. P. 81(b)(2). Although the comment was made in the jury's presence, it was not made to the jury. The statement was made to the court during an objection to one of Appellant's questions to a witness. The jury was aware that this was a retrospective competency hearing, that Appellant had already presented evidence on his competency at the time of the original trial, and that the court proceeded with a trial on Appellant's guilt. In the State's opening statement to the competency jury, the prosecutor informed the jury that the judge, at the time of Appellant's original trial, "saw through" Appellant's allegation of incompetency, and there was no objection by Appellant to this comment. The competency jury knew that its only function was to make a determination, based upon the evidence presented, of Appellant's competence at the time he stood trial on his guilt. We conclude that the prosecutor's comment had no effect on the jury's decision. See id. The judgment is affirmed. TERRY R. MEANS DO NOT PUBLISH Justice