ACCEPTED
01-14-00582-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/18/2015 11:30:48 AM
No. 01-14-00582-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the
First District of Texas FILED IN
1st COURT OF APPEALS
At Houston HOUSTON, TEXAS
6/18/2015 11:30:48 AM
CHRISTOPHER A. PRINE
No. 1408007 Clerk
In the 179th District Court
Of Harris County, Texas
RODNEY WAYNE ROBINS
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON
District Attorney
Harris County, Texas
DAN MCCRORY
Assistant District Attorney
Harris County, Texas
mccrory_daniel@dao.hctx.net
DAVID OVERHULS
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809
Counsel for Appellee
ORAL ARGUMENT WAIVED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39.7, the State waives oral argument since the
applicable legal principles are settled and both parties have clearly set forth their
positions in their briefs.
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TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ..................................................i
INDEX OF AUTHORITIES .................................................................................... iii
STATEMENT OF THE CASE................................................................................... 1
STATEMENT OF FACTS ......................................................................................... 1
SUMMARY OF THE ARGUMENT ......................................................................... 1
REPLY TO POINT OF ERROR ONE ....................................................................... 2
CONCLUSION ........................................................................................................ 14
CERTIFICATE OF SERVICE ................................................................................. 15
CERTIFICATE OF COMPLIANCE ....................................................................... 15
ii
INDEX OF AUTHORITIES
CASES
Baugh v. State,
No. 14-06-00553-CR, 2007 WL 1247311 (Tex. App.--Houston [14th Dist.]
May 1, 2007, no pet.) (not designated for publication)........................................12
Ex parte Amezquita,
223 S.W.3d 363 (Tex. Crim. App. 2006) ................................................................9
George v. State,
446 S.W.3d 490 (Tex. App.--Houston [1st Dist.] 2014, pet. ref’d)..................6, 12
Hobbs v. State,
359 S.W.3d 919 (Tex. App.--Houston [14th Dist.] 2012, no pet.) .........................8
LaHood v. State,
171 S.W.3d 613 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d) ...........8, 9, 11
McDaniel v. State,
98 S.W.3d 704 (Tex. Crim. App. 2003)............................................................ 9, 11
Montoya v. State,
291 S.W.3d 420 (Tex. Crim. App. 2009) ................................................8, 9, 11, 12
Roberson v. State,
No. 13-10-00531-CR, 2011 WL 3821059 (Tex. App.--Corpus Christi
Aug. 25, 2011, pet. ref’d) (not designated for publication) ................................10
Thompson v. State,
12 S.W.3d 915 (Tex. App.--Beaumont 2000, pet. ref’d) ......................................10
Turner v. State,
422 S.W.3d 676 (Tex. Crim. App. 2013)..........................................................6, 12
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 46B.003 (West 2006) ................................. 6, 8, 9
iii
TEX. CODE CRIM. PROC. ANN. art. 46B.004 (West Supp. 2014) ................................7
TEX. CODE CRIM. PROC. ANN. art. 46B.024 (West Supp. 2014) ................................7
OTHER AUTHORITIES
STEPHEN R. COVEY, THE SEVEN HABITS OF HIGHLY EFFECTIVE
PEOPLE (1989)....................................................................................................10
RULES
TEX. R. APP. P. 39.7 .................................................................................................... i
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged by indictment with the offense of possessing cocaine,
enhanced by two prior felony convictions. (CR 11). After a jury found appellant
guilty of the charged offense, the trial judge found the allegations in the
enhancement paragraphs true and assessed punishment at six-years confinement.
(CR 75).
STATEMENT OF FACTS
An officer was patrolling a “high crime narcotics area” when he saw
appellant seated on a bucket at a car wash. (RR III 13-15). Appellant appeared to
be smoking something. (RR III 15). As the officer approached him, appellant
tossed a crack pipe. (RR III 16-17). The officer arrested him and found a crack
rock in his pocket during a search incident to arrest. (RR III 17-18).
SUMMARY OF THE ARGUMENT
After observing appellant’s conduct and demeanor first-hand, the trial judge
expressly found there was no suggestion of incompetency during appellant’s silent
episode. A reviewing court must afford great deference to this finding since, unlike
an appellate judge, the trial judge is able to observe a defendant’s body language
and other nonverbal methods of communication to gauge the defendant’s
involvement in and understanding of the proceeding.
Furthermore, appellant’s silence was a short isolated event. During the
remainder of the trial, appellant appropriately responded to the judge and displayed
no signs of incompetency.
REPLY TO POINT OF ERROR ONE
In his sole point of error, appellant contends the trial judge erred by failing
to conduct an informal inquiry into appellant’s competency. Appellant maintains
there was a suggestion of his incompetency created by his refusal to speak on
occasion when addressed by his lawyer and the judge.
Relevant facts
While the jury was waiting in the hallway for the voir dire proceeding to
begin, the trial judge addressed the parties and noted that, earlier in the day,
appellant had chosen to not speak with his attorney or the judge. (RR II 4). The
prosecutor and defense counsel both confirmed that appellant would not speak to
them earlier. (RR II 5). The judge then directed several questions to appellant who
provided no response. (RR II 5-6). The entirety of this exchange reads as follows:
THE COURT: If he does not answer arraignment I’ll enter a not guilty plea on his
behalf. What was Mr. Robins’ offer this morning guys?
MR. OVERHULS: 3 years.
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THE COURT: Would you invite Mr. Robins out, please?
(Defendant approaches)
THE COURT: Okay guys let’s talk about it. It is June the 30th at 11:10 a.m. We’re
in open court on case number 1408007, the State versus Rodney Wayne Robins.
Mr. Robins is present in the courtroom with defense counsel Mr. Arlan J.
Broussard. And the State’s attorney Mr. Overhuls is also present. There is a jury in
the hallway. Mr. Robins is charged by indictment with a state jail felony cocaine
offense, twice enhanced with two prior state jail felonies possible sentencing range
2 to 10 years in the state penitentiary up to a $10,000.00 fine. This morning we
invited Mr. Robins to speak with us at the bench with all parties and counsel
present. He chose not to do that this morning. He chose not to speak with either
myself or his attorney. Mr. Robins scoot up. Scoot up. There you go. Mr. Broussard
we brought Mr. Robins out to speak with him. He refused to speak with either
myself or you. Is that correct Mr. Broussard?
MR. BROUSSARD: It is Your Honor.
THE COURT: We -- I conveyed a recommendation of three years TDCJ to Mr.
Robins this morning. Is that correct State?
MR. OVERHULS: That’s correct Judge and Mr. Robins stood mute at the time,
would not speak with me nor his lawyer.
THE COURT: And Mr. Robins we’re about to pick your jury. Right here is called
an election of sentence. If you do not sign the election with your lawyer if you’re
found guilty, it would be my job not the Jury’s job to assess punishment if you’re
found guilty. Do you understand Mr. Robins?
THE DEFENDANT: No response.
THE COURT: He’s chosen to remain mute. So I’ll take that as a refusal to sign. If
he’s found guilty we’ll do Court sentencing not jury sentencing pursuant to Section
3707. And Mr. Robins is wearing an orange jail jumpsuit at this time and I believe
Mr. Broussard you offered Mr. Robins the opportunity to wear civilian clothes at
his trial. Is that correct?
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MR. BROUSSARD: That’s correct Your Honor. Clothes were provided to him and
made clear to him that he had the opportunity to wear something other than the
orange jumpsuit. He remained mute.
THE COURT: Mr. Robins you aren’t helping your lawyer being tried in orange
jumpsuit. You’re making that choice against my advice, against your lawyer’s
advice. Do you understand Mr. Robins?
THE DEFENDANT: No response.
THE COURT: Mr. Robins chooses to remain mute so he’ll be charged in his jail
clothes. Mr. Broussard any indication of mental health abuse in Mr. Robins file? I
looked at his file. He has 15 convictions. Was he ever found to be incompetent or
insane in his years here in Harris County?
MR. BROUSSARD: Not to my knowledge Your Honor.
THE COURT: There is no indication of Mr. Robins lack of competency. He’s just
chosen to remain mute at this time. And Mr. Robins you want to say anything
before the jury comes in? It’s time for you to say what’s on your mind Mr. Robins.
Do you have anything you’d like to tell us at this time Mr. Robins?
THE DEFENDANT: No response.
THE COURT: Mr. Robins remains mute. He has nothing to tell us. Yes, sir, Mr.
Broussard.
MR. BROUSSARD: I would like to also state for the record Your Honor that I
asked Mr. Robins about prior convictions that the State might use to enhance his
punishment and to those inquiries he remained mute and I couldn’t get no response
from him.
THE COURT: I suspected that.
THE BAILIFF: Ready for the panel Judge?
THE COURT: As ready as I want to be. Mr. Robins you sure you want to do this?
(Panel Seated)
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(RR II 4-7).
No further questions were directed to appellant during the ensuing voir dire
examination. (RR II 7-94). Nor is there any evidence that appellant made any
outbursts or demonstrated any other inappropriate or bizarre conduct during the
proceeding. (RR II 7-94).
The guilt-innocence proceeding was conducted the following day. At the
beginning of the proceeding, the prosecutor arraigned appellant and appellant
personally announced a plea of not guilty. (RR III 7). Appellant did not stand mute
in response to any questions addressed to him, as he had done before the voir dire
examinations the previous day.
The State presented two witnesses and rested, and the defense then rested
without presenting any witnesses. Both parties presented a closing argument and
the jury later returned a guilty verdict. (RR III 55-63). There is no indication of
appellant exhibiting any unusual, obstinate, or bizarre behavior during this
proceeding. (RR III 6-64).
Later in the day, the judge conducted the punishment proceeding. The judge
asked appellant for his plea to the allegations in the enhancement paragraphs and
appellant personally replied “true” without incident. (RR IV 6). The State
presented two witnesses and the defense presented none. (RR IV 7-16). There is
no indication in the record that appellant exhibited any inappropriate conduct
5
during this proceeding. (RR IV 6-18). He personally announced “I want to appeal
it and I want a transcript of the trial” after the State rested. (RR IV 16).
Standard of review and applicable law
A criminal defendant who is incompetent may not be put to trial without
violating due process. Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App.
2013); George v. State, 446 S.W.3d 490, 499 (Tex. App.--Houston [1st Dist.] 2014,
pet. ref’d). As such, 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
trial with violating the federal constitution. Turner, 422 S.W.3d at 688-89.
The Texas Legislature has developed a statutory scheme that provides a
standard for determining competency and that describes the circumstances that
require, and procedures for making, a determination of whether a defendant is
competent to stand trial. Id. at 689. A person is incompetent to stand trial if he
does not have: (1) sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding; or (2) a rational as well as factual
understanding of the proceedings against him. TEX. CODE CRIM. PROC. ANN. art.
46B.003(a) (West 2006). A defendant is presumed competent to stand trial. TEX.
CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2006).
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On suggestion that the defendant may be incompetent to stand trial, the trial
judge 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. TEX. CODE CRIM. PROC. ANN. art. 46B.004(c) (West Supp. 2014).
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. TEX. CODE CRIM.
PROC. ANN. art. 46B.004(a) (West Supp. 2014). A suggestion of incompetency is
the threshold requirement for an informal inquiry and may consist solely of a
representation from any credible source that the defendant may be incompetent.
TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West Supp. 2014).
Evidence suggesting the need for an informal inquiry may be based on
observations made in relation to the defendant’s capacity to: (1) rationally
understand the charges against him and the potential consequences of the pending
criminal proceeding; (2) disclose to counsel pertinent facts, events, and states of
mind; (3) engage in a reasoned choice of legal strategies and options; (4)
understand the adversarial nature of criminal proceedings; (5) exhibit appropriate
courtroom behavior; and (6) testify. TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-
1) (West Supp. 2014); TEX. CODE CRIM. PROC. ANN. art. 46B.024(1) (West Supp.
2014). It may also be based on any evidence indicating that the defendant is
incompetent within the meaning of article 46B.003. Id.
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An appellate court reviews a complaint that the trial court erred in not
conducting an informal competency inquiry for an abuse of discretion. Montoya v.
State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009); Hobbs v. State, 359 S.W.3d
919, 923-24 (Tex. App.--Houston [14th Dist.] 2012, no pet.). The appellate court
does not substitute its judgment for that of the trial court, but rather determines
whether the trial court’s decision was arbitrary or unreasonable. Id.
Argument and analysis
Appellant maintains that his initial unexplained silence suggested to the trial
judge that he might be incompetent, thereby triggering the need for an informal
inquiry as mandated by article 46B.004. This claim is meritless because there was
no suggestion of incompetency.
The statute providing the test for competency speaks in terms of a
defendant’s present ability to consult with his lawyer. TEX. CODE CRIM. PROC.
ANN. art. 46B.003(a) (West 2006); Montoya, 291 S.W.3d at 425. Therefore, when
the trial judge observes the behavior alleged to have raised a competency issue, he
is in the best position to determine whether the defendant is presently competent.
Montoya, 291 S.W.3d at 426; LaHood v. State, 171 S.W.3d 613, 619 n.2 (Tex.
App.--Houston [14th Dist.] 2005, pet. ref’d) (trial judge in much better position
than appellate court to assess defendant’s demeanor during alleged period of
confusion). An appellate court cannot ignore the trial judge’s first-hand factual
8
assessment of the defendant’s mental competency. McDaniel v. State, 98 S.W.3d
704, 713 (Tex. Crim. App. 2003). The trial judge’s factual findings about the
defendant’s competency are entitled to “great deference” by a reviewing court. Id.;
Montoya, 291 S.W.3d at 426.
The trial judge in this case observed first-hand appellant’s silence. (RR II 4-
7). Having personally observed appellant’s demeanor during this time, the judge
expressly stated that there was “no indication” that appellant was incompetent. (RR
II 6). In other words, the trial judge determined that there was no suggestion that
appellant lacked the present ability to consult with his lawyer or failed to
understand the nature of the proceedings. TEX. CODE CRIM. PROC. ANN. art.
46B.003(a) (West 2006).
The trial judge’s express assessment of appellant’s competency must be
afforded great deference since he was much better positioned than any of the
current appellate participants to assess appellant’s competency during the
proceeding. Montoya, 291 S.W.3d at 426; McDaniel, 98 S.W.3d at 713; LaHood,
171 S.W.3d at 619 n.2. Having personally observed appellant’s demeanor during
his period of silence, the judge may have been able to gauge appellant’s level of
involvement in the proceeding by means of eye contact or other physical
manifestations of perception such as body language. See Ex parte Amezquita, 223
S.W.3d 363, 368-69 (Tex. Crim. App. 2006) (Cochran, J., concurring) (recognizing
9
that trial judge has ability to make determinations about demeanor that the cold
appellate record cannot adequately convey to appellate court); Thompson v. State,
12 S.W.3d 915, 925 (Tex. App.--Beaumont 2000, pet. ref’d) (Stover, J., concurring)
(“It has been posited that ten percent of spoken communication is by the words we
say, thirty percent by the sounds we make and sixty percent by body language, or
nonverbal communication.”) (quoting STEPHEN R. COVEY, THE SEVEN
HABITS OF HIGHLY EFFECTIVE PEOPLE 241 (1989)); Roberson v. State, No.
13-10-00531-CR, 2011 WL 3821059, at *3-4 (Tex. App.--Corpus Christi Aug. 25,
2011, pet. ref’d) (not designated for publication) (trial judge noted that defendant
made eye contact with him when the judge spoke to defendant even though
defendant refused to respond to judge’s questions and refused to change out of jail
clothes for trial).
Nonverbal cues sometimes may convey information as effectively as a
spoken thought. For example, despite remaining silent, appellant may have
demonstrated meaningful eye contact with the judge and reacted nonverbally to the
judge’s inquiries through such eye contact or other nonverbal manners of
communication to such an extent as to exhibit and convey a level of understanding.
Admittedly, given the cold appellate record, it is also possible that he maintained a
vacant look in his eyes accompanied by body language consistent with an utter
lack of comprehension or understanding. But since the trial judge personally
10
observed appellant’s behavior and demeanor, he was best positioned to determine
whether appellant’s conduct and demeanor was more consistent with the former
category than the latter. Montoya, 291 S.W.3d at 426; LaHood, 171 S.W.3d at 619
n.2.
And the record does, in fact, reflect that appellant was responsive in some
manner to the judge’s direction. For example, during appellant’s silent episode, the
judge instructed him to scoot up and appellant seemed to comply, which would
suggest appellant was following the proceeding and aware of his surroundings.
(RR II 5) (“Mr. Robins scoot up. Scoot up. There you go.”). Furthermore, the
judge stated several times that appellant had “chosen” to remain mute. (RR II 5-6).
The judge’s assessment that appellant’s silence was the result of a choice to remain
silent, rather than an inability to communicate, is consistent with the judge having
interpreted appellant’s demeanor and nonverbal conduct as indicating his silence
was not suggestive of incompetency.
Therefore, the trial judge’s express determination that there was no
suggestion of incompetency should be afforded great deference on appeal.
McDaniel, 98 S.W.3d at 713 (“We cannot ignore the trial court’s firsthand factual
assessment of appellant’s mental competency. His factual findings, that appellant
understood the nature of the proceedings and assisted his counsel in his defense,
are entitled to great deference by the reviewing court.”). And the trial judge’s
11
finding that there was no suggestion of incompetency is buttressed by the fact that
appellant’s own attorney expressed no concern or suspicion about appellant’s
competency. (RR II 4-7).
Moreover, the trial judge’s determination that there was no suggestion of
incompetency based simply on appellant’s silence is consistent with case law. For
example, the Fourteenth Court of Appeals has noted that “defendants often choose
to remain silent” at certain pretrial proceedings such as arraignments. Baugh v.
State, No. 14-06-00553-CR, 2007 WL 1247311, at *3 (Tex. App.--Houston [14th
Dist.] May 1, 2007, no pet.) (not designated for publication). A such, appellant’s
silence was not unusual. Similarly, this Court and the court of criminal appeals
have observed that a defendant’s refusal to communicate or cooperate with his
attorney is not probative of incompetence and does not overcome the presumption
of competency. Turner, 422 S.W.3d at 691; George, 446 S.W.3d at 500.
Furthermore, an examination of the entire record supports the trial judge’s
determination that appellant’s initial silence was not suggestive of incompetency.
Montoya, 291 S.W.3d at 426 (criticizing lower appellate court for considering
instances of defendant’s confusion in isolation and out of context of the rest of the
record). Despite his momentary silence at the beginning of the voir dire
proceeding, there is no evidence that he engaged in any questionable behavior
during the remainder of the voir dire proceeding. (RR II 7-94). The following day,
12
appellant responded appropriately during the guilt proceeding when addressed by
the judge and there is no evidence of any inappropriate conduct during that
proceeding. (RR III 6-64).
Similarly, appellant responded appropriately to the judge during the
punishment hearing and stated “I want to appeal it and I want a transcript of the
trial” after the State rested its punishment case. (RR IV 6, 16). There was no
evidence of inappropriate conduct during the punishment proceeding. (RR IV 6-
18). Neither the judge, the prosecutor, nor the defense attorney expressed any
concern about appellant’s competency at any stage of the trial. Id. (there was no
suggestion from the judge, prosecutor, or defense counsel that defendant appeared
incompetent). Therefore, the remainder of the record reveals that appellant’s initial
silence was a short isolated incident and that his conduct during the remainder of
the trial shows that this isolated incident was not suggestive of incompetency.
Accordingly, the trial judge did not abuse his broad discretion by finding no
suggestion of incompetency or by failing to conduct an informal inquiry. Point of
error one is meritless and should be overruled.
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CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
mccrory_daniel@dao.hctx.net
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CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been sent to the
following email address via TexFile:
Sarah V. Wood
Assistant Public Defender
Sarah.wood@pdo.hctx.net
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document
has a word count of 2,990 words, based upon the representation provided by the
word processing program that was used to create the document.
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
Date: 6/18/2015
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