              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. AP-75,964



                   EX PARTE SPENCER OJEIFO IMOUDU, Applicant



                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                           FROM BEXAR COUNTY



       K ELLER, P.J., filed a dissenting opinion.

       The trial court finds that counsel was not ineffective; I would defer to that finding. We

normally defer to such findings, and the finding is supported by the record.1 The Court criticizes

defense counsel for failing, after witnessing bizarre behavior by applicant, to investigate whether

applicant was insane at the time of the offense and to review applicant’s jail medical records. But

the fact that applicant “was suffering from some mental problems”2 is not necessarily any indication

that he was legally insane at the time the offense was committed. Legal insanity involves a failure




       1
          Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008)(This Court usually defers to
trial judge’s findings on habeas corpus when those findings are supported by the record).
       2
           Court’s op. at 7.
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to appreciate the illegality of one’s conduct,3 and very few people with mental illness are actually

legally insane.

       The record shows, and the trial court’s findings reflect, that applicant’s bizarre behavior did

lead defense counsel to request a competency examination. Dr. John Tennison examined applicant

and found him to be competent to stand trial. Dr. Tennison further found that applicant understood

the meaning of a plea of not guilty by reason of insanity.

       At the competency hearing, applicant testified in some detail about the events surrounding

the incident that was the basis for his prosecution. This is his recollection of the event:

       [APPLICANT] Okay, Juan was out, you know, with the car running and I was in the
       parking lot plaza over here southeast. The car was started and I went inside the car,
       got inside the passenger’s seat and then I went to the driver’s seat and then I sped off
       the parking lot and then I went to, like, the freeway, the highway exit, and I was in
       traffic. And then when I exited the highway, I kept going straight. I was on the
       freeway and I kept on going straight. And then they said that there was a T-bone
       collision. By that time, Juan already followed me. He got into another car. He was
       hitchhiking. Well, not hitchhiking. He got into another car and he was chasing me.
       They were on the phone trying to get the police. By the time the accident happened,
       the police, they showed up.

Applicant acknowledged on cross-examination that he stole Juan’s car. He also testified about

matters such as his memory of the wreck, where he was working before the wreck, and his treatment

at the hospital for the broken leg he sustained during the wreck. He acknowledged that he had “a

good recollection of all that.” Applicant’s testimony coincided with the actual events of that day.

There is absolutely nothing in his testimony to suggest in any way that he was divorced from reality

at the time of the accident, that he thought demons were chasing him, or that he was unaware that

he acted illegally when he stole Juan’s car. If applicant’s attorney had actually pursued an insanity


       3
          See Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008)(A person is insane only
if he does not know his conduct is “wrong,” and by “wrong” Texas law means “illegal”).
                                                                                        IMOUDU – 3

defense, I think that applicant’s own testimony showing that he knew exactly what was going on

during the offense would provide decent grounds for claiming his attorney was ineffective for

adopting a strategy that was bound to lose.

        Further, in connection with his guilty plea – at which time applicant was competent – he

signed a waiver and admonishments form that included the statement that he was “legally sane at the

time that this offense was committed.”

        Given these circumstances, defense counsel had no reason to further investigate whether

applicant was insane at the time of the offense. There was no evidence that counsel was aware of

the existence of, or possible existence of, jail records reflecting possible schizophrenia or otherwise

suggesting that applicant might have been insane at the time of the offense. And the evidence that

counsel did have indicated that applicant was in fact sane at the time of the offense, and that the best

strategy was to obtain a favorable plea agreement, which counsel was able to do.

        And even if the jail records are considered, I would defer to the trial court’s findings with

respect to those records. The Court relies upon the testimony of applicant’s expert witness, Dr.

Brener. The trial court found that Dr. Brener claimed that jail records “suggested” schizophrenia

during a separate incarceration for criminal mischief seven months before this offense. It was Dr.

Brener’s opinion that applicant had a chronic, psychotic mental illness – “probably” schizophrenia

– on the date of the offense. Dr. Brener believed that applicant was probably schizophrenic, that

he was actively schizophrenic on the date of the offense, that when a schizophrenic does not take his

medication his capacity to discern right from wrong becomes compromised, and that if applicant was

schizophrenic and not taking his medication on August 1, 2005, his mental condition deteriorated,

contributing to his aberrant judgment. According to Dr. Brener, given the “likelihood” that applicant
                                                                                       IMOUDU – 4

was psychotic and paranoid when he stole the car, his psychosis and paranoia “probably” were

exacerbated during the case, causing him to believe that someone was trying to kill him.

        There are several problems with relying on Dr. Brener’s opinion. First, it is dependent upon

a number of assumptions: “if” applicant was schizophrenic and “if” he was not taking his

medication, there was a “likelihood” that he was psychotic and this psychosis was “probably”

exacerbated.

        Second, the trial court found Dr. Brener’s opinion “questionable” because it appeared that

he did not personally examine applicant and did not review any medical records other than those

from the jail.

        Third, the trial court found that that the crux of applicant’s claims (and thus Dr. Brener’s

conclusion) appeared to be based entirely on jail records from the earlier incarceration for criminal

mischief, and the trial court made additional findings that those jail records did not point to a

diagnosis of schizophrenia. Applicant’s intake records for the earlier criminal mischief offense

showed no indication that applicant was a mental health risk. Further, those records indicated that

he had never received MH-MR services and that he answered correctly the questions posed to him.

Intake personnel did not see any signs of mental problems. Progress notes during that incarceration

showed some increasing bizarre mannerisms, but nowhere is there a physician’s diagnosis of

schizophrenia. The court found that applicant’s attorney for that offense was credible when she said

that applicant never appeared to be in an altered state and he never gave her the impression that he

was unable to distinguish right from wrong.

        Fourth, the trial court made findings about applicant’s incarceration after the current offense

that are inconsistent with the view that he might have schizophrenia. The hospital notes taken after
                                                                                       IMOUDU – 5

the current offense show that applicant was awake and alert. Two days after the offense, when he

was discharged from the hospital, he answered “no” to the question of whether he had or ever had

had “nervous problems, mental problems or treatment.” It wasn’t until five days after the offense

that notes indicate “possible mental problems.” As the months passed, applicant showed signs of

increasing mental problems.4

       Finally, counsel had other information that applicant was not insane when he committed the

current offense that would militate against any possible indication of insanity in the jail records.

Counsel had the benefit of personal interaction with applicant and of applicant’s testimony at the

competency hearing. The testimony at the competency hearing seems especially probative because

applicant gave a lucid account of events but, contrary to Dr. Brener’s speculation, did not say he

thought someone was trying to kill him.

       I do not think counsel’s performance was substandard, but even if he were found to have

performed deficiently in failing to investigate the issue of insanity, applicant fails on the prejudice

prong of an ineffective assistance claim. To prevail, applicant needs to demonstrate a reasonable

probability that an insanity defense would have succeeded. For reasons discussed above, he has not

done so. His expert’s testimony was speculative and given without the benefit of a personal

examination. Applicant’s testimony at the competency hearing convincingly supports a conclusion



       4
          The trial court found that the jail record notation “R/O” meant “ruled out,” so that the
notation “R/O Schizophrenia” meant that schizophrenia had been ruled out. The trial court
explained that its interpretation of the “R/O” notation was verified by Theresa Scepanski, Vice
President over Detention Health Care Services at University Heath Systems. The trial court further
found that Dr. Brener’s opinion diagnosing schizophrenia was “questionable” because Dr. Brener
misconstrued the notation “R/O.” Dr. Brener’s opinion assumed that R/O meant “rule out,” leaving
schizophrenia as a possibility until it is ruled out. I express no opinion on whether this particular
finding of the trial court was correct.
                                                                                      IMOUDU – 6

that he knew his conduct was illegal and that he was not laboring under any sort of mental delusion

when he stole the car. Applicant will now have an opportunity to try out his insanity defense. Given

the improbability of success, and given the plea bargain his “ineffective” attorney was able to obtain

for him, applicant may end up being sorry he ever complained.

       I respectfully dissent.

Filed: June 3, 2009
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