            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         NO. PD-1723-12

                                    DAVID EARL BROWN,

                                                 v.

                                    THE STATE OF TEXAS

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                      FROM THE FIRST COURT OF APPEALS
                                HARRIS COUNTY

       P RICE, J., filed a dissenting opinion.

                                   DISSENTING OPINION

       An accused has a constitutional right to be present in the courtroom at every stage of

his trial.1 Even an accused who is present in body may nonetheless be deprived of that basic

right if he is of sufficiently unsound mind that he lacks the ability to participate meaningfully

in his own defense or to rationally comprehend what is happening around him, and such an




       1

        Illinois v. Allen, 397 U.S. 337, 338 (1970).
                                                                                            Brown — 2


accused cannot be made to stand trial under those circumstances consistent with due process.2

This is not to say that the constitutional right to be present at trial can never be forfeited; an

accused who is of sound mind but who voluntarily absents himself after his trial has begun,3

or who persists in disruptive or otherwise contumacious behavior during the course of his

trial,4 may lose his right to complain later that he was tried in absentia. And it is no great

leap from this last proposition also to conclude that an accused who is of sound mind when

his trial begins, but who, during the course of trial, takes some deliberate action to render

himself of unsound mind, should be estopped from later complaining that he has been put to

trial without the ability to participate meaningfully in his defense or to rationally comprehend

the proceedings against him. The question presented in this case, it seems to me, thus boils



        2

        Pate v. Robinson, 383 U.S. 375, 378 (1966).
        3

       Taylor v. United States, 414 U.S. 17, 19-20 (1973); Miller v. State, 692 S.W.2d 88, 90 (Tex.
Crim. App. 1985).
        4

          See Allen, 397 U.S. at 343 (“Although mindful that courts must indulge every reasonable
presumption against the loss of constitutional rights, we explicitly hold today that a defendant can lose
his right to be present at trial if, after he has been warned by the judge that he will be removed if he
continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the
courtroom.”) (citation omitted). The Supreme Court expressly endorsed the notion in Allen that “the
privilege [of personally confronting witnesses] may be lost by consent or at times even by
misconduct.” Id. at 342-43 (quoting Snyder v. Massachusetts, 291 U.S. 97, 106 (1934), and noting
with apparent approval Rule 43 of the Federal Rules of Criminal Procedure, which expressly provides
that a criminal trial may proceed to its conclusion in the event that the defendant should voluntarily
absent himself). See T EX. C ODE C RIM. P ROC. art. 33.03 (trial may “proceed to its conclusion” if the
defendant “voluntarily absents himself” after trial has commenced).
                                                                                      Brown — 3


down to whether the appellant was of sufficiently sound mind when he took the action that

the trial court has construed to be a deliberate attempt to absent himself—both physically and

mentally—from his trial.

       I do not think that we would want to say that the appellant “voluntarily” absented

himself, and that he should therefore be estopped from raising a Sixth Amendment or due

process complaint, if his choice to try to take his own life was primarily the product of a

debilitating mental illness.5 But in the context of voluntariness, the appropriate inquiry is not

whether the appellant could cooperate with counsel and/or comprehend the proceedings.

Strictly speaking, these considerations do not directly inform the question of whether the

action he took to absent himself (both in body and mind) after the inception of the trial

proceedings was voluntary. It therefore strikes me as inappropriate to remand this cause for

a competency hearing under Chapter 46B of the Code of Criminal Procedure.6 In my view,

we should instead ask whether an adequate inquiry was undertaken into the question of the

appellant’s mental condition with respect to the voluntariness of his apparent suicide attempt.



       5

         See Peacock v. State, 77 So. 3d 1285, 1290 (Fla. Dist. Ct. App. 2012) (“Although a suicide
attempt could be deemed voluntary in some circumstances, a suicide attempt could also be an
involuntary product of mental illness.”); State v. Finnegan, 784 N.W.2d 243, 251-52 (Minn. 2010)
(rejecting a claim that the defendant’s mid-trial suicide attempt was involuntary, in part, because,
though given an opportunity to do so in post-conviction proceedings, he “offered no evidence that he
was coerced into taking methamphetamine, that he accidentally overdosed, or that he was compelled
to do so because of a mental illness”).
       6

        T EX. C ODE C RIM. P ROC. ch. 46B.
                                                                                    Brown — 4


If his suicide attempt was not, in fact, “voluntary”—that is to say, not the product of a free

will unencumbered by the undue pressures that may be exerted on the mind by a bona fide

and debilitating mental illness—then the trial court erred to proceed to trial in the appellant’s

absence in violation of his Sixth Amendment right to be physically present, regardless of

whether he was mentally competent to stand trial.

       This view is entirely consistent with Drope v. Missouri.7 Drope does not support the

proposition that a mid-trial suicide attempt, without more, necessarily raises an issue of

competency to stand trial. During the course of his trial for a sexual assault perpetrated

against his wife, Drope shot himself in the abdomen. But Drope’s self-inflicted gunshot

wound was only the culmination of a host of circumstances suggesting irrationality on his

part, which led the Supreme Court to conclude that a mid-trial inquiry should have been

conducted into his competency to stand trial. For example, the Supreme Court observed:

       [W]e believe the Missouri courts failed to consider and give proper weight to
       the record evidence. Too little weight was given to the testimony of
       petitioner’s wife that on the Sunday prior to trial he tried to choke her to death.
       For a man whose fate depended in large measure on the indulgence of his wife
       [who, by Missouri law, could not be compelled to testify against him], who
       had hesitated about pressing the prosecution, this hardly could be regarded as
       rational conduct.8

It is true that the Missouri appellate court had held that, standing alone, Drope’s “suicide


       7

        420 U.S. 162 (1975).
       8

        Id. at 179.
                                                                                           Brown — 5


attempt did not create a reasonable doubt of his competence as a matter of law[.]” 9 But the

Supreme Court did not weigh in on the validity of this specific proposition, merely holding

that the totality of the evidence, culminating in Drope’s mid-trial suicide attempt, was

sufficient to place Drope’s competency in doubt.10

        Having concluded in Drope that a competency inquiry was constitutionally required,

the Supreme Court accordingly found it “unnecessary to decide whether . . . it was

constitutionally impermissible to conduct the remainder of [Drope’s] trial on a capital offense

in his enforced absence from a self-inflicted wound.” 11 The Supreme Court did note,


        9

        Id. at 170.
        10

          See id. at 181 (“Whatever the relationship between mental illness and incompetence to stand
trial, in this case the bearing of the former on the latter was sufficiently likely that, in light of the
evidence of [Drope’s] behavior including his suicide attempt, and there being no opportunity without
his presence to evaluate that bearing in fact, the correct course was to suspend the trial until such an
evaluation could be made.”) (emphasis added); see also People v. Price, 240 P.3d 557, 562 (Colo.
App. 2010) (“A defendant’s suicide attempt alone is not necessarily sufficient to establish a ‘bona fide
doubt’ as to a defendant’s competency to stand trial[,]” Drope notwithstanding); United States v.
Davis, 61 F.3d 291, 304 (5th Cir. 1995) (“[I]n Drope, the Supreme Court expressly refused to decide
whether an attempted suicide itself creates ‘reasonable cause’ for a competency hearing.”).
        11

         Drope, 420 U.S. at 182. The Supreme Court did not, thereby, “clearly ma[k]e competence
to stand trial the first issue to be resolved.” Contra Majority Opinion at 13.

       Drope’s suicide attempt was but the last of an “aggregate of . . . indicia” suggesting that he
might have been incompetent from the very outset of his trial. Drope, 420 U.S. at 180. When the
Supreme Court decided that “a nunc pro tunc determination” of competency vel non would not be
adequate six years after Drope’s original trial, it became necessary to reverse his conviction and
remand the cause for an entirely new trial. Id. at 183. Under these circumstances, there was simply
no need to also decide whether Drope’s right to be physically present for that portion of his trial
following his suicide attempt had been violated (or, indeed, whether such a violation would necessitate
a new trial). Drope neither held nor otherwise supports the proposition that whenever both
                                                                                          Brown — 6


however, that “what we have already said” with respect to the issue of Drope’s competency

“makes it clear that there was an insufficient inquiry to afford a basis for deciding the issue

of waiver” of his Sixth Amendment right to be present.12

        In the instant case, unlike in Drope, there is little (if any) record evidence, apart from,

or in addition to, the appellant’s attempted suicide itself, to suggest a level of irrationality

sufficient to engender doubt as to whether he might have been incompetent, and hence

mentally absent, before he shot himself. And if he became absent (both bodily and mentally)

only by virtue of having shot himself, then it seems to me that the only issue to be decided

is whether he absented himself voluntarily. Under these circumstances, I fail to see the utility

of remanding the cause to the trial court with instructions to proceed with a retrospective

determination of the appellant’s competency to stand trial. If we are to remand the cause to

the trial court at all, it should be only for a more thorough inquiry into the voluntariness of

the appellant’s act by which he rendered himself unable to attend the balance of his trial. In

the words of Drope itself, we could remand for a more searching exploration of the

appellant’s “capacity effectively to waive his right to be present” at the time he inflicted the

gunshot wound on himself,13 focusing particularly on the extent to which any debilitating



competency and the right to be physically present at trial are in issue, a reviewing court is obliged to
address the competency issue first.
        12

        Id. at 182.
        13

        Id. at 183 (emphasis added).
                                                                                           Brown — 7


mental illness may have fueled his attempted suicide. Should the trial court find that the

appellant’s choice to shoot himself was too much the product of a debilitating mental illness

to be fairly deemed a voluntary absence from trial, then it cannot be said that he “waived”

his constitutional right to be present at trial,14 and we should require the trial court to conduct

a new trial. For, in that event, the trial court’s insistence on trying the case to completion in

the appellant’s absence deprived him of his Sixth Amendment right to be physically present

at every phase of his trial. But in the event that the trial court should find, instead, that the

appellant’s choice to shoot himself was wholly voluntary, notwithstanding any mental illness

he might have suffered from, then the appellant’s original conviction should stand, regardless

of the outcome of any inquiry this Court may order into his competency under Chapter 46B.15


        14

        In Taylor, the issue was whether, by voluntarily absenting himself during trial, it could be said
that Taylor “waived” his Sixth Amendment right to be present, in the sense that a “waiver” is typically
defined to be “an intentional relinquishment or abandonment of a known right or privilege.” 414 U.S.
at 19 (internal quotation marks omitted) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
Taylor insisted that no such waiver could have occurred, even if his absence was voluntary, because
he was neither formally informed of his right to be present nor formally asked whether he desired to
waive it. The Supreme Court rejected the proposition that a waiver of the right to be present must be
so formal and could not be established by the mere fact that the defendant voluntarily absented himself
under circumstances suggesting that he was undoubtedly aware of his constitutional right to attend all
phases of his trial. Id. at 20.
        15

          At first blush, this may seem at odds with the Supreme Court’s observation in Pate that “it 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.” 383 U.S. at 384. Not so. As noted
earlier, there is no suggestion in the record that the appellant was incompetent to stand trial before he
shot himself in the head. If his suicidal act was voluntary in the sense that it was not a product of any
debilitating mental illness, then there is nothing to show that he lacked the capacity to waive his right
to a competency determination by willfully absenting himself, both in body and mind, from the balance
of the trial proceedings.
                                                                                    Brown — 8


For, if the appellant intentionally rendered himself absent by his own willful misconduct,

then he essentially “waived” his right to be present—both in body and in mind—and the

issue of his competency to stand trial becomes moot.16

       Because the Court remands this cause to the trial court to conduct what is effectively,

in my view, a needless competency determination, I respectfully dissent.




FILED:        March 19, 2014
PUBLISH




       16

        There is no more question that the appellant was aware of his Sixth Amendment right to be
present at all phases of his trial than there was for Taylor. See note 14, ante.
