                                                                                 ACCEPTED
                                                                            07-14-00345-CR
                                                                SEVENTH COURT OF APPEALS
                                                                         AMARILLO, TEXAS
                                                                        4/9/2015 4:01:22 PM
                                                                          Vivian Long, Clerk


                     No. 07-14-00345-CR

                           IN THE                         FILED IN
                                                   7th COURT OF APPEALS
                                                     AMARILLO, TEXAS
                     COURT OF APPEALS              4/9/2015 4:01:22 PM
                          FOR THE                       VIVIAN LONG
                                                           CLERK

             SEVENTH JUDICIAL DISTRICT OF TEXAS
                      AMARILLO, TEXAS

                    MARC ALLEN MASON,
                            APPELLANT
                            V.
                    THE STATE OF TEXAS
             ON APPEAL IN CAUSE NO. 23,957-C
              FROM THE 251st DISTRICT COURT
                OF RANDALL COUNTY, TEXAS
          HONORABLE ANA ESTEVEZ, JUDGE PRESIDING

                BRIEF FOR THE STATE OF TEXAS

                           JAMES A. FARREN
                           CRIMINAL DISTRICT ATTORNEY
                           RANDALL COUNTY, TEXAS

                           KRISTY WRIGHT
                           SBN 00798601
                           kwright@randallcounty.org
                           ASST. CRIMINAL DISTRICT ATTORNEY
                           2309 Russell Long Blvd., Suite 120
                           Canyon, Texas 79015
                           (806) 468-5570
                           FAX (806) 468-5566
                           ATTORNEYS FOR THE STATE

STATE REQUESTS ORAL ARGUMENT IF REQUESTED BY THE APPELLANT
                            TABLE OF CONTENTS
INDEX OF AUTHORITIES                                    3-6

THE CASE IN BRIEF                                       7

STATE’S COUNTERPOINTS

                          COUNTERPOINT NO. 1

        THE APPELLANT’S RIGHT TO A SPEEDY TRIAL WAS NOT VIOLATED IN THIS
CASE.

                          COUNTERPOINT NO. 2

      THE TRIAL JUDGE DID NOT ABUSE HER DISCRETION BY FAILING TO STAY
THE PROCEEDINGS IN THIS CASE UNTIL SHE CONDUCTED AN INFORMAL INQUIRY
INTO THE APPELLANT’S COMPENTENCY TO STAND TRIAL.

STATEMENT OF FACTS                                      8-10

COUNTERPOINT NO. 1
    RESTATED                                            11
    STATEMENT OF FACTS                                  11-13
    SUMMARY OF THE ARGUMENT                             14
    ARGUMENT                                            14-32

COUNTERPOINT NO. 2
    RESTATED                                            33
    STATEMENT OF FACTS                                  33
    SUMMARY OF THE ARGUMENT                             33
    ARGUMENT                                            33-42

PRAYER                                                  43

CERTIFICATE OF COMPLIANCE                               43

CERTIFICATE OF SERVICE                                  44

                                    2
                            INDEX OF AUTHORITIES


TEXAS CASES

Boitnott v. State, 48 S.W.3d 289                       35
  (Tex.App.—Texarkana 2001, pet. ref’d)

Brunson v. State, 2009 WL 3858018                      26
  (Tex.App.—Waco, 2009) (not reported)

Christmas v. State, 2009 WL 579278                     26
  (Tex.App.—Fort Worth 2009) (not reported)

Douglass v. State, 2010 WL 2196082                     39, 41
  (Tex.App.—El Paso 2010) (not reported)

Dragoo v. State, 96 S.W.3d 308                         16, 22
  (Tex.Crim.App. 2003)

Ex parte LaHood, 401 S.W.3d 45                         34
  (Tex.Crim.App. 2013)

Ex parte McKenzie, 491 S.W.2d 122                      25, 31
  (Tex.Crim.App. 1973)

Flores v. State, 625 S.W.2d 44                         29
  (Tex.App.—San Antonio 1981, pet. ref’d)

Garza v. State, 2014 WL 4289004                        34
 (Tex.App.—Amarillo 2014) (not reported)

Harris v. State, 827 S.W.2d 949                        14, 15
(Tex.Crim.App. 1992)

Heard v. State, 2004 WL 3135234                        37
  (Tex.App.—Houston [1st Dist.] 2004) (not reported)


                                       3
Johnson v. State, 2006 WL 2578033                    20
  (Tex.App.—Fort Worth 2006) (not reported)

Lahood v. State, 171 S.W.3d 613                      34, 38, 41
  (Tex.App.—Houston [14th Dist.] 2005, pet. ref’d)

Means v. State, 955 S.W.2d 686                       35
 (Tex.App.—Amarillo 1997, pet. ref’d)

Meyer v. State, 27 S.W.3d 644                        28, 29
 (Tex.App.—Waco 2000, pet. ref’d)

Moore v. State, 999 S.W.2d 385                       34, 38, 41
 (Tex.Crim.App. 1999)

Nelson v. State, 2013 WL 5526229                     38, 41
 (Tex.App.—Waco 2013) (not reported)

Parkerson v. State, 942 S.W.2d 789                   23
  (Tex.App.—Fort Worth 1997, no pet.)

Phipps v. State, 630 S.W.2d 942                      22, 28, 29
  (Tex.Crim.App. 1982)

Rice v. State, 991 S.W.2d 953                        38, 41
  (Tex.App.—Fort Worth 1999, pet. ref’d)

Salahud-din v. State, 206 S.W.3d 203                 35
  (Tex.App.—Corpus Christi 2006, pet ref’d)

Shaw v. State, 117 S.W.3d 883                        15, 22, 24
  (Tex.Crim.App. 2003)

Starks v. State, 266 S.W.3d 605                      26
  (Tex.App.—El Paso, 2008, no pet)




                                        4
State v. Guerrero, 110 S.W.3d 155            29
  (Tex.App.—San Antonio 2003, no pet)

State v. McCoy, 94 S.W.3d 296                27, 28
  (Tex.App.—Corpus Christi 2002, no pet.)

State v. Munoz, 991 S.W.2d 818               15, 16, 25, 29, 30
  (Tex.Crim.App. 1999)

Townsend v. State, 949 S.W.2d 24             38, 41
(Tex.App.—San Antonio 1997, no pet.)

Turner v. State, 422 S.W.3d 676              34
  (Tex.Crim.App. 2013)

Zamorano v. State, 84 S.W.3d 643             23
  (Tex.Crim.App. 2002)



FEDERAL AND SUPREME COURT CASES

Barker v. Wingo, 407 U.S. 514,               14, 15, 16, 22, 25
  92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)

Doggett v. United States, 505 U.S. 647,      15, 25, 31
  112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)

United States v. Avalos, 541 F.2d 1100       29
 (5th Cir. 1976)

United States v. Marion, 404 U.S. 307,       15
 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)




                                         5
TEXAS STATUTES

Texas Code of Criminal Procedure, Article 46B.003         34, 37

Texas Code of Criminal Procedure, Article 46B.003(a)(1)   39

Texas Code of Criminal Procedure, Article 46B.003(a)(2)   40, 41

Texas Code of Criminal Procedure, Article 46B.004(c)      34




                                        6
                            No. 07-14-00345-CR
                                  IN THE
                            COURT OF APPEALS
                                 FOR THE
                     SEVENTH JUDICIAL DISTRICT OF TEXAS
                             AMARILLO, TEXAS
                             MARC ALLEN MASON,
                                     APPELLANT
                                     V.
                             THE STATE OF TEXAS

TO THE HONORABLE COURT OF APPEALS:

      Comes now, the State of Texas in the above styled and numbered cause

and files this brief in response to the brief of the Appellant, Marc Allen Mason.

The appellant was convicted of the felony offense of burglary of a building,

enhanced, in 251st District Court of Randall County, the Honorable Ana Estevez,

Judge presiding.

                               THE CASE IN BRIEF

THE CHARGE                     BURGLARY OF A BUILDING, ENHANCED

THE PLEA                       NOT GUILTY

THE VERDICT (JURY)             GUILTY

THE PUNISHMENT (JURY)          SEVENTEEN (17) YEARS IN PRISON & $5000 FINE




                                        7
                              STATEMENT OF FACTS

      On November 20, 2012, the appellant broke into the Eskimo Hut (a

business located in Randall County). (RR.IV-24-26; 112-115); (RR.VI-State’s

Exhibits 15 & 16). The surveillance footage from the Eskimo Hut shows a person

breaking into this building through the “drive thru” window and stealing a carton

of Kool cigarettes. (RR.IV-25-26; 112-115). Later that day, the appellant broke

into a motor home. (RR.IV-42-43; 52-54; 86-90; 93-99; 106; 110; 112-115); (RR.VI-

State’s Exhibits 15 &16). Law enforcement officers found the appellant about

three-quarters of a mile from the motor home and questioned him about the

incident. (RR.IV-39; 52; 86-90; 93-99; 106). The appellant admitted to burglarizing

the motor home and the Eskimo Hut. (RR.IV-110; 112-115); (RR.VI-State’s Exhibits

15 & 16). A pack of Kool cigarettes were even discovered on the appellant’s

person. (RR.IV-56). At some point in time, the appellant was arrested for

burglarizing the Eskimo Hut. (RR.II-26-27); (RR.IV-56; 115). After listening to the

above evidence, the jury found the appellant guilty of the felony offense of

burglary of a building. (CR.I-158-160); (RR.IV-159).

      At the punishment stage of trial, the appellant pled “not true” to the

enhancement paragraphs contained in the indictment. (RR.V-13). The State then

presented the following evidence (regarding the appellant’s criminal history and

                                         8
bad acts) to the jury: 1) a judgment showing the appellant was convicted on

February 3, 1997 for the offense of burglary of a vehicle (RR.V-103-104); (RR.VI-

State’s Exhibit 22); 2) a judgment showing the appellant was convicted on January

26, 1996 for the offense of theft of property ($50 or more but less than $500)

(RR.V-104-105); (RR.VI-State’s Exhibit 23); 3) a judgment showing the appellant

was convicted on May 9, 1996 for the offense of failure to identify to a peace

officer (RR.V-105-106); (RR.VI-State’s Exhibit 24); 4) a judgment showing the

appellant was convicted on February 20, 1997 for the offense of criminal mischief

(RR.V-106-107); (RR.VI-State’s Exhibit 25); 5) a judgment showing the appellant

was convicted on April 15, 1999 for the offense of cruelty to an animal (RR.V-109-

110); (State’s Exhibit 27); 6) a judgment showing the appellant was convicted on

May 17, 2004 for the offense of unlawful possession of a firearm (RR.V-110-111);

(State’s Exhibit 28); 7) a judgment showing the appellant was convicted on July

18, 2006 for the offense of unlawful possession of a firearm by a felon (RR.V-111-

112); (State’s Exhibit 29); 8) evidence the appellant stole a car from the Love’s

convenience store on October 11, 2012 (RR.V-19-20; 40-41; 85); and 9) evidence

the appellant totaled Elaine Bailey’s car with a sledgehammer on July 31, 2002.

(RR.V-45-49).




                                        9
       After listening to the above evidence, the jury found the enhancement

paragraphs contained in the indictment of Cause No. 23,957-C to be true and

sentenced the appellant to seventeen (17) years in prison. (CR.I-6-7; 158-160);

(RR.V-174). The jury also assessed a $5,000.00 fine. (CR.I-158-160); (RR.V-174).

On September 16, 2014, the trial judge signed a certification of the appellant’s

right of appeal. (CR.I-147). This certification authorized the present appeal. On

September 18, 2014, the appellant filed a timely notice of appeal and a motion for

new trial. (CR.I-148-150). The motion for new trial was overruled by operation of

law.




                                        10
                         COUNTERPOINT NO. 1, RESTATED

        THE APPELLANT’S RIGHT TO A SPEEDY TRIAL WAS NOT VIOLATED IN THIS
CASE.

STATEMENT OF FACTS:

        Since the reason the trial judge denied the appellant’s motion to dismiss for

lack of a speedy trial was based on pending sanity and/or competency to stand

trial examinations, the State will hereafter discuss the facts pertaining to any

sanity and/or competency requests or examinations. (CR.I-120); (RR.II-57). For the

sake of clarity, the State will present the facts pertaining to these issues in

chronological order through the use of the following timeline.

November 20, 2012                Appellant was arrested in this case and held in the
                                 Randall County jail. (RR.II-26-27)
November 29, 2012                A complaint was filed against the appellant for the
                                 felony offense of burglary of a building. (CR.I-100)
March 20, 2013                   An indictment was filed against the appellant for
                                 the felony offense of burglary of a building,
                                 enhanced. (CR.I-6-7)
March 21, 2013                   Greg Phifer was appointed as trial counsel. (CR.I-9)
April 19, 2013                   Trial judge signed an “Order Appointing
                                 Psychologist To Examine the Defendant Regarding
                                 the Defendant’s Sanity and Competency To Stand
                                 Trial.” (CR.I-10-14) Mr. Phifer specifically sought
                                 and secured this order. (RR-II-45-46; 54) The trial
                                 judge ordered Dr. Steve C. Schneider to conduct
                                 the examination. (CR.I-11)


                                          11
June 6, 2013        Dr. Schneider was scheduled to examine the
                    appellant regarding sanity and competency to
                    stand trial. (CR.I-10-14) However, the Randall
                    County Sheriff’s office failed to transport the
                    appellant to the scheduled examination. (RR.II-12-
                    13)
February 19, 2014   Trial judge signed another “Order Appointing
                    Psychologist To Examine The Defendant Regarding
                    The Defendant’s Sanity and Competency to Stand
                    Trial.” (CR.I-15-19) Dr. Schneider was again
                    ordered to examine the appellant. (CR.I-16)
March 21, 2014      The appellant refused to participate in Dr.
                    Schneider’s examination. (CR.I-18; 36-37); (RR.II-
                    47) The appellant informed Dr. Schneider that
                    “he had not been involved in decision to seek an
                    evaluation” and “was unwilling to submit to legal
                    strategy with which he did not assist in
                    developing.” (CR.I-36). Since the appellant would
                    not participate in the examination, Dr. Schneider
                    was unable to form an opinion about whether the
                    appellant was competent to stand trial. (CR.I-36-
                    37)
May 13, 2014        The trial judge allowed Greg Phifer to withdraw as
                    trial counsel and appointed Don Schofield to
                    represent the appellant. (CR.I-29; 30)
June 2, 2014        Mr. Schofield filed the “Defendant’s Motion for
                    Psychiatric Examination on Competency to Stand
                    Trial.” (CR.I-66-68)
June 2, 2014        Trial judge signed an “Order Appointing
                    Psychiatrist to Examine the Defendant Regarding
                    the Defendant’s Sanity and Competency to Stand
                    Trial.” (CR.I-74-78) Dr. Mustafa Hussain was
                    ordered to examine the appellant. (CR.I-75)



                            12
August 14, 2014                 The appellant was scheduled to be examined by
                                Dr. Hussain on this date. (CR.I-77) Prior to the
                                examination, the appellant informed Dr. Hussain
                                that he no longer wanted Mr. Schofield to
                                represent him. (CR.I-92) Without representation,
                                Dr. Hussain would not evaluate the appellant.
                                (CR.I-92)
September 2, 2014               Mr. Schofield filed a motion to dismiss for lack of
                                speedy trial. (CR.I-98-99)
September 11, 2014              Mr. Schofield filed the “Defendant’s Motion for
                                Re-Instatement of Psychiatric Examination on
                                Competency to Stand Trial.” (CR.I-116)
September 15, 2014              A pre-trial hearing was held in this case. (RR.II-9-
                                131) At the pre-trial hearing, the trial judge denied
                                the re-instatement of the psychiatric examination
                                on competency to stand trial. (CR.I-119); (RR.II-
                                12-13). The trial judge also denied the motion to
                                dismiss for lack of speedy trial after conducting a
                                pre-trial hearing. (CR.I-120); (RR.II-26-52; 57) The
                                trial judge’s decision to deny the motion to
                                dismiss for lack of speedy trial was “…based on
                                the pending psychiatric exams, because the
                                record reflects that that was something that was
                                pending at all times.” (CR.I-120); (RR.II-57)
September 15-17, 2014           A jury trial was held in this case. (CR.I-161-164)


      Throughout this proceeding, the appellant claimed that he has a wireless

audio implant in his sinus cavity that is a constant source of distraction and causes

him mental anguish. (CR.I-24; 80); (RR.II-13; 75-77). The appellant also claimed

that he has previously been diagnosed with bipolar disorder. (RR.II-107).


                                         13
                          SUMMARY OF THE ARGUMENT

      The appellant’s right to a speedy trial was not violated in this case. After

balancing all of the Barker factors, it is clear that the factors weigh more heavily

against finding a violation of the appellant’s right to a speedy trial. Accordingly, no

speedy trial violation has been shown and Issue One should be denied.


                                     ARGUMENT

                                 BARKER ANALYSIS


      The right to a speedy trial is guaranteed by the Sixth Amendment of the

United States Constitution and is applicable to the States through the Fourteenth

Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101

(1972). The Texas courts apply the Barker test for a speedy trial analysis. Harris v.

State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992). The Barker test requires that

the following factors be balanced against each other to determine whether a

defendant’s constitutional right to a speedy trial has been violated: 1) the length

of delay, 2) the reason for the delay, 3) the defendant’s assertion of his speedy-

trial right, and 4) the prejudice to the defendant from the delay. Barker v. Wingo,

supra, 407 U.S. at 530.      When balancing these factors, no single factor is

necessary or sufficient to establish a violation of the defendant’s right to a speedy


                                          14
trial. Barker v. Wingo, supra, 407 U.S. at 531; Shaw v. State, 117 S.W.3d 883,

889 (Tex.Crim.App. 2003). The factors must be considered together with other

relevant circumstances. Id. Moreover, the conduct of both the prosecutor and

the defendant should be weighed when determining speedy-trial claims. Barker

v. Wingo, supra, 407 U.S. at 530; State v. Munoz, 991 S.W.2d 818, 821

(Tex.Crim.App. 1999).


                                 1. Length of Delay


      The first factor weighed in the balancing test is the length of delay. Barker

   v. Wingo, supra, 407 U.S. at 530. A speedy-trial claim will be heard only when

   a prima facie unreasonable period of time has passed after accusation. Harris

   v. State, supra, at 956. The delay is measured from the time the defendant is

   formally accused or arrested until the time of trial. United States v. Marion,

   404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In general, a delay

   approaching one year is deemed “…unreasonable enough to trigger the Barker

   enquiry.” Doggett v. United States, 505 U.S. 647, 652 fn. 1, 112 S.Ct. 2686

   (1992). In the instant case, the appellant was arrested on November 20, 2012

   and the trial began on September 15, 2014. (CR.I-161-164); (RR.II-26-27). The

   State admits that this delay was sufficient to trigger the Barker enquiry.


                                        15
   Consequently, the twenty-two month delay weighs in favor of finding a

   violation of the appellant’s right to a speedy trial. Dragoo v. State, 96 S.W.3d

   308, 314 (Tex.Crim.App. 2003).


                                 2. Reason for Delay


      The second factor weighed in the balancing test is the reason for the delay.

Barker v. Wingo, supra, 407 U.S. at 530. When assessing this second factor, the

Supreme Court stated that “different weights should be assigned to different

reasons….” Id. at 531. A deliberate attempt to delay a trial in order to hamper the

defense should weigh heavily against the State. Barker v. Wingo, supra, 407 U.S.

at 531. A neutral reason (i.e., overcrowded courts) for the delay is weighed less

heavily against the State and a valid reason (i.e., an absent witness) for the delay

is not weighed against the State at all. State v. Munoz, 991 S.W.2d at 822.

Moreover, a delay attributable to the defendant may constitute a waiver of the

speedy-trial claim. Id.


      In the instant case, the prosecutor informed the trial judge that the case

was delayed due to pending motions/orders for a competency examination.

(RR.II-54-55). The prosecutor specifically stated that “…the State has been ready

and willing to try this case for a year and a half, and I have been unable to do so


                                         16
because of these pending motions filed by the Defense.”1 (RR.II-55). The original

competency order was signed by the trial judge on April 19, 2013. (CR.I-10-14).

The appellant acknowledged (at the September 15, 2014 pre-trial hearing on the

motion to dismiss for lack of speedy trial) that Mr. Phifer (the appellant’s trial

counsel) sought and secured the original order for a competency examination

from the trial judge. (RR.II-45-46). Since the trial judge signed the “Order

Appointing Psychologist to Examine the Defendant Regarding the Defendant’s

Sanity and Competency to Stand Trial” on April 19, 2013, Mr. Phifer obviously

requested the competency examination less than a month after being appointed

as counsel in this case (i.e., March 21, 2013) and within five months of the

appellant being arrested in this case (i.e., November 20, 2012). (CR.I-9; 10-14);

(RR.II-26-27).


       Even though the appellant was scheduled to be examined by Dr. Steve

Schneider on June 6, 2013, personnel from the Randall County Sheriff’s office

failed to transport the appellant the examination. (CR.I-13); (RR.II-12-13). On

February 19, 2014, the trial judge signed another “Order Appointing Psychologist

1
        Although the record does not contain Mr. Phifer’s motion for a competency
examination, it is important to note that the appellant acknowledged (during the pre-trial
hearing on the motion to dismiss for lack of speedy trial) that Mr. Phifer secured the original
order for a competency examination from the trial judge. (RR.II-45-46). Moreover, the defense
never objected when the prosecutor repeatedly stated during the pre-trial hearing that Mr.
Phifer secured this original order. (RR.II-54-55).
                                              17
to Examine the Defendant Regarding the Defendant’s Sanity and Competency to

Stand Trial.” (CR.I-15-19). Aside from the fact that the Randall County Sheriff’s

office failed to transport the appellant to the original examination, the record is

unclear as to the reasons for the eight month delay (i.e., from the June 6, 2013

date of the original competency examination to the February 19, 2014 order for

another competency examination) in ordering another competency examination.

(CR.I-12-13; 15-19). Nevertheless, the prosecutor emphasized prior to trial that

the State was not at fault for this unfortunate delay. (RR.II-54-55).


      On March 21, 2014, the appellant was transported to his competency

examination. (CR.I-18; 36-37); (RR.II-47). The appellant, however, refused to

participate in Dr. Schneider’s examination. (CR.I-18; 36-37); (RR.II-47). The

appellant informed Dr. Schneider that “he had not been involved in decision to

seek an evaluation” and “was unwilling to submit to legal strategy with which he

did not assist in developing.” (CR.I-36). The appellant also informed Dr. Schneider

that, “I’ve defended myself before. Against felonies. I’m familiar with it. I’ve

dealt with the law enough…the best thing to do I think would be just to wait until

I can establish my legal position….” (CR.I-37). Since the appellant would not




                                          18
participate in the examination, Dr. Schneider was unable to form an opinion

about whether the appellant was competent to stand trial.2 (CR.I-36-37).


       On June 2, 2014, Mr. Schofield (who replaced Mr. Phifer as trial counsel)

filed the “Defendant’s Motion for Psychiatric Examination on Competency to

Stand Trial.” (CR.I-29-30; 66-68). The trial judge granted this motion and ordered

Dr. Mustafa Hussain to examine the appellant on August 14, 2014. (CR.I-74-78).

As soon as the appellant was transported to the examination, the appellant

informed Dr. Hussain that he no longer wanted Mr. Schofield to represent him.

(CR.I-92). Without representation, Dr. Hussain would not evaluate the appellant.

(CR.I-92). Immediately thereafter this case was set for trial and the jury trial was

held a month later (on September 15-17, 2014). (RR.II-55); (CR.I-161-164).


       Approximately thirteen days prior to trial (on September 2, 2014), Mr.

Schofield filed a motion to dismiss for lack of speedy trial. (CR.I-98-99). A mere

four days prior to trial (on September 11, 2014), Mr. Schofield filed the

“Defendant’s Motion for Re-Instatement of Psychiatric Examination on
2
        In his brief, the appellant repeatedly states that the trial judge failed to notify newly
appointed counsel on April 1, 2014 that the appellant would not cooperate at the March 21,
2014 competency evaluation. (Appellant’s Brief at pages 17 and 18); (CR.I-39-41). Although
the State assumes the appellant is asserting that Mr. Don Schofield (who replaced Mr. Phifer as
counsel) should have been notified on April 1, 2014 of the appellant’s failure to cooperate at
the March 21, 2014 competency examination, Mr. Schofield was not even appointed to
represent the appellant until May 13, 2014. (CR.I-29; 30). Hence, the authorized counsel (Mr.
Phifer) was notified on April 1, 2014 about the March 21, 2014 examination. (CR.I-41).
                                               19
Competency to Stand Trial.” (CR.I-116). At a pre-trial hearing held on the day of

trial, Mr. Schofield asked the court to consider granting his motion for the re-

instatement of the competency examination based on the appellant’s pro se

motions asserting he has a wireless audio implant in his sinus cavity. (CR.I-24; 80);

(RR.II-13). The trial judge denied the motion for the re-instatement of the

competency examination. (CR.I-119); (RR.II-13). At this same pre-trial hearing, the

trial judge held a hearing on the motion to dismiss for lack of speedy trial. (RR.II-

24-57). After listening to the evidence presented at this hearing, the trial judge

denied the motion to dismiss for lack of speedy trial “…based on the pending

psychiatric exams, because the record reflects that that was something that was

pending at all times.” (emphasis added by this writer); (CR.I-120); (RR.II-57).


      A delay due to a defendant’s claim of incompetency or who is temporarily

incompetent to stand trial is valid and justified. See Johnson v. State, 2006 WL

2578033 (Tex.App.—Fort Worth 2006) (not reported). As stated previously, the

appellant’s attorney secured the original order from the trial judge for a

competency examination within five months of being arrested in this case. (CR.I-

10-14); (RR.II-26-27; 45-46). Although there was an eight month delay between

the first scheduled competency examination (June 6, 2013) and the February 19,

2014 order for another competency examination, the State was not at fault for

                                         20
the unfortunate delay. (CR.I-15-19); (RR.II-12-13; 55). The appellant could not be

evaluated during the second scheduled examination (held on March 21, 2014)

and the third scheduled examination (held on August 14, 2014) because he

refused to participate in the second scheduled examination and he requested the

removal of defense counsel during the third scheduled examination. (CR.I-18; 36-

37; 77; 92); (RR.II-47). Finally, four days prior to trial, defense counsel requested

another competency examination which the trial judge denied. (CR.I-116; 119);

(RR.II-12-13). Since a competency motion/order was pending throughout most of

this criminal proceeding and since the original competency examination was

requested by defense counsel, the State’s reason for the delay was valid and

should not be weighed against the State at all.


      Moreover, it is reasonable to infer that the trial judge actually attributed

the reason for the delay in this case against the appellant. As stated above, the

appellant refused to cooperate in the March 21, 2014 examination and impeded

the August 14, 2014 examination by requesting the removal of Mr. Schofield as

trial counsel. (CR.I-18; 36-37; 77; 92); (RR.II-47). Based on the appellant’s actions

during these examinations, the trial judge could have reasonably believed he was

trying to avoid trial by delaying the proceedings. Accordingly, the second Barker

factor weighs against finding a violation of the appellant’s right to a speedy trial.

                                          21
                            3. Assertion of Speedy Trial Right


      The third factor weighed in the balancing test is the defendant’s assertion

of his right to a speedy trial. Barker v. Wingo, supra, 407 U.S. at 530. Although a

defendant’s failure to assert his speedy trial right does not amount to a waiver of

such right, the “…failure to assert the right will make it difficult for a defendant to

prove that he was denied a speedy trial.” Barker v. Wingo, supra, 407 U.S. at

532. In other words, a defendant’s failure to make a timely demand for a speedy

trial strongly indicates that he “…did not really want one and that he was not

prejudiced by not having one.” Shaw v. State, supra, at 890. Moreover, a

defendant’s inaction weighs more heavily against a violation the longer the delay

occurs. If a defendant really wanted a speedy trial, then he would have taken

some action to obtain one. See Shaw v. State, supra, at 890; Dragoo v. State,

supra, at 314-315 (right to speedy trial is not violated when defendant

demonstrates no serious prejudice during more than a three year delay between

arrest and trial and defendant waited just before trial to assert his speedy trial

right); Phipps v. State, 630 S.W.2d 942, 946 (Tex.Crim.App. 1982) (right to speedy

trial is not violated when defendant demonstrated no prejudice by four year delay

between arrest and trial and the defendant waited until one month before trial to

assert his speedy trial right).

                                          22
      In the instant case, the appellant never requested a speedy trial. Instead,

the appellant filed a motion to dismiss for lack of a speedy trial approximately

twenty-two months after he was arrested. The record shows that the appellant

was arrested on November 20, 2012 and did not file the motion to dismiss for lack

of a speedy trial until September 2, 2014. (CR.I-98-99); (RR.II-26-27). In addition,

the appellant’s dismissal request was filed a mere thirteen days prior to trial.

(CR.I-98-99; 161-164). The appellant’s “…request for a dismissal instead of a

speedy trial weakens his claim because it shows a desire to have no trial instead

of a speedy trial.” Parkerson v. State, 942 S.W.2d 789, 791 (Tex.App.—Fort Worth

1997, no pet.); Zamorano v. State, 84 S.W.3d 643, 651 n.40 (Tex.Crim.App. 2002).


      Additionally, the appellant claims that he wrote “…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.”

(Appellant’s Brief at pages 9 at fn 3, 20). A careful review of the record, however,

shows that the appellant never requested a speedy trial in a letter to the

prosecutor. (RR.II-22-23). The appellant merely informed the prosecutor that he

was housed in a jail cell with no lights for fourteen months. (RR.II-22). For the

sake of clarity, the State hereafter provides an excerpt from the record of the

conversation between the appellant and the prosecutor pertaining to this letter:

                                        23
      Defendant: Well, I sent—I didn’t file the cover letters. But I addressed an
                  issue to Mr. Blount [the prosecutor] concerning the cell I was
                  in in the jail. There was no lights in it for fourteen months.
      Prosecutor: I remember that.
      Court:      Okay.
      Prosecutor: What is it that you want?
      Defendant: Well, it has to do with speedy trial. I just wanted to be sure
                  you had that in your file and were aware of it.
                  (RR.II-22-23).

      Immediately after this conversation, the trial judge held a pre-trial hearing

on the motion to dismiss for lack of speedy trial. (RR.II-23-24). It is reasonable to

assume, based on the above excerpt, that the appellant was going to rely on his

living conditions at the jail to show he was prejudiced by the lack of a speedy trial.


       Moreover, the appellant claimed that he informed Mr. Phifer (the

appellant’s original trial counsel) that he wanted a speedy trial. (RR.II-49). Again,

the trial judge received no request from Mr. Phifer or from the appellant for a

speedy trial in this criminal proceeding. If the appellant actually wanted a speedy

trial, he could have easily requested one in his pro se motions. (CR.I-20-23; 24-26;

31-32; 69-70; 79-82; 83-91). For all of these reasons, the appellant’s failure to

actually request a speedy trial from the trial judge and his longtime acquiescence

in the delay weighs very heavily against finding a violation of the appellant’s right

to a speedy trial. Shaw v. State, at 890.



                                            24
                              4. Prejudice to Appellant


      The fourth factor weighed in the balancing test is the prejudice to the

defendant as a result of the delay. Barker v. Wingo, supra, 407 U.S. at 530. In

the Barker case, three interests are considered when determining prejudice: 1)

the prevention of oppressive pre-trial incarceration; 2) the minimization of

anxiety and concern of the defendant; and 3) the impairment of the defendant’s

ability to present a defense. Barker v. Wingo, supra, 407 U.S. at 532. The Court of

Criminal Appeals considers the most serious of these factors to be the impairment

of the defendant’s defense. State v. Munoz, supra, at 828. The defendant must

make a prima facie showing of prejudice. If the defendant makes such a prima

facie showing of prejudice, then the State must prove that the accused suffered

no serious prejudice beyond that which ensued from the ordinary and inevitable

delay. Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973). Moreover,

the presumption of prejudice is extenuated by the defendant’s acquiescence in

the delay. Doggett v. United States, supra, 505 U.S. at 658.


                             a. Pre-Trial Incarceration


      As stated above, the appellant was incarcerated for approximately twenty-

two months prior to trial (the appellant was arrested on November 20, 2012 and


                                        25
the trial began on September 15, 2014). (CR.I-161-164); (RR.II-26-27). The “Nunc

Pro Tunc Judgment of Conviction By Jury” reflects that the trial judge gave the

appellant credit for the entire time he was in the Randall County jail prior to trial.

(CR.I-158). Since the appellant was given time credit from November 20, 2012

until September 17, 2014, his pre-trial incarceration was not oppressive and did

not violate his right to a speedy trial. Starks v. State, 266 S.W.3d 605, 612

(Tex.App.—El Paso, 2008, no pet.) (holding that defendant’s twenty-five month

pre-trial incarceration was not oppressive when the defendant received credit on

his sentence for time served and the defendant pled guilty to the charges);

Christmas v. State, 2009 WL 579278 (Tex.App.—Fort worth 2009) (not reported);

Brunson v. State, 2009 WL 3858018 (Tex.App.—Waco, 2009) (not reported).


      Moreover, the appellant alleges that he suffered oppressive pre-trial

incarceration based on his living conditions (i.e., the lights had been removed

from his cell and he was living in the dark from approximately March of 2013 until

March 22, 2014). (Appellant’s Brief at pages 21-23); (RR.II-28-29). However, the

appellant admitted that he was accused of damaging jail property during his pre-

trial incarceration. (RR.II-38; 41-42; 44). The appellant also admitted that he was

housed in administrative segregation (for approximately twenty-one months of

his pre-trial incarceration) for getting involved in an altercation between two

                                         26
inmates. (RR.II-27; 40-42). The trial judge could have reasonably inferred that the

lights were removed from the appellant’s jail cell because he damaged jail

property. (RR.II-38; 41-42; 44). The State was not responsible for the placement

of the appellant in administrative segregation or for the dark jail cell. See State v.

McCoy, 94 S.W.3d 296 n. 7 (Tex.App.—Corpus Christi 2002, no pet.). Since the

appellant was given time credit for his pre-trial incarceration and since the

appellant’s own actions resulted in his housing conditions at the jail, the appellant

suffered minimal oppressive pre-trial incarceration.


                                       b. Anxiety


      In his brief, the appellant claims that he suffered anxiety from living in a

dark cell during his pre-trial incarceration. (Appellant’s Brief at pages 21-23).

However, the appellant and/or his attorney never requested a speedy trial from

the trial judge during his entire twenty-two month pre-trial incarceration. The

failure to request a speedy trial from the trial judge is evidence that any anxiety

the appellant suffered from his pre-trial confinement was not as detrimental to

the appellant as he claimed in his brief.


      Moreover, as stated above, the appellant admitted that he was accused of

damaging jail property and that he was housed in administrative segregation for


                                            27
getting involved in an altercation between two inmates. (RR.II-27; 38; 40-42; 44).

The trial judge could have reasonably inferred that the lights were removed from

the appellant’s cell for damaging jail property. (RR.II-38; 41-42; 44). The State was

not at all responsible for the fact that the appellant was housed in administrative

segregation or the fact that the lights were removed from the appellant’s jail cell.

See State v. McCoy, supra. Hence, the appellant suffered minimal anxiety due to

his pre-trial incarceration.


                               c. Ability to Present a Defense


      The appellant alleges that his ability to present a defense was impaired in

this case because of the unavailability of a witness, the memory loss of a witness,

and his housing conditions at the jail. (Appellant’s Brief at pages 21-23).


                                  1. Unavailable Witness


      A claim of prejudice based on the unavailability of a witness requires the

defendant to show: 1) the witness was unavailable at the time of trial; 2) the

testimony that would have been offered was relevant and material to the

defense; and 3) due diligence was exercised in an attempt to locate the witness

for trial. Phipps v. State, supra, at 947; Meyer v. State, 27 S.W.3d 644, 650

(Tex.App.—Waco 2000, pet. ref’d). In the instant case, the appellant claimed that

                                           28
witness Rose Grubbs “…moved more than 500 miles from Amarillo….” (RR.II-35).

When the prosecutor questioned the appellant as to why Ms. Grubbs could not

attend the trial, the appellant responded, “That is all the information I have. I

have been living in a dark cell in jail. I don’t –I haven’t had phone access. I don’t

know. I only know what has been told to me.” (RR.II-50-51). Since the appellant

was able to locate the witness and since the appellant failed to explain why the

witness was unavailable at the time of trial, his ability to present a defense was

not impaired by the alleged unavailable witness. Phipps v. State, supra, at 947;

Meyer v. State, supra, at 650.


                              2. Witness’s Memory Loss


      As for the complaint regarding witness Danielle Sandoval’s memory loss,

general allegations of failure of memory are insufficient to establish prejudice.

United States v. Avalos, 541 F.2d 1100,115 (5th Cir. 1976); State v. Guerrero, 110

S.W.3d 155, 162 (Tex.App.—San Antonio 2003, no pet); Flores v. State, 625

S.W.2d 44, 47 (Tex.App.—San Antonio 1981, pet. ref’d). To show impairment of a

defense based on a witness’ memory loss, a defendant must show that the lapse

of memory was in some way significant to the outcome of the case. State v.

Munoz, supra, at 829. Bare assertions of dimming memories do not constitute


                                         29
such a showing. Id. In the instant case, the appellant claimed that witness

Sandoval’s “…memory has failed on this—on issues of this case.” (RR.II-36). This

bare assertion of memory loss does not constitute a showing of impairment of a

defense. See State v. Munoz, supra. Moreover, the appellant did not even bring

witness Sandoval’s statement (in which she claimed memory loss) to trial in order

for the State to ascertain whether the allegations contained in her statement

were significant to the outcome of the instant case. (RR.II-51). For all of these

reasons, the appellant’s ability to present a defense was not impaired by witness

Sandoval’s alleged memory loss.


                       3. Appellant’s Housing Conditions at Jail


      As for the housing complaint, the appellant suggests that his housing

conditions (i.e., living in a dark cell for approximately a year) hindered his ability

to present a defense because he was not able to read or write in the dark cell.

(Appellant’s Brief at pages 21-23); (RR.II-22; 29-30, 50). However, the appellant

admitted that his cell was equipped with lights by March of 2014. (RR.II-29). The

approximate six month time period between the date the appellant was housed

in a lighted cell (March of 2014) and the commencement of trial (September 15,

2014) was adequate time to enable the appellant to prepare a defense in this


                                         30
case, especially since the appellant admitted that he was well versed in criminal

proceedings. (CR.I-37). At the scheduled March 21, 2014 competency

examination, the appellant informed Dr. Schneider that, “I’ve defended myself

before. Against felonies. I’m familiar with it. I’ve dealt with the law enough.”

(CR.I-37). Accordingly, the appellant’s ability to present a defense was not

impaired by his pre-incarceration living conditions.


      Upon review of all three of the prejudice concerns (i.e., oppressive pre-trial

incarceration, anxiety, and impairment of a defense), the appellant has failed to

show that he suffered prejudice as a result of the twenty-two month delay. In

fact, the presumption of prejudice was extenuated by the appellant’s

acquiescence in the delay (i.e., his failure to request a speedy trial). See Doggett

v. United States, 505 U.S. at 658. Assuming arguendo that the appellant made a

prima facie showing of prejudice, it is clear that the appellant suffered no

prejudice beyond that which ensued from the ordinary and inevitable delay of

trial. Ex parte McKenzie, supra, at 123. Therefore, the fourth factor of the Barker

balancing test weighs against finding a violation of the appellant’s right to a

speedy trial.




                                         31
                           5. Balancing the Barker Factors


      After balancing all the Barker factors, it is clear the State did not violate the

appellant’s right to a speedy trial. Weighing in favor of finding a violation of the

appellant’s speedy trial rights is the twenty-two month delay. Weighing neutral or

against finding a violation of the appellant’s speedy trial right are the following

facts: 1) the State offered a valid reason for the delay (i.e., the continuous

requests/orders for a competency examination), 2) the appellant failed to request

a speedy trial, 3) the appellant acquiesced in the delay by failing to request a

speedy trial, 4) the inference that the appellant hindered the competency

examinations in order to avoid trial (the appellant refused to cooperate during

the March 21, 2014 examination and the appellant refused Mr. Schofield’s

representation during the August 14, 2014 examination), 5) the appellant filed his

motion to dismiss for lack of speedy trial a mere thirteen days prior to trial, 6) the

presumption of prejudice was extenuated by the appellant’s acquiescence in the

delay, and 7) the appellant suffered no prejudice beyond the ordinary and

inevitable delay of trial. When all of these factors are balanced together, the

appellant’s speedy trial right was not violated. Accordingly, no error has been

shown and Issue One should be denied.



                                          32
                         COUNTERPOINT NO. 2, RESTATED

      THE TRIAL JUDGE DID NOT ABUSE HER DISCRETION BY FAILING TO STAY
THE PROCEEDINGS IN THIS CASE UNTIL SHE CONDUCTED AN INFORMAL INQUIRY
INTO THE APPELLANT’S COMPENTENCY TO STAND TRIAL.

STATEMENT OF FACTS:

      The State adopts and incorporates herein by reference for all purposes the

facts set forth in the “Statement of Facts” section of this brief at pages 11-13.

                          SUMMARY OF THE ARGUMENT

      The trial judge did not abuse her discretion by failing to stay the

proceedings in this case until she conducted an informal inquiry into the

appellant’s competency to stand trial. Prior to trial and during trial, the defense

never claimed that the appellant was incompetent to stand trial. Although the

appellant’s belief that he has a wireless audio implant in his sinus cavity or bipolar

disorder may reflect a mental illness, it does not demonstrate that he was

incompetent to stand trial. Thus, no abuse of discretion has been shown and Issue

Two should be denied.

                                       ARGUMENT


                                   a. Applicable Law


      A defendant is incompetent to stand trial if he does not have “…sufficient


                                          33
present ability to consult with the person’s *a defendant’s+ lawyer with a

reasonable degree of rational understanding” or “a rational as well as factual

understanding of the proceedings against” him. Article 46B.003 of the Texas Code

of Criminal Procedure. A defendant is presumed competent to stand trial and

shall be found competent to stand trial unless proved incompetent by a

preponderance of the evidence. Id. Once the issue of the defendant’s competency

to stand trial has been sufficiently raised, the trial judge should 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.” Article

46B.004(c) of the Texas Code of Criminal Procedure. At the informal inquiry stage,

the trial judge is to only consider evidence tending to show incompetency and

should not consider any evidence showing competency. Ex parte LaHood, 401

S.W.3d 45, 52-53 (Tex.Crim.App. 2013); Turner v. State, 422 S.W.3d 676, 692

(Tex.Crim.App. 2013); Garza v. State, 2014 WL 4289004 (Tex.App.—Amarillo

2014) (not reported). Moreover, the trial judge’s decision not to conduct an

“informal hearing” is reviewed under an abuse of discretion standard. Lahood v.

State, 171 S.W.3d 613, 617-618 (Tex.App.—Houston [14th Dist.+ 2005, pet. ref’d);

Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999).




                                        34
                                      b. Analysis

                    1. Appellant Failed to Preserve Error for Review


      Although the defense repeatedly requested a competency examination,

defense counsel and/or the appellant never asserted the appellant was

incompetent to stand trial or objected to the trial judge’s failure to hold an

“informal hearing” to determine competency. (CR.I-66-68; 116-118); (RR.II-12-13;

45-46; 54). Consequently, any alleged error arising from the trial judge’s failure to

hold the “informal hearing” was waived. See Salahud-din v. State, 206 S.W.3d

203, 208 (Tex.App.—Corpus Christi 2006, pet. ref’d) (holding defendant forfeited

any purported error with regard to three pre-trial psychological evaluations by

failing to object when the trial judge proceeded to trial); Boitnott v. State, 48

S.W.3d 289, 293 (Tex.App.—Texarkana 2001, pet. ref’d) (holding no preservation

of alleged error when defendant did not object to the trial court’s failure to hold a

competency hearing); Means v. State, 955 S.W.2d 686, 689 (Tex.App.—Amarillo

1997, pet. ref’d) (holding no preservation of alleged error when defendant did not

file a motion urging he was incompetent, did not request a hearing to determine

whether evidence of incompetency existed (although two experts examined

defendant at the judge’s bequest and found that defendant suffered from

psychological shortcomings), and did not request that the trial judge conduct a

                                         35
formal competency hearing). Issue Two was, therefore, not preserved for

appellate review and should be denied.


        2. No Abuse of Discretion For Failing to Conduct an “Informal Hearing”


      In Issue Two, the appellant alleges that the trial judge had a duty to stay all

proceedings in this case until the issue of competency was addressed.

(Appellant’s Brief at pages 6; 23-28). A review of the record shows that the trial

judge ordered three competency examinations throughout the proceedings in

Cause No. 23,957-C. (CR.I-10-14; 15-19; 74-78). None of these competency

examinations were completed for the following reasons: 1) the Randall County

Sheriff’s office failed to transport the appellant to the first competency

examination (RR.II-12-13), 2) the appellant refused to participate in the second

examination (CR.I-36), and 3) the appellant informed the examiner during the

third examination that he no longer wanted his trial attorney to represent him in

this case (CR.I-92).

      A failure to cooperate is not probative of incompetence to stand trial. In

other words, the fact that the appellant refused to cooperate during the

competency examinations and the fact that the examinations were never

completed does not help the appellant rebut the presumption of competency.


                                         36
See Heard v. State, 2004 WL 3135234 (Tex.App.—Houston [1st Dist.] 2004) (not

reported). The trial judge could have reasonably concluded that the appellant was

uncooperative during two of the competency examinations in order to avoid trial

by delaying the proceedings.

      As stated previously, the defense never informed the trial judge that the

appellant was incompetent to stand trial (i.e., that he was unable to consult with

his lawyer with a reasonable degree of rational understanding or that he was

unable to understand the proceedings against him). Article 46B.003 of the Texas

Code of Criminal Procedure. At the September 15, 2014 pre-trial hearing, Mr.

Schofield (trial counsel) did not argue that the appellant was incompetent to

stand trial. (RR.II-12-13). Instead, Mr. Schofield argued that the trial judge should

re-instate the competency examination based on the appellant’s pro se motions

indicating that he has a wireless audio implant in his body. (CR.I-116); (RR.II-12-

13). In this regard, six pro se motions were filed in this case. (CR.II-20-23; 24-26;

31-32; 69-70; 79-82; 83-91). In two of these pro se motions, the appellant

specifically discussed the implant and stated that he has “…a wireless audio

implant within his right maxillary sinus cavity, which is active on PI20-electric

power supply” and that the audio implant “is a constant source of distraction and

mental anguish….”      (CR.I-24; 80).   The appellant also asserted during the

                                         37
September 15, 2014 pre-trial hearing that he has previously (at least two years

ago) been diagnosed as bipolar. (RR.II-107).

      The fact that the appellant may have a mental or psychological impairment

does not raise the issue of competency. The trial judge, therefore, did not abuse

her discretion by failing to conduct an informal inquiry into the appellant’s

competency to stand trial based on the two pro se motions (alleging the appellant

has a wireless audio implant within his sinus cavity) and the appellant’s bipolar

assertion. See Moore v. State, supra, at 395 (the defendant’s propensity toward

depression is not proof of his inability to communicate with counsel or

understand proceedings); Lahood v. State, supra, at 619 (no abuse of discretion in

failing to sua sponte inquire into defendant’s competency despite outbursts

during trial, requests for medicine, comments concerning “psych meds”, history

of mental problems, and claim of difficulty understanding proceedings); Rice v.

State, 991 S.W.2d 953, 957 (Tex.App.—Fort Worth 1999, pet. ref’d) (a

competency test is not whether a defendant labored under a mental, behavior, or

psychological impairment); Townsend v. State, 949 S.W.2d 24, 27 (Tex.App.—San

Antonio 1997, no pet.) (a determination that a defendant is mentally ill does not

constitute a finding that the defendant is incompetent to stand trial); Nelson v.

State, 2013 WL 5526229 (Tex.App.—Waco 2013) (not reported) (no abuse of

                                        38
discretion in failing to sua sponte inquire into defendant’s competency despite

testimony that defendant had delusional thinking based on his belief that the

government was out to get him and that the government prevented him from

solving all of the world’s problems with his nano-mind technology); Douglass v.

State, 2010 WL 2196082, at page 2 (Tex.App.—El Paso 2010) (not reported) (no

abuse of discretion in failing to hold an informal inquiry despite evidence that the

court knew the defendant was recently diagnosed with schizoaffective disorder

and bipolar disorder, who suffered from hallucinations, and was taking

medications to quiet voices in her head and to control her racing thoughts).

      Although the appellant’s belief that he has an implant in his sinus cavity or

bipolar disorder may reflect a mental illness, it does not demonstrate that he

lacked the ability to consult with his lawyer or lacked an understanding of the

proceedings against him. In determining whether the appellant had sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding, the record shows that the appellant was “comfortable with Mr.

Schofield’s representation” and that the appellant understood he could

communicate with Mr. Schofield at any time during the trial through whispers or

by written communication. (RR.II-10-12); Article 46B.003(a)(1) of the Texas Code

of Criminal Procedure. In fact, Mr. Schofield presented several of the appellant’s

                                        39
requests to the trial judge throughout the proceeding. (RR.II-13-14); (RR.IV-75).

The record contains absolutely no evidence that the appellant’s alleged

impairments prevented him from consulting with his attorney.

      In determining whether the appellant had a rational as well as factual

understanding of the proceeding against him, it is important to note that the trial

judge actually allowed the appellant to argue his own pro se motions at the

September 15, 2014 pre-trial hearing. (RR.II-14-23); Article 46B.003(a)(2) of the

Texas Code of Criminal Procedure. During the presentation of his pro se motions,

the appellant was lucid and able to easily articulate his specific complaints to the

trial judge. (RR.II-14-23). The appellant was also very responsive to any questions

posed by the trial judge.     (RR.II-14-23). On several occasions, the appellant

coherently explained to the trial judge why he felt certain evidence was important

to his case. (RR.II-15-16; 17; 19-22). The appellant’s presentation of the pro se

motions reflects that he had a rational as well as factual understanding of the

proceeding against him. (RR.II-14-23); Article 46B.003(a)(2) of the Texas Code of

Criminal Procedure.

      Likewise, a review of Dr. Schneider’s report from the March 21, 2014

examination (which the appellant refused to participate in) reflects that the

appellant had a good understanding of his case and the criminal justice system.

                                         40
At the March 21, 2014 examination, the appellant informed Dr. Schneider that he

would not participate in the examination because “he had not been involved in

decision to seek an evaluation” and “was unwilling to submit to legal strategy

with which he did not assist in developing.” (CR.I-36). The appellant further

informed Dr. Schneider that, “I’ve defended myself before. Against felonies. I’m

familiar with it. I’ve dealt with the law enough…the best thing to do I think would

be just to wait until I can establish my legal position….” (CR.I-37). Upon reviewing

the pre-trial hearing and Dr. Schneider’s report, it is clear that the appellant had a

rational as well as factual understanding of the proceedings against him. (CR.I-36-

37); Article 46B.003(a)(2) of the Texas Code of Criminal Procedure.

      For all of these reasons, the trial judge did not abuse her discretion by

failing to stay the proceedings in this case and by failing to initiate an informal

inquiry into the appellant’s competency to stand trial. While the appellant’s belief

that he has a wireless audio implant in his sinus cavity or bipolar disorder may

reflect a mental illness, it does not demonstrate that the appellant lacked the

ability to consult with his lawyer or lacked a rational as well as factual

understanding of the proceedings against him. See Moore v. State, supra, at 395;

Lahood v. State, supra, at 619; Rice v. State, supra, at 957; Townsend v. State,

supra, at 27; Nelson v. State, supra; Douglass v. State, supra, at page 2.

                                         41
Accordingly, the competency to stand trial issue was never sufficiently raised and

the trial judge did not abuse her discretion by failing to conduct an informal

competency hearing. Issue Two is, therefore, without merit and should be denied.




                                        42
                                     PRAYER

      WHEREFORE, Premises Considered, the State prays that the relief

requested by the appellant be denied and that this Honorable Court affirm the

judgment of the trial judge.

                                              Respectfully submitted,

                                              JAMES A. FARREN
                                              CRIMINAL DISTRICT ATTORNEY
                                              RANDALL COUNTY, TEXAS

                                              s/ Kristy Wright
                                              KRISTY WRIGHT
                                              SBN: 00798601
                                              kwright@randallcounty.org
                                              Assistant Criminal District Attorney
                                              Randall County Justice Center
                                              2309 Russell Long Blvd., Suite 120
                                              Canyon, Texas 79015
                                              (806) 468-5570
                                              FAX (806) 468-5566


                          CERTIFICATE OF COMPLIANCE

      I hereby certify that the word count of this entire brief is 8408 words.


                                              s/ Kristy Wright
                                              KRISTY WRIGHT




                                         43
                              CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing State’s Brief has been

served on Eric Coats, Attorney for Appellant (Marc Allen Mason), 1716 S. Polk,

Amarillo, Texas 79102, by depositing same in the United States mail, postage

prepaid on this 9th day of April, 2015.



                                                 s/ Kristy Wright
                                                 KRISTY WRIGHT




                                          44
