Opinion
No. 06-18-00013-CR No. 06-18-00014-CR
08-29-2018
JOSHUA WILEY MITCHELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court Lamar County, Texas
Trial Court Nos. 27468 & 27395 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
After a jury trial in Lamar County, Texas, Joshua Wiley Mitchell was convicted of tampering with a witness, aggravated assault with a deadly weapon, and family violence assault and sentenced to fifty years in prison for each offense, with the three sentences to run concurrently.
In all three charges, Mitchell was charged as a habitual offender, and his charge of family violence assault was further enhanced by a prior conviction.
In cause number 06-18-00013-CR, Mitchell appeals from his conviction for tampering with a witness. In companion cause 06-18-00014-CR, Mitchell appeals from his convictions for aggravated assault with a deadly weapon and family violence assault. On appeal, Mitchell contends that (1) the trial court erred in denying his request for a psychological examination, (2) the jury charge was defective, and (3) there was insufficient evidence to support the assessment of attorney fees against him.
Because there was some evidence that Mitchell was incompetent, we abate this matter to the trial court.
I. Factual and Procedural Background
After returning to their Lamar County home from a trip to Houston, Mitchell assaulted his wife, Lauren Hughes, punching her in the face, dragging her into the house, kicking and stomping her with his boots, and throwing their television on her. The next day, on July 20, 2017, the couple drove to the home of Hughes' mother, Janice Hughes, to pick up the couple's one-year-old child, Paxton, who was staying with Janice while they went to Houston for Mitchell's medical appointment.
Mitchell dropped Lauren off on the county road near Janice's house and she hid in the wooded area while Mitchell approached Janice's house to retrieve Paxton. Lauren ran through the wooded area and entered a small convenience store, Homer's Quick Stop. Diane Boyette, the cashier working at the time, testified that Lauren ran into the store and said she needed help. Boyette saw that one of Lauren's eyes was swollen shut and the other was nearly so. After a call from Boyette, the police and medical personnel arrived a short time later and Lauren was taken to a hospital where her injuries were photographed and she described to law enforcement officers what had happened to her.
A few days later, Mitchell was found and arrested. He was charged with aggravated assault with a deadly weapon (the boots), family violence assault and, after having sent almost a dozen letters to Lauren from prison, tampering with a witness. All the charges alleged that Mitchell was a habitual offender. Before trial, Mitchell's counsel filed a motion and supporting affidavit seeking to have a formal competency examination performed on Mitchell, which, after an informal inquiry, the trial court denied. After a trial by jury, Mitchell was convicted on all three charges and sentenced to fifty years in prison for each offense, with the three sentences to run concurrently.
II. Was There Sufficient Evidence to Justify a Formal Competency Evaluation?
In his first point of error, Mitchell contends that the trial court erred in failing to conduct a formal competency evaluation.
The State contends that Mitchell failed to preserve this issue for our review. However, Mitchell requested a formal competency evaluation, it is undisputed that the trial court held a hearing on the issue, the trial court denied his request, and Mitchell later reurged his motion, which was also denied. Therefore, the issue was preserved for appellate review. See TEX. R. APP. P. 33.1(a).
A fundamental principle of our criminal justice system is "that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171 (1975). Due process prohibits the conviction of a mentally incompetent person. Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013); Corley v. State, 582 S.W.2d 815, 818 (Tex. Crim. App. 1979) (citing Bishop v. United States, 350 U.S. 961 (1956) (per curiam)). "A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence." TEX. CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2018). "A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West 2018).
"These legislative criteria for competency contemplate a defendant who is at least minimally able to interact with his trial counsel in a 'reasonable and rational' way (even if they do not necessarily agree) in formulating decisions how most effectively to pursue his defense." Turner, 422 S.W.3d at 689-90. "Under our current statutory scheme, any 'suggestion' of incompetency to stand trial calls for an 'informal inquiry' to determine whether evidence exists to justify a formal competency trial." Id. at 691-92 (citation omitted) (footnote omitted); see TEX. CODE CRIM. PROC. ANN. art. 46B.004(c), (c-1) (West 2018). "If after an informal inquiry the court determines that evidence exists to support a finding of incompetence, the court shall order an examination . . . to determine whether the defendant is incompetent to stand trial." TEX. CODE CRIM. PROC. ANN. art. 46B.005(a) (West 2018).
Here, Mitchell's counsel filed a motion for psychological examination requesting the court to order a formal examination of Mitchell's competency. On November 17, 2018, the trial court conducted an informal inquiry into Mitchell's competency. During the informal inquiry, the State described several recent interactions with Mitchell, including a related hearing regarding a protective order, where he gave appropriate responses to questions and showed a normal understanding of the proceedings. Mitchell's counsel stated, in pertinent part:
While the motion was filed in only one of the two trial court cause numbers, both cases were adjudicated in the same trial proceeding.
I recently met with my client and I didn't get a coherent sentence out of him. I have real issues with communicating, can't stay on track, flights of -- can only be called pressured speech and stream of consciousness speaking. I don't know whether -- I mean he's on a lot of medication for his -- you know, he's being treated for Hodgkin's lymphoma. I don't know if it's a medication issue. I don't know if it's a stress issue. He's decompensating. All I know is the person I was with the other day is not someone I can communicate with, work with or try a case with. I would like a professional to evaluate him.
. . . .
[W]hen I first met Mr. Mitchell[,] I did not see any of these issues. When I went with him for an hour and a half in the jail . . . that is where it became incredibly
clear that -- at that conversation this person wasn't competent. I couldn't get answers out of him. I couldn't get intelligent, coherent statements. I couldn't understand what was -- he couldn't tell me what was happening and I couldn't make him see the necessity or understanding what we are on trial for and what we were doing under the circumstances of this case.The trial court accepted counsel's statements as evidence. Counsel also filed an affidavit that restated many of his statements made during the inquiry in addition to the statement that Mitchell's cancer was terminal.
. . . .
[T]hree months ago I did not see any evidence of incompetency. That's why I'm concerned -- it may very well be a medication issue, something that could be resolved in a relatively short term; but it exists now.
The trial court sought to directly ask Mitchell questions regarding his understanding and competency, but Mitchell's counsel opposed the court's proposed examination, arguing that the trial court was not qualified to do so. In denying Mitchell's motion, the court held that "[i]f the Court can't ask those questions to make a determination then your evidence would not be sufficient to support" a formal competency evaluation.
On appeal, Mitchell contends that the trial court erred in denying his request. The issue is "whether, in light of what became known to the trial court by the conclusion of this informal inquiry, it should have conducted a formal competency trial [or evaluation]." Turner, 422 S.W.3d at 692. We review a trial court's denial of a formal competency evaluation or trial for an abuse of discretion. George v. State, 446 S.W.3d 490, 499 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). Under this standard, we do not substitute our judgment for that of the trial court, but we determine whether the trial court's decision was arbitrary or unreasonable. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds, TEX. CODE CRIM. PROC. ANN. art 46B.004(c-1), as recognized in Turner, 422 S.W.3d at 692.
At the informal inquiry stage, "the standard for requiring a formal competency trial is not a particularly onerous one." Turner, 422 S.W.3d at 692. In determining whether there is sufficient evidence to order a formal competency trial, a court must focus on three matters. "First, the standard at the informal inquiry stage is whether there is 'some evidence . . . from any source, that would support a finding that the defendant may be incompetent to stand trial.'" Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018) (quoting TEX. CODE CRIM. PROC. ANN. arts. 46B.004(c)). Some evidence is "more than none or a scintilla." Turner, 422 S.W.3d at 692. "Second, a trial court must consider only evidence of incompetency, and it must not weigh evidence of competency against the evidence of incompetency." Boyett, 545 S.W.3d at 564. "Third, some evidence must be presented at the informal inquiry stage to show that a defendant's mental illness is the source of his inability to participate in his own defense." Id. at 564; see TEX. CODE CRIM. PROC. ANN. arts. 46B.024(2), (4), (5) (West 2018). Because mental illness is not the only reason a defendant could be found incompetent under Chapter 46B of the Texas Code of Criminal Procedure, the third requirement is, essentially, that some evidence be presented from which a rational inference could be drawn that the defendant's inability to participate in his own defense is caused by an involuntary physical or mental condition—that the defendant is not, by willful election, refusing to participate. See TEX. CODE CRIM. PROC. ANN. arts. 46B.003(a), 46B.024(2) (mental illness, intellectual disability), (4) (degree of impairment), (5) (medication); Boyett, 545 S.W.3d at 564 (mental illness); McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003) ("recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant"); Reeves v. State, 46 S.W.3d 397, 400 (Tex. App.—Texarkana 2001, pet. dism'd) (drug addiction and suicide attempt did not reflect on defendant's ability to understand or participate in trial), superceded by statute on other grounds by TEX. CODE CRIM. PROC. ANN. art. 46B.004.
There must be "some evidence from which it may rationally be inferred not only 1) that the defendant suffers some degree of debilitating mental illness, and that 2) he obstinately refuses to cooperate with counsel to his own apparent detriment, but also that 3) his mental illness is what fuels his obstinacy." Turner, 422 S.W.3d at 692.
Here, Mitchell's counsel met with Mitchell a few months before the hearing, and counsel said that he did not see any evidence of incompetency at that time. However, counsel said that after a pretrial meeting, he believed that Mitchell would be unable to participate in his own defense because during that meeting, Mitchell could not make coherent statements, ask meaningful questions, or understand the purpose and circumstances of the upcoming trial. There was also evidence that Mitchell was being treated for terminal Hodgkin's lymphoma and was taking medication as a part of that treatment.
Disregarding all evidence of competency (as we must) we find some evidence that Mitchell was incompetent because his condition and medication coupled with his recent, detrimental change in behavior would allow a rational inference that Mitchell's medical condition, treatment, and/or medication were the source of the condition preventing him from participating in his own defense. See Boyett, 545 S.W.3d at 564. Having found some evidence to support incompetency, we sustain this point of error and abate the appeal to the trial court. Turner, 422 S.W.3d at 696. "On [abatement], the trial court shall first determine whether it is presently feasible to conduct a retrospective competency trial, given the passage of time, availability of evidence, and any other pertinent considerations." Id. If it is found to be feasible, the trial court shall conduct a retrospective competency trial pursuant to Chapter 46B, Subchapter C, of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. ch. 46B, subch. C (West 2018); Turner, 422 S.W.3d at 696-97. Regardless of whether a retrospective competency trial is found to be feasible, the record of the proceedings on remand shall be returned to this Court for reinstatement of the appeal. See Turner, 422 S.W.3d at 697.
Having found evidence of incompetency in this case, the trial court "shall order an examination . . . to determine whether the defendant is incompetent to stand trial," but because the State opposes a finding of incompetency in this case, the trial court must conduct a competency trial. TEX. CODE CRIM. PROC. ANN. art. 46B.005(a), (b) (West 2018).
The resolution of Mitchell's remaining points of error is unnecessary unless or until the matter on remand is resolved and the case returned to us.
The reporter's record of all proceedings in the trial court shall be filed in the form of a supplemental reporter's record within twenty days of the final hearing contemplated by this order. See generally TEX. R. APP. P. 38.8(b)(3). Any written findings shall be entered on the record and filed in the form of a supplemental clerk's record within twenty days of the final hearing contemplated by this order. See id.
All appellate timetables are stayed and will resume on our receipt of the supplemental appellate record.
BY THE COURT Date: August 29, 2018