Dane Whitworth. David Sheppard, Ruth Ellen Gura and Gerry orris ...

defect. The court found D did not discharge his burden by
showing affirmatively that appropriate waivers and admonishments
were not executed or given to him. The Court further found that
at most, D raised a factual issue as to whether the discrepancy
in cause numbers on the agreements to stipulate and waivers
although filed in the papers of this conviction were not in fact
contained in that conviction. This fact issue was resolved
against him by the trial court. The Court also rejected D's
contention that he had been improperly admonished on the range
of punishment. The admonishment substantially complied with the
requirements of Art. 26.13 V.A.C.C.P. and D had not shown the
plea to be involuntary.
Danny Lee BARBER, No. 68,905 -- Capital Murder Death Abated for
a New Hearing on Competency -- Opinion by Presiding Judge Onion;
Dissenting Opinion by Judge McCormick, joined by Judge White;
9/16/87
Attorney: Melvyn C. Bruder
COMPETENCY TO STAND TRIAL.
Facts: After the jury had been impaneled and jeopardy had
attached, D's counsel brought to the attention of the trial
court that a Dr. Lett had filed a report concluding that D was
incompetent to stand trial. The Doctor testified that Defendant
was a schizophrenia/paranoid type; that he was incompetent to
stand trial and unable to communicate with his attorney. Dr.
Griffin testified that he had examined D and that he was
competent to stand trial. The Court found there was no evidence
to support a finding of incompetency. See, Art. 46.02 84(a)
V.A.C.C.P. No separate jury to determine competency was
impaneled.
Held: Relying on Sisco v. State, 599 S.W.2d 607 (Tex.Crim.
App. 1980) and Williams v. State, 663 S.W.2d 832 (Tex.Crim.App.
1984), the Court held that Dr. Lett's testimony constituted
''some evidence'' of incompetence. The Court abated the appeal
and remanded for a retrospective determination of competency.
COMMENT: A number of other issues were presented in
the appeal that represent settled law and will not be
discussed.
SDR-8 VOICE for the Defense I November 1987