No. 01-07-00644-CR
Opinion issued February 3, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Case No. 1035109.
Panel consists of Justices JENNINGS, ALCALA, and SHARP.
TERRY JENNINGS, Justice.
A jury found appellant, Joshua Sherrod Washington, guilty of the offense of aggravated sexual assault and assessed his punishment at confinement for fifty years. In his sole point of error, appellant contends that the trial court erred "in failing to find [him] incompetent and seeking further review of his ability to stand trial." We affirm.
Background
After a Harris County grand jury issued a true bill of indictment accusing appellant of committing the offense of aggravated sexual assault, the trial court ordered, on multiple occasions, that appellant undergo a psychiatric and medical exam. After he had refused to answer questions during the psychiatric examinations, the trial court, on January 24, 2006, conducted a hearing at which it explained to appellant that he needed to undergo a psychiatric examination. At this hearing, appellant stated that the trial court's orders were without merit, denied that he was on any medications, denied that he was incompetent, and stated that he was of sound mind. At the conclusion of the hearing, the trial court informed appellant that it again ordered doctors to visit with appellant and conduct a psychiatric examination. On February 14, 2006, appellant's counsel filed a motion for a psychiatric examination, which the trial court granted. On March 24, 2006, Dr. Edward Friedman interviewed appellant for the purpose of determining appellant's competency to stand trial, and he filed his report, dated March 25, 2006, with the trial court. In his report, Friedman noted that appellant was "extremely reluctant to talk" to him, and, during his interview, appellant would look around his cell and at him "in a suspicious manner." However, Friedman also noted that appellant did not "deliberately call[] attention to his behavior the way inmates who are malingering mental illness often do [sic]." Friedman explained that appellant's "thinking is goal oriented," there was "no obvious indications of delusional thinking," and, "[w]hile appellant refused to discuss any aspect of his case," his "reason for doing so (to protect himself against the possibility of self-incrimination) and his obvious familiarity with the structure and functioning roles of the criminal justice system suggests that he may be competent, a possibility that I do not want to rule out too hastily." Friedman asked that the trial court and appellant's counsel inform appellant about the importance of cooperating with a future examination. The trial court, on April 3, 2006, conducted another hearing at which it again ordered appellant to submit to a psychiatric examination, and the trial court stated that it would otherwise hold appellant in contempt. When the trial court asked appellant if he understood the court's order, appellant responded that he did. On April 17, 2006, Dr. Friedman again interviewed appellant to determine his competency, and he filed a report, dated May 3, 2006, with the trial court. In this second report, Friedman noted that appellant had denied taking any psychotropic medications and, in response to a question about having abused narcotics or alcohol, appellant answered, "Not that I know of" and "Not that I recall." When asked about the pending case, appellant stated that he needed to look at his "reset papers to recall" and he could not remember what he was accused of because he had been assaulted multiple times by jail deputies. Appellant also told Friedman that he had suffered blackouts and memory loss as a result of these assaults. Friedman noted that although appellant reported difficulty remembering his case, he was "very aware" of his legal rights, especially those rights that he believed had "been violated since he was arrested." Friedman explained, Although it is my opinion that [appellant] is being deliberately difficult and evasive, and almost certainly is competent, his resistance prevents me from being able to consider all of the issues that, by statute, must be considered before expressing an opinion on competence or incompetence; and, for this reason, I am unable to give an opinion regarding either [appellant's] present competency or, for that matter, his sanity at the time of the alleged offenses.
On July 20, 2007, at the beginning of another hearing on appellant's competency, appellant stated that his trial counsel was "not [my] lawyer." After several interruptions by appellant, the trial court had him removed from the courtroom. Appellant's trial counsel then noted that he was appellant's "third or fifth" lawyer, and he explained that appellant's prior lawyer had been allowed to withdraw based upon appellant's unwillingness to cooperate. Counsel then introduced into evidence Dr. Friedman's reports and argued that because Friedman could not provide an opinion on appellant's competency, appellant should be sent back to jail for additional "observation" for another ninety day period. Counsel explained that he had been to jail four times to visit with appellant about the case and appellant, each time, had refused to talk with him in order to assist with the case. Counsel could not tell what appellant "is doing because," as the trial court "just observed, . . . [appellant] doesn't really talk" and he "screams and hollers and basically says delusional things." The State, in response, asserted that appellant was competent to stand trial, and, citing records in the trial court's file, noted that appellant had the ability to "write out and think clearly" about the "allegation against him." The trial court, based upon Dr. Friedman's reports and its observations of appellant in the courtroom, concluded that appellant was an "obstructionist." The court found no evidence that appellant was incompetent, and, therefore, concluded that appellant was competent to stand trial. When appellant was returned to the courtroom, the parties conducted voir dire. The record reflects that voir dire was completed without any further interruptions by appellant, and the trial court thanked appellant for being "patient" and a "gentlemen" during the voir dire proceedings. Standard of Review
We review complaints regarding the adequacy of the trial court's informal competency inquiry, and the trial court's finding following an informal competency inquiry, for an abuse of discretion. Luna v. State, 268 S.W.3d 594, 600 (Tex. Crim. App. 2008); Thomas v. State, 312 S.W.3d 732, 736-37 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). Competency
In his sole point of error, appellant argues that the trial court erred "in failing to find [him] incompetent and seeking further review of his ability to stand trial" because, "[b]ased on [appellant's] comments and his behavior, it is inconceivable that he was able to communicate with his lawyer and meaningfully assist in his defense." A person is incompetent to stand trial if he does not have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational, as well as factual, understanding of the proceedings against him. TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (Vernon 2007). 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. Id. art. 46B.003(b) (Vernon 2007). Either party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial. Id. art. 46B.004 (Vernon 2007). On suggestion that the defendant may be incompetent to stand trial, the trial court shall 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. Id. art. 46B.003(c) (Vernon 2007). A trial court should conduct an informal inquiry to determine if there is evidence that would support a finding of incompetence if it "has a bona fide doubt about the competency of the defendant." Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009). A bona fide doubt may exist if the defendant exhibits truly bizarre behavior or has a recent history of severe mental illness or at least moderate mental retardation. Id. The trial court, following its informal inquiry, found no evidence that appellant was incompetent, and it specifically noted that its finding was supported by Dr. Friedman's reports and its observations. In regard to Friedman's reports, the record reveals that appellant participated, at least to some extent, in these examinations. The second report reflects that appellant, in response to questioning during the examination, denied taking psychotropic medications and having abused alcohol or narcotics. Friedman noted that although appellant claimed to suffer difficulty remembering the accusations against him or any history of psychiatric treatment, he was "very aware" of his legal rights. While Friedman, in both reports, reserved rendering an official opinion on appellant's competency in light of appellant's reluctance to answer questions and fully participate in the examinations, Friedman did provide opinions that were probative on the issue of competence and supportive of the trial court's conclusions. As noted by the trial court, Friedman, in his first report, observed that appellant's "thinking" was "goal oriented," "there was no obvious indications of delusional thinking," and his articulated reasons for refusing to fully participate in the examinations and his "obvious familiarity with the structure and functioning roles of the criminal justice system" suggested to him that appellant "may be competent." In his second report, Friedman went further with his opinions, stating that appellant was "deliberately difficult and evasive" and "almost certainly . . . competent." A trial court, at the informal inquiry stage, is entitled to consider such reports in determining if there is any evidence of incompetence. See Luna, 268 S.W.3d at 600 (indicating that psychiatric examinations, even if not necessary for informal inquiry, may be considered by the trial court); Lawrence v. State, 169 S.W.3d 319, 328 n. 1 (Tex. App.-Fort Worth 2005, pet. ref'd) (stating that review of any psychological evaluations of the defendant constitutes "useful source" of information for trial court in conducting informal inquiry); see also TEX. CODE CRIM. PROC. ANN. art. 46B.021(a) (Vernon 2007) (stating that, on suggestion of incompetency, court may appoint one or more disinterested experts to examine defendant and report to court on competency of defendant). Accordingly, we hold that the trial court did not abuse its discretion in determining, based upon Dr. Friedman's reports, that there was no evidence to support a finding that appellant was incompetent to stand trial. In regard to the trial court's observations of his behavior, appellant argues that the trial court was compelled to find him incompetent because of his "nonsensical statements" during the hearings prior to trial and the fact that he had to be removed from the courtroom during the informal inquiry. However, based upon our review of the record, we hold that the trial court did not abuse its discretion in concluding that appellant's interruptions and courtroom behavior did not provide evidence of incompetency. Rather, the trial court, which had the opportunity to view appellant in the courtroom, could have reasonably concluded that appellant was purposefully trying to delay the proceedings. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999) (rejecting contention that defendant's "unruly and disruptive courtroom demeanor" were "probative of incompetence to stand trial"). Here, the record demonstrates that although appellant did make some nonsensical statements during the trial court's two prior hearings, the trial court relied upon its own observations of appellant's courtroom behavior in determining that appellant was simply seeking to obstruct the proceedings. Moreover, when the jury was present for voir dire, appellant did not cause any interruptions and was able to refrain from making outbursts similar to those that he had made during the the informal-inquiry proceedings. See id. (noting that appellant's "outbursts were timely, topical, and logically related to the questions and answers offered during the examination of other witnesses"). Finally, although appellant asserts in his brief that he did not "participate in trial in any way," appellant does not cite any record references supporting his assertion. We overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.