journal of the texas criminal defense lawyers association

-- NARCISQ RICO, No.6/29/83.68,637, Misd. theft, Rev'd, Comm'r Dally, En Banc,FUNDAMENTALLY DEFECTIVE COURT'S CHARGE: The information alleged D committedthe theft as a party whereas the court's instructions to the juryallowed his conviction on the theory he committed the offense by his ownconduct or as a party. Court found fundamental error on the basis thatthe charge allowed conviction for the commission of an offense in a mannernot alleged in the charging instrument. Cumbie, 578 S.W.2d 732; Gooden,576 S.W.2d 382.The Court also stated that a party to an offense may be charged with theoffense without alleging the facts which make the,defendant a party tothe offense and criminally responsible for the conduct of another; but ifthe evidence supports a charge on the law of parties the court may chargeon the law of parties even though there is no such allegation in theindictment or information. Apparently the information would have beensatisfactory had it simply alleged that D committed the offense by hisown conduct.NOBLE MAYS No. 68,824, Capital murder, Rev'd, Judge Teague, En Banc,6/29; 83.- ESTELLE V. SMITH ERROR: D filed a pretrial motion on the issues of incompetencyand insanity. The state filed its motion, presumably to discoverevidence to rebut D's stated claims. A transcription of the record ofthat hearing was not available. A pretrial psychiatric exam was conductedby Dr. Grigson pursuant to a court order. The main purpose of the examinationwas to determine D's competency to stand trial, although in thiscase D had at the time the exam was conducted injected into the case theadditional issue of sanity at the time of the commission of the offense.It was never stated to defense counsel that the exam was going to encompassthe issue of D's future dangerousness or to what end the psychiatrist'sfindings could be employed during the forthcoming trial. The court foundcontrolling the fact that D's counsel wzs not given notice that Grigson'sexamination of D would encompass the issue of D's personality and to whatend Grigson's findings could be employed during D's trial. "This failureby the trial court to give appellant notice clearly violates the holdingin Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 115 (1980).Grigson was the only psychiatrist to testify at the punishment hearing.He testified over D's objection, and after being duly qualified by thestate. He informed the jury it took only one hour and twenty minutes forhim to examine D and make the determination that D was incurable and untreatablesociopath because of his high degree of antisocial personality-Grigson had reviewed the Yichita Falls police records, pen packets, andother psychiatric examinations performed at Russ State Hospital. Grig30nfurther testified that D did not have a conscience, repeatedly broke therules, concerned himself only with self pleasure and self gratification,manipulated and conned others in order to satisfy his own personal interests,was never remorseful and did not have any feelings Of guilt orshame or embarrassment after having done something wrong or unlawful.August 1983/YOICEfor theDefense SD-13