In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00197-CR
EDWIN ANTONIO OSORIO-LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court
Upshur County, Texas
Trial Court No. 17914
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
OPINION
After a jury trial in Upshur County, Edwin Antonio Osorio-Lopez was convicted of
evading arrest or detention with a vehicle and aggravated assault with a deadly weapon. Osorio-
Lopez was sentenced to concurrent ten-year and twenty-year sentences, respectively.1 On appeal
of his conviction of evading arrest or detention with a vehicle, Osorio-Lopez claimed—as his
sole point of error—that the trial court erred in not granting his motion for continuance to allow
for a competency examination.2
By order dated August 14, 2019, we sustained Osorio-Lopez’s point of error and abated
this case to the trial court with instructions to conduct a retrospective competency trial, if such a
trial were feasible. After having determined that a retrospective competency trial was feasible,
the trial court conducted the retrospective competency trial on February 25, 2020, and found
Osorio-Lopez to have been competent at the trial resulting in the convictions that are the subjects
of his appeals. Following abatement, we granted Osorio-Lopez’s motion for rehearing. After
having been afforded the opportunity for further briefing following abatement, Osorio-Lopez
contends that the trial court abused its discretion (1) by granting defense counsel’s oral request to
withdraw at the retrospective competency trial and by allowing Osorio-Lopez to represent
himself during that proceeding, (2) by admitting evidence against him during the retrospective
competency proceeding, and (3) by not finding sufficient evidence of his incompetency.
1
See TEX. PENAL CODE ANN. §§ 38.04(2)(A), 22.02.
2
In companion cause number 06-18-00198-CR, Osorio-Lopez appeals from his conviction of aggravated assault
with a deadly weapon. In that case, as in this one, Osorio-Lopez claimed that the trial court erred in not granting his
motion for continuance to allow for a competency examination.
2
Because we find that Osorio-Lopez should have been represented by counsel at the retrospective
competency hearing, we reverse the trial court’s competency determination and remand for a new
retrospective competency hearing.3
I. Factual and Procedural Background
On February 5, 2018, Osorio-Lopez was scheduled to enter guilty pleas on charges of
evading arrest or detention with a vehicle and unauthorized use of a motor vehicle. Osorio-Lopez
declined to enter guilty pleas and instead elected to proceed to trial before the court. On February 13,
2018, Osorio-Lopez returned to court for a pretrial hearing. The trial court acknowledged that the
case was set for a bench trial that afternoon but stated that Osorio-Lopez’s interpreter and the
attorneys had expressed some concerns about Osorio-Lopez’s competency. The trial court then
proceeded to explain the adversarial process to Osorio-Lopez and confirmed that he had a seventh-
grade education. Osorio-Lopez indicated that he had experienced mental and emotional problems
and had been hospitalized in Wichita Falls following a period of incarceration in Fort Worth. At the
conclusion of the hearing, the trial court ordered Osorio-Lopez to be examined by Tom Allen, Ph.D.,
to determine Osorio-Lopez’s competency to stand trial.
Allen issued an evaluation report in which he concluded that Osorio-Lopez was incompetent
to stand trial.4 According to Allen, Osorio-Lopez “appeared to be having considerable difficulty
responding to many questions in linear, logical fashion and tended to provide rambling responses and
memorial details were very vague.” Allen further concluded that Osorio-Lopez exhibited paranoid
3
Based on this determination, we need not address Osorio-Lopez’s remaining points of error.
4
Allen diagnosed Osorio-Lopez with “Psychotic Disorder NOS,” “Cannabis Use Disorder,” and “Stimulant Use
Disorder by History in Remission.” The report noted that Osorio-Lopez was prescribed and was taking
antipsychotic medication and medication for allergies and anxiety.
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ideation and suffered from impaired insight. Based on Allen’s report, the trial court found Osorio-
Lopez incompetent to stand trial and, in conformity with Article 46B.073 of the Texas Code of
Criminal Procedure, ordered Osorio-Lopez’s commitment to Rusk State Hospital on April 26, 2018,
for a period not to exceed 120 days for further examination and treatment.
On August 8, 2018, the trial court was advised by Larry Hawkins, M.D., unit psychiatrist at
Rusk State Hospital that, after a period of observation and treatment, Osorio-Lopez was re-evaluated
and was determined to be competent to stand trial. Hawkins warned, “Current medications are
necessary to maintain the defendant’s competence.”5 A new trial date was scheduled for October 8,
2018.
Three days before the scheduled trial, Osorio-Lopez’s appointed counsel filed a motion to
withdraw. Counsel informed the trial court that Osorio-Lopez requested that counsel withdraw
because Osorio-Lopez could not communicate with counsel. When the trial court asked Osorio-
Lopez to explain, he stated that he had a problem in Fort Worth involving a false identification.
Osorio-Lopez told the trial court that there was a report from an official who detained him stating
that counsel did not listen to Osorio-Lopez. He also told the trial court that counsel threatened him
on several occasions and sided with the police officers.
Trial counsel explained that Osorio-Lopez was referring to a case he had in Tarrant County in
which he was represented by a different attorney. After the trial court explained to Osorio-Lopez that
this case had nothing to do with Fort Worth, Osorio-Lopez stated that counsel would not be able to
5
A report dated July 31, 2018, by Sarah J. Rogers, Ph.D., of Rusk State Hospital stated,
With respect to all assessed capacities, Mr. Osorio-Lopez has a factual understanding as well as
rational appreciation of the proceedings against him. Further, he possesses the capacity to consult
with his attorney with a reasonable degree of rational understanding. Maintenance of these
capacities involves medication adherence and continued stability in his symptoms.
4
defend him because of the issue he had the first time. Osorio-Lopez remained adamant that
appointed counsel in the current case was the same attorney who represented him in Fort Worth.
Counsel stated that he never had a case in Fort Worth. The trial court denied the motion to withdraw.
Following jury selection, Osorio-Lopez’s court-appointed counsel filed a verified motion for
continuance outlining his inability to effectively communicate with Osorio-Lopez. The motion stated
that, after Osorio-Lopez was determined to be competent and was returned to Upshur County, he was
able to effectively communicate with counsel in writing and with the help of counsel’s bi-lingual
assistant. Counsel went on to state,
Communications have deteriorated to the point that Defendant is adamant that
undersigned counsel had represented him on a prior matter in Tarrant County and
despite all attempts of Undersigned Counsel and the court appointed interpreter to
convince him otherwise, this thought remains with Defendant. Defendant deems
any advice of undersigned counsel to be against his best interest. Trial Counsel
requests a continuance to have Dr. Thomas Allen examine Defendant again for
competency.
At the hearing on the motion, counsel elaborated,
As we got closer to jury selection and with communications I was able to do
through [the interpreter,] it seemed to me that he was starting to have irrational
thoughts, for instance, one the court is aware where he thought I represented him
in another county in another matter and in his opinion had sold him out on a prior
criminal matter. At jury selection[,] he presented written documentation to [the
interpreter] that [the interpreter] was able to translate and get back to me last
Thursday afternoon and was information he thought would be helpful in his
defense. However, it appeared to me that he obviously had a lot of in my opinion
irrational thoughts that he deemed were factual. And in furtherance of that[,] this
morning he’s made serious communications with me about things that he thinks
or believes is happening down in the jail that would be horrific if true but to me
seem to be irrational thoughts . . . . [H]e basically goes against every piece of
advice I give him and gone as far as not signing essential documents like the
application for community supervision because he thinks my advice is against his
best interest. I am requesting a continuance in both cases to have . . . Dr. Tom
Allen examine him again to deem whether or not he’s competent because I feel
like he’s not competent to communicate with me to present a defense today.
5
On this evidence, we determined that there was some evidence to support incompetency
and sustained Osorio-Lopez’s claim that the trial court erred in failing to grant his request for a
formal competency evaluation. We abated this case to the trial court to determine whether it was
feasible to conduct a retrospective competency trial, and if so, the trial court was ordered to
conduct such a hearing. See TEX. CODE CRIM. PROC. ANN. ch. 46B, subch. C; Turner v. State, 422
S.W.3d 676, 696–97 (Tex. Crim. App. 2013). By order dated November 7, 2019, the trial court
determined that a retrospective competence trial was feasible, “given the current availability of
evidence, other pertinent considerations and even given the passage of more than one year since the
original trial of this matter.”
At the February 25, 2020, retrospective competency hearing, counsel for Osorio-Lopez asked
his client if he understood that counsel was his counsel at trial, to which Osorio-Lopez responded:
Yes, I understand you were my present attorney but I had a change of attorney
when he said the last court hearing when I was with the other attorney that he was
going to leave when the other one returned. So my attorney sent me the last
letters. And my attorney, doctor, judge told me that I was competent to be in
court, to the rule of the court.
Defense counsel then asked Osorio-Lopez, “Would you like for me to ask questions of the
State’s witness or are you wanting to ask the questions yourself?” Osorio-Lopez responded, “I
want to be my own judge, my own attorney to listen to the rules to see if I’m competent for that
to return under oath.” Defense counsel then indicated that he had no further questions.
The trial court then asked Osorio-Lopez if he understood that he had “the right to have an
attorney present with [him.]” Osorio-Lopez responded, “[I] lost him to see who I could -- I’m
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going to be representing myself.” The trial court asked Osorio-Lopez if he wanted to represent
himself, and Osorio-Lopez said, “Yes.” The trial court responded, “All right. That’s fine.”
The State then indicated that it “agreed to stipulate to the doctor’s report,” the most recent
of which was drafted in December 2019. That report indicated that Osorio-Lopez was competent
to proceed in the retrospective competency hearing.6 The trial court, at the State’s request, took
judicial notice of “those files.”
Jon Kregel, a licensed translator for the State of Texas, testified that he was appointed by
the trial court to translate for Osorio-Lopez and that he did so on many occasions. Although
Kregel did not have any issues translating for Osorio-Lopez, he explained that Osorio-Lopez had
some difficulty understanding the process and procedures.
Kregel was present for each of Osorio-Lopez’s three psychological evaluations. Osorio-
Lopez was found incompetent to proceed as a result of the initial evaluation and was found
competent to proceed as a result of the second two evaluations. Kregel did not notice any
difference in Osorio-Lopez’s ability to understand “what was going on in those three
evaluations.” Kregel did notice, however, a difference in Osorio-Lopez’s behavior and how he
6
The State indicated,
[P]rior to calling any witnesses, we have agreed to stipulate to the doctor’s report, the Court
should have those available in their file. If the Court does not have them available, I do have
copies for the Court. The most recent one was in December of 2019, which is referring to the
proceedings here today that found Mr. Lopez competent to proceed in this competency trial.
The December 2019 report from Thomas G. Allen, Ph.D., to the trial court indicated that Osorio-Lopez was
competent to stand trial (on the issue of his competency to stand trial at the original trial). The report stated that
Osorio-Lopez “demonstrate[d] an adequate factual and rational understanding of the proceedings against him and
. . . [had] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding if he
so [chose].”
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accepted what Kregel explained to him. Kregel explained that, sometimes, Osorio-Lopez was
more receptive and that, at other times, he did not want to hear “what [Kregel had] to say at all.”
Kregel further testified that he was able to talk to Osorio-Lopez as if he were from the
same country. Kregel has visited Honduras on many occasions and is familiar with the culture.
He agreed with the report tendered to the trial court that indicated that Osorio-Lopez’s behavior
was “more consistent with indoctrination by his culture than any incompetency” and stated that
he was not concerned with Osorio-Lopez’s competency.7 He was more concerned about “his
general demeanor” and willingness to follow instructions. He explained, “When you give him an
explanation about something and he’s not interested . . . , he basically shuts off literally and then
doesn’t hear anything else you say to him after that.” Osorio-Lopez, acting pro se at the
retrospective competency hearing, declined to question Kregel.
Billy Wayne Byrd, the district attorney for Upshur County, testified that he was present at
Osorio-Lopez’s pretrial hearings and trial. Byrd cross-examined Osorio-Lopez at an initial pretrial
hearing and felt that that there was a “potential issue” based on Osorio-Lopez’s blank stare and his
responses, which had nothing to do with the questions asked. At that point, he raised the issue of
Osorio-Lopez’s competency with the trial court. Osorio-Lopez was thereafter evaluated and
determined to be incompetent to stand trial. After Osorio-Lopez was released from the hospital and
7
This testimony appears to relate to Osorio-Lopez’s competency at the time of the retrospective competency trial
rather than his competency at the time of the trial of conviction. The December 2019 competency evaluation
indicated that “[i]deation was paranoid, but he expressed beliefs that appeared cultural rather than delusional. For
example, [Osorio-Lopez stated that] people control his life with ‘black Maya’ or ‘white witchcraft’ and even though
he grew up believing in God he has been unable to control the ‘black Maya influences.’” The report finding Osorio-
Lopez competent to stand trial following his psychiatric hospitalization makes no mention of cultural issues.
Because we are reversing the trial court’s competency determination and remanding the case for a new competency
hearing, we express no opinion whether Kregel was qualified to testify to an opinion that Osorio-Lopez was
competent. See TEX. CODE CRIM. PROC. ANN. arts. 46B.021(a)(2), art. 46B.022.
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was declared competent, Byrd participated in his jury trial representing the State. At trial, based on
Byrd’s opinion and observations, Osorio-Lopez was able to understand the proceedings and often
responded in English before the interpreter had the opportunity to translate. Osorio-Lopez was
responsive and attentive. He answered Byrd’s questions while looking directly at him. Byrd had no
concerns regarding Osorio-Lopez’s competency at trial.
Osorio-Lopez’s brief cross-examination of Byrd was difficult to follow:
Q Are you competent to say in court that you were accusing me with
Mr. Michael that was in Fort Worth when he had the last court in Fort Worth?
A I’m sorry, can you re-translate that again, the question. Did you say
Michael?
Q Are you competent here to stand here to say that you were competent
to say that I had a hearing in Fort Worth, a hearing there in Fort Worth?
A I can’t respond of what may or may not have happened in Fort Worth,
Texas. What the Court and what I was concerned with were the proceedings here in
Upshur County, Texas.
Q Okay. Thank you.
The court then announced that it had determined that Osorio-Lopez “was competent at his trial in
which jury selection occurred on October the 8th and trial proceeded on October the 16th.” Following
the hearing, the trial court issued its February 25, 2020, order concluding that Osorio-Lopez was
competent at the time of his October 2018 jury trial.
II. Osorio-Lopez Should Have Been Represented by Counsel at the Retrospective
Competency Hearing
The Sixth and Fourteenth Amendments to the United States Constitution and Article I,
Section 10, of the Texas Constitution provide that in all criminal prosecutions, a defendant has the
right to assistance of counsel. U.S. CONST. amends., VI, XIV; TEX. CONST. art. 1, § 10; see Faretta
9
v. California, 422 U.S. 806, 819 (1975); Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App.
1997). This constitutional guarantee has been held to include critical events in a criminal prosecution
such as a competency hearing. See Estelle v. Smith, 451 U.S. 454, 469–71 (1981) (recognizing Sixth
Amendment right to counsel when defendant undergoes psychological examination); Kirby v.
Illinois, 406 U.S. 682, 688–89, 92 (1972) (under the Sixth Amendment, a person is entitled to the
help of a lawyer “at or after the time that adversary judicial proceedings have been initiated against
him . . . whether by way of formal charge, preliminary hearing, indictment, information, or
arraignment”).
Here, although Osorio-Lopez was appointed counsel for the retrospective competency
hearing, he told the trial court that he wanted to represent himself, and the trial court permitted
him to do so. We conclude that the trial court erred in permitting Osorio-Lopez’s attorney to
withdraw without appointing new counsel to represent Osorio-Lopez at the retrospective
competency hearing.
Osorio-Lopez points to the record in support of his claim that his purported waiver of the
right to counsel failed to satisfy constitutional standards. See Faretta, 422 U.S. at 819.
Nevertheless, our conclusion that the trial court erred in allowing Osorio-Lopez to represent
himself at the retrospective competency hearing is not based on any alleged shortcomings in the
trial court’s admonishments, but instead our conclusion is based on the inapplicability of the
right to self-representation in the proceeding below, i.e., one to determine Osorio-Lopez’s
competency at the trial of conviction.
When the issue of the defendant’s competency is pending, federal courts have concluded
that a defendant may not be permitted to waive the right to counsel. See United States v Ross,
10
703 F.3d 856, 869 (6th Cir. 2012); United States v. Zedner, 193 F.3d 562, 567 (2d Cir. 1999)
(per curiam); United States v. Klat, 156 F.3d 1258, 1263 (D.C. Cir. 1998); United States v.
Purnett, 910 F.2d 51, 55 (2d Cir. 1990) (“Logically, the trial court cannot simultaneously
question a defendant’s mental competence to stand trial and at one and the same time be
convinced that the defendant has knowingly and intelligently waived his right to counsel.”).
“These cases support a common-sense viewpoint that a defendant cannot represent himself at his
own competency hearing, the purpose of which is to determine whether a defendant understands
and can participate in the proceedings in the first place.” Ross, 703 F.3d at 869.
In Klat, for example, the court held that a defendant whose competency is reasonably in
question “may not proceed pro se until the question of her competency to stand trial has been
resolved.” Klat, 156 F.3d at 1263. The court found support for this conclusion in Pate v.
Robinson, 383 U.S. 375, 384 (1966), in which the Supreme Court observed that “[i]t is
contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently
‘waive’ his right to have the court determine his capacity to stand trial.” Although we recognize
that the hearing at issue here was a retrospective competency hearing designed to determine
whether Osorio-Lopez was competent to stand trial in October 2018, we, nevertheless, find the
logic of these cases compelling and conclude that Osorio-Lopez was not entitled to represent
himself.
Because Osorio-Lopez should have been represented by counsel at the retrospective
competency hearing, he is entitled to a new retrospective competency hearing at which he is
represented by counsel.
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III. Conclusion
We reverse the trial court’s competency determination. We abate and remand to the trial
court for a new retrospective competency hearing. The trial court is instructed to appoint counsel
to represent Osorio-Lopez at the hearing who will not be a potential witness at that hearing.
Scott E. Stevens
Justice
Date Submitted: January 13, 2021
Date Decided: April 23, 2021
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