                                                                          ACCEPTED
                                                                     01-12-00551-CR
                                                           FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                2/13/2015 3:35:47 PM
                                                                 CHRISTOPHER PRINE
              No. 01-12-00551-CR                                              CLERK



                    In the
Court of Appeals for the First District of TexasFILED IN
                 At Houston                1st COURT OF APPEALS
                                               HOUSTON, TEXAS
          
                                            2/13/2015 3:35:47 PM
                                            CHRISTOPHER A. PRINE
                  No. 1272297                       Clerk
           In the 179th District Court
            Of Harris County, Texas
           

               LOX GORME
                    Appellant
                      V.
         THE STATE OF TEXAS
               Appellee
           

       STATE’S APPELLATE BRIEF
           
                                DEVON ANDERSON
                                District Attorney
                                Harris County, Texas

                                JOSEPH ALLARD
                                Assistant District Attorney
                                Harris County, Texas

                                HEATHER A. HUDSON
                                Assistant District Attorney
                                Harris County, Texas
                                State Bar No. 24058991

                                1201 Franklin, Suite 600
                                Houston, Texas 77002
                                Tel.: 713/755-5826
                                Fax No.: 713/755-5809

                                Counsel for Appellee


 ORAL ARGUMENT CONDITIONALLY WAIVED
                     IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of

the names of all interested parties is provided below.

COUNSEL FOR THE STATE:

   Ms. Devon Anderson―District Attorney

   Mr. Joseph Allard―Assistant District Attorney at sentencing hearing

   Ms. Heather Hudson―Assistant District Attorney on appeal

APPELLANT:

   Lox Gorme

COUNSEL FOR APPELLANT:

   Mr. Steven Greenlee―Defense counsel at sentencing hearing

   Ms. Daucie Schindler―Assistant Public Defender on appeal

PRESIDING JUDGE:

   Hon. Randy Roll




                                               i
                  STATEMENT REGARDING ORAL ARGUMENT

        Pursuant to Tex. R. App. P. 39.1, the State waives oral argument because the

briefs in this case adequately apprise this Court of the issues and the law. However,

the State requests the opportunity to present argument if this Court deems it

necessary.


                                     TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES .....................................................................i

STATEMENT REGARDING ORAL ARGUMENT ................................................ ii

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT OF THE CASE................................................................................... 1

STATEMENT OF FACTS ......................................................................................... 1

SUMMARY OF THE ARGUMENT ......................................................................... 3

REPLY TO APPELLANT’S SOLE POINT OF ERROR .......................................... 4

        I.    Standard of review and applicable law. ......................................................4

        II.   Relevant background. ................................................................................6
        III. The trial court did not abuse its discretion in failing to conduct a
             sua sponte inquiry into appellant’s competency. ........................................8

CONCLUSION AND PRAYER .............................................................................. 10

CERTIFICATE OF COMPLIANCE ....................................................................... 11

CERTIFICATE OF SERVICE ................................................................................. 11


                                                            ii
                                 INDEX OF AUTHORITIES


CASES

Brown v. State,
  129 S.W.3d 762 (Tex. App.--Houston [1st Dist.] 2004, no pet.) ................................4
Iniquez v. State,
   374 S.W.3d 611 (Tex. App.--Austin 2012, no pet.) ....................................................6
Jackson v. State,
   391 S.W.3d 139 (Tex. App.--Texarkana 2012, no pet.) ..............................................8
Montoya v. State,
 291 S.W.3d 420 (Tex. Crim. App. 2009) ...............................................................4, 5
Moore v. State,
 999 S.W.2d 385 (Tex. Crim. App. 1999) ...............................................................4, 9
Turner v. State,
  422 S.W.3d 676 (Tex. Crim. App. 2013) ...............................................................5, 9
Villarreal v. State,
  935 S.W.2d 134 (Tex. Crim. App. 1996) ...................................................................4

STATUTES

Acts 2011, 82nd Leg., ch. 822, §§ 2 & 21(b), p. 1895 & 1901, eff. Sept. 1, 2011 ...........5
TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West 2013) .........................................4
TEX. CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2013) .........................................4
Tex. Code Crim. Proc. Ann. art. 46B.004(b) (West 2013) .............................................4
TEX. CODE CRIM. PROC. ANN. art. 46B.004(c) (West 2013) .........................................5
TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West 2012) ......................................8
TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West 2013) ......................................5
TEX. CODE CRIM. PROC. ANN. art. 46B.005 (West 2013) .............................................6
TEX. CODE CRIM. PROC. ANN. art. 46B.024 (West 2013) .............................................5




                                                        iii
      TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of murder. (C.R. 3). On

March 23, 2012, appellant waived his right to a trial by jury and pled guilty to the

charged offense without an agreed recommendation as to punishment. (C.R. 55-56).

On May 31, 2012, the trial court conducted a presentence investigation hearing.

Appellant was convicted of murder and sentenced to 48 years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice. (C.R. 73-74).

Appellant filed a timely written notice of appeal. (C.R. 75-76).


                             STATEMENT OF FACTS

      At the time of the offense, appellant lived with his sister, Ruth Fernandez, her

four children, and her ex-husband, Paul Johnson. (1 R.R. 11). On July 20, 2010,

Fernandez was in her bedroom with her 7-year-old daughter Brianna. (1 R.R. 13-14).

Johnson, the complainant, was in the kitchen talking to his daughter Shaise while he

washed dishes. (1 R.R. 14). Fernandez’s other two children were upstairs. (1 R.R. 14).

      Appellant appeared in Fernandez’s bedroom doorway and confronted her

about a note she had left him. (1 R.R. 14-15). The note accused appellant of

deliberately leaving the front door open. (1 R.R. 48-50). Appellant walked into the

bedroom with his hand hidden behind his back, and cursed at Fernandez “I’m not a
F-ing liar, you F-ing B.” (1 R.R. 16). An argument ensued and appellant abruptly ran

out of the room. (1 R.R. 16).

       Appellant went to the kitchen, said Johnson’s name, and shot him in the head

without further warning. (1 R.R. 37). After seeing her father get shot, Shaise ran to

the bathroom and locked the door. (1 R.R. 37-38). Appellant returned to the

bedroom, held the gun to Fernandez’s head, and asked her if she “wanted some of

it.” (1 R.R. 16-17). Appellant also pointed the gun at Brianna. (1 R.R. 17). Appellant

then went upstairs to retrieve his bags, which he had packed in advance. (1 R.R. 18,

47).

       Meanwhile, Fernandez grabbed Brianna and ran outside to call 911 from her

cell phone. (1 R.R. 18). Shaise emerged from the bathroom a few minutes later and

ran upstairs. (1 R.R. 38). She encountered appellant at the top of the stairway. (1

R.R. 38). Appellant put the gun to her head and said “F-you.” (1 R.R. 38). Shaise ran

and hid behind the computer desk. (1 R.R. 38).

       Appellant casually strolled out of the house with his bags, and caught a

Greyhound bus from Houston to Ottawa, Canada. (1 R.R. 19, 47). He was later

apprehended at an airport where he was attempting to catch a flight to Singapore. (1

R.R. 60).




                                             2
                       SUMMARY OF THE ARGUMENT

      The trial court did not abuse its discretion in failing to conduct a sua sponte

informal inquiry into appellant’s competency to stand trial. Although appellant was

diagnosed with schizophrenia, his competency evaluation reflects that he had a

rational and factual understanding of the proceedings against him, and possessed the

ability to consult with his attorney with a reasonable degree of rational understanding.

Appellant did not request a second competency evaluation prior to sentencing.

Moreover, the trial court was not presented with evidence from any credible source

suggesting that appellant was incompetent.




                                              3
               REPLY TO APPELLANT’S SOLE POINT OF ERROR

       In a single point of error, appellant contends that the trial court abused its

discretion in failing to conduct a sua sponte inquiry into appellant’s competency to

stand trial.

  I.   Standard of review and applicable law.
       A trial court’s failure to conduct a competency hearing is reviewed for an abuse

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

State, 129 S.W.3d 762, 764 (Tex. App.--Houston [1st Dist.] 2004, no pet.). The

reviewing court does not substitute its judgment for that of the trial court, but

determines whether the trial court’s decision was arbitrary or unreasonable. Montoya v.

State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009).

       A defendant is presumed competent to stand trial unless proven incompetent

by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art. 46B.003(b)

(West 2013). A person is deemed incompetent if he lacks: (1) sufficient present ability

to consult with his lawyer with a reasonable degree of rational understanding; or (2) a

rational as well as factual understanding of the proceedings against him. Id. art.

46B.003(a).

       If evidence suggesting that 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.               Id. art. 46B.004(b).   The court shall then

determine by informal inquiry whether there is some evidence from any source that
                                                    4
would support a finding of incompetency. Id. art. 46B.004(c). A suggestion of

incompetency “may consist solely of a representation from any credible source that

the defendant may be incompetent.” Id. art. 46B.004(c-1). Prior to the amended

version of Article 46B.004, the evidence had to raise a bona fide doubt in the judge’s

mind regarding the defendant’s competency to stand trial. See Montoya, 291 S.W.3d at

425, superseded by statute, Acts 2011, 82nd Leg., ch. 822, §§ 2 & 21(b), p. 1895 & 1901,

eff. Sept. 1, 2011, as recognized in Turner v. State, 422 S.W.3d 676, 692 n.32 (Tex. Crim.

App. 2013). The current version of the statute provides that the trial court is no

longer required to have a bona fide doubt as to the defendant’s competency. TEX.

CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West 2013).                     Instead, the evidence

suggesting incompetency “may be based on observations made in relation to one or

more of the factors described by Article 46B.0241 or on any other indication that the

defendant is incompetent within the meaning of Article 46B.003.” Id.

       If, after making an informal inquiry, the trial court determines that evidence

exists to support a finding of incompetency, the trial court must order a psychological

examination and conduct a formal competency hearing. TEX. CODE CRIM. PROC.



1
  Article 46B.024 sets forth various factors associated with competency, such as the defendant’s
capacity: to rationally understand the charges against him and the potential consequences of the
pending criminal proceedings; to disclose to counsel pertinent facts, events, and states of mind; to
engage in a reasoned choice of legal strategies and options; to understand the adversarial nature of
criminal proceedings; to exhibit appropriate courtroom behavior; and to testify. TEX. CODE CRIM.
PROC. ANN. art. 46B.024(1) (West 2013). Other relevant factors include the defendant’s history of
mental illness and the impact of that mental illness on the defendant’s capacity to engage with
counsel in a reasonable and rational manner. Id. art. 46B.024(2),(4).
                                                     5
ANN. art. 46B.005(a),(b) (West 2013); Iniquez v. State, 374 S.W.3d 611, 615 (Tex. App.-

-Austin 2012, no pet.).

 II.   Relevant background.
       On March 3, 2011, appellant’s trial counsel filed a pretrial motion for a

psychiatric examination to assess appellant’s competency to stand trial. (C.R. 8). The

trial court immediately granted the motion. (C.R. 9). On May 27, 2011, a competency

evaluation was conducted by licensed psychologist Ramon A. Laval. (C.R. 14-17).

The evaluation reflects that appellant reported hearing “voices that never stop.” (C.R.

15). Appellant stated that he had been diagnosed with paranoid schizophrenia, and

that he had been taking Zyprexa. Id. Appellant also indicated that he had been “self-

medicating with alcohol.” Id. Appellant’s medical chart from the Harris County Jail

indicated that he received a psychiatric assessment on March 2, 2011, at which time he

reported he was suffering from depression and experiencing auditory hallucinations.

Id. Appellant was diagnosed with major depressive disorder, recurrent with psychotic

features. Id. He was prescribed antipsychotic and antidepressant medication. Id.

       During a health assessment on March 11, 2011, appellant was coherent and did

not appear to be psychotic or suicidal. Id. At a follow-up psychiatric assessment on

April 16, 2011, appellant reported that he was still experiencing auditory

hallucinations, “but not as much as before.” Id. Appellant’s diagnosis was changed to

schizophrenia, paranoid type. Id.



                                              6
         During the court-ordered competency evaluation on May 27, 2011, Dr. Laval

observed that appellant was able to communicate in a clear and coherent manner, and

that his thought processes were organized, logical and goal directed. Id. Appellant

reported that he continued to experience hallucinations despite his medication. Id. pp.

15-16.     Dr. Laval diagnosed appellant with a “psychotic disorder not otherwise

specified and alcohol dependence.” Id. p. 16. Dr. Laval concluded that appellant had

a clear and rational understanding of the charges against him and the possible

consequences of conviction. Id. In addition, Dr. Laval noted that appellant had the

ability to disclose to counsel pertinent facts, events and states of mind associated with

the alleged offense. Id. Appellant was able to think rationally and coherently, and

demonstrated an ability to engage in reasoned choices of legal strategies. Id. Dr.

Laval also found that appellant possessed a sufficient understanding of the adversarial

nature of prosecution, he demonstrated the ability to behave appropriately in court,

and he was psychiatrically stable enough to testify on his own behalf. Id. pp. 16-17.

Dr. Laval opined that appellant was competent to stand trial. Id. p. 17.

         Appellant subsequently pled guilty to the charged offense and a sentencing

hearing was held on May 31, 2012. A presentence investigation report dated May 25,

2012 was offered into evidence at the hearing. See (State’s Exhibit 5). The PSI report

reflects that appellant reported that he was feeling better and was no longer hearing

voices. Id. at p. 7. Appellant’s trial attorney objected to the admission of the PSI

report, stating that appellant had reviewed it and had indicated that he was still
                                               7
hearing voices. (1 R.R. 5). Appellant clarified that the voices were “just not as loud.”

(1 R.R. 5). The trial court took notice of the objection, and neither party requested a

competency inquiry. (1 R.R. 6).

III.   The trial court did not abuse its discretion in failing to conduct a sua sponte inquiry into
       appellant’s competency.
       Appellant contends that the trial court should have conducted an informal

competency inquiry prior to sentencing on May 31, 2012 based upon appellant’s

history of mental illness, the competency evaluation conducted by Dr. Laval, and

appellant’s representation to the court that he was still hearing voices.

       At the time of the presentence investigation hearing, the statutory amendments

to Article 46B.004 provided that the trial court was no longer required to have a bona

fide doubt as to the defendant’s competency to stand trial before conducting an

informal inquiry. See TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West 2012).

Under the controlling version of the statute, the threshold requirement for

conducting an informal competency inquiry is whether there is evidence from any

credible source that appellant may be incompetent. See Jackson v. State, 391 S.W.3d 139,

141 n.1 (Tex. App.--Texarkana 2012, no pet.) (applying the amended version of the

statute to hold that the trial court must conduct an informal hearing if any credible

source suggests incompetency).

       In the instant case, the trial court granted appellant’s request for a competency

evaluation. Although the evaluation reflects that appellant had been diagnosed with

                                                    8
schizophrenia and reported experiencing auditory hallucinations, the fact that a

defendant suffers from a mental illness does necessarily indicate that he is

incompetent to stand trial. Turner, 422 S.W.3d at 691; Moore, 999 S.W.2d at 395. The

relevant inquiry is whether the evidence suggests that the 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.” Turner, 422 S.W.3d at 691. Here, Dr. Laval concluded that appellant

possessed the ability to consult with counsel with a reasonable degree of rational

understanding, and had the ability to understand the pending charges and criminal

proceedings against him. (C.R. 17).

      Furthermore, the trial court was not obligated to conduct another competency

inquiry based on appellant’s representation that he was continuing to hear voices at a

lower level of intensity. Appellant was experiencing auditory hallucinations at the

time of his psychiatric examination, and was still deemed competent to stand trial.

      Moreover, the trial court was presented with evidence that an informal inquiry

was unnecessary based on the factors set forth in Article 46B.024. The trial court

could have determined that appellant had the ability to consult with his attorney

considering that appellant reviewed the PSI report and disclosed to his attorney the

pertinent fact that he was still hearing voices. Appellant also presented coherent

testimony that he unintentionally shot the complainant, and that he was sorry for his

actions. (1 R.R. 55, 57-58, 69). In addition, appellant testified that he understood he
                                              9
was in court for a sentencing hearing, he understood that he had previously entered a

plea of “guilty,” and he recalled being admonished of his constitutional rights. (1 R.R.

42-44).

      Absent any evidence that appellant’s mental illness rendered him incapable of

consulting with his attorney with a reasonable degree of rational understanding, or

that appellant lacked the ability to understand the proceedings against him, the trial

court did not abuse its discretion in failing to conduct a second informal competency

inquiry. As such, appellant’s sole point of error should be overruled.


                         CONCLUSION AND PRAYER

      It is respectfully submitted that all things are regular and the conviction should

be affirmed.

                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas


                                                   /s/ Heather A. Hudson
                                                   HEATHER A. HUDSON
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   State Bar No. 24058991
                                                   hudson_heather@dao.hctx.net
                                                   curry_alan@dao.hctx.net




                                              10
                       CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document has

a word count of 2,199 words, based upon the representation provided by the word

processing program that was used to create the document.

                                                   /s/ Heather A. Hudson
                                                   HEATHER A. HUDSON
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   State Bar No. 24058991


                           CERTIFICATE OF SERVICE

             This is to certify that a copy of the foregoing instrument has been

submitted for service by e-filing to the following address:

             Daucie Schindler
             Assistant Public Defender
             1201 Franklin, 13th Floor
             Houston, Texas 77002
             Tel: (713) 247-6717
             Fax: (713) 368-9278
             Daucie.Schindler@pdo.hctx.net

                                                   /s/ Heather A. Hudson
                                                   HEATHER A. HUDSON
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   State Bar No. 24058991
Date: 2/13/2015
                                              11
