ACCEPTED
01-12-00551-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/13/2015 3:35:47 PM
CHRISTOPHER PRINE
No. 01-12-00551-CR CLERK
In the
Court of Appeals for the First District of TexasFILED IN
At Houston 1st COURT OF APPEALS
HOUSTON, TEXAS
2/13/2015 3:35:47 PM
CHRISTOPHER A. PRINE
No. 1272297 Clerk
In the 179th District Court
Of Harris County, Texas
LOX GORME
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON
District Attorney
Harris County, Texas
JOSEPH ALLARD
Assistant District Attorney
Harris County, Texas
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
State Bar No. 24058991
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
Fax No.: 713/755-5809
Counsel for Appellee
ORAL ARGUMENT CONDITIONALLY WAIVED
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of
the names of all interested parties is provided below.
COUNSEL FOR THE STATE:
Ms. Devon Anderson―District Attorney
Mr. Joseph Allard―Assistant District Attorney at sentencing hearing
Ms. Heather Hudson―Assistant District Attorney on appeal
APPELLANT:
Lox Gorme
COUNSEL FOR APPELLANT:
Mr. Steven Greenlee―Defense counsel at sentencing hearing
Ms. Daucie Schindler―Assistant Public Defender on appeal
PRESIDING JUDGE:
Hon. Randy Roll
i
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. P. 39.1, the State waives oral argument because the
briefs in this case adequately apprise this Court of the issues and the law. However,
the State requests the opportunity to present argument if this Court deems it
necessary.
TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES .....................................................................i
STATEMENT REGARDING ORAL ARGUMENT ................................................ ii
INDEX OF AUTHORITIES .................................................................................... iii
STATEMENT OF THE CASE................................................................................... 1
STATEMENT OF FACTS ......................................................................................... 1
SUMMARY OF THE ARGUMENT ......................................................................... 3
REPLY TO APPELLANT’S SOLE POINT OF ERROR .......................................... 4
I. Standard of review and applicable law. ......................................................4
II. Relevant background. ................................................................................6
III. The trial court did not abuse its discretion in failing to conduct a
sua sponte inquiry into appellant’s competency. ........................................8
CONCLUSION AND PRAYER .............................................................................. 10
CERTIFICATE OF COMPLIANCE ....................................................................... 11
CERTIFICATE OF SERVICE ................................................................................. 11
ii
INDEX OF AUTHORITIES
CASES
Brown v. State,
129 S.W.3d 762 (Tex. App.--Houston [1st Dist.] 2004, no pet.) ................................4
Iniquez v. State,
374 S.W.3d 611 (Tex. App.--Austin 2012, no pet.) ....................................................6
Jackson v. State,
391 S.W.3d 139 (Tex. App.--Texarkana 2012, no pet.) ..............................................8
Montoya v. State,
291 S.W.3d 420 (Tex. Crim. App. 2009) ...............................................................4, 5
Moore v. State,
999 S.W.2d 385 (Tex. Crim. App. 1999) ...............................................................4, 9
Turner v. State,
422 S.W.3d 676 (Tex. Crim. App. 2013) ...............................................................5, 9
Villarreal v. State,
935 S.W.2d 134 (Tex. Crim. App. 1996) ...................................................................4
STATUTES
Acts 2011, 82nd Leg., ch. 822, §§ 2 & 21(b), p. 1895 & 1901, eff. Sept. 1, 2011 ...........5
TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West 2013) .........................................4
TEX. CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2013) .........................................4
Tex. Code Crim. Proc. Ann. art. 46B.004(b) (West 2013) .............................................4
TEX. CODE CRIM. PROC. ANN. art. 46B.004(c) (West 2013) .........................................5
TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West 2012) ......................................8
TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West 2013) ......................................5
TEX. CODE CRIM. PROC. ANN. art. 46B.005 (West 2013) .............................................6
TEX. CODE CRIM. PROC. ANN. art. 46B.024 (West 2013) .............................................5
iii
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged by indictment with the offense of murder. (C.R. 3). On
March 23, 2012, appellant waived his right to a trial by jury and pled guilty to the
charged offense without an agreed recommendation as to punishment. (C.R. 55-56).
On May 31, 2012, the trial court conducted a presentence investigation hearing.
Appellant was convicted of murder and sentenced to 48 years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. (C.R. 73-74).
Appellant filed a timely written notice of appeal. (C.R. 75-76).
STATEMENT OF FACTS
At the time of the offense, appellant lived with his sister, Ruth Fernandez, her
four children, and her ex-husband, Paul Johnson. (1 R.R. 11). On July 20, 2010,
Fernandez was in her bedroom with her 7-year-old daughter Brianna. (1 R.R. 13-14).
Johnson, the complainant, was in the kitchen talking to his daughter Shaise while he
washed dishes. (1 R.R. 14). Fernandez’s other two children were upstairs. (1 R.R. 14).
Appellant appeared in Fernandez’s bedroom doorway and confronted her
about a note she had left him. (1 R.R. 14-15). The note accused appellant of
deliberately leaving the front door open. (1 R.R. 48-50). Appellant walked into the
bedroom with his hand hidden behind his back, and cursed at Fernandez “I’m not a
F-ing liar, you F-ing B.” (1 R.R. 16). An argument ensued and appellant abruptly ran
out of the room. (1 R.R. 16).
Appellant went to the kitchen, said Johnson’s name, and shot him in the head
without further warning. (1 R.R. 37). After seeing her father get shot, Shaise ran to
the bathroom and locked the door. (1 R.R. 37-38). Appellant returned to the
bedroom, held the gun to Fernandez’s head, and asked her if she “wanted some of
it.” (1 R.R. 16-17). Appellant also pointed the gun at Brianna. (1 R.R. 17). Appellant
then went upstairs to retrieve his bags, which he had packed in advance. (1 R.R. 18,
47).
Meanwhile, Fernandez grabbed Brianna and ran outside to call 911 from her
cell phone. (1 R.R. 18). Shaise emerged from the bathroom a few minutes later and
ran upstairs. (1 R.R. 38). She encountered appellant at the top of the stairway. (1
R.R. 38). Appellant put the gun to her head and said “F-you.” (1 R.R. 38). Shaise ran
and hid behind the computer desk. (1 R.R. 38).
Appellant casually strolled out of the house with his bags, and caught a
Greyhound bus from Houston to Ottawa, Canada. (1 R.R. 19, 47). He was later
apprehended at an airport where he was attempting to catch a flight to Singapore. (1
R.R. 60).
2
SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion in failing to conduct a sua sponte
informal inquiry into appellant’s competency to stand trial. Although appellant was
diagnosed with schizophrenia, his competency evaluation reflects that he had a
rational and factual understanding of the proceedings against him, and possessed the
ability to consult with his attorney with a reasonable degree of rational understanding.
Appellant did not request a second competency evaluation prior to sentencing.
Moreover, the trial court was not presented with evidence from any credible source
suggesting that appellant was incompetent.
3
REPLY TO APPELLANT’S SOLE POINT OF ERROR
In a single point of error, appellant contends that the trial court abused its
discretion in failing to conduct a sua sponte inquiry into appellant’s competency to
stand trial.
I. Standard of review and applicable law.
A trial court’s failure to conduct a competency hearing is reviewed for an abuse
of discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999); Brown v.
State, 129 S.W.3d 762, 764 (Tex. App.--Houston [1st Dist.] 2004, no pet.). The
reviewing court does not substitute its judgment for that of the trial court, but
determines whether the trial court’s decision was arbitrary or unreasonable. Montoya v.
State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009).
A defendant is presumed competent to stand trial unless proven incompetent
by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art. 46B.003(b)
(West 2013). A person is deemed incompetent if he lacks: (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. Id. art.
46B.003(a).
If evidence suggesting that the defendant may be incompetent to stand trial
comes to the attention of the court, the court on its own motion shall suggest that
the defendant may be incompetent. Id. art. 46B.004(b). The court shall then
determine by informal inquiry whether there is some evidence from any source that
4
would support a finding of incompetency. Id. art. 46B.004(c). A suggestion of
incompetency “may consist solely of a representation from any credible source that
the defendant may be incompetent.” Id. art. 46B.004(c-1). Prior to the amended
version of Article 46B.004, the evidence had to raise a bona fide doubt in the judge’s
mind regarding the defendant’s competency to stand trial. See Montoya, 291 S.W.3d at
425, superseded by statute, Acts 2011, 82nd Leg., ch. 822, §§ 2 & 21(b), p. 1895 & 1901,
eff. Sept. 1, 2011, as recognized in Turner v. State, 422 S.W.3d 676, 692 n.32 (Tex. Crim.
App. 2013). The current version of the statute provides that the trial court is no
longer required to have a bona fide doubt as to the defendant’s competency. TEX.
CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West 2013). Instead, the evidence
suggesting incompetency “may be based on observations made in relation to one or
more of the factors described by Article 46B.0241 or on any other indication that the
defendant is incompetent within the meaning of Article 46B.003.” Id.
If, after making an informal inquiry, the trial court determines that evidence
exists to support a finding of incompetency, the trial court must order a psychological
examination and conduct a formal competency hearing. TEX. CODE CRIM. PROC.
1
Article 46B.024 sets forth various factors associated with competency, such as the defendant’s
capacity: to rationally understand the charges against him and the potential consequences of the
pending criminal proceedings; to disclose to counsel pertinent facts, events, and states of mind; to
engage in a reasoned choice of legal strategies and options; to understand the adversarial nature of
criminal proceedings; to exhibit appropriate courtroom behavior; and to testify. TEX. CODE CRIM.
PROC. ANN. art. 46B.024(1) (West 2013). Other relevant factors include the defendant’s history of
mental illness and the impact of that mental illness on the defendant’s capacity to engage with
counsel in a reasonable and rational manner. Id. art. 46B.024(2),(4).
5
ANN. art. 46B.005(a),(b) (West 2013); Iniquez v. State, 374 S.W.3d 611, 615 (Tex. App.-
-Austin 2012, no pet.).
II. Relevant background.
On March 3, 2011, appellant’s trial counsel filed a pretrial motion for a
psychiatric examination to assess appellant’s competency to stand trial. (C.R. 8). The
trial court immediately granted the motion. (C.R. 9). On May 27, 2011, a competency
evaluation was conducted by licensed psychologist Ramon A. Laval. (C.R. 14-17).
The evaluation reflects that appellant reported hearing “voices that never stop.” (C.R.
15). Appellant stated that he had been diagnosed with paranoid schizophrenia, and
that he had been taking Zyprexa. Id. Appellant also indicated that he had been “self-
medicating with alcohol.” Id. Appellant’s medical chart from the Harris County Jail
indicated that he received a psychiatric assessment on March 2, 2011, at which time he
reported he was suffering from depression and experiencing auditory hallucinations.
Id. Appellant was diagnosed with major depressive disorder, recurrent with psychotic
features. Id. He was prescribed antipsychotic and antidepressant medication. Id.
During a health assessment on March 11, 2011, appellant was coherent and did
not appear to be psychotic or suicidal. Id. At a follow-up psychiatric assessment on
April 16, 2011, appellant reported that he was still experiencing auditory
hallucinations, “but not as much as before.” Id. Appellant’s diagnosis was changed to
schizophrenia, paranoid type. Id.
6
During the court-ordered competency evaluation on May 27, 2011, Dr. Laval
observed that appellant was able to communicate in a clear and coherent manner, and
that his thought processes were organized, logical and goal directed. Id. Appellant
reported that he continued to experience hallucinations despite his medication. Id. pp.
15-16. Dr. Laval diagnosed appellant with a “psychotic disorder not otherwise
specified and alcohol dependence.” Id. p. 16. Dr. Laval concluded that appellant had
a clear and rational understanding of the charges against him and the possible
consequences of conviction. Id. In addition, Dr. Laval noted that appellant had the
ability to disclose to counsel pertinent facts, events and states of mind associated with
the alleged offense. Id. Appellant was able to think rationally and coherently, and
demonstrated an ability to engage in reasoned choices of legal strategies. Id. Dr.
Laval also found that appellant possessed a sufficient understanding of the adversarial
nature of prosecution, he demonstrated the ability to behave appropriately in court,
and he was psychiatrically stable enough to testify on his own behalf. Id. pp. 16-17.
Dr. Laval opined that appellant was competent to stand trial. Id. p. 17.
Appellant subsequently pled guilty to the charged offense and a sentencing
hearing was held on May 31, 2012. A presentence investigation report dated May 25,
2012 was offered into evidence at the hearing. See (State’s Exhibit 5). The PSI report
reflects that appellant reported that he was feeling better and was no longer hearing
voices. Id. at p. 7. Appellant’s trial attorney objected to the admission of the PSI
report, stating that appellant had reviewed it and had indicated that he was still
7
hearing voices. (1 R.R. 5). Appellant clarified that the voices were “just not as loud.”
(1 R.R. 5). The trial court took notice of the objection, and neither party requested a
competency inquiry. (1 R.R. 6).
III. The trial court did not abuse its discretion in failing to conduct a sua sponte inquiry into
appellant’s competency.
Appellant contends that the trial court should have conducted an informal
competency inquiry prior to sentencing on May 31, 2012 based upon appellant’s
history of mental illness, the competency evaluation conducted by Dr. Laval, and
appellant’s representation to the court that he was still hearing voices.
At the time of the presentence investigation hearing, the statutory amendments
to Article 46B.004 provided that the trial court was no longer required to have a bona
fide doubt as to the defendant’s competency to stand trial before conducting an
informal inquiry. See TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West 2012).
Under the controlling version of the statute, the threshold requirement for
conducting an informal competency inquiry is whether there is evidence from any
credible source that appellant may be incompetent. See Jackson v. State, 391 S.W.3d 139,
141 n.1 (Tex. App.--Texarkana 2012, no pet.) (applying the amended version of the
statute to hold that the trial court must conduct an informal hearing if any credible
source suggests incompetency).
In the instant case, the trial court granted appellant’s request for a competency
evaluation. Although the evaluation reflects that appellant had been diagnosed with
8
schizophrenia and reported experiencing auditory hallucinations, the fact that a
defendant suffers from a mental illness does necessarily indicate that he is
incompetent to stand trial. Turner, 422 S.W.3d at 691; Moore, 999 S.W.2d at 395. The
relevant inquiry is whether the evidence suggests that the 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.” Turner, 422 S.W.3d at 691. Here, Dr. Laval concluded that appellant
possessed the ability to consult with counsel with a reasonable degree of rational
understanding, and had the ability to understand the pending charges and criminal
proceedings against him. (C.R. 17).
Furthermore, the trial court was not obligated to conduct another competency
inquiry based on appellant’s representation that he was continuing to hear voices at a
lower level of intensity. Appellant was experiencing auditory hallucinations at the
time of his psychiatric examination, and was still deemed competent to stand trial.
Moreover, the trial court was presented with evidence that an informal inquiry
was unnecessary based on the factors set forth in Article 46B.024. The trial court
could have determined that appellant had the ability to consult with his attorney
considering that appellant reviewed the PSI report and disclosed to his attorney the
pertinent fact that he was still hearing voices. Appellant also presented coherent
testimony that he unintentionally shot the complainant, and that he was sorry for his
actions. (1 R.R. 55, 57-58, 69). In addition, appellant testified that he understood he
9
was in court for a sentencing hearing, he understood that he had previously entered a
plea of “guilty,” and he recalled being admonished of his constitutional rights. (1 R.R.
42-44).
Absent any evidence that appellant’s mental illness rendered him incapable of
consulting with his attorney with a reasonable degree of rational understanding, or
that appellant lacked the ability to understand the proceedings against him, the trial
court did not abuse its discretion in failing to conduct a second informal competency
inquiry. As such, appellant’s sole point of error should be overruled.
CONCLUSION AND PRAYER
It is respectfully submitted that all things are regular and the conviction should
be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Heather A. Hudson
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24058991
hudson_heather@dao.hctx.net
curry_alan@dao.hctx.net
10
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 2,199 words, based upon the representation provided by the word
processing program that was used to create the document.
/s/ Heather A. Hudson
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24058991
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been
submitted for service by e-filing to the following address:
Daucie Schindler
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
Tel: (713) 247-6717
Fax: (713) 368-9278
Daucie.Schindler@pdo.hctx.net
/s/ Heather A. Hudson
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24058991
Date: 2/13/2015
11
Lox Gorme v. State
Combined Opinion