Opinion
No. 06-16-00091-CR
03-09-2017
ANNETTE HARRIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court Bowie County, Texas
Trial Court No. 15-F-0063-102 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Just before Annette Harris' Bowie County jury trial for theft of four cases of beer, Harris exhibited some disruptive and unusual behavior, and her attorney opined to the trial court that he did not think she was "capable of making any kind of informed decision," presumably about whether she wanted to waive a jury for her trial. From her conviction and sentence, Harris asserts on appeal that, because the trial court had before it sufficient evidence that Harris may not have been competent to stand trial, the trial court erred by not sua sponte conducting an informal inquiry into her competency.
Harris' charge was theft of property valued at less than $1,500.00 with two prior convictions for theft. See Act of May 29, 2011, 82d Leg., R.S., ch 1234, § 21, 2011 Tex. Gen. Laws 3302, 3310 (amended 2015) (current version at TEX. PENAL CODE § 31.03(e)(4)(D) (West Supp. 2016).
The jury found Harris guilty, and she elected for the trial court to decide punishment. Harris was sentenced to twenty-three months' confinement in the Texas Department of Criminal Justice, State Jail Division.
Because we find that the trial court did not abuse its discretion by not conducting an informal competency inquiry, we will affirm the trial court's judgment.
Harris contends that sufficient evidence suggesting that she may not have been competent to stand trial came to the attention of the trial court, so that it had a duty under Article 46B.004 of the Texas Code of Criminal Procedure to make an informal inquiry into her competency. Harris asserts that at least the following things should have triggered such an inquiry: (1) the statement made by her attorney questioning her capability to make an informed decision, (2) her abnormal behavior after the pretrial hearing, (3) her statement to the trial court before jury selection regarding her state of mind and her need of medication, and (4) testimony during the punishment phase regarding her past abnormal behavior.
A trial court's failure to conduct a competency inquiry is reviewed under an abuse-of-discretion standard. Tadlock v. State, 484 S.W.3d 560, 570 (Tex. App.—Texarkana 2016, no pet.) (citing Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999)). A trial court abuses its discretion only if its decision is arbitrary or unreasonable. Id. (citing Moore, 999 S.W.2d at 393). Since a defendant's competence concerns her present ability to stand trial, the trial court was in a better position to determine whether she was presently competent at the hearing. See Montoy v. State, 291 S.W.3d 420, 425-26 (Tex. Crim. App. 2009), superseded on other grounds by statute as recognized in Turner v. State, 422 S.W.3d 676, 692, n.31 (Tex. Crim. App. 2013). Therefore, we give great deference to the trial court's "first-hand factual assessment of [the defendant's] mental competency." Montoy, 291 S.W.3d at 426 (quoting McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003)).
When one lacks the capacity to understand the nature and object of the proceedings, to consult with his or her lawyer, and to help with his or her defense, he or she is not competent to stand trial. Tadlock, 484 S.W.3d at 567-68 (quoting Drope v. Missouri, 420 U.S. 162, 171 (1975)). In accordance with constitutional standards for due process, a person is incompetent to stand trial when he or she lacks "(1) sufficient present ability to consult with [her] lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against [her]." TEX. CODE CRIM. PROC. ANN. art. 46B.003(a)(1)-(2) (West 2006); see Turner, 422 S.W.3d at 689. The defendant must be competent through all stages of the proceeding. See Ex parte LaHood, 401 S.W.3d 45, 57 (Tex. Crim. App. 2013) (citing Drope, 420 U.S. at 181).
It is a violation of due process to put a mentally incompetent person on trial. Turner, 422 S.W.3d at 688 (citing Cooper v. Oklahoma, 517 U.S. 348, 354 (1996)).
A defendant is presumed competent unless a preponderance of the evidence establishes that he or she is incompetent. TEX. CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2006). "Unless the competence issue is raised and incompetency is established, the presumption prevails." Tadlock, 484 S.W.3d at 568.
"If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court," the court must, sua sponte, "suggest that the defendant may be incompetent to stand trial." TEX. CODE CRIM. PROC. ANN. art. 46B.004(b) (West Supp. 2016); Tadlock, 484 S.W.3d at 568. If either party or the trial court suggest the defendant may be incompetent, then the trial court "shall determine by informal inquiry whether there is some evidence from any source that would support a finding" of the defendant's incompetence. TEX. CODE CRIM. PROC. ANN. art. 46B.004(c) (West Supp. 2016); Tadlock, 484 S.W.3d at 568. However, "an informal inquiry is not required unless the trial court observes or is presented with sufficient evidence suggesting incompetency." Tadlock, 484 S.W.3d at 569; see TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West Supp. 2016) (a suggestion of incompetency is the threshold requirement for an informal inquiry).
The issue of competency may be raised by a party filing a motion suggesting the defendant is incompetent or by the trial court sua sponte. TEX. CODE CRIM. PROC. ANN. art. 46B.004(a) (West Supp. 2016); Tadlock, 484 S.W.3d at 568. Here, we have no motion or any other suggestion by a party in the trial court, and the question is whether the trial court should have made the suggestion sua sponte.
Sufficient evidence "may consist solely of a representation from any credible source that the defendant may be incompetent." Tadlock, 484 S.W.3d at 569 (quoting TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1)). It "may be based on observations made in relation to one or more of the factors described by Article 46B.024 or on any other indication that the defendant is incompetent within the meaning of Article 46B.003." Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1)).
Article 46B.024 lists the following factors:
(1) the capacity of the defendant during criminal proceedings to:
(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;
(B) disclose to counsel pertinent facts, events, and states of mind;
(C) engage in a reasoned choice of legal strategies and options;
(D) understand the adversarial nature of criminal proceedings;
(E) exhibit appropriate courtroom behavior; and
(F) testify;
(2) as supported by current indications and the defendant's personal history, whether the defendant:
(A) is a person with a mental illness;
(B) is a person with an intellectual disability;
(3) whether the identified condition has lasted or is expected to last continuously for at least one year;
(4) the degree of impairment resulting from the mental illness or intellectual disability, if existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner; and
(5) if the defendant is taking psychoactive or other medication;
(A) whether the medication is necessary to maintain the defendant's competency; andTEX. CODE CRIM. PROC. ANN. art. 46B.024 (West Supp. 2016).
(B) the effect, if any, of the medication on the defendant's appearance, demeanor, or ability to participate in the proceedings.
Contrary to the State's contention, the evidence suggesting incompetency no longer requires that it raise a bona fide doubt in the mind of the trial court as to the defendant's incompetency to stand trial. As recognized by the Texas Court of Criminal Appeals, the Legislature "rejected the bona fide doubt standard for purposes of Article 46B.004" in its 2011 amendment adding subsection (c-1). Turner, 422 S.W.3d at 692 n.32; see TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) ("the court is not required to have a bona fide doubt about the competency of the defendant" to initiate the informal inquiry).
At a pretrial hearing held the day before jury selection, Harris informed the trial court that she wished to continue the trial setting because her attorney had shown her "no video or no nothing." After explaining to her that it would not grant her request, the trial court advised her that it had learned that Harris caused a disturbance in the hall outside the courtroom and that the court was going to have her submit to a random drug test. Harris responded that she did not need a drug test, since she, being under stress, had consumed drugs the night before. On further inquiry, she stated that she had consumed some marihuana the previous morning. Harris agreed that, if she were tested for drugs, no doubt the test would be positive. The trial court then revoked her personal recognizance bond and placed her in custody. When the court asked Harris' attorney if a jury trial was still desired, her attorney asked to talk with Harris in private. When she was asked to leave with her attorney, Harris responded, "Oh, Lord, please. My son gone, lost. Oh, God, please don't do that. Judge, please give me a chance, please." Harris and her attorney then left the courtroom briefly. When Harris and her attorney returned, the following exchange took place:
[Defense Counsel]: I don't think she's capable of making any kind of informed decision -- I mean, she's --Harris argues that the above statement by her attorney should have made the trial court inquire about her competency. However, taken in the context of what transpired at the hearing, it appears that Harris was upset about being taken into custody and that her counsel was saying that she was not in a frame of mind at that time to decide whether she would waive her right to a jury trial. Being upset about being placed in custody does not equate to a suggestion of incompetence to stand trial. Further, neither Harris nor her attorney claimed at the pretrial hearing that she was unable to consult with her attorney or that she did not rationally and factually understand the proceedings. Therefore, there was no indication during this pretrial hearing that she was incompetent.
THE COURT: [State's Counsel], I assume the State's got all their witnesses lined up?
[The State]: Yes, sir.
[Defense Counsel]: I mean, I can go either way. It's whatever the Court wants to do.
THE COURT: [State's Counsel], just be here in the morning at nine o'clock.
The next morning, before jury selection began, the following exchange took place:
THE COURT: . . . . Ms. Harris, can you hear me okay?
[Defendant]: Yes, sir.
THE COURT: All right. Let me just tell you that, first of all, yesterday afternoon you told me that you had smoked some marijuana, I guess, Sunday morning. I don't know of any study, scientific or otherwise, that would indicate that the effects of marijuana or smoking marijuana would last more than 36 or 48 hours. So I don't think you're still under the influence. In addition to that, you have appeared before me five times since April of 2015. Always your behavior has been appropriate. You've never been out of line. Every time you've ever been at the podium in front of the Court, you've conducted yourself in an orderly fashion until yesterday afternoon when you found out you were going to have your bond revoked and a little bit before that out in the hallway. But I did talk to Deputy Miller who is the transport officer. He says you've been fine today. He said he hadn't had any problems with you. You haven't disrupted anything, but the one thing that I need you to understand and impress on you, in just a few minutes there's going to be a jury panel seated right behind you. And 12 of those people are going to be hearing your case starting tomorrow and maybe into Thursday. Your best behavior would be most beneficial to you. If you should conduct yourself like you did yesterday, I just want you to understand that I can have you restrained and gagged. Now, I absolutely do not want to do that, and that's why I've got you in here without the jury panel being in here to tell you to behave. Okay? Do you understand what I'm telling you?
[Defendant]: Yes.
THE COURT: All right. Good enough.
[Defendant]: Can I say something, Judge?Harris contends that the trial court should have conducted an informal inquiry after she told him that her head felt "twisted," was "rattling," and was "not straight," and complained that she was not receiving her medication. The record shows, however, that Harris was able to communicate with the court and understand its instructions to behave properly. There is no evidence in the record that she behaved inappropriately after the trial court's admonishment, nor is there evidence that she had any further physical or mental problems during jury selection. Also, there is no indication in the record that Harris was not able to consult with her attorney or to understand the proceedings as a result of not receiving her medications. Therefore, there was not sufficient evidence during jury selection to suggest that she was incompetent to stand trial. See Tadlock, 484 S.W.3d at 573-74.
THE COURT: Ms. Harris, just speak up loud enough where I can hear you, okay?
[Defendant]: Okay. They are not giving me my medication. I'm sick. My head feel like it's twisted. It seem like rattling. I need my medication. My -- seem like my head is not straight. Seem like my mind is not straight right now, and I need my medication.
THE COURT: And what kind of medication do you need?
[Defendant]: I take Topamax, Topamile [sic], and Seroquel. I take Wellbutrins.
. . . .
[Defendant]: They wouldn't let me take them. They wouldn't give them to me.
THE COURT: The medical people at the jail wouldn't let you take them?
[Defendant]: They wouldn't let me take them, said she can't bring medicine from the outside.
THE COURT: I will check into it.
[Defendant]: I just got out of the hospital with pneumonia, and my shoulder is still hurting me. I got medication for that.
THE COURT: Well, your ability to communicate with me is quite good this morning, I think.
The record does not reflect whether Harris had access to her medications for the remainder of the trial. However, no other complaint was voiced by Harris regarding any physical or mental problems or lack of medications.
The morning of trial, Harris was apparently seated in a wheelchair, to which the State objected. In overruling the objection, the trial court observed:
THE COURT: Your objection is overruled, but I would like to put on the record that [Harris'] mobility and her, I guess, presence of mind in the courtroom for the last two days is sharply different from what I've seen in her appearances in pretrial and on Monday. So I don't know if it's an act. If it is, it's a very poor one. I don't know if it's for the jury's benefit or not. I'm going to leave that up to the jury.The guilt/innocence phase of the trial then proceeded and after the State rested, Harris' attorney asked to visit with his client in private. The trial court then recessed the jury for lunch. After the recess, and outside the presence of the jury, the following exchange occurred:
THE COURT: . . . . [Defense Counsel Shumaker], when we recessed before lunch, the State had just rested. I know you needed a little time to discuss some matters with your client. Have you had ample opportunity to do that?
[Defense Counsel]: I have, Judge, and I've discussed all the options with Ms. Harris and explained to her her options. And based on our advice and our discussion, she's made the decision that she does not want to testify.
THE COURT: Is that correct, Ms. Harris?
[Defendant]: Uh-huh (yes).Then, after the jury returned a guilty verdict, the trial court was advised that Harris was electing to have punishment determined by the trial court. The jury was dismissed, and Harris was examined on her decision:
THE COURT: Mel, just let the record reflect she's shaking her head in the affirmative.
[Defendant]: Yes, sir.
THE COURT: All right. Thank you.
[Defense Counsel]: Judge, I've talked to Ms. Harris and explained to her options on punishment, and she informs me that she would rather go to the Court for punishment instead of the jury. Is that correct, Ms. Harris?Other than Harris' mobility and presence of mind appearing to be different, which the trial court interpreted as an act on the part of Harris, there is no indication of anything unusual in her behavior during this phase of the trial. In addition, Harris was apparently able to consult with her attorney and was able to make an informed decision both to not testify and to elect for her punishment to be determined by the trial court. Therefore, there was no indication that she was presently incompetent to stand trial during the guilt/innocence phase of the trial.
[Defendant]: Yes.
. . . .
[Defense Counsel]: That is your decision, isn't it, Annette?
[Defendant]: Yes.
The punishment phase of the trial began the next morning. Testimony was taken from the arresting officer, Karey Parker, who described Harris' uncooperative behavior during her arrest. He also testified that, at the police department, Harris began yelling out inappropriate things about her anatomy. On cross-examination, Parker testified that Harris did not act like she had mental issues until they got to the jail, when she started exhibiting strange, incoherent behavior. Officer James Harris, who assisted Parker, testified that on the way to the police department, Harris was yelling and cussing, and tried to kick out the rear window of the patrol vehicle. He testified that he has dealt with Harris before and she always acts fine until she is going to jail. Officer Bo Carter testified that he had assisted at the arrest of Harris at her home in 2008. When he arrived at the house, Harris was nude, was yelling and cussing, and was being physically restrained by another officer. He testified that she continued this behavior in the back of the patrol car on the way to jail. On cross-examination, he agreed that Harris' behavior that day was out of control and less than competent.
Chad Ford, a Bowie County Sheriff Department investigator, testified that, earlier in the week, he confronted Harris when she was yelling and cursing in the hallway outside the courtroom. He asked her to calm down and accompanied her to the courtroom when her case was called. Ford also took her into custody after her bond was revoked. After the pretrial hearing, he placed her in the witness room to await transport. He testified that, once in the witness room, Harris took off her t-shirt and bra, crawled under a chair, and attempted a handstand. With the assistance of a female officer, he got her upper body re-clothed and handcuffed her. She then began cursing the court staff, the judge, and the officers, made racial comments and vivid references to her anatomy. Ford also testified that Harris only began her unusual behavior after she was under arrest and in the witness room. On cross-examination, Ford acknowledged that Harris' behavior was not normal, but also said he has seen it before. After final arguments, the trial court, before sentencing Harris made the following comments:
THE COURT: All right. I'd like to, I guess, pretty well end where I started yesterday, and before we selected the jury, I put on the record the fact that I think she has appeared before this Court six times since the case came to light. At no time in any of those appearances did I see any sign of mental illness, no signs of any type of handicap. It seems like evidence of that activity or that condition, those two conditions with her only surfaces when she's been arrested or about to be arrested . . . . And it appears to the Court, she's not a very good thief, and she's an even worse actress. I just don't fall for it. . . . I don't know whether she has mental issues or not. I don't think she does. I think she has a problem with being arrested.While the testimony at the punishment hearing shows that Harris exhibits abnormal, perhaps bizarre, behavior at times, the trial court, who was familiar with Harris, noted that her abnormal behavior manifests itself only when she has been, or is about to be, arrested. Like the other hearings in this case, there is no indication that Harris acted inappropriately during the hearing or that she was unable to consult with her attorney or understand the proceedings.
We find no indication in this record that the trial court observed any of the factors described by Article 46B.024 of the Texas Code of Criminal Procedure which might suggest Harris was incompetent. See TEX. CODE CRIM. PROC. ANN. art. 46B.024. In addition, there is no indication that Harris was at any time during the proceedings unable to rationally consult with her attorney, or that she did not factually and rationally understand the proceedings against her. See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a). Hence, we cannot say that the trial court's decision not to conduct an informal inquiry regarding her competency, was arbitrary or unreasonable. Therefore, we find that the trial court did not abuse its discretion, and we overrule Harris' sole point of error.
We affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice Date Submitted: January 31, 2017
Date Decided: March 9, 2017 Do Not Publish