Opinion issued December 10, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00600-CR
———————————
KRISTIAN JOSEPH LAFLASH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 355th District Court
Hood County, Texas
Trial Court Case No. CR13693
OPINION CONCURRING IN ABATEMENT ORDER
The central issue in this appeal is whether a defendant’s competency to stand
trial may be raised at the adjudication of guilt stage after a defendant has violated
the terms of deferred-adjudication community supervision. This is an area of the law
fraught with complexity and difficulty. I largely agree with the majority’s
interpretation of the law, but I disagree to some extent with the majority’s analysis
and disposition. Therefore, I concur in the abatement order. Like the majority, I
would remand this case to the trial court, but I would require a full competency
hearing on remand and a decision by the trial court consistent with its findings.
At his plea hearing, appellant, Kristian Joseph Laflash, after a brief inquiry
into his competence to stand trial, but with no trial or ruling on competency, waived
his constitutional rights to trial and to appeal and pleaded guilty to the second-degree
felony offense of indecency with a child by sexual contact pursuant to an agreed
punishment recommendation from the State. The trial court placed him on deferred-
adjudication community supervision for eight years. Shortly thereafter, the State
moved to adjudicate appellant’s guilt, alleging that appellant had violated the terms
and conditions of his community supervision. The trial court held a hearing, found
three allegations true, found appellant guilty of the charged offense, and assessed his
punishment at confinement for eighteen years. Again, it heard evidence relevant to
appellant’s competency, but it did not conduct a competency trial.
On this appeal from the order adjudicating his guilt, appellant argues that he
was not mentally competent to waive his constitutional rights during the initial plea
hearing or to participate in the subsequent hearing to adjudicate his guilt. After
finding that we lack jurisdiction to address errors made at the initial plea hearing,
the majority opines with respect to the revocation and adjudication hearing,
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Because we conclude the record contains a suggestion from a credible
source that appellant may be incompetent, we hold that the trial court
abused its discretion when it failed to conduct an informal inquiry into
appellant’s competency to stand trial during the hearing on the motion
to adjudicate. We therefore sustain appellant’s second issue, abate
appellant’s appeal, and remand to the trial court for further proceedings
consistent with this order.
Slip Op. at 2–3.
I agree. However, in my view, the trial court did conduct an informal inquiry
into appellant’s competency to stand trial on defense counsel’s motion—albeit
improperly—at the initial plea hearing, implicitly found appellant competent, and so
skipped a full competency trial, and, in accordance with the parties’ agreed
punishment recommendation, deferred adjudication of guilt and placed appellant on
community supervision. But, as shown below, the trial court applied an improper
standard of proof to determine whether to proceed from an informal inquiry to a full
competency trial. It also improperly refused to reconsider its initial determination of
competency in light of new evidence of incompetency raised at the adjudication of
guilt stage, denying appellant his constitutional right to due process. Because there
is more than a scintilla of evidence as to appellant’s incompetency, I would remand
the case to the trial court with instructions to conduct a full competency trial, as
required by appellant’s constitutional right to due process.
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Competency to Stand Trial
A. Jurisdiction to Address Competency at Plea Hearing and at Adjudication
Hearing
In his first issue, appellant argues that he “did not have the capacity to
understand and intelligently waive his constitutional rights during [his] plea hearing
in this case, because [he] did not have sufficient mental capacity.” The majority does
not address this threshold jurisdictional issue.
The majority addresses only appellant’s second issue, in which appellant
argues that his due process rights were violated because he was incompetent when
the trial court revoked his community supervision and adjudicated his guilt. He
contends that, based on his father’s and his probation officer’s testimony during the
hearing on the State’s motion to adjudicate, as well as statements in the report of the
court-appointed competency examiner from the plea hearing, Dr. Norman, the trial
court should have abated the adjudication hearing to evaluate his competency to
stand trial. Slip Op. at 9.
The majority then sets out the law for issues relating to competency, but it
does so without citing to authority on the threshold issue of whether the trial court
had jurisdiction to address appellant’s competency to stand trial at the adjudication
hearing. The law on this question is clear, however. The controlling case is Durgan
v. State, 240 S.W.3d 875 (Tex. Crim. App. 2007), and the answer is that the trial
court did have such jurisdiction.
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In Durgan, the State filed a motion to adjudicate the guilt of the defendant,
who had been placed on community supervision after pleading guilty to delivery of
less than one gram of cocaine within 1000 feet of a school. Id. at 876. The trial court
found that Durgan had violated the terms and conditions of her community
supervision, adjudicated her guilty of the charged offense, and sentenced her to ten
years in prison. Id. On appeal, Durgan argued, among other things, that the trial court
erred in not having her evaluated to determine whether she was competent to answer
the allegations raised at the revocation hearing. Id. The court of appeals dismissed
this issue. It held that an appeal involving a defendant’s competence at an
adjudication hearing is an appeal involving the trial court’s determination of whether
to proceed with adjudication, and appeal of a trial court’s decision to adjudicate guilt
is precluded by statute. Id. at 876–77.
The Court of Criminal Appeals disagreed. It held that the court of appeals had
jurisdiction to consider the merits of Durgan’s claim that she was not competent at
the time of the hearing on the State’s motion to adjudicate guilt. Id. at 878. The court
first observed that former Code of Criminal Procedure article 42.12, § 5(b) did
preclude appellate review of a trial court’s decision to adjudicate guilt based on a
violation of the terms of community supervision. Id. at 877. It stated that, “upon
violation of a condition of deferred-adjudication community supervision, a
defendant is entitled to a hearing limited to the court’s determination of whether it
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should proceed with an adjudication of guilt on the original charge, and ‘[n]o appeal
may be taken from this determination.’” Id. However, the court also held that this
statute did not bar review of complaints that do not challenge the decision to
adjudicate, and “[a]n assertion that a defendant was not competent at the time of the
adjudication hearing is such a complaint; it raises a preliminary due-process issue
that must be resolved before the adjudication process may begin.” Id. at 878.
The Court of Criminal Appeals opined in Durgan that, as the status of being
incompetent is not itself a violation of a term or condition of community supervision,
it cannot be the basis for a motion to adjudicate, and therefore it cannot be the basis
for a trial court’s decision to adjudicate. Id. It held that, “[b]ecause it is a separate
and distinct inquiry, the court of appeals has jurisdiction to resolve the issue.” Id. It
reversed the decision of the court of appeals that it lacked such jurisdiction and
remanded the case to that court to consider the merits of the defendant’s
incompetency claim. Id.
The same reasoning and holding apply here. The question, therefore, is how
the trial court is to proceed to determine appellant’s competency on remand. As I
believe the trial court abused its discretion by acting contrary to guiding rules and
principles—both in its informal inquiry into appellant’s competency at the plea
hearing and in its failure to assess appellant’s competency prior to adjudicating his
guilt and sentencing him at the adjudication hearing—I set out below the procedure
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the trial court should have followed in determining appellant’s competency to stand
trial at both stages.
B. Procedure for Determining Competency to Stand Trial
1. Determination of competency to stand trial
I agree with the majority that the controlling cases with respect to competency
proceedings are Turner v. State, 422 S.W.3d 676 (Tex. Crim App. 2013 and Boyett
v. State, 545 S.W.3d 556 (Tex. Crim. App. 2018), see Slip Op. at 9–15, but I would
also add Ex parte LaHood, 401 S.W.3d 45 (Tex. Crim. App. 2013) and Morris v.
State, 301 S.W.3d 281 (Tex. Crim. App. 2009). I also largely agree with the
majority’s analysis. However, I disagree with the majority’s analysis of what
happened here at the plea hearing and the adjudication hearing with respect to
competency and, therefore, with its determination of what should have happened and
what should happen now. And I particularly disagree that another informal hearing
will suffice to determine the issue of appellant’s competency.
The Court of Criminal Appeals explained the law relevant to competency
determinations in Turner. It observed that the Texas Legislature has adopted the
constitutional standard for competency to stand trial as set out in Code of Criminal
Procedure article 46B.003(a). Turner, 422 S.W.3d at 689. This standard requires
forensic psychologists and psychiatrists appointed by the trial court to perform
competency evaluations to specifically consider, among other things, the
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defendant’s capacity to “engage in a reasoned choice of legal strategies and options”
and “engage with counsel in a reasonable and rational manner.” Id. (quoting TEX.
CODE CRIM. PROC. ANN. art. 46B.024 §§ (1)(C) & (4)) (emphasis in original). From
this standard of competency, the court reasoned that “when a defendant’s mental
illness operates in such a way as to prevent him from rationally understanding the
proceedings against him or engaging rationally with counsel in the pursuit of his
own best interests, he cannot be made to stand trial consistent with due process.” Id.
at 691. Thus, “[e]vidence that raises this possibility necessitates an informal inquiry,
and if that inquiry reveals that the possibility is substantial, a formal competency
trial is required.” Id.
The question, therefore, is whether, at the end of the informal inquiry—such
as the one conducted by the trial court at the plea hearing in this case and the one,
performed without an additional forensic report but with the taking of additional
evidence from appellant’s father and probation officer at the adjudication hearing—
the trial court should have conducted a formal competency trial. See id. at 692. The
answer to that question is determined by whether, at that time, “some evidence from
any source” had arisen “that would support a finding that [the appellant] may be
incompetent to stand trial.” Id. (quoting TEX. CODE CRIM. PROC. ANN. art.
46B.004(c)). Critically, “[i]n making this determination, a trial court must consider
only that evidence tending to show incompetency, ‘putting aside all competing
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indications of competency, to find whether there is some evidence, a quantity more
than none or a scintilla, that rationally may lead to a conclusion of incompetency.’”
Id. (quoting Ex parte LaHood, 401 S.W.3d 45, 52–53 (Tex. Crim. App. 2013))
(emphasis added). If so, then “evidence exists to support a finding of incompetency,”
and the Code of Criminal Procedure requires the trial court to conduct a formal
competency trial. Id. at 692–93 (quoting TEX. CODE CRIM. PROC. ANN. art.
46B.005(a)).
The Court of Criminal Appeals has also explained in Ex parte LaHood—upon
which the Turner court relied, along with other cases—what is required at the
competency trial itself. According to the Court of Criminal Appeals, “the
determination of competency is not decided unless the court holds a trial to
determine competency, which is authorized only if the court has a bona fide doubt
that the defendant is not competent and, after assaying the evidence, it finds some
evidence that the defendant is incompetent.” LaHood, 401 S.W.3d at 53 (citing
Morris v. State, 301 S.W.3d 281, 287 (Tex. Crim. App. 2009)). Under Code of
Criminal Procedure article 46B.003(a), “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.’” Id. (quoting TEX.
CODE CRIM. PROC. ANN. art. 46B.003(a)).
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The factors used by experts in conducting a competency evaluation also are
of help to the factfinder in determining the broader question of competency. Id.
These factors include whether the defendant can
(1) understand the charges against him and the potential consequences
of the pending criminal proceedings; (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.
Id. (quoting Morris, 301 S.W.3d at 286 & n.10). These are likewise the factors the
factfinder should use in determining appellant’s competency in this case on remand,
keeping in mind that “[a] person is presumed to be competent, and the burden is on
a criminal defendant to prove incompetency by a preponderance of the evidence.”
Id. at 54 (citing TEX. CODE CRIM. PROC. ANN. art. 46B.003(b)).
2. Application of the law to this case
Here, at the plea hearing, the trial court conducted an informal competency
hearing in response to defense counsel’s motion. It appointed Dr. Norman to
evaluate appellant’s competency, but it evaluated the evidence of incompetency in
Dr. Norman’s report incorrectly. Dr. Norman found that appellant had a
“diagnosable mental illness/emotional disturbance,” namely Neurocognitive
Disorder with “Borderline Intellectual Functioning,” had “multiple cognitive
deficits,” was “unsure of the potential consequences and penalties” of the charges
against him, and “did not have an understanding of the various pleas, nor does he
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understand the implication of accepting an arranged plea bargain.” Despite all this
evidence raising serious questions of competency, Dr. Norman concluded that
appellant’s “responses were not suggestive of mental illness” and that he was
“capable of being educated in these areas by his attorney.” Slip Op. at 3–4. Thus, he
opined that appellant “appears to have [an] adequate understanding of the pending
charges” and “appears competent to assist defense counsel.” Id. at 4.
The trial court received and accepted Dr. Norman’s conclusion that appellant
appeared competent to proceed to trial and did not proceed to a formal competency
trial. See id. at 4–5. In doing so, it ignored substantial evidence of appellant’s
incompetency to understand what his probation required of him and thus to
cooperate rationally with his counsel and to observe the terms and conditions of
community supervision. Eight months after receiving Dr. Norman’s report, the trial
court accepted appellant’s guilty plea, which was accompanied by appellant’s
written declaration of understanding regarding his competency to stand trial and his
waiver of constitutional rights. Id. at 5. At the plea hearing, appellant further
confirmed, in response to the trial court’s questions, that he understood his guilty
plea and was voluntarily giving up valuable rights, that he understood the charge
against him of sexual indecency with a child and the range of punishment, and that
he was also intelligently waiving the right of appeal. Id. The trial court then deferred
adjudication of appellant’s guilt and placed him on community supervision without
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inquiry of its own into the actual competency of appellant to plead guilty and waive
his rights. The trial court also certified that appellant had waived his right to appeal.
Four months after the plea hearing, the State filed a motion to adjudicate guilt,
alleging that appellant had violated the terms of his community supervision by being
in the house with two children without an approved chaperone (the chaperones being
his father and sister, the mother of the children, both of whom had completed
chaperone training but had not then been certified), not paying court costs and fines,
and possessing sexually explicit material to which he had admitted masturbating. Id.
at 5–6. At the hearing on the State’s motion two months later, both appellant’s father
and his probation officer testified that appellant was “mentally challenged,” had
“struggled” with the “rules and limitations” of his community supervision, and was
attending sex offender group sessions but was not able to take the tests associated
with treatment because of his low IQ. Id. at 6–7. Appellant’s father testified that
appellant stayed in his room the entire time his sister was in the house with her two
children and the children were with himself and their mother. Id. at 7–8.
Just as the trial court did not hold a full trial on appellant’s competency to
make a plea bargain for deferred adjudication at his initial plea hearing before it
accepted his guilty plea, despite significant evidence that he was not competent to
assist with his own defense, so the trial court failed to conduct a full competency
trial on appellant’s ability to participate in the adjudication hearing despite evidence
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of appellant’s incompetency to abide by the terms of his deferred adjudication.
Instead, the trial court proceeded to hold the adjudication hearing without
reconsidering appellant’s competency, determined that appellant had violated the
terms of his community supervision, adjudicated him guilty of the charged offense,
and assessed his punishment at eighteen years’ confinement. I conclude that the trial
court erred both times, that both errors violated appellant’s due process rights, and
that these rights will not be accommodated in this case until a full competency
hearing is held and a ruling made as to appellant’s competency.
In sum, it is undeniable that more than a scintilla of evidence of incompetency
exists in the record of both the plea hearing and the adjudication hearing in this case.
Yet it is equally undeniable that in neither case did the trial court proceed to conduct
a formal competency trial. It is therefore likewise undeniable that the trial court erred
in failing to conduct a formal competency trial at both stages and thereby deprived
appellant of his constitutional right to due process. The law clearly mandates that
this Court remand this case to the trial court for a full trial and ruling on appellant’s
competency to stand trial for the crime of indecency with a child.
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Conclusion
I join in the order of the majority abating this appeal and remanding this case
to the trial court. I would instruct the trial court to proceed to a full trial and ruling
on appellant’s competency to stand trial for indecency with a child.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Lloyd, and Landau.
Justice Keyes, concurring.
Publish. TEX. R. APP. P. 47.2 (b).
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