Opinion
No. 05-05-00960-CR
Opinion Filed May 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F04-21414-JI. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION
Darlene Andrews appeals her conviction for harassment by a person in a corrections facility. Before trial, the trial court found her incompetent to stand trial and she was admitted to Terrell State Hospital for treatment. After the medical director determined Andrews was competent to stand trial, she was returned to Dallas for further proceedings. She then waived a jury trial and entered a plea of not guilty by reason of insanity. After hearing evidence, the trial court rejected the insanity plea, found Andrews guilty, found two enhancement paragraphs true, and sentenced her to twenty-five years' imprisonment. Andrews appeals, arguing in four issues that: the trial court erred in holding her trial without first making a finding that she was competent to stand trial; the evidence supports her insanity defense; the evidence is insufficient to show she caused blood and body fluid to contact the complainant as alleged in the indictment; and the trial court erred in admitting her unrecorded oral statement made during custodial interrogation. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. In her first issue, Andrews alleges the trial court proceeded to trial without making a judicial determination that she was competent to stand trial. When a defendant has been found incompetent to stand trial, she may be committed to a state hospital for treatment. Tex. Code Crim. Proc. Ann. art. 46B.071, 46B.073 (Vernon Supp. 2005). The head of the facility must send a report to the committing court if the defendant becomes competent to stand trial. Id. art. 46B.080(b). On return of the defendant to the committing court, the court shall make a determination of the defendant's competence to stand trial. Id. art. 46B.084(a). Unless the State or the defendant object within fifteen days after the report is served, the court is authorized to make the determination based solely on the report. Id. The record reflects that neither the State nor Andrews objected to the report of her competence. On the date of trial, the trial court made a docket entry that Andrews's competency had been restored. Thus, the record reflects a judicial determination was made after Andrews returned from the state hospital. Cf. Schaffer v. State, 583 S.W.2d 627, 630 (Tex.Crim.App. [Panel Op.] 1979) (concluding there was "no judgment, no order, no docket sheet entry or other evidence" court made determination of competency after defendant returned). Further, on Andrews's amended motion for new trial, the trial court heard evidence from Andrews's trial counsel indicating her competence at trial, and made a retrospective finding of competency. See id. at 631 (op. on reh'g) (abating appeal for determination of competency at time of trial); Byrd v. State, 719 S.W.2d 237, 238 (Tex.App.-Dallas 1986, no pet.) (same). We resolve Andrews's first issue against her. In her second issue, Andrews contends the evidence at trial was sufficient to establish by a preponderance of the evidence her insanity defense. Because Andrews bore the burden to prove this defense by a preponderance of the evidence, we interpret her issue as challenging the factual sufficiency of the evidence to support the trial court's failure to find the defense. See Tex. Pen. Code Ann. § 8.01(a) (Vernon 2003); Naasz v. State, 974 S.W.2d 418, 420 (Tex.App.-Dallas 1998, pet. ref'd). We review all of the evidence relevant to the issue to 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.Crim.App. 1990). Andrews relies on evidence of her long history of mental illness and hospitalizations, and the testimony of a defense psychiatrist that she was "actively psychotic" and insane at the time of the offense. The defense psychiatrist examined Andrews some months after the offense and relied on jail records indicating that Andrews said she heard voices a few days before and after the incident. During the examination, Andrews said voices told her to throw blood and water on the officers because they were trying to hurt her. Andrews also argues the State's psychiatrist admitted it was possible that Andrews was only thinking back on the incident and did not know right from wrong at the time of the offense. The record reflects that the defense psychiatrist might have reached a different conclusion if Andrews said she was upset on the day of the offense because her husband left her and because she could not contact her mother. The psychiatrist also stated she might question her conclusion if she had been aware that several days after the offense, Andrews spit at another officer through the food slot in her door and said she hoped the officer contracted Hepatitis C. A psychiatrist for the State examined Andrews a little over a year after the offense. According to his report, Andrews said she was having a "bad day" on the date of the offense and had a conflict with a guard about getting a drink. Andrews decided she would "dash" the next officer she could. "Dash" is apparently slang for throwing noxious substances on someone. She gathered menstrual blood and other "stuff out of the toilet" in a cup and threw it at the next officer who approached her cell. She told the psychiatrist she knew it was wrong to throw the fluids on the guard. The State's psychiatrist testified that Andrews was sane at the time of the offense because she knew the wrongfulness of her conduct. Her behavior in targeting a guard was methodical, planned, and based on a conflict. He believed her choice of fluids clearly demonstrated she understood the nature and wrongfulness of her act. He also believed the incident a few days after the offense-where Andrews spit on another guard-supported his conclusion she knew the wrongfulness of her conduct due to her expression of intent to spread a communicable disease. After a neutral review of all the evidence, including the above evidence, we conclude that the trial court's rejection of the insanity defense was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz, 785 S.W.2d at 155. We resolve Andrews's second issue against her. In her third issue, Andrews argues the evidence is legally insufficient to show she caused "blood and body fluid" to contact the complainant as alleged in the indictment. We apply the appropriate standard of review for legal sufficiency challenges. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (legal sufficiency). A person commits harassment by a person in a correctional facility if while imprisoned or confined in a correctional facility and with intent to assault, harass, or alarm, the person causes another person to contact "the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor. . . ." Act of May 16, 2003, 78th Leg., R.S., ch. 878, 2003 Tex. Gen. Laws 2688 (amended 2005) (current version at Tex. Pen. Code Ann. § 22.11(a)(1) (Vernon Supp. 2005)). The indictment alleged that Andrews caused "blood and body fluid" to contact the officer. Andrews argues that throwing "body fluid" is not an offense under the statute. However, Andrews did not file a motion to quash the indictment before trial and has waived any complaint about the indictment. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Fisher v. State, 887 S.W.2d 49, 54 (Tex.Crim.App. 1994). Andrews claims the evidence only shows a guess that the substances thrown on the complainant contained blood. The record includes evidence that Andrews was the only inmate in her cell. As the complainant opened the food slot in the cell door, Andrews threw a cup and food carton containing used and soaked sanitary napkins and underwear and liquid which appeared to be urine and menstrual blood on the complainant. The substances came in contact with the officer's hands, arms, knees, uniform, face, neck, hair, eyes, and mouth. Photographs were admitted showing the scene, the liquid and items thrown at the officer, and the contents of Andrews's toilet. Andrews told the State's psychiatrist she had collected menstrual blood and "stuff out of the toilet" to throw at the officer. Having considered all of the evidence, including the above evidence, in the light most favorable to the judgment, we conclude a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Margraves, 34 S.W.3d at 917. We resolve Andrews's third issue against her. In her fourth issue, Andrews argues the trial court erred by admitting an unrecorded oral statement made during custodial interrogation. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon 2005). The record indicates that prior to the interview, Andrews was read her Miranda rights and stated that she understood those rights. See Miranda v. Arizona, 384 U.S. 436, 478 (1966); Nonn v. State, 117 S.W.3d 874, 881 (Tex.Crim.App. 2003). The erroneous admission of a statement in violation of the requirements of article 38.22 is non-constitutional error reviewed under appellate rule 42.2(b). Tex.R.App.P. 42.2(b); Nonn, 117 S.W.3d at 881. The record reflects overwhelming evidence that Andrews threw the blood and other substances on the officer and her statement that she was having a bad day on the day of the offense was admitted without objection in the State's psychiatrist's report. See Beck v. State, 712 S.W.2d 745, 748 (Tex.Crim.App. 1986) (erroneous admission of oral confession rendered harmless by admission of similar statement to relative coupled with strong physical evidence); Mack v. State, 928 S.W.2d 219, 225 (Tex.App.-Austin 1996, pet. ref'd) (admission of improper evidence is not harmful error if the same or similar evidence admitted without objection). Having considered the record, we conclude that any error in admitting Andrews's unrecorded statements did not affect her substantial rights. Nonn, 117 S.W.3d at 883. We resolve Andrews's fourth issue against her. We affirm the trial court's judgment.