                                                                                  ACCEPTED
                                                                             01-14-00582-CR
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                        3/2/2015 11:14:01 PM
                                                                        CHRISTOPHER PRINE
                                                                                      CLERK

                      NO. 01-14-00582-CR

                IN THE COURT OF APPEALS                      FILED IN
             FOR THE FIRST DISTRICT OF TEXAS          1st COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                      3/2/2015 11:14:01 PM
                                                      CHRISTOPHER A. PRINE
                       RODNEY ROBINS                          Clerk
                          Appellant

                               v.

                     THE STATE OF TEXAS
                            Appellee


           On Appeal from Cause Number 1408007
       From the 179th District Court, Harris County, Texas



                    BRIEF FOR APPELLANT




ORAL ARGUMENT REQUESTED                   ALEXANDER BUNIN
                                          Chief Public Defender
                                          Harris County, Texas

                                          SARAH V. WOOD
                                          Assistant Public Defender
                                          Harris County, Texas
                                          State Bar Number 24048898
                                          1201 Franklin, 13th Floor
                                          Houston, Texas 77002
                                          Phone: (713) 368-0016
                                          Fax: (713) 368-9278
                                          Sarah.Wood@pdo.hctx.net

                                          Counsel for Appellant
                     IDENTITY OF PARTIES AND COUNSEL



APPELLANT:                                 Rodney Robins

TRIAL PROSECUTORS:                        David Wayne Overhuls
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:                 Arlan Broussard
                                          7119 Gillen
                                          Houston, Texas 77087

PRESIDING JUDGE:                          Hon. Jim Anderson
                                          By assignment, 179th District Court
                                          (20th Floor “Impact Court”)
                                          Harris County, Texas
                                          1201 Franklin, 17th floor
                                          Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL:                Sarah V. Wood
                                          Assistant Public Defender
                                          Harris County, Texas
                                          1201 Franklin, 13th Floor
                                          Houston, Texas 77002




                                  2
                                                         TABLE OF CONTENTS



Identity of Parties and Counsel ................................................................................................ 2

Table of Contents ....................................................................................................................... 3

Index of Authorities ................................................................................................................... 4

Statement of the Case ................................................................................................................ 5

Issue Presented ............................................................................................................................ 5

Statement of Facts ...................................................................................................................... 5

Summary of the Argument ....................................................................................................... 6

Argument ...................................................................................................................................... 7

        The trial court erred in failing to conduct an inquiry into the competency of
        the defendant....................................................................................................................... 7

                 1. A “suggestion” of incompetency requires an inquiry............................... 10

                 2. Incompetency was suggested in this case. .................................................. 11

                 3. No informal inquiry was held. ...................................................................... 15

                 4. Remedies............................................................................................................ 20

Prayer ........................................................................................................................................... 24

Certificate of Service and Compliance ................................................................................. 24




                                                                         3
                                                    INDEX OF AUTHORITIES

Cases

Dusky v. United States, 362 U.S. 402 (1960) ....................................................................................... 22

Ex parte LaHood, 401 S.W.3d 45 (Tex. Crim. App. 2013). ............................................................ 16

George v. State, 446 S.W.3d 490 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)................... 16

Gray v. State, 257 S.W.3d 825 (Tex. App.—Texarkana 2008, pet. ref'd) ..................................... 19

Jackson v. State, 391 S.W.3d 139 (Tex. App.—Texarkana 2012, no pet.) ..................................... 17

Lawrence v. State, 169 S.W.3d 319 (Tex. App.—Fort Worth 2005, pet. ref'd)............................. 19

Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. 2008) ............................................................ 17, 18

Oliver v. State, 999 S.W.2d 596 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd) ................. 21

Pate v. Robinson, 383 U.S. 375 (1966). ................................................................................................. 20

Schoor v. State, 279 S.W.3d 844 (Tex. App.—Amarillo 2009, pet. ref'd) ...................................... 19

Turner v. State, 422 S.W.3d 676, 68 (Tex. Crim. App. 2013). .....................................................9, 11

Statutes

Tex. Crim. Proc. Code § art. 46B.003. .............................................................................................. 12

Tex. Crim. Proc. Code § art. 46B.004. .............................................................................................. 10

Tex. R. App. Proc. Rule 44.2 .............................................................................................................. 20

Treatises

43 Tex. Prac., Criminal Practice And Procedure § 31:33.50 (3d ed.) .......................................... 10

43 Tex. Prac., Criminal Practice And Procedure § 31:81 (3d ed.) ................................................ 22



                                                                      4
                                STATEMENT OF THE CASE

      Mr. Rodney Robins was indicted for the State Jail felony of possession of less than a

gram of cocaine, alleged to have been committed on November 9, 2013 (C.R. at 11). He

pleaded not guilty and proceeded to trial. The jury found him guilty and the trial court

sentenced him to 6 years in prison (C.R. at 75).

                                    ISSUE PRESENTED

           The trial court erred in failing to conduct an inquiry into the
            competency of the defendant.

                                  STATEMENT OF FACTS

      Mr. Rodney Robins is a fifty-year-old man who was sentenced to six years in

prison for a single “rock” of crack-cocaine weighing 0.12 grams (3 R.R. at 18, 41).

      An HPD patrol officer testified that he and his partner were driving around when

he said, “Hey, let’s go down to a car wash in Westover. There’s usually a lot of crack

narcotics.” (3 R.R. at 15). They approached the car wash and it was “pretty dark.” (3 R.R.

at 14). The officer testified that Mr. Robins was sitting outside on a bucket, smoking (3

R.R. at 16). They approached and he appeared to toss something to the ground.

Officers ordered, “Let me see your hands,” and then told him to place his hands on the

hood of the patrol car while patting him down and searching his pockets (3 R.R. at 29).

The officer testified, “As we approached him we then observed him to throw

something. That is probable cause to stop and search him.” (3 R.R. at 29). Counsel did

not urge a motion to suppress. They found a crack rock in Mr. Robins’ pocket and a
                                            5
pipe on the ground nearby (3 R.R. at 18).

      Because he was enhanced with two prior State Jail felonies, his punishment range

was 2—20 years. At sentencing, the prosecutor said, “Judge, we’re asking you to

sentence Mr. Robins to extensive TDC time.” (4 R.R. at 18). Mr. Robins had many prior

offenses dating back to the 1980s, but none of them suggested violence, and ranged

from DWLI to trespassing, with theft being the most serious (See C.R. at 36). Judge Jim

Anderson sentenced him to six years in prison, doubling the State’s offer prior to trial

which had been three years (4 R.R. at 17-18).

                             SUMMARY OF THE ARGUMENT

      On the day of trial, Mr. Robins “stood mute,” exhibiting an unexplained and

utter lack of communication with both the court and his lawyer. He did not speak and

manifested a state of inertia. He did not change from his jail clothes and did not make a

punishment election. These circumstances suggested he was potentially incompetent.

In fact, the trial judge himself suggested that competency was an issue. The law clearly

requires the trial court to conduct an “informal inquiry” upon the “suggestion” of

incompetence. However, the trial court failed to make this crucial inquiry.




                                            6
                                          ARGUMENT

             The trial court erred in failing to conduct an inquiry into the
             competency of the defendant.
       On the day of trial, something was amiss with Mr. Robins. He would not—or

could not—speak or engage or participate or communicate in any way that can be

inferred from the record. The transcript in this case opens up with Mr. Robins called to

the bench, unspeaking and dressed in orange jail clothes. Before bringing in the jury, the

following occurred:

    Court:     Mr. Broussard [defense counsel] we brought Mr. Robins out to speak with
               him. He refused to speak with either myself or you. Is that correct Mr.
               Broussard?

    Defense: It is Your Honor.

    Court:     We – I conveyed a recommendation of three years TDCJ to Mr. Robins
               this morning. Is that correct State?

    State:     That’s correct Judge and Mr. Robins stood mute at the time, would not
               speak with me nor his lawyer.

    Court:     And Mr. Robins we’re about to pick your jury. Right here is called an
               election of sentence. If you do not sign the election with your lawyer if
               you’re found guilty, it would be my job not the Jury’s job to assess
               punishment if you’re found guilty. Do you understand Mr. Robins?

    Defendant:        No response.1

    Court:     He’s chosen to remain mute. So I’ll take that as a refusal to sign. If he’s
               found guilty we’ll do Court sentencing not jury sentencing pursuant to



1This appears to indicate that Mr. Robins did not respond, rather than actually stating the
words “no response” as dictated literally in the transcript.
                                              7
             Section 3707. And Mr. Robins is wearing an orange jail jumpsuit at this
             time and I believe Mr. Broussard you offered Mr. Robins the opportunity
             to wear civilian clothes at his trial. Is that correct?

   Defense: That’s correct Your Honor. Clothes were provided to him and made clear
            to him that he had the opportunity to wear something other than the
            orange jumpsuit. He remained mute.

   Court:    Mr. Robins you aren’t helping your lawyer being tried in orange jumpsuit.
             You’re making that choice against my advice, against your lawyer’s advice.
             Do you understand Mr. Robins?

   Defendant:       No response.

   Court:    Mr. Robins chooses to remain mute so he’ll be charged in his jail clothes.
             Mr. Broussard any indication of mental health abuse [sic] in Mr. Robins
             file? I looked at his file. He has 15 convictions. Was he ever found to be
             incompetent or insane in his years here in Harris County?

   Defense: Not to my knowledge Your Honor.

   Court:    There is no indication of Mr. Robins lack of competency. He’s just chosen
             to remain mute at this time. And Mr. Robins you want to say anything
             before the jury comes in? It’s time for you to say what’s on your mind Mr.
             Robins. Do you have anything you’d like to tell us at this time Mr. Robins?

   Defendant:       No response.

   Court:    Mr. Robins remains mute. He has nothing to tell us.

   Defense: I would like to also state for the record Your Honor that I asked Mr.
            Robins about prior convictions that the State might use to enhance his
            punishment and to those inquiries he remained mute and I couldn’t get no
            response from him.

(2 R.R. at 5-7). At that point, the jury was brought into the courtroom.




                                           8
      “A criminal defendant who is incompetent may not be put to trial without

violating due process.” Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013). “‘[A]

person whose mental condition is such that he lacks the capacity to understand the

nature and object of the proceedings against him, to consult with counsel, and to assist

in preparing his defense, may not be subjected to trial.’ ” Id. at 688–89 (quoting Drope v.

Missouri, 420 U.S. 162, 171 (1975)).

      The Texas legislature has painstakingly codified elaborate procedural safeguards

to prevent the trial of an incompetent person. Under Code of Criminal Procedure

46B.004, an inquiry is required upon the “suggestion” of potential incompetence.

      (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 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.



                                            9
       (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.

Tex. Crim. Proc. Code § art. 46B.004. In this case, the suggestion appears in the record,

but an inquiry was never made.

   1. A “suggestion” of incompetency requires an inquiry.
       It is important to note that the legislature added subsection (c-1) of 46B.004 in

2011, explicitly rejecting previous court of appeals’ interpretations of the statute that

required a judge to have a “bona fide doubt” as to competency before being obligated

to conduct an “informal inquiry.” Apparently, the legislature was displeased with

caselaw that dampened a trial court’s duty to actively ensure a defendant’s competency

before putting him to trial.

       This change in the law drastically reduced the threshold of evidence necessary to

mandate an informal inquiry to a mere “suggestion.” As observed by professors Dix

and Schmolesky, “Some and perhaps most of the cases discussed in [previous sections]

finding an informal inquiry unnecessary would probably come out different under the

new statute.” 43 Tex. Prac., Criminal Practice And Procedure § 31:33.50 (3d ed.).

Therefore, caselaw that analyzes proceedings occurring before September 1, 2011

should be regarded with caution in resolving the present case. Indeed, few cases exist

that deal with the newer law.

       One recent significant case to discuss these issues was Turner v. State where the

Court of Criminal Appeals held the trial court erred in failing to conduct competency

                                           10
proceedings under the old law. Turner v. State, 422 S.W.3d 676, 692 (Tex. Crim. App.

2013), reh'g denied (Apr. 2, 2014). The Court observed:

      Under our current statutory scheme, any “suggestion” of incompetency
      to stand trial calls for an “informal inquiry” to determine whether
      evidence exists to justify a formal competency trial. In 2009, this Court
      held that evidence that a “suggestion” of incompetency sufficient to
      trigger an informal inquiry was the same as the bona fide doubt standard
      from the previous statutory regime. The Legislature has subsequently
      rejected the bona fide doubt standard for purposes of Article 46B.004, but
      the amendment by which this was accomplished did not become effective
      until September 1, 2011, several months after the appellant's trial.

Id. at 691-92. Even under the more rigorous “bona fide doubt” standard, the Court

observed that little was required to necessitate an informal inquiry.

      [W]hen a defendant’s mental illness operates in such a way as to prevent
      him from rationally understanding the proceedings against him or
      engaging rationally with counsel in the pursuit of his own best interests, he
      cannot be made to stand trial consistent with due process. Evidence that
      raises this possibility necessitates an informal inquiry, and if that
      inquiry reveals that the possibility is substantial, a formal competency trial
      is required.

Id. at 691 (emphasis added).

   2. Incompetency was suggested in this case.
      The defendant’s unexplained silence, apparent state of inertia, and total lack of

engagement suggested incompetence. Incompetence to stand trial is defined by statute.

      a) A person is incompetent to stand trial if the person does not have:

          (1) sufficient present ability to consult with the person’s lawyer with a
          reasonable degree of rational understanding; or


                                            11
          (2) a rational as well as factual understanding of the proceedings
          against the person.

Tex. Crim. Proc. Code § art. 46B.003.

      Consistent with the definition of incompetence, the record established that Mr.

Robins had failed to “consult with his lawyer” and had failed to communicate whether

or not he possessed any “understanding of the proceedings.” Section 46B.004(c-1)

states, “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…” These factors include:

      (1) the capacity of the defendant during criminal proceedings to:

             (A) rationally understand the charges against the defendant and the
             potential consequences of the pending criminal proceedings;

             (B) disclose to counsel pertinent facts, events, and states of mind;

             (C) engage in a reasoned choice of legal strategies and options;

             (D) understand the adversarial nature of criminal proceedings;

             (E) exhibit appropriate courtroom behavior; and

             (F) testify

Tex. Crim. Proc. Code § art. 46B.024. Observations regarding all of these factors were

present in this case and therefore constituted “evidence suggesting the need for an

informal inquiry.”

      First, the record shows that concern existed as to whether the defendant

understood the charges and the nature of the proceedings under subsections (1)(A) and

                                           12
(1)(D). The judge repeatedly asked Mr. Robins whether he understood certain concepts

that he was attempting to explain and did not receive a response.

       Second, it was apparent that Mr. Robins failed to “disclose to counsel pertinent

fact, events, and states of mind” under subsection (1)(B). Defense counsel stated, “I

would like to also state for the record Your Honor that I asked Mr. Robins about prior

convictions that the State might use to enhance his punishment and to those inquiries

he remained mute and I couldn’t get no response from him.” (2 R.R. at 6).

       Third, he also failed to “engage in a reasoned choice of legal strategies and

options” under factor (1)(C). For instance, the judge observed, “Mr. Robins you aren’t

helping your lawyer being tried in orange jumpsuit. You’re making that choice against

my advice, against your lawyer’s advice. Do you understand Mr. Robins? [No

response].” (2 R.R. at 5).

       Fourth, the defendant failed to “exhibit appropriate courtroom behavior” under

(1)(F) because he did not respond when spoken to, dressed inappropriately for trial, and

did not sign necessary paperwork. Things were clearly awry.

       Lastly, because Mr. Robins was completely non-verbal and failing entirely to

communicate, his behavior should have at least raised a red flag as to his ability to testify

under factor (1)(G).

       Importantly, the trial judge himself actually made a suggestion of incompetency.

As stated in 46B.004(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

                                             13
that the defendant may be incompetent to stand trial.” The trial court fulfilled its

preliminary duty under subsection (b) by literally suggesting that competency was an

issue and even purporting to make a finding on the subject.

   Court:         Mr. Robins chooses to remain mute so he’ll be charged in his jail clothes.
                  Mr. Broussard any indication of mental health abuse [sic] in Mr. Robins
                  file? I looked at his file. He has 15 convictions. Was he ever found to be
                  incompetent or insane in his years here in Harris County?

   Defense: Not to my knowledge Your Honor.

   Court:         There is no indication of Mr. Robins lack of competency. He’s just chosen
                  to remain mute at this time.

( 2 R.R. at 6).

       The trial court’s comments indicate the judge assumed—without citing to any

evidence—that Mr. Robins was just being willfully obstinate. Indeed, the Court in

Turner specifically addressed this common point of contention.

       This is not to imply that a defendant's mental illness plus his failure to
       communicate with counsel will invariably or necessarily add up to a
       finding of incompetence. The fact that a defendant is mentally ill does not
       by itself mean he is incompetent. Nor does the simple fact that he
       obstinately refuses to cooperate with his trial counsel. Indeed, even a
       mentally ill defendant who resists cooperating with his counsel may
       nevertheless be found competent if the manifestations of his particular
       mental illness are not shown to be the engine of his obstinacy. But when a
       defendant’s mental illness operates in such a way as to prevent him from
       rationally understanding the proceedings against him or engaging
       rationally with counsel in the pursuit of his own best interests, he cannot
       be made to stand trial consistent with due process. Evidence that raises
       this possibility necessitates an informal inquiry, and if that inquiry



                                               14
       reveals that the possibility is substantial, a formal competency trial is
       required.

Id. at 691 (emphasis added).

       Therefore, the Court explained that where a defendant’s behavior can be

interpreted as either bare obstinance or as the product of incompetence, an informal

inquiry is required in order to settle the matter. If the evidence raises the possibility that

mental illness is the “engine of his obstinacy” or is otherwise preventing him from

“engaging rationally,” then an informal inquiry is necessary, even under the old legal

standard.

       In this case, the defendant’s unexplained silence, apparent state of inertia, and

utter lack of communication raised at least the possibility that he was suffering from

mental illness. Incompetency was suggested both circumstantially by the defendant’s

behavior and literally by the trial judge himself.

   3. No informal inquiry was held.
       The trial judge’s statements regarding incompetence in this case cannot suffice

for the “informal inquiry” required by law. The entire purported investigation consisted

of the lines below.

   Court:     Mr. Robins chooses to remain mute so he’ll be charged in his jail clothes.
              Mr. Broussard any indication of mental health abuse [sic] in Mr. Robins
              file? I looked at his file. He has 15 convictions. Was he ever found to be
              incompetent or insane in his years here in Harris County?

   Defense: Not to my knowledge Your Honor.



                                              15
   Court:     There is no indication of Mr. Robins lack of competency. He’s just chosen
              to remain mute at this time.

( 2 R.R. at 6). This is insufficient to satisfy the legislature’s prescription for ensuring a

defendant’s competency.

       It is interesting to note that in the appellate record of this cause, at least one

reference to potential incompetency does appear. In a jail record within State’s exhibit

22, dated in June of 2012, there appears a notation indicating Mr. Robins may have had

a stroke and that a psychiatric competency exam had been ordered (5 R.R. at 61).

Further investigation would be necessary to determine the result of that exam.

       In conducting its informal inquiry, a trial court must consider only the evidence

tending to show incompetency, “putting aside all competing indications of competency,

to find whether there is some evidence, a quantity more than none or a scintilla, that

rationally may lead to a conclusion of incompetency.” Ex parte LaHood, 401 S.W.3d 45,

52–53 (Tex. Crim. App. 2013). In making its informal inquiry, the trial court is not

required to follow specific protocols. George v. State, 446 S.W.3d 490, 501 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref ’d). Nonetheless, some sort of search for

information must appear in the record.

       In George v. State, the court held the inquiry to be sufficient where, “in assessing

appellant’s competence to stand trial, the trial court noted on the record that it had

watched appellant assisting counsel throughout trial and did not have any evidence

whatsoever, other than him acting out, that he was not competent.” George, 446 S.W.3d


                                             16
at 500. The court stated that “the trial court had the opportunity to observe appellant's

conduct first-hand and supplement its observations with its inquiry to defense counsel.”

Id. at 501. While the defendant behaved unusually by interrupting the proceedings, his

outbursts were determined to be “timely, topical, and logically related to the questions

and answers offered during the examination of other witnesses.” Id. The outbursts

themselves showed that the defendant understood the proceedings.

      In contrast to George, the trial court in this case did not observe Mr. Robins

interacting with anyone, much less “assisting counsel.” Moreover, Mr. Robins was in the

179th District Court but the proceedings at issue were before a temporarily assigned

judge in the “Impact Court” on the 20th floor. Thus there is no basis to presume that

this judge had ever observed Mr. Robins in any previous court appearances. None of

the court’s observations served to dispel the suggestion of incompetency.

      Furthermore, courts have held that an informal inquiry may be satisfied when the

trial court poses simple questions to the defendant and to defense counsel regarding the

defendant’s competency. Luna v. State, 268 S.W.3d 594, 598 (Tex. Crim. App. 2008);

Jackson v. State, 391 S.W.3d 139, 142 (Tex. App.—Texarkana 2012, no pet.); Gray v. State,

257 S.W.3d 825, 829 (Tex. App.—Texarkana 2008, pet. ref'd). Even under this relaxed

definition, the statements on the record in this case were not sufficient to be called an

informal inquiry.

      While the trial court did attempt to pose limited questions to the defendant, it did

not receive any answers. Mr. Robins never communicated and the court never made any

                                           17
observations regarding his appearance or demeanor except that he was wearing jail

clothes in front of the jury. The trial court only asked one question of defense counsel:

whether Mr. Robins had previously been judged incompetent. Counsel provided only

an equivocal “not to my knowledge.” (2 R.R. at 6). The court immediately concluded,

“There is no indication of Mr. Robins lack of competency. He’s just chosen to remain

mute at this time.”

      The court never asked defense counsel whether he believed Mr. Robins to be

competent. The court never asked defense counsel whether he believed Mr. Robins

understood the proceedings. He never asked whether Mr. Robins could hear—whether

he had suffered a stroke—whether something was wrong with his voice—whether he

had spoken previously—whether he was ill—whether he had ever been treated for

mental illness—or even whether he was okay. No relevant inquiry was made

whatsoever.

      In Luna v. State, the informal inquiry was held to be sufficient where the trial court

“inquired about the appellant's competency several times during the proceedings.” Luna

v. State, 268 S.W.3d 594, 599 (Tex. Crim. App. 2008). “The appellant stated that he

understood the [trial court]… The trial court asked defense counsel if the appellant had

a rational and factual understanding of the proceedings, if he was able to assist in the

preparation of any possible defenses, and if he was mentally competent to waive his

rights and enter a guilty plea. Defense counsel replied to all of these questions in the

affirmative.” This inquiry was repeated throughout trial and the Court of Criminal

                                            18
Appeals in Luna was satisfied that the statutory duty was satisfied. In this case, such an

inquiry never occurred, despite the trial court’s own suggestion that incompetency

might be at issue.

       Other examples of inquiries held to be sufficient are significantly different from

the trial court’s actions in this case. See, e.g. Lawrence v. State, 169 S.W.3d 319, 324 (Tex.

App.—Fort Worth 2005, pet. ref'd) (quoting the court’s inquiry involving detailed

questions regarding the defendant’s previous mental health treatment and his present

understanding); Schoor v. State, 279 S.W.3d 844, 847 (Tex. App.—Amarillo 2009, pet.

ref'd) (court spoke to defendant about his understanding of the case and had the

opportunity to observe and engage appellant as well as listen to appellant’s responses to

a variety of questions); Gray v. State, 257 S.W.3d 825, 829 (Tex. App.—Texarkana 2008,

pet. ref'd) (defendant directly answered court’s questions in a way showing he

understood the proceedings against him and consequences of his plea and that he was

able to effectively communicate with his attorney, and attorney’s response to court

inquiry confirmed that he was able to understand the proceedings against him).

       Although the trial judge himself suggested that the defendant may be

incompetent, he failed to make the necessary inquiry. He asked only one question of

defense counsel and received an equivocal answer regarding whether Mr. Robins had

ever been found incompetent. The court was required to at least attempt to gather some

relevant information before concluding the defendant was competent.



                                             19
   4. Remedies
      “Due process mandates state procedures that are adequate to assure that

incompetent defendants are not put to trial.” Turner, 422 S.W.3d at 689. “To that end,

our statutory scheme has codified the constitutional standard for competency to stand

trial and has elaborately described the circumstances that require, and procedures for

making, a determination of whether a defendant is competent to stand trial.” Id.

      In Pate v. Robinson, the United States Supreme Court held that the defendant’s

“constitutional rights were abridged by his failure to receive an adequate hearing on his

competence to stand trial.” Pate v. Robinson, 383 U.S. 375, 386 (1966). Likewise, Mr.

Robins’ constitutional rights were violated when the trial court failed to take reasonable

measures to ensure his competency.

      Under Texas law, constitutional error is subject to harmless error review, and the

court of appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment. Tex. R. App. Proc. Rule 44.2. Therefore, because Mr. Robins

did not receive the benefit of adequate procedures to assure he was competent to stand

trial, this Court should determine whether—beyond a reasonable doubt—that the error

did not contribute to the conviction or punishment.

      Harm can be demonstrated in this case by the fact that Mr. Robins stood trial in

jail clothes. “If the presumption of innocence is to be meaningfully embraced, a

defendant must not be presented to the jury in physical restraints, jail clothing, or other

                                            20
indicia of guilt.” Oliver v. State, 999 S.W.2d 596, 599 (Tex. App.—Houston [14th Dist.]

1999, pet. ref'd). “The defendant’s clothing is so likely to be a continuing influence

throughout the trial that it is not unlike placing a jury in the custody of a bailiff who is

also a witness for the prosecution. Jail clothing presents an unacceptable risk of

impermissible factors coming into play.” Id., citing Estelle v. Williams, 425 U.S. 501, 505

(1976).

       Additionally, one of the jurors who actually sat on the case stated during voir dire

that she would be unfair to the defendant due to his jail clothes. Defense counsel stated,

“Can you hold that kind of image in your mind and say I’m not going to judge this

person because they have on this orange uniform. I’m not going to be unfair to this

person ‘cause something about that orange uniform tells me they must be guilty…” In

response, Juror #6 stated, “I think I would.” (2 R.R. at 85). Juror #6 made it on to the

panel and eventually found Mr. Robins guilty. (2 R.R. at 92).

       Mr. Robins may have been incompetent and incapable of making a rational

decision when he failed to accept the opportunity to change clothes prior to trial. He

was harmed in violation of the Constitution when the trial court failed to take adequate

measures to assure he was competent.

       Moreover, Mr. Robins also failed to make an election as to whether his

punishment would be assessed by the court or by the jury. He also failed to consult with

defense counsel about the details and effect of his alleged prior convictions. In light of



                                             21
the trial court’s harmful constitutional error in failing to ensure that he was competent

to stand trial, this Court should reverse the conviction in this case.

       In the alternative, if this Court were to determine that the problems in this case

do not amount to constitutional or harmful statutory error, then it should abate the

appeal and remand to the trial court for a retrospective competency determination. It

must first be determined whether such a retrospective evaluation is feasible. See Turner v.

State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013) (remanding for determination of

whether retrospective competency trial is feasible and such a trial if it is feasible); and see

43 Tex. Prac., Criminal Practice And Procedure § 31:81 (3d ed.).

       It should be noted that the Supreme Court has in the three relevant cases held on

the facts of those cases such inquiries were not feasible. Dusky v. United States, 362 U.S.

402, 403 (1960) (requiring new trial with determination of defendant's present

competency “[i]n view of the doubts and ambiguities regarding the legal significance of

the psychiatric testimony in this case and the resulting difficulties of retrospectively

determining the petitioner's competency as of more than a year ago”); Pate v. Robinson,

383 U.S. 375, 387 (1966) (rejecting retrospective competency determination because of

jury's inability to observe the defendant at the relevant time and expert witnesses' need

to testify solely from information in printed records); Drope v. Missouri, 420 U.S. 162

(1975) (rejecting retrospective inquiry on the ground that “[t]he inherent difficulties of

such a nunc pro tunc determination under the most favorable circumstances” preclude

a conclusion “that such a procedure would be adequate here”). This Court can make its

                                              22
own decision that a retrospective competency determination would be unfeasible due to

the lapse of time, the sparsity of the record, and the interest of judicial economy. To

remedy the error in this case, it is urged that this Court should simply reverse and

remand for a new trial.




                                          23
                                             PRAYER


       FOR THESE REASONS, the Appellant respectfully prays that this Honorable Court reverse

the trial court’s judgment of conviction or in the alternative abate and remand for a retrospective

competency determination.



                                                    Respectfully submitted,

                                                    ALEXANDER BUNIN
                                                    Chief Public Defender
                                                    Harris County Texas


                                                    /s/ Sarah V. Wood
                                                    SARAH V. WOOD
                                                    Assistant Public Defender
                                                    Harris County Texas
                                                    1201 Franklin, 13th Floor
                                                    Houston Texas 77002
                                                    (713) 368-0016 (phone)
                                                    (713) 368-9278 (fax)
                                                    State Bar Number 24048898


                       CERTIFICATE OF SERVICE AND COMPLIANCE


I certify that a copy of this Brief for Appellant has been served upon the Harris County District

Attorney's Office by electronic delivery to Alan Curry via the e-file system and that this brief has

4,749 words according to the computer program used to draft it.


                                                    /s/ Sarah V. Wood
                                                    SARAH V. WOOD
                                                    Assistant Public Defender



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