Order issued January 12, 2016




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00366-CR
                           ———————————
            CHRISTOPHER DEWA WASHINGTON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 178th District Court
                           Harris County, Texas
                       Trial Court Case No. 1259853


            MEMORANDUM ORDER OF ABATEMENT1

      A jury convicted appellant, Christopher Dewa Washington,2 of capital

murder and the trial court assessed punishment at confinement for life with no

1
      The State of Texas has filed a motion for rehearing of our November 19, 2015
      order of abatement. We deny the motion for rehearing, withdraw our order, and
      issue this order in its place.
possibility of parole. In three issues, appellant argues that (1) the trial court

violated his constitutionally protected right to due process when it refused to allow

him to obtain the assistance of a psychological expert, (2) the trial court abused its

discretion when it denied appellant’s request for an evidentiary hearing on his

motion for new trial, and (3) the trial court abused its discretion when it denied

appellant’s request for a competency hearing under Texas Code of Criminal

Procedure 46B. We abate this appeal and remand for further proceedings.

                                    Background

A.    The Offense

      The facts of the offense are largely undisputed.

      Robert “Flaco” Castillo, Flaco’s brother, Francisco “Junior” Castillo, and

appellant were driving in North Houston in the late night hours of April 18, 2010,

in Flaco’s dark sedan, when the trio spotted a white Cadillac with expensive rims

and a loud sound system driven by the complainant, David Rodriguez. Flaco

decided to rob Rodriguez, and appellant and Junior agreed to participate in the

robbery. When Rodriguez’s car came to a stop, Flaco forced his way into the

Cadillac and drove off with Rodriguez. Junior and appellant followed the Cadillac

in Flaco’s car.



2
      Although the record reflects that appellant’s middle name is “Dewayne,” the final
      judgment identifies appellant as “Christopher Dewa Washington.”

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      Appellant later told police detectives that, after parking the Cadillac in a

secluded spot on the side of a roadway, Flaco made Rodriguez lay on the ground

while appellant and Junior stole the speakers from Rodriguez’s trunk. According to

appellant, Flaco then shot Rodriguez for no good reason.

      Unbeknownst to the trio, passersby had spotted the two vehicles parked on

the side of the roadway and reported the suspicious activity to police. On her way

to the scene, a Harris County Sheriff’s deputy spotted two vehicles matching the

caller’s description running a stop sign. The deputy chased two men in the white

Cadillac and eventually apprehended the driver, appellant, and arrested him for

evading arrest in a motor vehicle.3

      The next day, Rodriguez’s body was discovered at the site where the two

vehicles had originally been spotted. After police detectives connected the white

Cadillac that appellant had been driving to Rodriguez’s body, the detectives

questioned appellant, who was still in jail on his evading-arrest charge. Although

he initially denied any knowledge of the dead body, appellant eventually told

police that Rodriguez had been killed as a result of a carjacking in which appellant

had participated.


3
      The passenger in the Cadillac, Flaco, escaped, but was eventually arrested for
      Rodriguez’s murder. Flaco was tried separately, convicted of capital murder, and
      sentenced to life in prison without parole. A panel of this court affirmed the
      conviction. See Castillo v. State, No. 01–12–00961–CR, 2014 WL 1004398 (Tex.
      App.—Houston [1st Dist.] Mar. 13, 2014, pet. ref’d) (mem. op.).
                                          3
B.    Appellant’s Trial

      On the first day of appellant’s capital murder trial, appellant’s counsel,

Patrick McCann, filed a handwritten “Motion for Intellectual Disability and

Competency Evaluation” and presented it to the visiting judge presiding over the

trial, the Honorable Mike Wilkinson. McCann explained to the court that the

defense had just learned of appellant’s “potential intellectual disability” and that he

had four witnesses who were present and able to testify regarding that issue.

      Appellant’s family and friends testified that appellant was hit by a car when

he was between the ages of four and six, and that he was hospitalized for a couple

of days for a head injury he received during the accident. They explained that

appellant had always been considered slow or “slower than others,” and that he is

easily confused, “[h]as trouble with everyday tasks,” and requires help or

supervision with daily living skills. According to his friends and family, appellant,

who was almost 40 years old at the time of trial, had lived with his mother prior to

his arrest because he was unable to live independently. Appellant did not graduate

from high school; he has difficulty reading, writing, and performing simple

arithmetic. His family and friends also testified that appellant has “problems with

his memory,” and when he tries to remember events, he is always “off on time.”

According to appellant’s father, appellant is child-like “in his thinking,” is “easy to

be influenced,” and “can’t think down the road.”


                                          4
      After hearing testimony from the witnesses and the arguments of counsel,

Judge Wilkinson stated: “Okay. We have now had our inquiry, and I don’t see that

there’s evidence to support a finding of incompetency. And I—I’ve not determined

that there’s any evidence to support a finding of incompetency at this time. If

something later comes up, you know, I could always order an evaluation.”

      The next day, McCann re-urged his “sworn motion of continuance and the

request for an evaluation for intellectual disability” to a second visiting judge, the

Honorable Wayne Mallia. McCann explained to Judge Mallia why the defense

needed the evaluation before proceeding with either the motion to suppress or the

trial on the merits:

       [I]t has become increasingly obvious that [appellant] is much slower
      than we had initially thought. Not simply uneducated, or, perhaps, not
      sophisticated, but it does appear to be getting worse under the stress of
      trial . . . . I wanted to put this on the record so that the Court has both
      an indication of how he’s actually functioning, and again re-urge,
      before we go into the motion to suppress, that the Court grant a
      motion for continuance and simply have him evaluated. I believe that
      I can get such a test done within a few days. And there is a
      neuropsychologist that I am familiar with who is very competent and
      has extensive experience with intellectual disability and has done
      forensic work. And I believe that I can get her office to do this within
      the next few days.

      McCann noted that appellant’s potential intellectual disability “may have

harmed [his defense] during voir dire since [appellant] had no real participation in

that whatsoever.” McCann concluded by stating:



                                          5
      I’m not asking for anything other than a brief continuance to get this
      exam done so if this is true, that we then have a defense. If it is not,
      then we go forward, I think, as we should. And I’m happy to do that. I
      don’t think it’s going to make a difference to the dispensing of justice
      if we take a short break to get this done. And I believe I can get it
      done. If nothing else, the IQ testing can be done, and I can get the raw
      scores back to the Court as—rather than a finished report and, if
      necessary, have the expert come in and testify.

After meeting with counsel in chambers, Judge Mallia announced that he was

“denying the defense’s motion for continuance.” The court then proceeded to hear

the defense’s motion to suppress appellant’s statement to police.

      After the court denied the motion to suppress, appellant asked permission to

offer testimony from one more witness, appellant’s cousin. Appellant’s cousin

testified that although appellant’s family had always known that he was “slow,”

they kept that fact from defense counsel until the day of trial. She also explained

that appellant will pretend that he understands things when he does not, and that he

will “do whatever he thinks you want done [when he is] under pressure.” At the

conclusion of the testimony, McCann, argued:

      I would ask that the Court reconsider its ruling on the motion to
      suppress. And I would, again, reoffer the motion for continuance and
      testing so that Mr. Washington may be evaluated. During the break,
      my co-counsel and I took advantage of the time to contact the
      neuropsychologist I had mentioned earlier, and she has indicated she’s
      willing, over the next two days, to perform the evaluation, should the
      Court wish to do so.

Judge Mallia denied “the motion for continuance” and the “motion to suppress”

and the trial proceeded.

                                         6
      During a recess in trial the following day, McCann informed the court that

the defense had filed a “motion for a competency trial” supported by an affidavit

from appellant’s other counsel of record, Alberto Salceda. McCann also informed

the court that the neuropsychologist, Dr. Shawanda Anderson, was still available to

evaluate appellant.

      In his affidavit, Salceda testified that when he and McCann questioned

appellant regarding several facts relating to appellant’s arrest, including gaps in

counsel’s timeline of events, appellant always said that the elapsed time between

events was “ten minutes.” When pressed about his answers, appellant could not

explain why he claimed that “ten minutes” elapsed between every set of events he

was questioned about.

      Salceda also testified that, on the first day of trial, McCann explained to

appellant that they would not call appellant’s family to testify during the

guilt/innocence phase of trial and if there were a punishment phase in this case,

they would reconsider which witnesses to present. Appellant responded, “ok.”

After McCann left the room, Salceda discussed the upcoming voir dire proceeding

and explained that he wanted appellant’s input on certain things. Appellant’s only

response was, “ok.” When Salceda asked if appellant had any questions for him,

appellant asked whether his parents would testify about his work history. Salceda

repeated the explanation that McCann had previously offered, and appellant


                                         7
replied, “ok.” Salceda also averred that appellant had been unable to assist them in

resolving some discrepancies in the timeline they had been working on as part of

appellant’s defense because appellant could not determine the sum of 30 and 25

minutes, and he believed that 55 minutes after 8:00 was 9:30.

      Salcedo also stated that appellant’s “only participation [in voir dire] was to

ask three separate times whether the jury would assess punishment even after it had

been explained by [Salceda and] McCann on two separate occasions.” According

to Salceda, appellant’s handwritten notes from voir dire were “incomprehensible”

and appellant “never expressed an opinion about individual panel members even

though [his attorneys] had explained to him what [they] were doing and how [they]

were going about it.”

      Salceda further averred that when he and McCann discussed appellant’s

intelligence with appellant’s family members on the day of trial, the family, for the

first time, “gave [trial counsel] information regarding [appellant’s] childhood

traumatic brain injury” and said that appellant had been considered “slow” since

childhood, he needed supervision for even the simplest tasks, and he could not live

independently. After reading Salceda’s affidavit, Judge Mallia denied appellant’s

“motion for contested competency and motion for continuance.”

      The jury convicted appellant of capital murder and, because the State was

not seeking the death penalty, the court assessed appellant’s punishment at life in


                                         8
prison without parole. Appellant filed a motion for new trial and requested an

evidentiary hearing on the motion. The trial court denied the motion without

holding a hearing.

      This appeal followed.

                         Denial of Competency Hearing

      In his third issue, appellant argues that the trial court abused its discretion

when it denied his request for a competency hearing under Texas Code of Criminal

Procedure 46B.

      The State argues that the trial court was not required to hold a hearing

because appellant did not present any evidence that he did not understand the

nature of the proceedings or that he was incapable of assisting with his own

defense.

A.    Standard of Review and Applicable Law

      We review a trial court’s decision not to conduct a competency hearing

under an abuse of discretion standard. Montoya v. State, 291 S.W.3d 420, 426

(Tex. Crim. App. 2009). An accused is presumed competent to stand trial unless

proved incompetent by a preponderance of the evidence. TEX. CODE CRIM. PROC.

ANN. art. 46B.003(b) (West 2006). A person is incompetent to stand trial 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


                                         9
of the proceedings against him. Id. art. 46B.003(a); Luna v. State, 268 S.W.3d 594,

598–99 (Tex. Crim. App. 2008), cert. denied, 130 S. Ct. 72 (2009).

      “On suggestion that the defendant may be incompetent to stand trial, the

court 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 2011). If, after making

an informal inquiry, the court finds that evidence exists to support a finding of

incompetency, the court is required to “order an examination under Subchapter B

to determine whether the defendant is incompetent to stand trial in a criminal case”

and “hold a trial under Subchapter C before determining whether the defendant is

incompetent to stand trial on the merits.” Id. art. 46B.005(a), (b). In reviewing the

trial court’s decision regarding whether to order a formal competency trial, we

consider only that evidence tending to show incompetence, “‘putting aside all

competing 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.’” Turner v. State, 422 S.W.3d 676, 692 (Tex. Crim. App. 2013)

(quoting Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980) (plurality

opinion)).




                                         10
B.    Analysis

      Here, the record reflects that the trial court held an informal inquiry into

appellant’s competency on the first day of trial. After hearing testimony from

numerous witnesses about appellant’s traumatic childhood head injury, appellant’s

inability to live on his own without assistance, his inability to master routine daily

living skills and his dependence on family for help with day-to-day tasks,

appellant’s memory problems, particularly with regard to the timing of events, and

the fact that appellant has generally been regarded as “slow” since he was a child,

the trial court found that there was no “evidence to support a finding of

incompetency at [that] time.” The defense subsequently presented the testimony of

appellant’s cousin who testified that appellant pretends that he understands things

when he does not, and that appellant will “do whatever he thinks you want done

[when he is] under pressure.”

      Additional evidence of appellant’s possible incompetency was presented in

trial counsel’s affidavit. In the affidavit attached to appellant’s motion for a

competency trial, Salceda averred, among other things, that he was unable to

meaningfully consult with appellant regarding the facts of the case and trial

proceedings because, with one exception, whenever he asked appellant a question,

appellant’s only response was, “ok.” Salceda further testified that appellant had

been unable to help him and his co-counsel resolve discrepancies in the defense’s


                                         11
timeline of events associated with the offense and appellant’s arrest because

appellant could not perform simple arithmetic, and when he was asked about lapses

of time between events he always answered “ten minutes.” Salcedo also provided

testimony illustrating appellant’s inability to meaningfully consult with his counsel

regarding voir dire, and appellant’s lack of participation in that phase of trial.

      After reviewing the record and considering only evidence tending to show

incompetency, and putting aside competing indications of competency, we

conclude that there is more than a scintilla of evidence in the record that would

support a finding that appellant may be incompetent to stand trial. See Turner, 422

S.W.3d at 692 (noting that “some evidence” a defendant may be incompetent is,

for purposes of article 46B.004(c), “a quantity more than none or a scintilla”).

Accordingly, we hold that the trial court abused its discretion when it found that

there was no evidence that would support a possible finding that appellant was

incompetent to stand trial, and refused to hold a formal competency trial. See TEX.

CODE CRIM. PROC. ANN. art. 46B.004(c) (West 2011).

      We sustain appellant’s third issue.4

                                      Conclusion

      Having sustained appellant’s third issue, we abate this appeal and remand

this cause to the trial court to determine whether it is feasible to conduct a

4
      In light of our resolution of this issue, we need not address appellant’s remaining
      issues at this time.
                                           12
retrospective competency trial, and if so, to order an examination of appellant

under Subchapter B and conduct a retrospective competency trial, as required by

Article 46B.005. Id. at art. 46B.005(a), (b); see Turner, 422 S.W.3d at 696–97.

Regardless of whether the trial court deems a retrospective competency trial to be

feasible, the record of the proceedings on remand shall then be returned to this

Court for reinstatement of the appeal. Turner, 422 S.W.3d at 696–97.




                                             Russell Lloyd
                                             Justice


Panel consists of Justices Higley, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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