Christopher Dewa Washington v. State ( 2015 )

ACCEPTED
01-14-00366-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/28/2015 10:02:56 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00366-CR
FILED IN
In ltre Court of AFpeaIs 1st COURT OF APPEALS
HOUSTON, TEXAS
For The First 1/28/2015 10:02:56 PM
JudiciaL District of Texas CHRISTOPHER A. PRINE
Houston, Te:Id. Mr.
Washington's family disclosed the incident where Mr. Washington suffered head injuries
when he was hit by a taxicab as a child, and his intellectual slowness throughout his life,
at that tine. Id. They adrnitted thal they had not advised Trial Counsel previously
because they were embarrassed, and didn't want Mr. Washington to be viewed as
"cra:2y". Id. Trial Counsel became concerned that Mr. Washington was suffelir.rg from
an intellectual disability and further, may not be competent to stand trial.
Trial started on April 7,2010. On that day, Trial Counsel filed Appellant's Motion
lor an Intellectual Disability and Cornpetency Evaluation and an accotnpanying Motiori
for Continuance in order to have the evaluation perfotmed. CR-130. The Trial Court
conducted two hearings regarding this motion. The first hearing was in front of Judge
Wilkinson, a visiting judge in the 1781h District Courl. RR2. During this hearing, Mr.
Washington's family testified to his issues delineated in the background section above -
notably, Mr. Washington's accident when he was 4-5 years old, and his consistent
intellectual slowness since that time. See RR4. Judge Wilkinson denied the Appellant's
Motion for an Intellectual Disability and Competency Evaluation at that 1ime. RR4-80.
A second hearing was held the following day on April 8, 2010 in front of a second
visitingjudge, Judge Mallia, regarding the Appellant's motion for an evaluation and short
continuance. RR4. Judge Mallia also presided over'the tlial lor Capital Murder. In the
second hearing, one mernber of Mr. Washington's family came forward to expound on
Mr. Washington's low intelligence that had been discussed the day before. See RR4.
Trial Counsel also advised the Court that Mr. Washington was unable 1o assist in Voir
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Dire on April 7,2010, and detailed the usefulness of this evaluation for challenging the
motion to suppress and the foreseeable element of party liability. RR2-5-11. Trial
Counsel discussed with the Trial Courl that he would need only a few days to conduct the
evaluation, and provided a neuropsychologist who was available to conduct the
examination immediately. RR4-7. Visiting Judge Mallia denied the Motion for arr
Intellectual Disability and Compelency Evaluation, and wanted the trial to go forward as
planned. RR4-80.
On April 9, 2010, plior to the prosecution publishing Mr. Washington's confession,
Trial Counsel moved again for an inlellectual disability evaluation and a continuance to
allow the evaluation to occur. RR6-46-50. Trial Counsel again notified the Trial Court
that they had a neuropsychologist, Shawanda Anderson, available to do the evaluation
In support, Trial Counsel noted that he is re-urging now as the evaluation could be
valuable to the admissibility of the statenent, and to Mr. Washington's decision to
testify. RR6-46-50. Trial Counsel admitted the affidavit of his co-counsel at this time
revealing some of the issues he had noticed while attempting to wol'k with Mr.
Washington in preparation for trial. RR6-46-5, CR-142-143. Further, Trial Counsel filed
Appellant's Motion for a Coutested Competency Trial under 458.003 and 468.051 of the
Texas Code of Crirninal Procedure at this tirne. RR6-46-50. All motions were denied
by the Trial Court once again. RR6-50.
7
SUMMARY OF THE ARGUMENT
Appellant filed a Motion for an Intellectual Disability and Competency
Evaluation in this case prior to trial. After two hearings, the Trial Coufl denied the
Appellant's access to an exped that could assist the Appellant in building a defense to the
Capital Murder charges. The Trial Court again denied this tequest when Appellant
moved for the evaluation prior to the admission of his confession that was made to
investigators in this case. This denial of access to expert assistance violated the
Appellant's Due Prooess rights to the basic tools necessary to build a deferrse. These
rulings by the Trial Court called into question the fundamental fairness of the ttial, and
thus, the case should be remanded for a new trial on the rnerits.
Appellant also filed a Motion for a Contested Competency Trial pursuant to 468
of the Texas Code of Criminal Procedure. Prior to the Trial Court's ruling, Appellant
placed a valiety of evidence before the Trial Courl lhat pointed to Appellant's inability to
assist in building his defense - notably that Appellant did not have the sufficient present
ability to consult with Trial Counsel with a reasonable degree of rational understanding.
The Trial Courl abused its discretion when it found that the evidence put forward was uot
more than a scintilla, and thus, denied Appellant's Motion for a Contested Competency
Trial.
8
POINT OF'ERROR ONE
WHETHER THE APPELLANT WAS DENIED DUE PROCESS WHEN THE
COURT REFUSED TO ALLOW THE APPELLANT TO OBTAIN THE
ASSISTANCE OF A PSYCHOLOGICAL EXPERT
ARGUMENT AND AUTHORITIES
a. Rule of Law
Due Process under the United Stales Constitution requires that a defendant have
access 10 tlre basic raw materials integral to building an effective defense. Ake t,.
Oklahoma,47O U.S. 68, 105 (1985). These basic raw materials include the help ofa
defense expert. 1d. The irnporlant questior.r when deciding if an expert is needed, is how
important the scientific issue is in the case and how much help the def'ense expert will be
to the defendant's case. .Rey v. State,897 S.W.2d 333, 338 (Tex. Crim. App. 1995).
A defendant is entitled to expert assistance if the defendant establishes a
substantial need and that the fundamental fairness ofa trial is called into question without
that assistance. Rey, 897 S.W.2d 333, 338. There are three factors the coufls look at
wlren considering whether a Defendant is entitled to the assistance of an expefi. Ake v.
Oklahoma,470 U.S. 68, 77 (1985). The first factor is the private interest that is at stake.
Id. The private interest of the defendanl lies in the accuracy ofthe outcome of a criminal
lrial. Id. at 78. This private intetest of the defeudant is "obvious and weighs heavily"
due to the potential for loss of liberly. Id. aL 105. The second factor is the interest of the
Slate. Id. The State's only interest is judicial economy. 1d The Coud has found that
this interest is "not substantial" in light of the Defendar.rt's and the S1a1e's interest it'l the
accuracy of criminal proceedings. Id. a|79. The third factor looks at how impo(ant the
expert testimony will be to the Delendant irr building an effective defense as well as to
9
the factfindel in resolving issues in the case. 1d
'l'he Coutts use tlle thl'ee lactor lcst to
delermine when an expell is irnportant enough to truilding a clefense thal zrcoess is
lequired, Iley, 897 S.W.2d 333, 337. The Court notes that a Defendant nray be devastated
by the absence of psychiatric testimony; while with that testimony they would have a
reasonable chance ofsuccess. Ake, a|83.
b. Three Part Test in Ake
Though the facls in Ake lelated to the aid of a psychiatric expert for the insanity
defense, Texas Coufis have expanded the lfte decision to all expert assistance. Rey, at
338. The Due Process test melely leans on the question of fundamental fairness
calculated by weighing three factors: 1) the private iuterest at stake, 2) the interest of the
state, and 3) the imporlance of testimony in building a defense and aiding the factfinder.
Id. a|337-38.
1. Private Interest
The Defendant in this case was charged with Capital Murder, and was facing a
life sentence without the possibility of parole ifconvicted. The Courts have consistently
held that a Defendant facing any charge has a substantial interest in the accuracy ofthe
proceedings. Tl.re inlerest is obvious when the Liberty at stake is as substantial as the
punishment that follows a Capital Murder conviction. The Private interest in this case
weighs heavily.
2. Interest of the State
The Courts have looked at two areas when reviewing the state's interest in an lfte
analysis, judicial economy and burden to provide the expefi. Rey, at 339, In Rey, lhe
t0
Appellant asked for a pathologist to aid in building a defense to a Capital Murder charge
out ofRandall County, Texas. Rey, at335-36. The defendant filed the motion for expeft
assistance prior to trial, and the trial court ruled on the nlotioll aftel healing the testinony
ofthe state's pathologist. Id In review, the Court of Criminal Appeals found that
because there was a pathologist available in a "one-day" drive to Dallas, Texas, and that
his fee was expected to be $2,200, that the state's interest in judicial economy was not
substantial in light ofthe their overlapping interest in the accuracy of the proceeding.
Rey, a1339.
In this oase, the Appellant had acquired an expert to assist in building a defense
on a Capital Murder charge. RR6-47. This experl was able 1o evaluate the defendant
within 3-4 days. RR6-47. There was no fur.rding asked of the Court at the lime the
motion was filed or ruled upon. Appellant's Motion for an httellectual Disability
Evaluation and Continuance was filed and ruled on twice prior to the first witness taking
the stand, and again at the introduction of1he Appellant's confession. RR2-52, RR4-12,
RR6-46-50, In order to provide the defendant due process, the Trial Court in Rey would
have had to continue trial for a brief period to allow the expert to review the case. This is
true, because the Trial Court ruled on the Motion lbr Pathologist during trial. Id. a|335-
336. The Appellant's Motion for Continuance does not separate this case from the
decision in Rey. Considering the state's conculrent interest wilh the defendant in the
accuracy ofthe proceedings, the state's interest in judicial economy is not-substantial in
light ofthe Appellant's interest. The Appellant's interest weighs more heavily than the
interest ofthe slale as in Ake and Rey.
i1
3. Importance of Expert Testimony - Threshold Showing
In the third pron g of the Ake test, the Defendant must make a threshold showing
that the issue for which the expefl is to testify or evaluate is "likely to be a significant
factor" attrial. Ake v. Oklahomq, 470 \J.5.68, 82-83, 86. In Rey, the Court found the
issue 1o "likely be significant" as it went 10 the core ofthe Appellant's defensive theoty.
Rey, at 340-42. In cases where the threshold showing was not met under the Ake test, the
Defendant typically failed to articulate a defensive theory and why the defensive expert
would aid in establishing that theory. Id. at341; Moore v. Kemp,809 F.2d702,717-1'8
(1 lth Cir'. 1987) (defendant's request not sulficient where he did not advise cout't oftype
of expcrt sougl.tl or role expert would play, hc did not offbr namc of oxpoll that miglrt be
available or s1a1e what the expert coulcl have conlribulecl to Id. Texas Penal Code $ 7.02(b) is the only
viable tlieory for the prosecution if specific intent is not at issue outside the underlying
robbery. AIl other theories of parly liability require a specific intent on part of the
Appellant in order to be guilty of the actions of co-conspirators. The State solidified their
dependence on this theory by stating that from opening statement to uow, the language in
$ 7.02(b) has been the issue in this case. RR7-137.
Defense Counsel built his defensive strategy arourd the fact that the defendant
should not have anticipated that one ofthe co-conspirators would take the life ofthe
robbery victim. The Appellant depended on distancing himself from the actions of his
co-conspirator - defending against the "should have anticipated" language of $ 7.02(b).
This was evident when Defense Counsel stated in closing argument: "But here's the other
truth: Christopher didn't kill hinr. He didn't agree to kill him. And no one could have
foreseen that David Rodriguez was going to die that night, except maybe the mad man
that did it."
d. Conclusion
The defendant meets the threshold showing requirement of Ake's third prong
The tlrird prong of Ake tequires the defendant to show that information from the expert
will likely be significant at trial. Appellate Courts have looked at two different areas
when deciding whelher this threshold requilement ofsignificance has been met with the
Trial Court Judge: Whether the Defendant laid out 1) a defensive theory and how the
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expert would aid in that theory, and 2) how impo(ant the issue that the expert was going
to discuss was to the underlying case.
Here the defendant laid out to thejudge that he wanted an evaluation for
intellectual disability to support a defensive tl.reory related to the conspiracy allegation by
the State. More specifically, to go towards whether the defendant should have
anticipated that a co-conspirator would commit capital murder during the robbery.
Appellant articulated not only the reasons for his concerns about the defendant's mental
ability, but also outlined the subjectivity oftbe $ 7.02(b) standard that was the crux of tlre
State's case and how an evaluation could procure valuable evidence to fighting the
"should have anticipated" element. Trial Counsel atticulaled the defensive theory he
wished to expound upon, and how the expert could assist in that theory.
Further, it cannot be overstated how central and crucial the "should have
anticipaled" language was during the prosecution of the Appellant. It was the crux of the
prosecution's case from pre-trial motions through closing argument. During the olal
motion for an evaluation prior to trial, the state conceded that $ 7.02(b) would be the
basis for their charge to thejury, and in fact, $ 7.02(b) was the only theory that the
proseoution laid out to the jury as a viable avenue for conviction in closing argument.
This was the central issue to the case, and the imporlance ofhaving expefi testimony to
combat that attack is apparent fi'om the record.
The Defendant met his th eshold requirenent under Ake based upon his
articulation of 1) his defensive theory under $7.02,2) the way the expert would be used
to assist in building that theory, and 3) articulating the impofiance ofthe "should have
anticipated language" prior to 1he Trial Court ruling on the Motion.
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E. Motion to Suppress Defendant's Statement Under Miranda
a Rule of Law
In Mirttttdu v. Arizlna. the Supfeme Court or.rtlined 1he fiamework lot slatemenls
lhal arc made to the state duling custodial inte::rogatiou. 'l'he Coul't recognized that
r:ustotlizrl iutelrogations. by their ver1, natture, genelate "compelling pressurcs wliich wotli
to underrninc thc iridividual's will to tesist ancl to contpcl hint to speak whole hc would
no1 othelwise do so lieely." Mirundu t,. lrizona,381 tJ.S.436,467 (1966). Inoldelto
cornbat the inlrcrenl conrpnlsior.r associatcd with custodial ititot't'ogatiot.t, fu[irandtt
ir.nposecl procedules lhat police must Jbllow when denling with an aooused. A'lortut t'.
IJurbine,475 1J.S.412,420 (1986). Notab)y, Lhrtuda mandated that priolto the
initiation o1'queslior.ring. the zrccused rnust be fully inlbrmed oftheir rights to teurain
silerrt and 1o havc counsel ptcsct'rr. A4irutdtt, a|468. Once the accnsed hzrs becn rcad his
lighls r:ndel Mirtmda,ll.re accused nrusl make a kuowiug, inlelligent, alld volutltary
waiver o1'those lights fol queslioning to contillue. Id.ar444.475. I'hc Mirutcla *:'aiver
has two distinct hurdlcs that rnust be orclssecl lbr'1he waiver 1o be eflcctive. Brewer v.
l!/illiunts,430 U.S. 387,404 (1977). ltirst. thc accused's waiver ofhis liglrts must bc
volunlaly - a producL o1'liee and deliberate choice ralhet than intinidalion or coetoion.
.A4oran, at 421. Second, 1he accused nrust have futl awareltcss of Lroth the trature of the
righls he is waiving and the consequences o1'the deoision to waive those righls. /d.
Considering the "totality ofthe cilolunstances", both oflheso staudards nrust be tnel
belbre a coLn't rnay oonolude theit ar ar,:ousecl's,l4irundu righls hacl been waivecl. Falc t,.
A4ichael O., 442 \1.5.701 .125 (11)'79).
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Whcn looking at rvhethcl an accnsed has full arvarer.ress ofthc natute ofhis tights
ancl the oonsequences ol'1he decision 1o waive those rights, a courL n.rus1 look at the
particular thcts and cilcumstanccs, including the background, cxpetietlce, conduct, atld
ecluoation ol'the accused. ,Iohnson v. Zerbst,304 IJ.S.458,464 (1938). All laots ur.rique
to the accuscd lhat havc bcaring ou his cotrptehcnsion of his rights ate relevant il.l
delernrining whethel the waivel is linowing alrd intelligent. L.eza v,Stttle,351 S.W.3d 344
'l'his u,ould ir.rclude lowcred intellect. dlug usc, ol othcr menlal clisorclers. Oursltourn r,
Srare,259 S.W.3d 159, 172 (Tex. Clim. App. 2008).
The stale of Texas has codified Miranda iu Texas Code o[Climinal Pt'oceclule
38.22. tJnder'l'exas Code of Climinal Procedurc 38.22(2)(a), an. accused mltsl Lre tead
five lisred righls belil'e any questioning by oll'icers. Tex. Ctin. Proc. Ann, Lfl.38'22
Sec. 2(a). If tlrc statcmcnt ofthe irccnsecl is vidco rccorded thcn these rigbts must bc
lead to 1he accrrsed on rer.:older prior'1o questioning, aucl the accusc.cl lntlst Illake a
l565 S.W.2d 938, 940 (Tex. Crim. App. 1978).
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a. A4ol io n wos T nel.r l:'/lad antl Presenl.ed with Suorn Alfidavit
On ApLil 10,2014. thc july lorurd the defendant guilty o1'Capital Murder'. and the
Tlial Court sentenced the del'endant 1o ti1'e in plison without the possibility ol parole. CR-
148. A notice of appeal was timcly filcd on Aplil 10,2014. Cllt-l52 On May 9,2014,
tlie Appellant timely liled a Motion lbl New 'l-r'ial with the 178(l' Dislrict Cotrrt o1'Harris
County, l'cxas. Clt-157. 'l'lre Motion was prcscuted to thc cooldi:iatol of the 'flial Court
in conrpliance nith 'l'cxas Rule of Appellate Ptooeclut'e 2l.6. ,\ee C1t-i71. Attached to
tlre Motion fol New 'l'r'ial was an aflidavit from 'l'r'ial Counscl. 'l'he Motion for Ncrv l'r'ial
and supporting alldavit delailed the lac1s underlying the groutrds 1'or 1hc Appellant's
Motion for Ncw'l'r'iaJ - notably, the Trjal Corut's 1) dcriial of Appellanl's requcst to
obtain an expelt 1br- assistanoe in building a deJ'ense under -,1/rc, 2) denial o1'tlie
Appcllant's molion to continue so thc deltndant could be evaluated by tliat expert, and 3)
denial o{'the Appellant's request lbl a compelency trial. CR-157-166. The Appellant
rcqucstcd ar oral healing in ordcr to expand the record with live testimony lelating to thc
Appollant's intellectual disability thal'I'r'ial C'ounsel hacl not been allowetl to pursue
during 1hc tlial. 'l'his request 1br a hcaling rvas made 1o insure a correct decisiorr was
nrade in the Motion Ior New 1\'ial and meaningl'ul review could be olrtaiued on tlireot
appeal.
'I'he Motion fol New'frial was timely Iiled, pr:opelly pleseuted to 1he'frial Cjourl.
and was supportcd by an affidavit lrorn 'l'rial Couusel clelailing glouuds fol relief. 'l-his
lirst prong o1 the antrlysis is met,
3l
b. Apnelku'rt's Motion fo r New Trial an.d suooortins affidut,it nolified
t lrc Triu l ('o t rrt,tf rcu.soua ls l t' g rounJs frtr rclicfthut \'(r( ttol
detenninable fi"om tlte record
i. Rule of Lalv
'l.'exas Ilule of Appellatc Proccclurc 21.3 lays out a list o1'spccific grouucls that
woulcJ entitle aDelendantto leliel'in a Motion 1'orNew'Tlial. lJnder'21 3(b), a dcfendarlt
is entitlcd to a ncrv tlial if the 'll ial Court has conimiltcd a mzrterial clrot likcly 1o injure
tlie Delbnclant"s rights. Further, the Trial Courl is not limited to 1he eight aleas Iocated in
'l'exas Rule o1'Appellate Proccdntc 21.1i, and l.ras discretion to glant relicl'iri the
Del'endant's motiolL fol nerv trial lbr other reasous. "For I30 years, out trial oourls have
had the discretion to grant a new trial in the intcrest ofiusticc. I{ule 21.3 does not
provicle an exhauslive list." T'atlor v. Slate, 163 S,W.3d 277, 282 (Tex. App.-Ausliu
200s).
The Motion lbr New Trinl and suppo ing affidavit clelailed llvo distincl grounds,
that oould enlitle thc l)c{tndant to leliel'anci wero not clctclrlinabls fi'om thc rccord.
Since the denial of the Appellant's Motiori lbl a Clonipelency 'll ial under 468 could be
asosrtaincd frorn tho rccold, it is no1 argued in this scction.
ii. Ground for lLelief und er Ake v, Uniled Stales
n, Ann t'!luttt tttttilicd tlrc Trittl Ctttrrt ol rcusonublc
rounds lhat cou.ld entitle l m lo relie
'l'he first ground for lelief in the Appellant's Motion lbr Ncw'l't'ial rvas a
ohallerrge wder t\rc. Priol'to trial. Trial Counsel moved lbt au evaluatiou of the
Appcllant by a nouropsycJrologist in lwo hcaliugs on his Motion for lntellcclnal
Disabilily and Compelency Evzrlr,ration. "frial Counsel re-ltrgecl this rnotion il'hile
32
obiecting 10 l)re pr.osccution's offcr of tlic AppeJlant's conf'cssion in Slate L,)xhibit 3A. In
llie suppolting alhdai,il, Tlial Counsel detailed thal days bel'crre trial the del'endant had
been unablc to assist him in buildiug a de1-ense for his case. CIR-165. Atound that same
tirne, inlbrmation hatl beeu obtained fior.n 1he lamily thaL the Appellanl lterd been stluck
b5r a oar a1 a yonllg age, and had not becn "r.ight" thcr.cafier. clR-165. 'l-rial counscl also
details how expert lestinony rvould have been usecl to aid in the del'ense o1'the Appellant
at lrial thlough dcfcnding against whclhcr 1hc dcfendant oould reasol.rabll' .[oresee thc
actions ol'the co-oonspiir.ttors, and rvhether'1he del'enclant's waivel o{'l.ris Mirtutt}a rigl't|s
rvercknowing,intelligent,andvoluntaly,ClR-165.'lhcattackunder',4ftedctailcdaclaim
that the due lrrocess r.ights o1'the def'endant hac{ been violaled by the Trial coutt rvlten
they failed 1o providc cxpefi assistance 1br use at trial.
'Ihis issue lalls under relieflhat cau be sought uncler Texzrs Rule of Appellate
Proocclulc 21.3(b) a matolial elror that is liltely to iniuro tlie dcfonclant's tights. Ar the
very least, a violation oI the Appellanl's Clonstitulional Righls as sla|ed in Akc shoulcl lall
uncler 1he Court's discrolion as otltcr grotutds lot lelicf made in the inlerest ofjustioe
'lhis issue was plopelly taised to the l'r'ial Courl, and detailed leasonable glor"rnds thal
coulcl lravc cntitled the Appellant kr lclicl
b. Th e Ake lsstte i,s t'tol Delerminable /rom lhe Record
In detcrrtining a [)ue Proccss claitl uuclct ;{/rc, thc maiu issttc is hor.v i1'llpol'tant
llie scientilio issue is in the case, aud how much help a defeuse expert could hzrve given
llclt 1t. f1141u, 897 S.W.2d 333. 338 ('l'ex. Clim. App. 1995).
1.)
Givcn thc standard 01'the Clonstitulional claitn unclet Ake,lliis issuc rvas not
determinable li'onr the trial lecord. The Trial Coult liad uo1 allowed lbl re Appellant tcr
be evaluatcd fol an intellcctual disability prior to liis couviction. 'l'o determit.rc whcther
the Del'endant's DLre Process rights rvete violated the Trial and AppellaLe Clottt'ts musl
lool< at how importanl the scientific issue is in the case and how much help the defense
expert could havc bcen (emphasis added) to the Appellant's case at trial. Though the
Appellant was able to make a thleshold showing about the imporlance of the issue, he
was unable 1o give the concrete evidence that is needed to bolster the lfre claim. In the
Appellant's Motion for New Trial, Trial Counsel included affidavits alleging the facts
within his knowledge that gave rise to the possibility ofan intellectual disability, but
these statements pale in comparison to the power thal live testimony on the issue could
have garnered. The Trial Court in the Motion for New Tlial and the Appellate Coutls
would have been greatly aided in hearing more concrete information on the subject of
Appellant's perceived intellectual disability.
'l'he I\4otion fbr Nerv'l'rial requesled an olal hcariug so that thc tccord could be
expanded u,ith r.nole tangible inlblmation on the Appellant's jntellectual state. Willioul
this adclitional ovidcnce, the'l'rial Court in thc Molion {bl Now'l'r'ial ancl 1hc Appollatc
Court on appeal cannot clelelmine the valiclity of the Duc Ptocess isstte raised ul.rder.,lka.
An cvaluation and firlther ovidence on any inlellectual disability was nceded in ordet ttr
mle on the ,,lfre issue and to expand the record fol Ayrpellate Cout1s to niake a decisiou on
a possiblc violation of'1hc clcltndant's constitutionerl rights. Ciiven tltc two goals ofthe
Motion lbr New Tr:ial, to decide i1'Ihe case neetls to be lelried at.rd to expaud the r-ecorcl
lbl meaningfr-rl nppeal,lhc l'r'ial Court should havc glantod the Appe llant's reqttesl {bl a
34
I.rearing on the Motion fol Nerv'l'r'ial. As it stancls" the Appcllatc Courts al'e stLlck to
pondel ila tlue intellectual 906 S.W.2d 500, 517 (Tex. Crirn App. 1995). A trial coult
ll'ill en'in not gr'anling a molion fbt oontinttanoe if thc oasc Ibt'a coutittuatlce was so
convir.rcing that no leasonable j uclge r.vould have urade that ruling in light ofoourL
scheduling and thc iuterest of the stale- Gonzales v. Slate,304 S.W.3d 838, 842 ("['cx.
Clim. App, 2010). 'lhe appellate court will lind hann in the denial of a uotion lo
contirue "'only if thc lccord shorvs rvith consiclolzrblo spcci{ici1y horv the clcltudalrt was
harrned by lhe absence oltnole preparation title than he actually liad "'1d
In the Motion lbr New Trizrl aucl the sr4rporting allidavit the facls lelating to the
Appcl)ant's Molion for Continuauce wcre outlined tblthc'i'rial Courl. CIR-157-165
35
'lrial Counsel askecl for a conlinnancc at various stages of thc proccedings in ordet to
obtain expert assistance to evaluate the Appellant l'crr au iutellectual disability, S'ze Itll4-
80, Itl{2-52, Itlt6-50. 'll'ial Clounscl articulated 1he exaol clel'cnsivc theorics thal the
expert's testimony would nid in eslablishing. Trial Counsel notified the l'r'ial Cotrrt that
the contiunance would only lake a ferv days and thal a ncnropsychologist had already
been selected who was availnble 10 oonduct 1l.re evaluation.
Ilthc'l'rial Cburt did abuse thcil disclction in dcnying thc Appe llarrl's Motion lor
Cor inuance. lhis would be a tnalerial en'or thal was likely to inj ule the liglrts o1 llie
clclcndant, cntitling the Appellantto lelief undcr'21.3(b). In adclition. any en:or iu the
denial o.fthe Appellanl's Motion 1br Continuance could hzrve enlitled the Appellant to
relief in the intcrest oljustice outsidc of the gror.rnds lislod in 'l'exas I{ulo of Appe)late
Procedure 21.3. l'he Appellant liolifir'd the Tliarl Court ofleasonable grouncls that could
cnlitlc thc Appcllant 1o rclicl
b. The Mol iort fbr Cortl.inuance Lssue vtas nttt
Determinable ft'ont tlrc llecord
A'l'rial Cour-t's "Denial of a Motion lbr Continuance rvill be found an abusc of
disr:r'etion on appeal only il'the r-ecorcl shows with considelable specifioity liow the
clel-endant rvas halmecl Lry the abscnce olmote preparation titne than lie actually had. 'l his
showing can orciinarily be matle only at a healing on er motion lbr uerv trial, beoause
almost ah,vays only at that tine will thc defendanl be ablc to ploduco evidencc as to what
adclitional inlblmalion, evidenoe or witnesses the c1e1'ense rvould hzrve had available if. the
motion fol delay had treen glanted." (ionzrtlev v. Statc,304 srv3d 83 8. 842-843 ('l'ex.
Clrirn. App.2010).
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ln Cionztles, the def'endant askcd fbr an expert 10 assist in blrilding his defcnsc in a
child sextral assault case. Id. ttt840. Specifically, 1he del'endant algued iat an expel1 was
needed to rcrricw the mcdical lecorcls ofthe child victim in that case. /d at 841 'l'hc
del'endant's requesl lbt'a ueclioal expelt was ntade the day o{'1rial, and the trial oourt
dsnicd a rrotior.l for contiuuauce to allowthe expert 10 prcpare fot'trial. Id Aftct
conviotion, the delendant filed a rnotion fbl new tlial reqr:estiug an ol'al hearing to
dcvclop thc harrn related to the defetrdaut's allcgation that the'l'rial Cotrt abused theil'
discletion iri deni,ing the molion to continue. Id. al84l-842. The Trial Court cleniecl the
rnotion fol new tljal wilhout a hearing.
The Ciourt olCrirlinal Appeals helcl tliat the Trial Courl did not zrbuse its discletion
by lnling on thc Motion lor Ncw '[ rial without a ltearing. 'l'he C]our1 in (iontrzttlcs, slalcd
tharl 1he Trial Clor"ut had to make a cleternrination on i1'there r.i,as elror itt 1he denial o1'the
Defbndant's Molion lor Contiuuaucc bcfbre the harnt analysis was.justificd. Id. at 843-
843. If the Juclge tburd no enor iu the denial o1'the coutinuance thcn the de1'endant
would not neccl to develop harm in the second patt ofthe analysis. /d Put dilI'crently' thc
Trial Clourt woulcl never ge1 to the harm analysis, ancl therefore. thc issue coulcl be
dclclrnir-rable Ii'orn thc locold r'r'ithout livc tcstimony. /d In so linding, thc Corrrt of'
Clrirninal Appeals ernl:hasizecl Lhal continutlnccs based ot.r the abseuce o1'a witness
recpriro the clelenclant to dctail the due diligence that was lurdcflakeu in proclrrirrg tlro
rvilness, and why they were unable 10 requesL the rvitness unlil the da),oltrial. 1d ln
(ionzules, cotinsel for thc defendanl had beon on the casc for 8 months atid gavc uo
explanation for waiting unlil Lhe clay oflrial belbrc requesting arssislance frotn au expert
ancl a c422 S.W.3d 676, 689 (Tex. Crim. App. 2013);
'l'cx. Crirn, Ploc. r\nn. Art. 4613.003(a), 'l hc Dcf'endanl musl n'Icet bolh prongs of thc tcst
10 be conpelenl 1cl stand lrial as the del'endanl's abilily to lationally assist in his deletrse
is indispensablc to his cor.npetcucy. See'lurner, a|689.
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To protect the due process rights ofthe Defendant, the trial courl is obligated to
inquire into the accused's competency once the issue is sufficiently raised. Id' A nere
suggestion of incompetency is sufficient to raise the issue. Turner, at 692. Orroe the
issue of the defendant's currpetetlcy to sland trial ltas beer1 suggested. 1he courl sl.rall
determine by "informal inquily" whetltet lhete is sotne evidence fi'om atiy soluce that
would support a findiug that the defendant rnay be incompetent to sland trial. Tex. Code
Crirn. Proc. Ann. afi.46B.004(c) (Vernon Supp. 2006). lf there is in fact son.re evidence
fronr any source to suggesl thal the de1'endant may (cntphasi's atlded) be incompetent 1o
stand tr:ial then the Trial Courl shall order a competeucy heariug. Turner, a| 692. 'fo
make the determinalion if some eviclence exists, the Tlial Court must put aside all
competillg evidence that suggests colnpetence. and decide if more than a scintilla of
evidenoe exisls that may rationally lead to a conolusion of incon-rpetency. 1d If this
standard is rllet then the Trial Courl rnust ordet'a competency lrial. 1d. If a cour-t holds a
trial to determine whether the defendant is illcompetent to stand 1rial, on the request of
either palty or the motion ofthe court, ajury shall make the determination. Tex. Code.
Crim. Proc. Ann. art. 468.051(a).
Trial Counsel in this case filed a Motion for an Intellectual Disability and
Competency Evaluation and a Motion for a Contested Competency Tlial under Texas
Rule of Criminal Procedure 46B. CR-130, CR-136. Appellant also made nunterous
suggestions to the Trial Court relating to his concerns about the competency ofthe
Appellant thloughout the ploceedings as detailed in the pr-ocedure facts portion of this
brief. These motions and oral assefiions rnade to the Trial Couft were sufficient to raise
the issue of competency triggeling an informal inquiry by the Trial Court. The Trial
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Court tnade this informal inquiry in two liearings where the Appellant's family testified
legatding the Appellant's intelligence issues, and affidavits ofthe Trial Counsel and his
co-counsel's observations were presetrted to the Trial Court and put in the Clerk's Record
on Appeal. RR2, RR4, CR-142. The only issue being contested is whether there was
more than a scintilla ofevidence that the Appellant did not have sufficient present ability
to consult with Trial Counsel with a reasonable degree ofrational understanding, such
that the Trial Court abused its disctetion in not granting a competency trial.
a The Trial Court Abused its Discretion by Not Granting the
Appellant's Request for a Competency Trial under Texas Code
of Criminal Procedure 468
During the two hearings on the Appellant's Motion for lntellectual Disability and
Competency Evaluation, the Appellant put forward facts lelating to his intelligence
issues. This evidence came by way of testimony from the Appellant's family and
affidavits from Trial Counsel. The evidence is as follows:
1. Appellant never'finished lJigh School. Itl{2-9.
2. Appellant had issues rvith his mernot'y. RR2-18.
3. At four or Iive yeats old, Appellarrt rlas struck Lry a taxicab r'vhile riding liis
bicycle. 'l'his inciclont causcd thc Appellant to bc hospitalizod fot two days fbr
hcad irrj urics. RR2-34.
.
4. Farnily mcmbers rnlrst repeal simple ir.rslr'uctions to the Appcllant over and ot'cr
belbrc he undelstands. I{l{2-23,
5. Appollant is easily inlluenccd by olhers and I'ails 1o think lbr himsclL l{11.2-26.
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6. Appellant is unable to livc orr his own at the age of40. as he is unable to do the
sinrple tasks it would tal422 S.W.3d 676.689 ('l'cx.0im. App.2013);'l'ex. Ctiur. Proc. Ann. Art.
468.003(a). Evidence relevant 10 these issues includes whethel'a del'endant can (1)
understand the chargcs against him and the potential consequctices ofthe pending
clirainal proceedings; (2) disolose 1o oouusel peltilielll laots, ovents. arcl states olnrind;
(3) cngagc in a reasonecl choice o1'lcgal stt'ategics and options; (4) understand the
advelszrizrl natule olcliminal proceedingsl (5) exlribit apploprierle courtroolr behavior;
and (6) testily. Morris v. Sratc, 301 S.W.3d 281, 286-87 ('I'ex. Clini. App 2009).
'Ihe facts laid out before the'llial Corut prior 10 the mling on the Appellant's Motion
lbr a Cornpelency Trial sltow much more than a scintilla of evidetroe that the Appellant
did not lravc thc plcsent abilitl to consull rvith '[-rial (]ounscl rvith a reasonablc degrcc of
tnder.standing. The Appellanl was unable to t{isclose to Trial Counsel relevalrt litcts zind
cvcnts in a nranner lhat tttadc scuse. W)rcn protnpted to l'ecall timcs for a time line ol'
events as lhey happeued, Appellant coulcl not felay this inlbrnation iu a coherettt lnauller.
Appcllant u,as also not ablc 10 cngagc in teasoned choicc in regalds 1o prcsentcd lcgal
sllategies. He 1'ailod to undersland or l'ollow the def'enses as lhey wete laid out irr liont oll
hirn. and did not r,u.rdelstand why his palcuts rvould no1 bo tcstilying in ccrtaiu
proceecliugs. CR-143. The entile pt'ocess seemed 1o overwhelm Appellant's ability tcl
lunotion. l;ur1Jrer. Appel)altt was not cngaged duringiury selcction evcn u'hcu prornpted
45
for assistancc b)'hjs l'rial Counscl. I1e sinrply sat and lepeated nonlrertiueut tlucslious
to Trial Counsel. Most inrpoltzinlly, Appellant rvas not in a conditiotr to lestify on his
own lre]ralf. lle would agree wilh anything thal was slated to him. and was lrot cohclellt
enough to telJ the stoly o1'whal happencd on the night in questiou, He was t-tot able to do
thc one thing that coulcl have beucliltcd hinr thc nrost in bis tl.ial - tcll his siclc oftbe
s1ory.
b. Conclusion
Aliel hearing all o1'the above evicience, the Tlial Court had 10 make a decisior.r on
whetlicr therc was "moLc than a scirrtilla ofevidence that rnay rationally lead to a
conclusion ol inconpelency." Turner, at 692. Under'Iexas Code of Crimitial Procedure
468, the l'rial Court must give a colnpetency trial to the defendant if tlris standald is met.
If he does not, then the Trial Courl has al:used its discretion. Turner, a|692. The
evidenco bofore the'Irial Courl was much mole than a scirtilla and went to show that
Appellanl was not able 1o aid in building a defense. This inzrbility to consnll with Ttial
Counsel rvith a rational undcrstanding is at thc core ofcompetency. 'llris is evcn urot'c
importarlt rvhen a defendanl is rurable to assisl in a lrial lor Capital Mur:der'. The Trial
Court abused its discletion by denying Appellant's Motion lbr a Competency 'l.rial in this
case as lhele was much more than a scinlilla of evidence that would rationally lead to a
conclusion of compelency.
46
PRAYER FOR RELIEF
For the reasons herein alleged, Appellant respectfully requesls this court
reverse the.judgn-rent of the Trial Courl and remand the case for a new trial on the
merits, or renand the case to the Trial Courl for a hearing on the Motion for New
Trial
ND A. , JR.
TexasBar# 15208500
440 Louisiana, Suite 200
Houston, TX77002
(7 t3) 223-ss7 s
(713)224-28rs (FA]{)
Attorney for Appellant
CI{RISTOPHER WASHINGTON
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all other parties, which are listed below
on January 28,2015, as follows:
Devon Anderson
I{arris County District Attorney
Appellate Division
1201 Franklin Street, Suite 600
I{ouston, Texas 77 002
Attorney for the State of Texas
By: ElectronicTransmission
WE ]FLL
47