Opinion
07-21-00314-CR
10-31-2022
LUIS GARZA, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE
Do not publish
On Appeal from the 64th District Court Hale County, Texas Trial Court No. A20285-1609, Honorable Robert W. Kinkaid, Jr., Presiding
Before QUINN, C.J., and PARKER and DOSS, J.J.
MEMORANDUM OPINION
JUDY C. PARKER JUSTICE
Appellant, Luis Garza, Jr., appeals his conviction for possession of a controlled substance. Appellant contends that his due process rights were violated because the trial court did not find him incompetent to stand trial. We affirm the judgment of the trial court.
Background
Appellant was indicted for possession of a controlled substance, methamphetamine, in September of 2016. After multiple incidents gave rise to delay of trial, in March of 2019, Appellant's attorney filed a motion suggesting incompetency and requesting an examination by an expert. After a competency examination was completed, in October of 2019, the trial court determined that Appellant was incompetent to stand trial but that his competency was capable of being restored. Appellant was committed to the Texas Department of State Health Services for competency restoration. In July of 2020, relying on an expert report, the trial court found Appellant's competency had been restored and set the case on its trial docket.
On December 7, 2021, the case proceeded to a jury trial. Appellant's counsel did not raise any concerns regarding Appellant's competency at any time during this trial. After voir dire but before the beginning of trial, Appellant asked the trial court for permission to speak. Upon receiving leave, Appellant indicated that he desired to have his subrogation rights certified by the State before trial began. To clarify Appellant's request, the trial court inquired further. Appellant insisted that he was entitled to a certification of his subrogation rights and that his request cannot be denied. Appellant explained that he had learned of his subrogation rights from the internet and invited the court to look at his phone for information regarding his claim. The trial court declined Appellant's invitation and denied his request to order the State to certify his subrogation rights but indicated that it would reconsider the issue if Appellant directed the court to a statute authorizing the relief sought. During the trial, Appellant testified in both the guilt-innocence phase and the punishment phase. At no point during trial did Appellant disturb the proceedings or act inappropriately. At the conclusion of the trial, Appellant was convicted and sentenced to fifteen years' incarceration.
By his appeal, Appellant presents two issues. By his first issue, Appellant contends that the trial court violated his due process rights by failing to inquire into his competency in 2019. By his second issue, Appellant contends that the trial court violated his due process rights by failing to sua sponte hold an informal inquiry into his competency in 2021.
Issue One - 2019
By his first issue, Appellant contends that it was a violation of his due process rights for the trial court not to inquire into his competency in 2019. Subsequent to Appellant filing his brief, supplemental clerk's and reporter's records were filed reflecting that a competency hearing was held in 2019 and Appellant was determined to be incompetent at that time. As a result of that hearing, Appellant was remanded to the State Hospital for treatment. Since Appellant's first issue challenges the trial court's failure to hold a hearing that the record reflects was held, we overrule Appellant's first issue.
Issue Two - 2021
By his second issue, Appellant contends that the trial court violated his due process rights by failing to sua sponte conduct an informal inquiry into his competence at the time of trial in 2021. Appellant contends that he exhibited signs that suggested that he was incompetent at the time of trial, thus obligating the trial court to conduct an informal inquiry.
The competency of a defendant implicates due process considerations. See Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). Unless an accused is competent, due process bars him from being tried. Id. We are to presume that an accused is competent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.003(b). In assessing a defendant's competency, trial courts utilize a two-step process. Boyett, 545 S.W.3d at 563. The initial step involves an informal inquiry, while the second entails a formal competency trial. Id. Appellant's second issue challenges the trial court's failure to conduct an informal inquiry.
One "is incompetent to stand trial if" he lacks either 1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or 2) a rational and factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a); Ochoa v. State, Nos. 07-16-00400-CR, 07-16-00401-CR, 2018 Tex.App. LEXIS 1816, at *8-9 (Tex. App.-Amarillo Mar. 12, 2018, no pet.) (per curiam) (mem. op., not designated for publication).
As noted in Boyett, the obligation to engage in an informal inquiry arises "upon 'suggestion' from any credible source that the defendant may be incompetent." Id. In other words, "[e]ither party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial." Tex. Code Crim. Proc. Ann. art. 46B.004(a). A trial court's duty to conduct an informal inquiry on its own motion arises upon encountering evidence that suggests incompetence. Id. at art. 46B.004(c) (stating that the presence of such a suggestion obligates the court to "determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial"). While the duty to conduct an informal inquiry need not be premised on a bona fide doubt regarding the defendant's competency, a credible source must suggest that the defendant may be incompetent. Bautista v. State, 605 S.W.3d 520, 527 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (abatement order).
Article 46B.024 of the Texas Code of Criminal Procedure identifies pertinent indicia of an accused's incompetence. These include the accused's capacity to 1) understand the charges against him, 2) understand the potential consequences of the prosecution, 3) converse with counsel about pertinent facts, events, and states of mind, 4) make reasoned choices, 5) comprehend the adversarial nature of the proceeding, 6) exhibit appropriate courtroom behavior, and 7) testify. Tex. Code Crim. Proc. Ann. art. 46B.024(1)(A)-(F). Others factors to consider include: 1) history of mental illness or intellectual disability, 2) duration of an identified condition, 3) degree of impairment resulting from a mental illness or intellectual disability, 4) whether psychoactive or other medication is necessary to maintain competency, and 5) medication's effect on appearance, demeanor, or ability to participate in the proceedings. Id. at 46B.024(2)-(5).
A trial court's decision not to conduct an informal competency inquiry is reviewed under the abuse of discretion standard. Lindsey v. State, 544 S.W.3d 14, 21 (Tex. App.- Houston [14th Dist.] 2018, pet. ref'd).
Our review of the record does not show sufficient suggestions of Appellant's incompetence to establish that the trial court abused its discretion in failing to conduct an informal inquiry. The record reflects that Appellant was previously determined to be incompetent in 2019. However, in October of 2020, the trial court found that Appellant had regained competency. Appellant argues that his discussion with the trial court concerning his subrogation rights as well as his mention of marijuana during that discussion suggests that he was not competent to stand trial. The exchange between Appellant and the trial court about subrogation rights seems to reflect that the trial court had some degree of understanding of what Appellant was requesting. Rather, Appellant could not identify any statutory authority entitling him to such relief. This conclusion is supported by the trial court's denial of Appellant's request to certify his subrogation rights but willingness to reconsider that ruling in light of statutory authority supporting Appellant's entitlement to same. As such, this exchange does not suggest that Appellant was incompetent. As for Appellant's reference to marijuana, we note that he made only one passing mention of marijuana. However, he did not object or express surprise during the State's voir dire references to Appellant being indicted for possession of methamphetamine or when the indictment was read aloud in open court. Further and of particular import, Appellant consistently testified regarding the circumstances surrounding his being charged with possession of methamphetamine. Further, at no point did Appellant's trial counsel make any representation that Appellant did not seem to understand the charges against him or was unable to effectively aid in his own defense. Considering the entire record, we cannot conclude that the trial court abused its discretion in failing to hold an informal inquiry into Appellant's competency. We overrule Appellant's second issue.
Conclusion
Having overruled both of Appellant's issues, we affirm the judgment of the trial court.
CONCURRING AND DISSENTING OPINION
Brian Quinn Chief Justice
I respectfully join in the majority's disposition of issue one and dissent from that concerning issue two. My reasons for the latter follow.
The record indicates that Luis Garza Jr. had twice undergone competency examination before trial. The first proceeding resulted in a finding of competency. After the second, in 2019, the trial court found him incompetent but subject to restoration. Efforts at restoration resulted in appellant's diagnosis as suffering from schizoaffective disorder, bipolar type. The psychological conditions were manageable through using two medications, according to the psychologist. Nine months later, the trial court found appellant competent after conducting another hearing. It then convened trial upon the criminal accusations about sixteen months later, that is, in December of 2021. During that proceeding, appellant engaged in various activity which purportedly required the court to sua sponte conduct an informal inquiry into his competency. It did not, and trial resulted in appellant's conviction.
Issue Two: Informal Hearing on Competence
By his second issue on appeal, appellant argues that the trial court erred in failing to sua sponte hold an informal competency hearing at time of trial in 2021. Such allegedly should have happened when appellant exhibited signs suggesting incompetence. I would sustain the issue.
The competency of a defendant implicates due process considerations. See Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). Unless an accused is competent, due process bars him from being tried. Id. Furthermore, in Texas, trial courts utilize a two-step process to gauge a defendant's competency, thereby assuring him due process. Id. The initial step involves an informal inquiry, while the second entails a formal competency trial. Id. We deal with the initial step here.
One "is incompetent to stand trial if he lacks either 1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or 2) a rational and factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a); Ochoa v. State, No. 07-16-00400-CR, 2018 Tex.App. LEXIS 1816, at *8-9 (Tex. App.-Amarillo Mar. 12, 2018, no pet.) (mem. op., not designated for publication).
As noted in Boyett, the obligation to engage in an informal inquiry arises "upon 'suggestion' from any credible source that the defendant may be incompetent." Id. In other words, "[e]ither party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial." Tex. Code Crim. Proc. Ann. art. 46B.004(a). And a trial court's duty to "suggest" incompetence on its own motion and conduct the informal inquiry arises upon encountering evidence "suggesting" incompetence. Id. art. 46B.004(c) (stating that the presence of such a suggestion obligates the court to "determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial"); Ochoa v. State, No. 07-16-00400-CR, 2018 Tex.App. LEXIS 1816, at *9 (Tex. App.-Amarillo Mar. 12, 2018, no pet.) (mem. op., not designated for publication) (noting the court's obligation and observing that it is not triggered if the court neither observes or receives sufficient evidence suggesting incompetency).
More importantly, the duty to pursue the inquiry is not dependent upon the existence of a bona fide doubt concerning the accused's incompetence. Id. art. 46B.004(c-1). Indeed, the threshold necessitating an informal inquiry is low. Laflash v. State, 614 S.W.3d 427, 433 (Tex. App.-Houston [1st Dist.] 2020, no pet.); Clark v. State, 592 S.W.3d 919, 925 (Tex. App.-Texarkana 2019, no pet.). Such is implicit in the legislature's repeated use of the word "suggest" or some derivative of it. For instance, a trial court hearing an accused "make rambling, nonresponsive answers to questions" and "provide testimony of the most bizarre quality" was held enough to clear the low threshold. Greene v. State, 225 S.W.3d 324, 329 (Tex. App.-San Antonio 2007, pet. ref'd) (wherein the reviewing court held that the trial court should have engaged in an informal inquiry sua sponte upon hearing the defendant testify about taking "kick boxing," being "influenced by the Japanese, the Koreans," biting one "cop" because another officer told him "in his mind to bite him, thinking I was a vampire," drinking protein shakes for a strong body, being a "pacifist," and believing "in government and . . . withholding"). So too has defense counsel's lone "comment that he was unsure what, if anything, appellant understood about the proceeding" been found "enough" when coupled with evidence of the accused's lower than average intelligence. See Bautista v. State, 605 S.W.3d 520, 529 (Tex. App.-Houston [14th Dist.] 2020, no pet.); see also Laflash, 614 S.W.3d at 433 (holding that the duty to sua sponte conduct an informal inquiry was triggered by testimony about appellant's low IQ, its affect upon his ability to understand rules and regulations, and a medical condition caused by fluid build-up in his head). And, most informatively are the words of the statute itself; a "representation" from a credible source suffices. Tex. Code Crim. Proc. Ann. art. 46B.004(c-1). If a "representation" suffices, the bar must be very low.
This differs from the test applicable to mandating a formal inquiry into competency; that requires "some evidence," i.e., more than none or a scintilla, of incompetency. Boyett, 545 S.W.3d at 564.
Other pertinent indicia appear within article 46B.024 of the Texas Code of Criminal Procedure. They include the accused's capacity to 1) understand the charges against him, 2) understand the potential consequences of the prosecution, 3) converse with counsel about pertinent facts, events, and states of mind, 4) make reasoned choices, 5) comprehend the adversarial nature of the proceeding, 6) exhibit appropriate courtroom behavior, and 7) testify. Tex. Code Crim. Proc. Ann. art. 46B.024(1)(A)-(F). Others are 1) his history of mental illness or intellectual disability, 2) the duration of an identified condition, 3) the degree of impairment resulting from a mental illness or intellectual disability, (4) the psychoactive or other medication being taken, and their ability to maintain competency, and (5) the medication's effect on his appearance, demeanor, or ability to participate in the proceedings. Id. art. 46B.024(1)-(5).
Finally, the decision to forgo a sua sponte informal competency inquiry is reviewed under the standard of abused discretion. Lindsey v. State, 544 S.W.3d 14, 21 (Tex. App.-Houston [14th Dist.] 2018, no pet.). That said, I turn to the record at bar.
To reiterate, the trial judge who adjudicated appellant incompetent in 2019 and restored in 2020 presided over the December 2021 criminal trial. Before finding competence restored, it received the psychologist's report evincing that appellant suffered from not only schizoaffective disorder, bipolar type, but also a "learning disability." Without them, appellant would experience "symptoms" of "hallucinating, delusional, and hypomanic." In other words, appellant was not cured of the mental disorder or illness that rendered him incompetent. Rather, it was subject to control so long as he ingested particular medications. Nothing of record hints at whether he consumed those medications during the many months before trial.
Additionally, a peculiar exchange between appellant and the trial court occurred when the court called the case for trial. Appellant sought leave to directly address the court. Leave was granted. It resulted in appellant broaching the legal concept of "subrogation" and the prosecutor's supposed duty to "certify" his right to it. Moreover, this topic of "subrogation" was a factor mentioned by defense counsel back in 2019 when suggesting the need to investigate appellant's competence, which suggestion began the procedure resulting in a finding of incompetence.
When appellant raised the topic anew, neither the trial court nor the prosecutor understood of what he spoke. Nor could appellant provide clarification. Indeed, when the court asked him for legal authority underlying the claim, appellant spoke in circles; he merely referred the court to the law of subrogation while inviting the court to peruse the internet over his (appellant's) cell phone. Admittedly, a defendant's invocation of odd and inapplicable legal theories alone may be inconsequential. We held as much in Ochoa. See Ochoa, 2018 Tex.App. LEXIS 1816 at *13-14. Yet, no one understood of what appellant spoke here; nor could he reasonably explain it other than by referring to the internet.
During this same exchange, appellant also alluded to "marijuana" despite being charged with possessing methamphetamine. The two drugs are quite different.
Again, we look at suggestions of incompetence and not "some evidence" of it to trigger the need for an informal, as opposed to a formal, inquiry. Logically, the quantum of evidence suggesting that an accused may be incompetent which triggers the need for an informal inquiry differs from the "some evidence" of incompetency precipitating a formal inquiry. See Boyett, 545 S.W.3d at 563-64 (stating that "[a]t the informal inquiry, there must be 'some evidence from any source that would support a finding that the defendant may be incompetent to stand trial' and [i]f that requirement is met, then the trial court must order a psychiatric or psychological competency examination, and . . . hold a formal competency trial"). And, if the quantum of evidence precipitating the formal inquiry "in not a particularly onerous one," id. at 564, less must suffice to prompt the need for an informal inquiry.
In sum, pertinent indicia here included 1) appellant's learning disability, 2) his prior adjudication of mental incompetence, 3) his ensuing adjudication of competence, 4) his dependence upon consuming medication to maintain competence, 5) the lapse of more than a year between the 2019 finding of competence and ensuing criminal trial, 6) appellant's diagnosis of schizoaffective disorder, bipolar type, 7) his interjection of a civil concept, i.e., subrogation, into a criminal prosecution, 8) his inability to explain the relevance or applicability of that concept, 9) the inability of others to understand that of which he spoke, 10) his earlier invocation of the same right as a basis to submit him to a competence examination, 11) the obvious implication that appellant's mental illness was subject to control via drugs but not cure, and 12) the absence of any indication that appellant continued to ingest, between 2019 and trial, the medication needed to remain competent. Together, I deem them more than sufficient to meet the low threshold set by article 46B.004(c) and to require of the trial court a sua sponte informal inquiry into appellant's competence. Admittedly, my analysis does not factor into the equation circumstances suggesting that appellant may not be incompetent. Indeed, I think factoring circumstances illustrating competence into the analysis of whether an informal inquiry is needed runs counter to the requirement that only evidence of incompetence be considered when gauging the need for a formal competency trial. See id. (stating that at the informal inquiry stage the trial court must consider "only evidence of incompetence"). After all, the test underlying a suggestion of incompetence is evidence that the appellant may be incompetent, not evidence that he is competent. And, this too causes me to deviate from the methodology employed by the majority in arriving at its conclusion.
To be specific, I am not saying the record contains some evidence of incompetence, only that it holds evidence suggesting that he may be incompetent. In lieu of affirming the trial court's judgment, I would instead remand the cause to afford it opportunity to undertake a belated informal inquiry. See Addison v. State, No. 09-20-00234-CR, 2022 Tex.App. LEXIS 5737, at *9-10 (Tex. App.-Beaumont Aug. 10, 2022, no pet.) (mem. op., not designated for publication) (so concluding when circumstances called for the inquiry). Should that inquiry uncover no more than a scintilla of evidence of incompetence, then I would join my colleagues and affirm