                                                                             ACCEPTED
                                                                        07-14-00345-CR
                                                            SEVENTH COURT OF APPEALS
                                                                     AMARILLO, TEXAS
                                                                   3/10/2015 2:33:19 PM
                                                                      Vivian Long, Clerk




                  IN THE COURT OF APPEALS
         IN AND FOR THE SEVENTH DISTRICT OF TEXASFILED IN
                                                 7th COURT OF APPEALS
                                                   AMARILLO, TEXAS
MARC ALLEN MASON           X                     3/10/2015 2:33:19 PM
                           X                          VIVIAN LONG
                                                         CLERK
VS.                        X           CAUSE NO. 07-14-00345-CR
                           X
THE STATE OF TEXAS         X


APPEAL FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY




                     APPELLANT’S BRIEF




                                   ERIC COATS
                                   SBN 00783845
                                   1716 S. POLK
                                   AMARILLO, TX. 79102
                                   806-374-1333
                                   806-373-7773

                                   COUNSEL FOR APPELLANT



ORAL ARGUMENT REQUESTED




                               1
                   IDENTITIES OF PARTIES AND COUNSEL

      The following is a complete list of all the parties, as well as the names and
addresses of all counsel:

Appellant:

Counsel for Appellant:
Mr. Eric Coats
SBN: 00783845
1716 S. Polk
Amarillo, TX. 79102

Trial Counsel for Appellant:
                                       :
MR. DONALD F. SCHOFIELD
SBOT NO. 17800500
112 West 8th Street, Suite 530
Amarillo, Texas 79101
(806) 373-0030

Trial Counsel for the State:

Mr. Charles David Blount
Asst. Randall County District Attorney
SBOT NO. 24086495
Mr. Warren L. Clark
Asst. Randall County District Attorney
SBOT No. 04300500
Randall County District Attorney
2309 Russell Long Blvd.
Canyon, Texas 79015
(806) 468-5570



                                           2
                       TABLE OF CONTENTS

IDENTITY OF PARTIES                        2

TABLE OF CONTENTS                          3

INDEX OF AUTHORITIES                       4

STATEMENT OF THE CASE                      6

ISSUES PRESENTED                           6

STATEMENT OF FACTS                         7

SUMMARY OF ARGUMENTS                       12

ARGUMENTS                                  12

PRAYER                                     28

CERTIFICATE OF COMPLIANCE                  29

CERTIFICATE OF SERVICE                     29




                               3
                          INDEX OF AUTHORITIES

STATUTES

United States Constitution Amendment XI                   13, 20

Texas Code of Criminal Procedure Article 46B.003          25, 29

Texas Code of Criminal Procedure Article 46B.004          25, 29

Texas Code of Criminal Procedure Article 46B.005          26, 29

Texas Code of Criminal Procedure Article 46B.024          25, 29




CASE LAW

Barker v. Wingo, 407 U.S. 514 (1972)                      14, 15, 16, 19, 22

Cantu v. State, 253 S.W.3d 273 (Tex.Crim.App. 2008)       20, 21, 23

Cooper v. Oklahoma, 517 U.S. 348 (1996)                   26, 28

Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)    15

Dragoo v. State, 96 S.W.3d 308 (Tex.Crim.App. 2003)       16

Druery v. State, 412 S.W.3d 523 (Tex.Crim.App. 2013)      27

Ex parte LaHood, 401 S.W.3d 45 (Tex.Crim.App. 2013)       27, 28

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997)       15

Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997) 16

                                        4
Kelly v. State, 163 S.W.3d 722 (Tex.Crim.App. 2005)      15

Kloper v. North Carolina, 386 U.S. 213 (1967)            14

Harris v. State, 827 S.W.2d 949 (Tex.Crim.App. 1992)     15, 16

Phillips v. State, 650 S.W.2d 396 (Tex.Crim.App. 1983)   19

Pierson v. State, 426 S.W.3d 763 (Tex.Crim.App. 2014)    16

Turner v. State, 422 S.W.3d 676 (Tex.Crim.App. 2014)     27

State v. Munoz, 991 S.W.2d 818 (Tex.Crim.App. 1999)      15




                                       5
                           STATEMENT OF THE CASE

      Appellant was charged by indictment in Cause No. 23,957-C in the 251ST

District Court in and for Randall County with burglary of a building alleged to

have occurred on or about the 20th day of November, 2012. (C.R. 6). Appellant’s

case was tried to a jury. (R.R. : IV). The jury found Appellant guilty. (R.R. IV :

159). The jury found both enhancement paragraphs in the indictment true, then set

punishment at seventeen years in prison and fined Appellant $5,000. (R.R. V :

174). The trial court pronounced sentence in accordance with the verdict of the

jury. (R.R. V : 176). Appellant timely filed a notice of appeal. (C.R. 150).



                               ISSUES PRESENTED

      I. Appellant’s right to a speedy trial was violated by his almost twenty-two

month period of incarceration prior to trial.

      II. The trial court had a duty to stay all proceedings in Appellant’s case

until the issue of Appellant’s competency was addressed.



                             STATEMENT OF FACTS

      Appellant was arrested on November 20, 2012. (R..R. II : 27). A complaint

was filed alleging burglary of a building on November 29, 2012. (C.R. 100). Prior

                                          6
to March of 2013, Appellant was placed in a solitary confinement in a six foot by

10 foot cell with no lights. (R.R. II : 28-29). Appellant was indicted for burglary

of a building on March 20, 2013. (C.R. 6). Appellant was appointed counsel,

Greg Phifer, on March 25, 2013. (C.R. 9). Greg Phifer visited Appellant on one

occasion in March of 2013 at which time Appellant instructed Greg Phifer to get

ready for trial, requested that motions be filed, gave him a list of witnesses and

informed him of the conditions of his detention. (R.R. II : 31-32). Appellant

requested that Greg Phifer file a motion for a speedy trial. (R.R. II : 49). On April

19, 2013, the trial court ordered a psychiatric examination of Appellant without

motion from Appellant or the State. (C.R. 10).1 The examination was to be

completed on June 6, 2013. (C.R. 13). Appellant was not transported by the

Randall County Sheriff’s Office for this examination. (R.R. II : 13). Ten months

subsequent to its initial order, the trial court ordered a second psychiatric

examination of Appellant to be conducted on March 21, 2014, again without a

request for such examination having been filed by Appellant or the State. (C.R.

15-19). Appellant was transported to this appointment, but refused to participate



       1
        There is no reference in the record that indicates why Judge Abe Lopez, who was sitting
by assignment, determined that Appellant needed to be evaluated for competency and sanity.
The order said that it was pursuant to Articles 46.02 & 46.03 of the Code of Criminal Procedure.
Those Articles were repealed in 2004 and 2005.

                                               7
in the examination because he had not been told about the appointment, did not

know who had requested it, and was not prepared for the exam due to being held

in a darkened cell for over a year. (R.R. II : 47; C.R. 36). Fourteen months after

his initial arrest, Appellant began filing pro se motions. (C.R. 15, 20)2.

Appellant’s first motion informed the trial court that he had been neglected by

appointed counsel, Greg Phifer, and wished to represent himself. (C.R. 20-23).

This motion also stated that Appellant’s Constitutional rights were being violated

and specifically listed his rights under the Sixth Amendment to the United States

Constitution. (C.R. 20). Appellant’s second motion requested that his head be

scanned in order that a wireless audio device implanted in his sinus cavity might

be detected. (C.R. 24-26).

      On May 19, 2014 appointed counsel, Greg Phifer, filed a motion to

withdraw as counsel; this is the only document filed by Greg Phifer in his fourteen

months on the case. (C.R. 27). On the same day, the trial court allowed Greg

Phifer to withdraw, and appointed Don Schofield as counsel for Appellant. (C.R.

29, 10). On June 2, 2014 counsel, Don Schofield, file a motion to have Appellant

evaluated by a psychiatrist to determine if he was competent. (C.R. 66). The trial

court granted this motion and ordered that Appellant be examined by Dr. Mustafa


      2
          It would be logical to conclude that Appellant was provided with light around this time.

                                                  8
Hussein on August 14, 2014. (C.R. 77). Dr. Mustafa Hussein declined to conduct

an examination because Appellant told Dr. Hussein that Donald Schofield was not

his lawyer. (C.R. 92). On September 2, 2014 Appellant through counsel filed a

motion to dismiss for lack of a speedy trial. (C.R. 98).3 Appellant’s trial began on

September 15, 2014. (R.R. II).

       The trial court held a hearing on Appellants motion to dismiss for lack of a

speedy trial immediately prior to the commencement of his trial. (R.R. II :24-57).

At the hearing, Appellant established that he had been in custody in the Randall

County Jail from November 20, 2012 to September 15, 2014. (R.R. II : 27).

Appellant was housed in the administrative segregation unit, and allowed out of

his cell for three hours per week. (R.R. II : 27-28). The lighting was taken out of

Appellant’s cell for over a year prior to March 22, 2014. (R.R. II : 29). Appellant

described his cell as “pitch black”. (R.R. II : 29). During this time, Appellant was

denied access to the law library. (R.R. II : 33-34). Appellant was unable to read or

write while housed in the dark cell. (R.R. II : 30). Appellant was unable to

contact his attorney during this time. (R.R. II : 30). After Donald Schofield was



       3
        It appears from the record that Appellant wrote a letter to the prosecutor that may have
been an earlier request for a speedy trial, but that letter was not made part of the record and was
not addressed to the trial court. State’s Counsel acknowledged receipt of the letter. (R.R. II : 22-
23).

                                                 9
appointed, it was discovered that two of Appellant’s witnesses had become

unavailable during his incarceration, Rose Grubbs and Danielle Sandoval. (R.R. II

: 35). Rose Grubbs had moved over 500 miles away, and Danielle Sandoval had

lost her memory. (R.R. II : 35-36). These were witnesses that Appellant believed

were material to his case as they could testify to his mental state near the time of

the allegation. (R.R. II 36). Appellant never authorized either of his lawyers to ask

for a continuance in the case, and neither attorney did. (R.R. II : 37; C.R.).

      The State did not dispute the length of Appellant’s incarceration or dispute

the conditions Appellant described. (R.R. II : 38-44). The State, through cross

examination of Appellant, established that Appellant was treated differently from

other inmates by the Randall County Sheriff because he had previously formed a

relationship with a Randall County Jailer, he had tried to break up a fight between

other inmates and he had been accused of damaging property. (R.R. II : 41-42).

The State said that it was not at fault for the nine month delay in getting Appellant

to Dr. Schneider for an examination. (R.R. II : 55). The State argued that the case

was not tried in a timely manner because of the psychiatric examination motions

filed by the defense. (R.R. II : 55). The case was uncomplicated; the State’s

evidence in the guilt innocence portion of the trial was presented in approximately

two hours. (C.R. 162).

                                          10
       The issue of the defendant’s mental health was brought to the attention of

the trial court many times prior to trial. (C.R.; R.R. II). Trial counsel, on two

occasions expressed concerns about Appellant’s competency to stand trial by

motion. (C.R. 66; R.R. II : 13) The trial court signed three orders for psychiatric

testing of Appellant. (C.R. 10, 15, 74). During the pre-trial hearing, trial counsel

re-urged his motion for a competency examination. (R.R. II : 12). Counsel asked

the trial court to take judicial notice of Appellant’s filings in which he referred to

an audio device implanted in his head. (R.R. II : 13). Appellant filed pro se

motions which indicated his belief that he had an audio device implanted in his

head. (C.R. 20, 79). Appellant discussed this belief with the trial court. (R.R. II :

15, 19). Appellant testified that he had been diagnosed with a mental disease.

(R.R. II : 107). Appellant testified that he was “mentally incapable of thought” at

the time of the offense due to his depression and the implant he believed he had in

his head. (R.R. II : 109-112). Deputy Doak testified that he had conducted a

wellness check on Appellant when he found Appellant walking along a highway at

night on November 19, 2012, the evening prior to the incident. (R.R. II : 104).

The trial court denied trial counsel’s re-urged motion, and made no inquiry into

Appellant’s incompetence. (R.R. II : 13).




                                          11
                       SUMMARY OF THE ARGUMENTS

I. Appellant was denied a speedy trial. He was incarcerated for one year, nine

months and fifteen days prior to trial, mainly in dark solitary confinement. During

this delay, two of his witnesses became unavailable. Appellant never requested a

continuance. The State blamed the delay on the need for a psychiatric

examination of Appellant, but did not object to trying Appellant in the absence of

such an examination.

II. The trial court was required to hold an informal inquiry to determine whether

there was some evidence that would support a finding that Appellant was

incompetent. Evidence from many sources raised the issue of Appellant’s

incompetency. The trial court proceeded to trial on the merits without addressing

the issue of Appellant’s incompetency; the proceedings were not stayed as

required by law.



                                  ARGUMENTS

                                  I. Speedy Trial

                                     The Facts

      Appellant was incarcerated for one year, nine months and fifteen days prior

to his trial. Appellant was incarcerated for four months prior to his indictment, he

                                         12
did not have counsel during that time. After indictment, Appellant was appointed

counsel and told counsel to prepare for trial, obtain discovery, to request a speedy

trial, and not to ask for a continuance. Appellant was ordered to undergo a

psychiatric examination thirty days after he was indicted, apparently by the court

acting sua sponte. Appellant was incarcerated for a year after indictment, with

most of that time spent in darkened solitary confinement. One year and one day

after indictment, Appellant was taken from his dark cell for a psychiatric

examination, which he refused. Upon being provided light, Appellant filed a

motion with the court primarily complaining of his lawyer’s neglect, but in which

he also stated that his Sixth Amendment rights were being violated. Appellant

claims to have made a request for a speedy trial to State’s counsel that does not

appear in the record, and this claim was corroborated by counsel for the State.

However, the motion for speedy trial filed by trial counsel fifteen months after

indictment sought dismissal instead of a speedy trial. Appellant’s case was tried

13 days after his speedy trial motion was filed. The motion was denied

immediately prior to trial.

      The State did not dispute the conditions of Appellant’s confinement. The

State attributed the delay in Appellant’s trial to the defense filing motions for a

psychiatric examination, but a year of the delay was caused by the Randall County

                                          13
Sheriff’s Department failure to transport Appellant to his appointment, and the

failure of the trial court, the State, or the defense to uncover that failure for eight

months. Undoubtedly, Appellant’s initial trial counsel did not help Appellant

bring his case to trial.

                                        The Law

       The Sixth Amendment to the United States Constitution, made applicable to

the States through the Fourteenth Amendment, guarantees a speedy trial to an

accused. See U.S. Const. amend VI; see Kloper v. North Carolina, 386 U.S. 213

(1967). In addressing a speedy-trial claim, the Supreme Court has laid out four

factors that a court should consider: (1) the length of delay, (2) the State's reason

for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4)

prejudice to the defendant because of the length of delay. See Barker v. Wingo,

407 U.S. 514, 530 (1972). The accused must first make a threshold showing that "

the interval between accusation and trial has crossed the threshold dividing

ordinary from 'presumptively prejudicial' delay." See Doggett, 505 U.S. at 651-52.

The Texas Court of Criminal Appeals has reiterated that " presumptive prejudice"

" simply marks the point at which courts deem the delay unreasonable enough to

trigger enquiry." State v. Munoz, 991 S.W.2d 818, 821-22 (Tex.Crim.App. 1999)

(quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)); see Harris v.

                                           14
State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992) (assuming that a 13-month

delay was prima facie unreasonable under the circumstances). Thus, if the State

prosecuted the accused with " customary promptness," the accused has failed to

meet the threshold burden, but if the defendant can make a threshold showing of

presumptive prejudice, a court must then proceed to consider each of the

remaining Barker factors and weigh them. Munoz, 991 S.W.2d 818 at 821-22.

      When reviewing an application of the Barker test, a reviewing court uses the

same burden of proof allocation as in the context of a motion to suppress. See

Kelly v. State, 163 S.W.3d 722, 726 (Tex.Crim.App. 2005). Almost total deference

is given to historical findings of fact of the trial court that the record supports and

reasonable inferences from those facts necessary to support the trial court's

findings are drawn, but de novo review is applied to whether there was sufficient

presumptive prejudice to proceed to a Barker analysis and the weighing of the

Barker factors, which are legal questions. Id.; see Guzman v. State, 955 S.W.2d

85, 89 (Tex.Crim.App. 1997); Johnson v. State, 954 S.W.2d 770, 771

(Tex.Crim.App. 1997). In addition, a reviewing court should not consider in its

deliberations record evidence that was not before the trial court when it made its

ruling. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003); see also

Pierson v. State, 426 S.W.3d 763, 771 (Tex.Crim.App. 2014).

                                           15
                                     Application

                                 1. Length of Delay

      The period of incarceration was sufficiently long to trigger application of

the Barker analysis. Appellant was incarcerated awaiting trial for more that

twenty one months. Even when the four month period of pre-indictment

incarceration is excluded, Appellant was incarcerated for almost eighteen months

after indictment. This period of incarceration prior to trial was prejudicial. See

Harris v. State, 827 S.W.2d 949 (Tex.Crim.App. 1992) (where a thirteen month

period between arrest and trial was deemed sufficient to trigger a Barker analysis).

                            2. State’s Reason For Delay

      The State argued that the delay was caused by the defense filing motions

seeking to have Appellant undergo a psychiatric examination. This excuse is

partially untrue, and wholly inadequate. First, two of the orders for psychiatric

examination issued by the court were not issued pursuant to motions filed by the

defense. These orders were issued by the court without a motion from the defense

or the State. Second, these orders do not justify the length of the delay in the

absence of negligence. The first order was for the defendant to submit to a

psychiatric examination on June 6, 2013. Article 46B.026 required that a report

from that examination be filed within thirty days of that date. When Appellant

                                          16
was not transported to that appointment by the Sheriff, and no report was received

by the Court by July 6, 2013, it should not have taken until February 21, 2014 to

discover that failure. That seven month delay cannot be attributed to anything but

negligence.4 Appellant was next ordered for examination to occur on March 21,

2014. Appellant was transported to this appointment, but would not cooperate.

The trial court attempted to alert all parties to this development on April 1, 2014,

but failed to notify newly appointed counsel for Appellant. (C.R. 39-41). Defense

counsel became aware of this development and filed a new motion for psychiatric

examination on June 2, 2014. The trial court ordered that Appellant be examined

August 14, 2014. The psychiatrist did not follow the order of the trial court and

failed to conduct this examination. Appellant’s trial counsel re-urged this motion

on September 2, 2014. This motion was denied by the trial court just prior to trial.

       However, the main reason that this explanation is unsatisfactory is that it

does not comport with the actions finally taken by the State and the trial court.

The State argued that it could not set the case for trial because a psychiatric exam

was pending at all times. However, nothing in the record indicates that the trial


       4
        Although for legal analysis, the State is held liable for this omission, the State was not
alone in this act of negligence. The Randall County Sheriff’s Department, as admitted by
counsel for the State, treated Appellant differently than other inmates and failed to transport
Appellant for reasons that are not stated in the record. Clearly, the trial court lost track of the
case. Appellant was effectively without the assistance of counsel during this period as well.

                                                 17
could not be set for hearing as early as July of 2013. Appellant’s initial exam was

to be conducted on June 6, 2013. Normal procedure would be to have a hearing

after that examination was conducted. The examination was not conducted and

that fact was not discovered for over seven months. There is nothing in the record

that excuses the State for this period of inaction. Additionally, when the second

examination was not conducted on March 21, 2014, the State had notice of that

event on April 1, 2014. Nothing in the record indicates that any hearing was had

or that notice was given to appropriate defense counsel subsequent to this failed

examination until counsel filed his motion for psychiatric examination on June 2,

2014. The trial court denied Appellant’s motion to dismiss for violation of his

right to speedy trial stating, “because the record reflects that that was something

was pending at all times.” (C.R. 57). This is not true specifically for the periods

between March 21, 2013 to February 21, 2014 and June 6, 3014 to September 2,

2014. The defense actually had motions for a psychiatric examination pending

almost continuously in this case only from June 2, 2014 to the date of trial.

Despite those pending motions, the case was set for trial on September 15, 2014.

The pending motions were not an impediment to the State obtaining a trial setting.

It should also be considered that the State voiced no objection to trial of the case

in the absence of a psychiatric evaluation. When trial counsel for Appellant

                                          18
voiced his concerns relating to Appellant’s delusional thinking and urged the trial

court to have a psychiatric examination completed, the State stood mute as the

motion was denied. The State should not be allowed to argue that it was prevented

from bringing the case to trial in the absence of a psychiatric examination when it

achieved exactly that result. Although these periods of neglect cannot be laid

entirely at the feet of State’s counsel and do not appear to be the product of any

malice, such failures are weighed against the State. See Barker id. 407 U.S at 532.

               3. Defendant’s Assertion of the Right to Speedy Trial

      Although a defendant's failure to assert his speedy trial right does not

amount to a waiver of that right, failure to assert the right makes it difficult to

prove denial of a speedy trial. Barker, 407 U.S. at 532. It has been held that a

defendant’s motivation in seeking dismissal rather than a speedy trial may be

weighed against him. Phillips v. State, 650 S.W.2d 396 at 401 (Tex.Crim.App.

1983). If a defendant fails to first seek a speedy trial before seeking dismissal of

the charges, he should provide cogent reasons for this failure. Repeated requests

for a speedy trial weigh heavily in favor of the defendant, while the failure to

make such requests supports an inference that the defendant does not really want a

trial, he wants only a dismissal. Cantu v. State, 253 S.W.3d 273, 283

(Tex.Crim.App. 2008).

                                           19
       Appellant’s first specific assertion of his right to a speedy trial was the filing

of a motion to dismiss for denial of speedy trial filed thirteen days prior to his trial.

However, on at least two other occasions, Appellant asserted this right. Appellant

was prevented from asserting any right for the first year after he was indicted by

the conditions of his incarceration. When Appellant was provided light in his cell,

he began filing motions with the trial court. In his first motion, Appellant

informed the trial court that he had been neglected by his appointed counsel and

that his Sixth Amendment rights were being violated.5 It must be admitted that

this is not the specific motion for speedy trial normally recognized by the court.

However, given Appellant’s abilities and mental state as exhibited by his motions,

this was a reasonable attempt for this specific defendant. Appellant also claims to

have written a letter to counsel for the State in which he requested a speedy trial.

State’s counsel remembered receiving such a letter, but did not specifically affirm

or deny its contents.

       Under the circumstances, it would be unfair to punish Appellant for not

specifically asserting his rights when the State held him in a condition that forced

his silence and his own attorney did not speak for him. The motions filed by



       5
       Appellant asserted that his 5th, 9th and 14th Amendment rights were also being violated in
the same motion.

                                               20
Appellant evidence his desire to prepare for trial. Trial counsel informed the trial

court that Appellant had instructed his attorneys to prepare for trial and not to file

any continuances. No delay was sought by the defense. The record indicates that

Appellant sought a trial at every point when he was able to do so, in the manner he

was capable. There is nothing in the record to indicate that Appellant was

operating under the theory, “Never tried, never convicted”. See Cantu id. at 283.

                                          4. Prejudice

       Appellant was prejudiced by the delay. Appellant was incarcerated for four

months before being formally charged or speaking to a lawyer. He was placed in

darkened isolation and denied contact with anyone but his lawyer for a year;

unfortunately, his lawyer did not contact him during that time. Understandably,

Appellant testified that the situation caused him distress. The motions Appellant

filed when he emerged from the darkness indicate this distress, and raise concerns

about his mental health.6 The State did not dispute the conditions of Appellant’s

incarceration. The State merely sought to explain why the Sheriff’s Department

treated Appellant differently than other inmates.

       In addition to the prejudice suffered by Appellant as a result of his


       6
        Appellant testified that after fourteen months, he was moved from his dark cell into a
cell where an inmate had recently committed suicide in furtherance of his torture. (R.R. II : 42-
43).

                                                21
incarceration under troubling conditions, is the damage done to his defense by the

delay. Appellant testified that he was dysfunctional and incapable of thought at

the time of his accusation. (C.R. 108, 112). Two of his witnesses that could have

testified to his then existing mental state became unavailable during his

incarceration. The absence of these witnesses was a significant blow to the

defense. The harm was magnified by the lack of availability of any psychiatric

testimony. The State made no argument that Appellant had not been prejudiced by

the delay at trial.

       Assessment of the four factors of the Barker analysis require reversal of the

trial court’s ruling on Appellant’s motion. The period of delay was excessive.

The reason for the delay was negligence. Although the negligence in this case

cannot be laid entirely at the feet of the State, ultimately it is the State who can

bring a defendant to trial. See Barker id. at 407. Much of Appellant’s delay could

have been avoided if his counsel had been attentive. However, it would be a

compounded insult to fault Appellant for not properly asserting his right to a

speedy trial while he was effectively without counsel and held in darkened

isolation making communication impossible. Appellant asserted his right to

speedy trial as well as could be expected under the circumstances. He instructed

his lawyer to assert the right, alleged that his Sixth Amendment rights were being

                                           22
violated in one of his rambling motions, instructed his attorneys to prepare for trial

and instructed his attorneys not to seek a continuance. It would be wrong to

expect more from a delusional man held in a dungeon. Finally, appellant was

prejudiced by the delay. Appellant was held in deplorable conditions. He believes

the conditions were designed to drive him to take his own life. More importantly,

his defense was impaired by the loss of two witnesses. The State made no

argument that Appellant’s defense was not impaired and the trial court did not

address the issue. “Of these types of prejudice, the last is the most serious because

the inability of a defendant adequately to prepare his case skews the fairness of the

entire system.” Cantu id at 283. Appellant had little in the way of a defense. His

mental health was the most likely avenue to exoneration or mitigation. Time

robbed him of his fact witnesses in that area and decisions of the trial court

eliminated any possibility of an expert witness. The trial court should have

dismissed his case.

                                   II. Competence

                                      The Facts

      The night before he was arrested, Appellant was the subject of a wellness

check by Randall County Deputies for his unusual behavior. When Appellant was

arrested he was sitting on a fifteen foot concrete bunker near the interstate

                                          23
watching the sun set. After appointing him a lawyer, the first action taken by the

trial court was to order a psychiatric examination of Appellant. Appellant filed

motions and testified regarding his strongly held belief that he had an audio

transmitting device implanted in his head. Appellant testified that he had a mental

disease. Appellant testified that at the time of the commission of the crime he was

mentally incapable of thought. Appellant further testified that the conditions of

his incarceration had negatively impacted his mental state. Appellant’s trial

counsel, Don Schofield, filed a motion for psychiatric examination of Appellant

and re-urged that motion when the examination ordered was not completed. It is

understatement to say that their was a suggestion that Appellant was incompetent.

The trial court made three attempts to have an examination of Appellant

performed. The Sheriff failed to carry out the order on the first attempt, Appellant

refused to comply on the second, and the psychiatrist chose not to execute the

third order. As a result of these circumstances, Appellant was never evaluated for

incompetency. Despite the suggestions of incompetency and the lack of any

expert testimony on the issue, the trial court made no inquiry into the subject. The

trial court denied trial counsel’s re-urged motion for psychiatric examination

without comment or inquiry. Throughout the course of the proceedings, the trial

court never made any inquiry of Appellant or trial counsel into the issue of

                                         24
incompetency.

                                      The Law

       Article 46B.004 of the Texas Code of Criminal Procedures controls the

initial procedure for courts to follow when the issue of incompetency is raised.

The relevant sections read as follows:

       (a) Either party may suggest by motion, or the trial court may suggest on its

own motion, that the defendant may be incompetent to stand trial. A motion

suggesting that the defendant may be incompetent to stand trial may be supported

by affidavits setting out the facts on which the suggestion is made.

       (b) If evidence suggesting 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 to stand trial.

       (c) 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.

       (c-1) A suggestion of incompetency is the threshold requirement for an

informal inquiry under Subsection (c) and may consist solely of a representation

from any credible source that the defendant may be incompetent. A further

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evidentiary showing is not required to initiate the inquiry, and the court is not

required to have a bona fide doubt about the competency of the defendant.

Evidence suggesting the need for an informal inquiry may be based on

observations made in relation to one or more of the factors described by Article

46B.024 or on any other indication that the defendant is incompetent within the

meaning of Article 46B.003.

      (d) If the court determines there is evidence to support a finding of

incompetency, the court, except as provided by Subsection (e) and Article

46B.005 (d), shall stay all other proceedings in the case.

      A criminal defendant who is incompetent may not be put to trial without

violating due process. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). If the trial

judge finds that there is a suggestion of incompetency, he or she shall conduct an

informal inquiry to determine if there is some evidence from any source that

would support a finding that the defendant is incompetent to stand trial. See Ex

parte LaHood, 401 S.W.3d 45, 52-53 (Tex.Crim.App. 2013). A suggestion of

incompetency has been described as a quantum of evidence that is more than none

or a scintilla, that may lead to a finding of incompetence. Druery v. State, 412

S.W.3d 523, (Tex.Crim.App. 2013). At the informal inquiry, the trial court should

focus on any evidence suggesting incompetency and ignore evidence suggesting

                                          26
competency. See Turner v. State, 422 SW.3d 676 at 693 (Tex.Crim.App. 2014). If

some evidence is found to exist supporting incompetency, the trial court is

required to conduct a formal competency trial. See id. at 694.

                                      Analysis

      There was more than none, or a scintilla of evidence suggesting Appellant’s

incompetence. Appellant’s testimony that he had been diagnosed with a mental

disease should have triggered an informal inquiry and, absent conclusive scientific

evidence of competency, a formal trial on the issue. See Turner id. Appellant’s

persistent delusional belief that he had a listening device implanted in his head

was also evidence suggesting his incompetence. The conditions of Appellant’s

incarceration and his belief that the Randall County jail staff was attempting to

drive him to suicide merit consideration as well. It appears that the trial court

grew tired of attempting to ascertain Appellant’s mental status. However, the right

to due process should not be discarded for convenience. See Cooper id. With the

evidence available to the court from trial counsel, the writings of Appellant and

Appellant’s testimony, the trial court was required to conduct an informal inquiry

into Appellant’s competency. See LaHood id. Far from conducting such an

inquiry, the only actions by the trial court on the issue was to deny Appellant’s

final motion for psychiatric examination without comment. All proceedings

                                          27
should have been stayed until the issue of Appellant’s competence was determined

in accordance with Article 46B.004(d).

                                      PRAYER

      For the foregoing reasons, Appellant respectfully prays that the Court

reverse the trial court’s ruling on Appellant’s motion to dismiss for lack of speedy

trial, or reverse the judgement of the trial court and remand the case to the trial

court for an informal inquiry to determine if there is evidence to suggest that

Appellant is incompetent, and other appropriate proceedings in accordance Article

46B of the Texas Code of Criminal Procedure.

                                        Respectfully submitted by,



                                            /S/ Eric Coats
                                        Eric Coats
                                        Appellant’s Lawyer
                                        SBN: 00783845
                                        1716 S. Polk St.
                                        Amarillo, TX 79102
                                        ecoatslaw@gmail.com




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                       CERTIFICATE OF COMPLIANCE

      I hereby certify that this document contains 5724 words.



                                        /S/ Eric Coats
                                      Eric Coats




                          CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the above was electronically delivered to

State’s Counsel on March 6, 2015.



                                        /S/ Eric Coats
                                      Eric Coats




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