                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                Nos. 06-18-00197-CR &
                    06-18-00198-CR



     EDWIN ANTONIO OSORIO-LOPEZ, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 115th District Court
                Upshur County, Texas
           Trial Court Nos. 17914 & 17927




      Before Morriss, C.J., Burgess and Stevens, JJ.
                                                 ORDER

           Following a single trial, Edwin Antonio Osorio-Lopez was convicted of aggravated assault

with a deadly weapon, for which he was sentenced to twenty years’ incarceration, 1 and evading

arrest or detention with a vehicle, 2 for which he was sentenced to ten years’ incarceration. The

sentences were ordered to run concurrently. 3

           On appeal, Osorio-Lopez contends that (1) the evidence was insufficient to establish that a

food tray was a deadly weapon and (2) the trial court erred in refusing his request for a competency

examination. Because there was some evidence that Osorio-Lopez was incompetent, we abate this

matter to the trial court.

I.         Factual and Procedural Background

           On February 5, 2018, Osorio-Lopez was scheduled to enter guilty pleas on charges of

evading arrest or detention with a vehicle and unauthorized use of a motor vehicle. Osorio-Lopez

declined to enter guilty pleas and instead elected to proceed to trial before the court. On February

13, 2018, Osorio-Lopez returned to court for a pretrial hearing. The trial court acknowledged that

the case was set for a bench trial that afternoon, but stated that Osorio-Lopez’ interpreter and the

attorneys had approached it with some concerns about Osorio-Lopez. The trial court then

proceeded to explain the adversarial process to Osorio-Lopez and confirmed that he had a seventh-



1
    See TEX. PENAL CODE ANN. § 22.02.
2
    See TEX. PENAL CODE ANN. § 38.04(2)(A).
3
 In cause number 06-18-00197-CR, Osorio-Lopez appeals from his conviction of evading arrest or detention with a
vehicle. In companion cause number 06-18-00198-CR, Osorio-Lopez appeals from his conviction of aggravated
assault with a deadly weapon.

                                                      2
grade education. Osorio-Lopez indicated that he had experienced mental and emotional problems

and had been hospitalized in Wichita Falls following a period of incarceration in Fort Worth. At

the conclusion of the hearing, the trial court ordered Osorio-Lopez to be examined by Tom Allen,

Ph.D., to determine Osorio-Lopez’ competency to stand trial.

            Allen issued an evaluation report in which he concluded that Osorio-Lopez was

incompetent to stand trial. 4             According to Allen, Osorio-Lopez “appeared to be having

considerable difficulty responding to many questions in linear, logical fashion and tended to

provide rambling responses and memorial details were very vague.” Allen further concluded that

Osorio-Lopez exhibited paranoid ideation and suffered from impaired insight. Based on Allen’s

report, the trial court found Osorio-Lopez incompetent to stand trial and, in conformity with Article

46B.073 of the Texas Code of Criminal Procedure, ordered Osorio-Lopez’ commitment to Rusk

State Hospital on April 26, 2018, for a period not to exceed 120 days for further examination and

treatment.

            On August 8, 2018, the trial court was advised by Larry Hawkins, M.D., Unit Psychiatrist

at Rusk State Hospital, that after a period of observation and treatment, Osorio-Lopez was re-

evaluated and was determined to be competent to stand trial.                          Hawkins warned, “Current

medications are necessary to maintain the defendant’s competence.” 5 A new trial date was

scheduled for October 8, 2018.


4
Allen diagnosed Osorio-Lopez with “Psychotic Disorder NOS,” “Cannabis Use Disorder,” and “Stimulant Use
Disorder by History in Remission.” The report noted that Osorio-Lopez was prescribed and was taking antipsychotic
medication and medication for allergies and anxiety.
5
    A report dated July 31, 2018, by Sarah J. Rogers, Ph.D., of Rusk State Hospital stated,

                                                             3
       Three days before the scheduled trial, Osorio-Lopez’ appointed counsel filed a motion to

withdraw. Counsel informed the trial court that Osorio-Lopez requested that counsel withdraw

because Osorio-Lopez could not communicate with counsel. When the trial court asked Osorio-

Lopez to explain, he stated that he had a problem in Fort Worth involving a false identification.

Osorio-Lopez told the court there was a report from an official who detained him stating that

counsel did not listen to Osorio-Lopez. Osorio-Lopez also told the trial court that counsel

threatened him on several occasions and sided with the police officers.

       Trial counsel explained that Osorio-Lopez was referring to a case he had in Tarrant County

in which he was represented by a different attorney. After the trial court explained to Osorio-

Lopez that this case had nothing to do with Fort Worth, Osorio-Lopez stated that counsel would

not be able to defend him because of the issue he had the first time. Osorio-Lopez remained

adamant that appointed counsel in the current case was the same attorney who represented him in

Fort Worth. Counsel stated that he never had a case in Fort Worth. The trial court denied the

motion to withdraw.

       Following jury selection, Osorio-Lopez’ court-appointed counsel filed a verified motion

for continuance outlining his inability to effectively communicate with Osorio-Lopez. The motion

stated that after Osorio-Lopez was determined to be competent and was returned to Upshur

County, he was able to effectively communicate with counsel in writing and with the help of

counsel’s bi-lingual assistant. Counsel went on to state,


       With respect to all assessed capacities, Mr. Osorio-Lopez has a factual understanding as well as
       rational appreciation of the proceedings against him. Further, he possesses the capacity to consult
       with his attorney with a reasonable degree of rational understanding. Maintenance of these
       capacities involves medication adherence and continued stability in his symptoms.
                                                       4
       Communications have deteriorated to the point that Defendant is adamant that
       undersigned counsel had represented him on a prior matter in Tarrant County and
       despite all attempts of Undersigned Counsel and the court appointed interpreter to
       convince him otherwise, this thought remains with Defendant. Defendant deems
       any advice of undersigned counsel to be against his best interest. Trial Counsel
       requests a continuance to have Dr. Thomas Allen examine Defendant again for
       competency.

At the hearing on the motion, counsel elaborated,

       As we got closer to jury selection and with communications I was able to do through
       [the interpreter,] it seemed to me that he was starting to have irrational thoughts,
       for instance, one the court is aware where he thought I represented him in another
       county in another matter and in his opinion had sold him out on a prior criminal
       matter. At jury selection[,] he presented written documentation to [the interpreter]
       that [the interpreter] was able to translate and get back to me last Thursday
       afternoon and was information he thought would be helpful in his defense.
       However, it appeared to me that he obviously had a lot of in my opinion irrational
       thoughts that he deemed were factual. And in furtherance of that[,] this morning
       he’s made serious communications with me about things that he thinks or believes
       is happening down in the jail that would be horrific if true but to me seem to be
       irrational thoughts . . . . [H]e basically goes against every piece of advice I give him
       and gone as far as not signing essential documents like the application for
       community supervision because he thinks my advice is against his best interest. I
       am requesting a continuance in both cases to have . . . Dr. Tom Allen examine him
       again to deem whether or not he’s competent because I feel like he’s not competent
       to communicate with me to present a defense today.

       The State responded, stating that Osorio-Lopez speaks English when it suits him, that this

was probably more of the same, and that there was no “competent advice” which would support a

continuance. The trial court thereafter summarily denied Osorio-Lopez’ motion for continuance

for purposes of an evaluation to determine if he was competent to stand trial.

II.    The Evidence Was Sufficient to Support a Competency Evaluation

       Osorio-Lopez contends that the trial court erred by denying his motion for continuance so

that he could be evaluated by Allen to determine his competence to stand trial.

                                                  5
       “A criminal defendant who is incompetent may not be put to trial without violating due

process.” Turner v. State, 422 S.W.3d 676 (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.” Drope v. Missouri, 420 U.S. 162, 171 (1975). This standard is codified in the Texas Code

of Criminal Procedure: “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 (2) a rational as well as factual understanding of the proceedings against

the person.” TEX. CODE CRIM. PROC. ANN. art. 46B.003(a).

       “These legislative criteria for competency contemplate a defendant who is at least

minimally able to interact with his trial counsel in a ‘reasonable and rational’ way (even if they do

not necessarily agree) in formulating decisions how most effectively to pursue his defense.”

Turner, 422 S.W.3d at 689–90. “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.” Id. at 691–92 (citation omitted) (footnote omitted); see

TEX. CODE CRIM. PROC. ANN. art. 46B.004(c), (c-1). “If after an informal inquiry the court

determines that evidence exists to support a finding of incompetence, the court shall order an

examination . . . to determine whether the defendant is incompetent to stand trial.” TEX. CODE

CRIM. PROC. ANN. art. 46B.005(a).

       Here, Osorio-Lopez’ counsel filed a motion for continuance requesting the court to order

a formal examination of Osorio-Lopez’ competency.           During the October hearing, counsel

                                                 6
described Osorio-Lopez’ apparent deterioration from his previous competent condition in August.

He reminded the trial court of the fact that Osorio-Lopez continued to adamantly believe that he

was the same attorney who represented Osorio-Lopez in Fort Worth who had “sold him out.” The

trial court was likewise reminded of the fact that even after speaking with Osorio-Lopez the

previous week and explaining to him that his attorney did not represent him in Fort Worth, Osorio-

Lopez continued to believe the opposite. The situation had deteriorated to the extent that Osorio-

Lopez would not listen to advice of counsel, a matter about which the trial court had likewise been

apprised at the hearing on counsel’s motion to withdraw. The trial court was further advised that

Osorio-Lopez would not agree to sign an application for community supervision because he

believed counsel was working against his best interests. And, the trial court was aware that Osorio-

Lopez had previously been declared incompetent and had been diagnosed with a psychotic

disorder. Although he was ultimately declared competent in August 2018, the psychiatrist

admonished, “Current medications are necessary to maintain the defendant’s competence.”

       Trial counsel also made the trial court aware of Osorio-Lopez’ condition on the morning

following jury selection. Counsel reported that Osorio-Lopez was experiencing irrational thoughts

that he viewed as factual, and counsel stated, “[Lopez has] made serious communications with me

about things that he thinks or believes [are] happening down in the jail that would be horrific if

true but to me seem to be irrational thoughts.” Finally, counsel made the trial court aware of his

belief that Osorio-Lopez was not competent to communicate for purposes of presenting a defense.

In light of what he believed to be the deterioration of Osorio-Lopez’ mental competency, counsel




                                                 7
asked the trial court to have Osorio-Lopez examined by Allen, a doctor who was familiar with his

condition. The trial court refused that request.

       On appeal, Osorio-Lopez contends that the trial court erred in denying his request. The

issue is “whether, in light of what became known to the trial court by the conclusion of this

informal inquiry, it should have conducted a formal competency trial [or evaluation].” Turner,

422 S.W.3d at 692. We review a trial court’s ruling on a motion for continuance and its failure to

inquire into a defendant’s competency to stand trial for an abuse of discretion. See Moore v. State,

999 S.W.2d 385, 393 (Tex. Crim. App. 1999); George v. State, 446 S.W.3d 490, 499 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d). Using this standard, we do not substitute our judgment for

that of the trial court. Instead, we determine whether the trial court’s decision was arbitrary or

unreasonable. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by

statute on other grounds, TEX. CODE CRIM. PROC. ANN. art 46B.004(c-1), as recognized in Turner,

422 S.W.3d at 692.

       “[T]he standard for requiring a formal competency [evaluation] is not a particularly

onerous one.” Turner, 422 S.W.3d at 696. To determine whether the evidence in this case was

sufficient to require a formal competency evaluation, we focus on three matters. “First, the

standard at the informal inquiry stage is whether there is ‘some evidence . . . from any source, that

would support a finding that the defendant may be incompetent to stand trial.’” Boyett v. State,

545 S.W.3d 556, 563 (Tex. Crim. App. 2018) (quoting TEX. CODE CRIM. PROC. ANN. art.

46B.004(c)). Some evidence is “more than none or a scintilla.” Turner, 422 S.W.3d at 692.

“Second, a trial court must consider only evidence of incompetency, and it must not weigh

                                                   8
evidence of competency against the evidence of incompetency.” Boyett, 545 S.W.3d at 564.

“Third, some evidence must be presented at the informal inquiry stage to show that a defendant’s

mental illness is the source of his inability to participate in his own defense.” Id. at 564; see TEX.

CODE CRIM. PROC. ANN. arts. 46B.024(2), (4), (5).

       Here, Osorio-Lopez was hospitalized for his mental illness and was declared competent to

stand trial in August 2018. At the time of his release from the hospital and during a brief period

after his return, counsel was able to communicate effectively with Osorio-Lopez. The evidence

then indicates that Osorio-Lopez began thinking irrationally, believed counsel was the same

attorney who represented him in Fort Worth and was working against him, and described to

counsel “horrific” things that were happening in the jail, which were not factual. Counsel reported

all of this to the trial court and further reported that he could not communicate with his client to

present a defense.

       Disregarding all evidence of competency, Boyett, 545 S.W.3d at 564, we find some

evidence that Osorio-Lopez experienced irrational thoughts, was unable to communicate with

counsel, believed counsel to be a different attorney entirely, and had a somewhat recent history of

mental illness—which could only be stabilized through the continuous use of medication. This

evidence would allow a rational inference that (1) Osorio-Lopez suffered “some degree of

debilitating mental illness,” (2) he refused “to cooperate with counsel to his own apparent

detriment,” and (3) his mental illness was the source of the condition which prevented Osorio-

Lopez from participating in his own defense. Id.




                                                  9
         Having found some evidence to support incompetency, we sustain this point of error and

abate the appeal to the trial court. “On [abatement], the trial court shall first determine whether it

is presently feasible to conduct a retrospective competency trial, given the passage of time,

availability of evidence, and any other pertinent considerations.” 6 Turner, 422 S.W.3d at 696. If

it is found to be feasible, the trial court shall conduct a retrospective competency trial pursuant to

Chapter 46B, subchapter C, of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC.

ANN. ch. 46B, subch. C; Turner, 422 S.W.3d at 696–97. Regardless of whether a retrospective

competency trial is found to be feasible, the record of the proceedings on remand shall be returned

to this Court for reinstatement of the appeal. 7 See Turner, 422 S.W.3d at 697.

         The reporter’s record of all proceedings in the trial court shall be filed in the form of a

supplemental reporter’s record within twenty days of the final hearing contemplated by this order.

See generally TEX. R. APP. P. 38.8(b)(3). Any written findings shall be entered on the record and

filed in the form of a supplemental clerk’s record within twenty days of the final hearing

contemplated by this order. See id.

         All appellate timetables are stayed and will resume on our receipt of the supplemental

appellate record.

                                                      BY THE COURT

Date: August 14, 2019


6
 Having found evidence of incompetency in this case, the trial court “shall order an examination . . . to determine
whether the defendant is incompetent to stand trial,” but because the State opposes a finding of incompetency in this
case, the trial court must conduct a competency trial. TEX. CODE CRIM. PROC. ANN art. 46B.005(a)–(b).
7
 The resolution of Osorio-Lopez’ remaining point of error is unnecessary unless or until the matter on remand is
resolved and the case is returned to us.
                                                         10
