Jesse Gilbert Hamer v. State

11th Court of Appeals Eastland, Texas Opinion Jessie Gilbert Hamer Appellant Vs. Nos. 11-02-00264-CR & 11-02-00265-CR -- Appeals from Comanche County State of Texas Appellee Jessie Gilbert Hamer was charged in separate indictments with attempted capital murder for shooting at 2 peace officers. In each cause, the jury convicted appellant of attempted capital murder, found that he used a deadly weapon, and assessed his punishment at confinement for 75 years. We affirm. Appellant presents identical issues in each cause. In the first issue, he contends that the finding as to his competency was against the great weight and preponderance of the evidence. In the second issue, he contends that the evidence was legally insufficient to show that Doug Caffey was acting in the lawful discharge of an official duty by arresting appellant. In the third issue, appellant argues that the evidence was legally insufficient to show that John Boyd was a peace officer. In the fourth issue, appellant argues that the trial court erred in admitting evidence that lacked the proper chain of custody. In his final issue, appellant contends that he was denied the effective assistance of counsel at trial. In the first issue, appellant contends that the verdict finding him competent to stand trial was so against the great weight and preponderance of the evidence as to be manifestly unjust. In reviewing appellant=s first issue, we must consider all the evidence relevant to competency and determine whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex.Cr.App.1990). A defendant is incompetent to stand trial if he does not have either the ability to consult with his attorney with a reasonable degree of rational understanding or a rational and factual understanding of the proceedings against him. TEX. CODE CRIM. PRO. ANN. art. 46.02, ' 1A (Vernon Pamph. Supp. 2003). A trial court is required to hold a separate competency hearing when evidence is introduced, either pretrial or during trial, that could rationally lead to a conclusion of incompetency. TEX. CODE CRIM. PRO. ANN. art. 46.02, ' 2 (Vernon 1979); Arnold v. State, 873 S.W.2d 27, 36 (Tex.Cr.App.1993), cert. den=d, 513 U.S. 830 (1994). The record shows that the trial court conducted a separate competency hearing. Only two witnesses testified at that hearing: Harold D. Scott, M.D. and Stephen L. Mark, M.D. Both of these witnesses were psychiatrists appointed by the trial court to examine appellant. Dr. Scott testified that he had been appointed twice to examine appellant. The first examination of appellant was ordered by a different court in August 2001 and involved an unrelated charge against appellant. During this two-hour examination, appellant cooperated and provided information to Dr. Scott. Dr. Scott determined that appellant was competent to stand trial in that case even though appellant was suffering from a mental disorder, which he referred to as a delusional disorder and paranoia. Dr. Scott evaluated appellant again on May 22, 2002. The examination lasted only one hour because appellant would not speak to Dr. Scott about anything but Anonconflictual superficial@ matters such as the weather and the food at the jail. According to Dr. Scott, appellant stated that the interview was not his idea, that he did not believe the interview to be in his best interest, and that he chose not to participate. Appellant informed Dr. Scott that he was Adismissed.@ Dr. Scott testified that appellant was courteous but uncooperative. After this second examination of appellant, Dr. Scott determined that appellant was no longer competent to stand trial. Dr. Scott=s opinion was based upon both interviews and upon information that he had obtained elsewhere, including appellant=s Abizarre thoughts@ of relinquishing his citizenship and not having to abide by local law. In Dr. Scott=s opinion, based on reasonable medical judgment, the likely cause of appellant=s current incompetency was Athe influence of the previous paranoid illness@ that remained untreated. Dr. Scott=s concern about appellant=s competency was not that he lacked an understanding of the proceedings against him but that he lacked the present ability to consult with his attorney. Dr. Scott acknowledged, however, that he Acannot assert with full knowledge that [appellant] was not just being stubborn, oppositional or obstructionistic. There can be other causes for a Defendant in trouble not speaking.@ Dr. Mark conducted a 15 to 20 minute examination of appellant in March 2002. Dr. Mark disagreed with Dr. Scott=s findings regarding appellant=s competency. He testified that appellant was capable of speaking and that he stated his name, date of birth, and address. A deputy sheriff who brought appellant to the exam told Dr. Mark that appellant was not a problem in the jail, that he was cooperative, and that he Atalk[ed] okay and [did] not act crazy or anything like that.@ Dr. Mark testified that appellant listened to and seemed to understand the warnings that Dr. Mark gave him at the beginning of the exam. Dr. Mark pointed out that appellant had no history of mental illness Aother than the mental problems coming up when he was accused of something@ and that appellant had only been evaluated Arelative to a charge against him, just like this time.@ Appellant had never been treated or hospitalized for any mental illness or disorder. After reviewing all of the evidence relevant to competency, we hold that the jury=s finding was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Even Dr. Scott admitted that appellant may have been Ajust being stubborn, oppositional or obstructionistic.@ Appellant=s first issue is overruled. In the second issue, appellant challenges the legal sufficiency of the evidence in Cause No. 11-02-00264-CR. Appellant asserts that the evidence is insufficient to show that Gorman Chief of Police Doug Caffey was Aacting in the lawful discharge of an official duty, to wit: arresting defendant@ because Chief Caffey was not authorized to arrest appellant outside the jurisdictional limits of Eastland County. See Angel v. State, 740 S.W.2d 727 (Tex.Cr.App.1987)(holding that city police officers have county-wide jurisdiction to arrest offenders). The record shows that the offense and the arrest in this case occurred in Comanche County. Gorman is in Eastland County. On the night of December 17, 2001, two Comanche County deputies attempted to execute a warrant for appellant=s arrest. The warrant was based upon an alleged assault committed by appellant against his mother. The deputies went to his mother=s residence, knocked on the door several times, and announced who they were. Appellant finally responded, A[I]f you knock on the f-----g door one more time, I=m going to blow your f-----g heads off.@ The deputies heard the sound of a lever-action rifle or shotgun chambering a shell, and they left. The next day, appellant=s mother called to inform the authorities that appellant had left the residence. Comanche County deputies located appellant driving his car. They pursued appellant with their lights and sirens on. During the pursuit, which ended at his mother=s residence, appellant held a gun out his car window and fired shots toward the authorities. Appellant went inside his residence and a three-hour standoff ensued. During the pursuit and the standoff, officers from various departments became involved. During the standoff, Comanche County Sheriff John Boyd obtained a warrant for appellant=s arrest for assaulting a peace officer. Finally, Sheriff Boyd decided to act before it got dark outside. Sheriff Boyd requested that Chief Caffey accompany him to the door. Chief Caffey was a certified hostage crisis negotiator and was the only officer who knew appellant personally.[1] Sheriff Boyd and Chief Caffey crawled to the front door, knocked, and announced who they were. Appellant did not respond even though the officers had made five or six attempts. Upon Sheriff Boyd=s instruction, Chief Caffey kicked the door to open it. Appellant fired three shots through the door. Sheriff Boyd stepped back, got tangled up in some wire, and fell down. Chief Caffey returned fire with one shot that went through the door frame. Then, Chief Caffey kicked the door open and saw appellant standing there and pointing a rifle at Chief Caffey. Chief Caffey fired one more round, and appellant then staggered backwards and disappeared out of sight. Chief Caffey entered the residence and removed the rifle after appellant fell to the floor. Appellant had been shot in the wrist and the abdomen. The testimony regarding the position of the bullet holes in the door showed that the shots that appellant fired would have struck a person in the chest if that person had been standing in a normal position to open the door. Fortunately, Sheriff Boyd and Chief Caffey were Ahugging the wall@ and, thus, were not injured. We hold that the evidence is legally sufficient to show that Chief Caffey was acting in the lawful discharge of an official duty when appellant attempted to shoot him. Chief Caffey was asked by the Comanche County Sheriff to help arrest appellant. The Comanche County Sheriff=s Department had obtained warrants for appellant=s arrest. See TEX. CODE CRIM. PRO. ANN. art. 15.06 (Vernon Supp. 2003)(providing that Aany peace officer to whom said warrant is directed, or into whose hands the same has been transferred, shall be authorized to execute the same in any county in this State@). Even an arrest without a warrant is lawful when the arrest is made by an officer acting outside of his jurisdiction if an officer with territorial jurisdiction is present at the time. Lewis v. State, 15 S.W.3d 250, 255 (Tex.App. - Texarkana 2000, no pet=n); Morris v. State, 802 S.W.2d 19, 20-21 (Tex.App. - Houston [1st Dist.] 1990, pet=n ref=d); Cruz v. State, 762 S.W.2d 624, 625 (Tex.App. - Houston [14th Dist.] 1988, no pet=n). Although outside the boundaries of his geographic jurisdiction, Chief Caffey was not acting outside the scope of his legal authority. See Christopher v. State, 489 S.W.2d 575, 576-77 (Tex.Cr.App.1973); O=Hara v. State, 837 S.W.2d 139 (Tex.App. - Austin 1992, pet=n ref=d). Appellant=s second issue is overruled. In the third issue, appellant challenges the legal sufficiency of the evidence in Cause No. 11-02-00265-CR. Appellant asserts that the evidence is insufficient to show Athat John Boyd >was a peace officer.=@ The record shows that Sheriff Boyd was the duly elected sheriff of Comanche County but that he did not have a permanent peace officer license. Sheriff Boyd=s license had become inactive before he took office. The Texas Penal Code defines a peace officer as Aa person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or other law.@ TEX. PENAL CODE ANN. ' 1.07(a)(36) (Vernon 2003). Pursuant to TEX. CODE CRIM. PRO. ANN. art. 2.12(1) (Vernon Supp. 2003), Asheriffs, their deputies, and those reserve deputies who hold a permanent peace officer license issued under Chapter 1701, Occupations Code@ are Apeace officers.@ We disagree with appellant=s contention that Article 2.12(1) requires a sheriff to be licensed in order to be a peace officer. Rather, we construe Article 2.12(1) to require reserve deputies, not sheriffs or their non-reserve deputies, to be licensed in order to be peace officers. See Op. Tex. Att=y Gen. No. JC-0522 (2002)(where the attorney general reached the same conclusion with respect to constables, deputy constables, and those reserve deputy constables who hold a permanent peace officer license). Under Article 2.12(1), Sheriff Boyd was a peace officer even though he was not licensed. We hold that the evidence was legally sufficient to show that appellant attempted to Acause the death of Boyd by shooting him when Boyd was a peace officer who was acting in the lawful discharge of an official duty@ and that appellant Aknew Boyd was a peace officer,@ as charged in the indictment. See Freeman v. State, 556 S.W.2d 287, 303-04 (Tex.Cr.App.1977)(deputy sheriff who had taken the wrong oath of office constituted a peace officer for purposes of capital murder statute). The third issue is overruled. At appellant=s behest, appellate counsel has briefed two more arguable issues. In the fourth issue, counsel raises the issue of the proper chain of custody of the rifle that was admitted into evidence. We agree with appellate counsel=s assessment that the rifle=s chain of custody was sufficiently proven to be admissible under Stoker v. State, 788 S.W.2d 1 (Tex.Cr.App.1989), cert. den=d, 498 U.S. 951 (1990). The record shows that Texas Ranger Jeffrey Don Robertson performed the crime scene investigation at Sheriff Boyd=s request. Ranger Robertson testified that he seized the rifle from appellant=s residence, that he placed an identifying mark on the rifle, and that he delivered it to someone in Aevidence receiving@ at the Texas Department of Public Safety Crime Laboratory. Ranger Robertson identified the rifle introduced at trial as the one he had seized from appellant=s residence. A firearms examiner employed by the D.P.S. crime lab also identified the rifle by the distinctive markings that he had placed on it. The firearms examiner testified that he obtained the rifle from the evidence coordination section of the lab, which initially receives all of the evidence at the lab. After he was finished examining the rifle, the firearms examiner returned it to the evidence coordination section, which then returned it to the submitting agency. Even though no one from the evidence coordination section testified, the rifle=s chain of custody was sufficiently established by proof of the beginning and the end of the chain of custody. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Cr.App.), cert. den=d, 522 U.S. 917 (1997); Stoker v. State, supra at 10. Nothing in the record suggested that the evidence had been tampered with or altered. The fourth issue is overruled. In the fifth issue, appellate counsel raises the issue of the effectiveness of trial counsel. In this issue, appellate counsel asserts that appellant advised him that trial counsel failed to investigate or call witnesses regarding the following: the course taken by appellant and the officers during the pursuit, the officers involved in the pursuit, and the caliber of the bullets that wounded appellant. As noted by appellate counsel, there is nothing in the appellate record to support appellant=s contentions. Consequently, appellant has not shown on appeal that trial counsel=s performance was deficient or that, but for trial counsel=s alleged errors, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). The fifth issue is overruled. The judgments of the trial court are affirmed. PER CURIAM May 1, 2003 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]Chief Caffey had bailed hay for appellant=s grandfather.