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



                           DAVID EARL BROWN, Appellee

                                             v.

                                THE STATE OF TEXAS

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

        K EASLER, J., filed a dissenting opinion, in which K ELLER, P.J., and H ERVEY,
J., joined.

                                DISSENTING OPINION

       This case requires that we confront the issues relating to the intersection of the

principles of voluntary absence and competence to stand trial: does a finding of one preclude

the other? It is a question the majority does not correctly answer. I would hold that, by

voluntarily absenting himself from his trial, David Brown has waived his right to be present

at trial. And as a result of his voluntary absence, Brown cannot successfully challenge the

trial judge’s denial of his continuance and finding that he was competent.
                                                                           BROWN DISSENT—2

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

process.1 “It has long been accepted that 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.” 2

The constitutional standard for competency to stand trial asks whether the defendant has a

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

understanding and whether he has a rational as well as factual understanding of the

proceedings against him.3

       The requirement that a criminal defendant be competent derives from several

constitutional concepts borne from due process—the presumption of innocence, the right to

assistance of counsel, and the ability to assist in ones own defense.4 “It also has been said

that the requirement of competence is a byproduct of the rule requiring that a defendant be

present at trial, since a trial of an incompetent defendant is virtually a trial in absentia.” 5 The

concepts of required presence and competency are constitutionally similar in that, at bottom,


       1
         Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (“We have repeatedly and
consistently recognized that ‘the criminal trial of an incompetent defendant violates due
process.’”) (quoting Medina v. California, 505 U.S. 437, 453 (1992)); Turner v. State,
No. AP-76,580, 2013 WL 5808250, *10 (Tex. Crim. App. Oct. 30, 2013).
       2
           Drope v. Missouri, 420 U.S. 162, 171 (1975); Turner, 2013 WL 5808250 at *10.
       3
           Dusky v. United States, 362 U.S.402, 402 (1960).
       4
           Ex parte Mines, 26 S.W.3d 910, 914 (Tex. Crim. App. 2000).
       5
           Id.
                                                                        BROWN DISSENT—3

they require the defendant’s presence—both physically and mentally. It has long been the

rule that a defendant may waive his right to be physically present at trial.6 Like the Federal

Rules of Criminal Procedure and the United States Supreme Court before its enactment, we

have held that a defendant may waive his right to be present.7 In an analogous situation to

that presented here, the Supreme Court has held that the defendant loses his right to be

present when he is removed from a trial based upon his disruptive behavior.8 Our statutory

law codifies this long-standing rule. Texas Code of Criminal Procedure Article 33.03 states

in relevant part, that “[i]n all prosecutions for felonies, the defendant must be personally

present at the trial[.]” However, Article 33.03 expressly—and constitutionally9 —permits the

trial to continue in instances where the defendant “voluntarily absents” himself during trial

which essentially constitutes a waiver of his rights to be present. It is, therefore, logically

consistent that a defendant may waive his right to be competent at trial. Regardless of the

preferred nomenclature, this case illustrates why waiver principles (and perhaps equity

principles) suggest that a defendant, in certain instances, should not be permitted to present


       6
         See, e.g, Taylor v. United States, 414 U.S. 17, 18–20 (1973); Diaz v. United
States, 223 U.S. 442, 455 (1912).
       7
         Garcia v. State, 919 S.W.2d 370, 374–75 (Tex. Crim. App. 1994); Gonzales v.
State, 515 S.W.2d 920, 920 (Tex. Crim. App. 1974); see Crosby v. United States, 506
U.S. 255, 260 (1993); Diaz, 223 U.S. at 455; F ED. R. C RIM. P RO. 43(c)(1)–(2).
       8
           See, e.g., Illinois v. Allen, 397 U.S. 337, 342–43 (1970).
       9
          See Taylor, 414 U.S. at 18–19 (holding Federal Rule of Criminal Procedure 43
constitutional in permitting the continuation of a defendant’s trial when he voluntarily
absents himself, and that such an absence is a waiver of his right to be present).
                                                                        BROWN DISSENT—4

mid-trial allegations of incompetence or claims regarding a judge’s failure to comply with

Texas Code of Criminal Procedure Chapter 46B.10 Here, the facts upon which Brown

grounds his claims and assertions of incompetence were the result of his own intentional and

voluntary actions, and he should not prevail in his complaints about their consequences.

       The Supreme Court warns that waiver of constitutional rights should not be taken

lightly and should be found only upon an intentional relinquishment of those rights.11 It

follows that a court must determine whether a defendant’s voluntary absence—and by

extension a waiver of his right to be present at trial—was truly voluntary. Because Brown’s

claims below injected his alleged incompetence into his challenge of the judge’s finding that

he voluntarily absented himself, the question becomes whether Brown’s attempted suicide

was the product of an intentional, voluntary action.

       We review voluntary-absence findings under an abuse-of-discretion standard.12 An

appellate court must consider whether the trial judge’s ruling was arbitrary or unreasonable.13

The evidence presented at the informal competency hearing held pursuant to Article



       10
         T EX. C ODE C RIM. P ROC. ch. 46B (West 2012) (establishing trial court
procedures in determining a defendant’s competency to stand trial).
       11
         See Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see also Pate v. Robinson, 383
U.S. 375, 384 (1966) (holding that “it is contradictory to argue that a defendant may be
incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court
determine his capacity to stand trial.”).
       12
            Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009).
       13
            Id.
                                                                       BROWN DISSENT—5

46B.004(c),14 in addition to the other evidence the judge could consider, supports the judge’s

finding that Brown was voluntary absent.

       According to the testimony taken at the hearing, there were no witnesses to the

shooting and when the witnesses testified at the hearing, a thorough investigation had not

been conducted. The responding officer opined that Brown attempted suicide based on the

nature of the wound and the fact that a pistol was lying in the blood-stained grass where

Brown was discovered by neighbors. The officer spoke to a witness who stated that on the

night before the suicide attempt, Brown was “despondent over the way the Court proceedings

were going” and discussed with that neighbor how to handle Brown’s affairs if Brown was

convicted. Brown’s treating doctor at the hospital told another officer that the bullet entered

through Brown’s mouth, went up through his eye and lodged in his brain, but the doctor

could not confirm that the injury was self-inflicted. Brown’s psychiatrist, Dr. Root, testified

that he was treating Brown for depression before his trial began. Although Dr. Root

conceded to not examining Brown after his suicide attempt, Dr. Root stated that suicide

“suggests mental illness.”

       From the testimony and circumstantial evidence, the judge could have reasonably

found that Brown shot himself. The nature of Brown’s injury strongly suggests that




       14
         T EX. C ODE C RIM. P ROC. art. 46B.004(c) (West 2012) (“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.”).
                                                                       BROWN DISSENT—6

conclusion. The judge’s finding that Brown’s absence was not a result of incompetence, but

was voluntary, is equally supported. As the State points out in its brief, the judge recently

witnessed Brown testify in his own defense in the guilt phase and withstand cross-

examination without any indication that he suffered from incompetence. There is certainly

no evidence suggesting that Brown was incompetent—that he could not understand the

nature of the proceedings against him or assist his counsel in presenting a defense—at any

point before Brown attempted suicide. Brown’s competence was not in question until he

sustained the gunshot wound. Brown’s attempted suicide may be indicative of mental illness,

but it is not dispositive proof that he was legally incompetent or incapable of performing an

intentional and voluntary act. It is equally reasonable to infer that Brown, having determined

that his murder trial was not going his way and facing the prospect of a life sentence,

consciously and with the full understanding of the gravity of his choices decided to take his

own life. The judge’s finding that Brown voluntarily absented himself was not an abuse of

discretion. Several state courts of appeals’ decisions support this conclusion.

       In Maines v. State, the Eastland Court of Appeals addressed a similar factual

situation.15 At issue was whether the trial judge abused his discretion in failing to stop the

trial and convene a separate jury to consider his competency.16 Maine contended that he was

incompetent during the second day of his trial during the guilt phase due to an overdose of



       15
            Maines v. State, 170 S.W.3d 149 (Tex. App.—Eastland 2005, no pet.).
       16
            Id. at 149.
                                                                       BROWN DISSENT—7

prescription drugs. After being hospitalized for two days, Maines returned to trial, but his

counsel claimed he was irrational and incoherent and questioned his competency to stand

trial.17        The judge held an informal competency inquiry and found the evidence of

incompetency insufficient. The court of appeals found that, because Maines chose to

overdose on medication, his trial could continue because he voluntarily absented himself.18

           Similarly, the Fort Worth Court of Appeals held in Bottom v. State that Bottom’s

voluntary choice in ingesting a large quantity of medication with the goal of committing

suicide was a voluntary absence and his trial properly continued without his presence.19

Without needing to address Chapter 46B’s proper application, the court put it succinctly:

“Because Bottom acted voluntarily and because he cannot avoid trial by intentionally

disabling himself, we overrule his point of error.”20         Without an express claim of

incompetence, the appellant in Heard v. State alleged that his absence from trial was

involuntary because it was the result of intoxication.21 Finding that Heard’s intoxication was

voluntary, the court of appeals held that his trial properly continued.22

           In an unpublished opinion in Hill v. State, the Fort Worth Court of Appeals again

           17
                Id. at 150.
           18
                Id.
           19
                Bottom v. State, 860 S.W.2d 266, 267 (Tex. App.—Fort Worth 1993, no pet.).
           20
                Id.
           21
                Heard v. State, 887 S.W.2d 94, 97–98 (Tex. App.—Texarkana 1994, pet ref’d).
           22
                Id. at 98–99.
                                                                    BROWN DISSENT—8

confronted the issue of a defendant’s ingestion of medication during his trial causing his

absence.23 After surveying the above cases, the court held that, assuming that Hill did

consume drugs that potentially rendered him incompetent—even if that was not the

intentional result—it was a voluntary act, and therefore constituted a voluntary absence at

trial.24

           A valid finding that a defendant voluntarily absented himself should end the

competency inquiry. A defendant who chooses to end his participation in his own trial

through affirmative, voluntary conduct has waived both Chapter 46B’s statutory procedural

provisions and the substantive rights they protect. The Supreme Court summarized this

position’s underlying principle over a hundred years ago: “It does not seem to us to be

consonant with the dictates of common sense that an accused person, being at large upon

bail, should be at liberty, whenever he pleased, to withdraw himself from the courts of his

country and to break up a trial already commenced.”25 The majority arrives at the opposite

conclusion by misreading Drope v. Missouri26 for the proposition that when issues of

competency and voluntary absence arise, a court is required to first address the competency

issue. In reference to Drope, the majority states, “We agree with the United States Supreme


           23
          Hill v. State, No. 2-06-094-CR, 2007 WL 866476 (Tex. App—Fort Worth Mar.
22, 2007, pet ref’d) (not designated for publication).
           24
                Id. at *9.
           25
                See Diaz, 223 U.S. at 457.
           26
                420 U.S. at 162.
                                                                       BROWN DISSENT—9

Court that, under such circumstances, logic compels us to first decide whether a defendant

is competent, and only if he is found to be competent, to decide whether his absence was

voluntary.”27 The Supreme Court’s opinion contains no such holding, even by implication.

       Even if a valid finding of voluntary absence does not end the competence inquiry

under Chapter 46B as I suggest, Drope lends little guidance to the resolution of the issues

presented, despite the majority’s reliance upon it. And even if Drope is instructive in some

way on the instant cause, it certainly does not compel the result the majority reaches. Drope

presented easily distinguishable facts from those presented here. The Court held that after

shooting himself during the pendency of his trial, Drope was entitled to a stay of his trial so

that a competency determination could be made.28 However, the Court’s decision was

informed by a record indicating Drope suffered significant mental issues even before his trial

began.29 The Court highlighted the following facts as significant: a psychiatric examination

report brought to the judge’s attention pretrial noted that Drope had “difficulty participating

well,” “had a difficult time relating,” and “was markedly circumstantial and irrelevant in

speech” and contained a diagnosis of borderline mental deficiency and chronic anxiety

reaction with depression; Drope’s wife (and victim of the offense) believed Drope was sick


       27
            Ante, op. at 14.
       28
            Drope, 420 U.S. at 181–82.
       29
           Id. at 179 (“[W]e conclude that the record reveals a failure to give proper
weight to the information suggesting incompetence which came to light during trial. This
is particularly so when viewed in the context of the events surrounding petitioner’s
suicide attempt and against the background of the pretrial showing.”).
                                                                     BROWN DISSENT—10

and needed psychiatric care; Drope had past episodes of irrational actions, like deliberately

falling down the stairs when he did not get his way or was worried about something; Drope’s

irrational conduct of attempting to choke his wife days before she was set to testify against

him in a trial which “depended in large measure on the indulgence of his wife”; and of

course, Drope’s self-inflicted gunshot wound.30

       The Drope opinion stands broadly for the propositions that (1) a trial judge must be

alert to changing circumstances suggesting a defendant’s incompetence and (2) competency

issues require considering the aggregate weight of all indicia of incompetence. The Court

was clear that there are “no fixed or immutable signs which invariably indicate the need for

further inquiry to determine fitness to proceed[.]”31 The majority incorrectly finds factual

similarity between Drope and the present case. First, unlike Drope, the trial judge was able

to observe Brown’s demeanor in trial, including his testimony on direct and cross

examination, a day before his suicide attempt. Second, the extensive evidence of Drope’s

significant mental illness convincingly suggested that his illness likely had a bearing on his

competency even before his trial began.32 The record before us does not support a similar

conclusion. Unlike Brown’s situation, Drope’s suicide attempt was just the last event in a

long list of evidence pointing to his incompetence and was likely a product of it. Contrary



       30
            Id. at 175–80.
       31
            Id. at 180–81.
       32
            Id. at 181.
                                                                    BROWN DISSENT—11

to Drope’s fact-specific approach, the majority’s opinion treats Brown’s suicide attempt as

a “fixed or immutable sign” that automatically triggers a stay and formal incompetency trial

under Chapter 46B’s provisions.

       I would find that the trial judge did not abuse her discretion in finding that Brown

voluntarily absented himself, and as result was not entitled to a continuance or formal

competency trial. Therefore, remanding for a retrospective competency hearing pursuant to

Chapter 46B is inappropriate. Accordingly, I would reverse the court of appeals’ judgment.




DATE FILED: March 19, 2014

PUBLISH
