                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS


     ZENAIDA PEREZ,                                   §
                                                                  No. 08-13-00208-CR
                                   Appellant,         §
                                                                    Appeal from the
     v.                                               §
                                                                  120th District Court
     THE STATE OF TEXAS,                              §
                                                                of El Paso County, Texas
                                    Appellee.         §
                                                                  (TC# 20110D01249)


                                                  OPINION

           Zenaida Perez, Appellant, was charged with four counts of indecency with a child. She

was convicted and sentenced to four years’ imprisonment on Count I and two years’ on Counts II

through IV.1 Appellant asserts the jury’s finding she was competent to stand trial is against the

great weight and preponderance of the evidence. We reverse the judgment and remand for further

proceedings consistent with this opinion.

                                          STANDARD OF REVIEW

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

process. Turner v. State, 422 S.W.3d 676, 688 (Tex.Crim.App. 2013); see Cooper v. Oklahoma,




1
    The sentences were ordered to run concurrently.
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, 422 S.W.3d at 688–89 (“‘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.’”)(quoting Drope v. Missouri, 420 U.S. 162, 171 (1975)). To be adjudicated

competent to stand trial, a criminal defendant must have “sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding” and must have a “rational as well

as factual understanding of the proceedings against him.” Turner, 422 S.W.3d at 689 (citing Dusky

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

       A defendant may raise a factual-sufficiency challenge to the jury's adverse finding on his

incompetency claim. The seminal case on factual sufficiency in competency trials is instructive.

Meraz v. State, 785 S.W.2d 146, 147 (Tex.Crim.App. 1990). In Meraz, the Court of Criminal

Appeals adopted the civil standard of factual sufficiency review of “preponderance of the

evidence.” Id. at 153-55; Matlock v. State, 392 S.W.3d 662, 671 (Tex.Crim.App. 2013). When

the defendant makes a factual sufficiency claim, he is asserting that, considering the entire body

of evidence, the jury's rejection of his incompetency plea was so “against the great weight and

preponderance” of that evidence to be manifestly unjust. Matlock, 392 S.W.3d at 671; Meraz, 785

S.W.2d at 154-55. We view the entirety of the evidence in a neutral light and defer to the jury's

credibility determinations. Matlock, 392 S.W.3d at 671; see Morris v. State, 301 S.W.3d 281, 292

(Tex.Crim.App. 2009). We sustain Appellant's factual sufficiency claim only if, after setting out

all the relevant evidence and explaining precisely how the contrary evidence greatly outweighs the

evidence supporting the verdict, we clearly state why the verdict is so much against the great



                                                 2
weight of the evidence so as to be manifestly unjust, conscience-shocking, or clearly biased.

Matlock, 392 S.W.3d at 671. A clearly wrong or unjust verdict is one which “shocks the

conscience,” or “clearly demonstrates bias.”       Santellan v. State, 939 S.W.2d 155, 164-165

(Tex.Crim.App. 1997). A reviewing court may not substitute its judgement in place of the jury’s

assessment of the weight and credibility of the witnesses’ testimony. Matlock, 392 S.W.3d at 671.

       In Texas, “[a] defendant is presumed competent to stand trial and shall be found competent

to stand trial unless proved incompetent by a preponderance of the evidence.”             TEX.CODE

CRIM.PROC.ANN. art. 46B.003(b). A defendant is incompetent to stand trial if he does not have

“(1) sufficient present ability to consult with [her] 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). Facts relevant to this determination include

whether a defendant can.

                                                  TRIAL

       During the competency trial, the defense called three witnesses: Dr. Angel Rodriguez-

Cheverez, one of the psychiatrists who had examined Appellant; Dave Contreras, Appellant’s

former defense counsel; and Appellant’s sister-in-law, Consuelo Perez.

                                     Dr. Angel Rodriguez-Cheverez

       At the competency trial, the jury heard the expert testimony of Dr. Angel Rodriguez-

Cheverez, a forensic psychiatrist, who after examination, found Appellant incompetent to stand

trial. Further, in his report, he opined, to a reasonable degree of medical certainty, he found it was

“highly unlikely [and a] poor possibility” that she could be restored to competency given that her

condition would “last a lifetime.” Dr. Rodriguez-Cheverez diagnosed her with mild mental




                                                  3
retardation, which was corroborated through psychological testing which determined her I.Q. score

to be 60. According to Dr. Rodriguez-Cheverez, an I.Q. of 60 is equivalent to an eight-year-old.

       Appellant told Dr. Rodriguez-Cheverez that she had been born in Mexico. While in

Mexico, she attended school for special education. Eventually she graduated from high school in

Houston through special education. She had never been gainfully employed, because she is “too

slow” and has difficulties learning anything new. She receives social security benefits. She was

married for a few months and has been separated for about three years. Dr. Rodriguez-Cheverez

found her “having difficulties understanding my questions.” She was cooperative, no signs of

thought disorder, not delusional, but was a poor historian with “difficulties arranging events in a

chronological and accurate manner.” In fact, Appellant’s sister Andrea, who accompanied her to

the evaluation, assisted in completing the evaluation.

       Dr. Rodriguez-Cheverez based his finding of incompetency on Appellant’s inability to

“understand exactly what goes on in a court of law and be able to participate appropriately” in her

defense. His written report indicates Appellant did not understand what a lawyer would do for

her; she had no idea of the prosecuting attorney’s role; she could not explain who a judge is or

what a judge does; no comprehension of the jury’s role; and had no idea the role of a witness. He

also explained to the jury that he was certain Appellant was not malingering. He testified

Appellant would not be able to consult with her lawyer with a degree of rational understanding

and did not have a rational and factual understanding of the charges against her. Dr. Rodriguez-

Cheverez stated Appellant would never gain the ability to consult with her attorney with “a degree

of rational understanding” or attain a “rational and factual understanding of the charges” against

her.




                                                 4
           Dr. Rodriguez-Cheverez also testified that he based his opinion on cognitive testing by Dr.

Natalicio, a psychologist, who measured Appellant’s I.Q. He, further explained, that he also based

his opinion on a second psychiatric evaluation by Dr. Cynthia Rivera. Dr. Cynthia Rivera, had

evaluated Appellant and found her competent initially, but after a second evaluation agreed with

Dr. Rodriguez-Cheverez, finding Appellant, ultimately, incompetent.

                                               Dave Contreras

           Appellant’s former defense attorney, Dave Contreras, testified that Appellant does not have

the ability to “disclose pertinent facts to counsel.” Mr. Contreras attested that Appellant was

unable to effectively consult with him for the purposes of her defense. According to Mr. Contreras,

when he spoke with her, “sometimes it’s just like it’s not registering. Sometimes I’ll ask her a

question and the answer won’t come. She won’t answer, so it’s either she didn’t understand me

or she didn’t hear me.” Further, Mr. Contreras said, “[a]nd I have to go over and over and over

again, and she has a very short-term memory problem.” He told the jury that he had to “repeat

everything twice” and “I talk to her one week, the next week she won’t remember what we

discussed.” Mr. Contreras stated that Appellant did not understand what he would tell her about

the case and could not make decisions. Mr. Contreras opined that she would be “annihilated by

cross-examination” if she were to take the stand in her own defense because everything must be

repeated to her over and over again, she is not responsive, and she forgets what she had told him

earlier.

           On cross-examination by the State, Mr. Contreras rejected the proposition that Appellant

would be better served by female defense counsel, answering “[n]ot with her limitations. It doesn’t

matter.” The State posited that Mr. Contreras, as an attorney, was not qualified to render an

opinion as to Appellant’s limitations. Mr. Contreras responded,



                                                    5
       Well, when she can’t help me prepare her defense, when she can’t relate facts to
       me, when she doesn’t have a rational understanding of the charges against her, it’s
       like going into a courtroom with my hands tied behind my back. It’s like I would
       be discovering the case against her in court, and that would be malpractice for me
       to do that.

Mr. Contreras acknowledged that he did not know what was going on in Appellant’s head; or know

why she does not answer or know what Appellant remembers and what she does not remember or

whether she is lying to him. He stated Appellant did not remember meeting him which had

occurred some three months prior. When pressed, Mr. Contreras told the jury that when he

encountered Appellant again, he asked her, “[d]o you remember me? I represented you in the past.”

Appellant just looked at him. Mr. Contreras admitted he could not read Appellant’s mind.

       When questioned as to the basis of his opinion that Appellant could not testify, Mr.

Contreras responded, “[j]ust in talking to her. I mean, we have enough experience to understand

when somebody can testify, as you know. You deal with complaining witnesses, and we know

when somebody can’t testify, their limitations . . . .” Mr. Contreras acknowledged while it is

possible Appellant does not want to testify or could be malingering, he did not believe that to be

the case. In response to whether he could “get in her head,” Mr. Contreras stated “[b]ecause she

doesn’t remember when I just talked to her an hour earlier.” Again the State pressed “[c]an you

get in her head?” Mr. Contreras responded, “I can just go by observations.” The State followed

up “[s]o looking at somebody, you can tell what’s going on in their head?” He answered, “[n]o.

If I ask somebody a question and they can’t answer.” The State challenged whether Appellant

willfully refuses to answer, and Mr. Contreras explained “[s]he tries. That, I’ve got to hand it to

– I mean, she tries to communicate, but she can’t help me. She can’t.”

       When the State questioned whether Mr. Contreras was sufficiently qualified to opine on

Appellant’s ability to consult with him, he answered “[a]ll I can tell you is the difficulty I had with



                                                  6
her when I’m trying to prepare for trial.” The State asked whether Mr. Contreras should be

testifying to Appellant’s mental abilities given that he is not a doctor and only has a law license,

he responded “--one of the things that--what you look for in competency is the client’s ability to

consult . . . to a reasonable degree of rational understanding as to the charges against them . . . .”

Mr. Contreras acknowledged he was not a mental health expert but that he is assigned a majority

of cases involving mentally ill clients. He explained that he had seven years on-the-job training

and experience in handling severely mentally ill clients, twenty-three years practicing law. Mr.

Contreras told the jury that he has been unable to consult with Appellant to prepare the case for

trial or get her ready to testify.

                                          Consuelo Perez

        Consuelo Perez, Appellant’s sister-in-law, testified that Appellant lived with her. Consuelo

testified she had brought Appellant to court that day and takes her to the doctor when she is ill.

According to Consuelo, Appellant “forgets many things. She’s ill. She’s disabled.” She stated

that her husband, Appellant’s brother, has authority to act for Appellant through Social Security.

Consuelo said she has known Appellant twenty-nine years and has lived with her the last eleven

months. Consuelo explained that Appellant lived with her mother all her life until her mother died

about four years ago. After that she went to live with her older sister, Enriqueta Codina. Consuelo

acknowledged Appellant was married for two years but her husband would take Appellant to her

mother’s house every day. Appellant would help take care of her mother, who was blind and had

diabetes. Consuelo stated Appellant has never lived on her own. Appellant cannot manage her

bank account or take care of her money monthly, so Appellant’s brother does that. She can pay

bills, so long as someone accompanies her and tells her what to do. According to Consuelo,

Appellant cannot buy groceries without assistance and has never held a driver’s license. Nor can



                                                  7
Appellant get on a bus or get to the courthouse on her own. Appellant has gotten lost going to the

restroom in the courthouse. As a result, Consuelo does not leave Appellant alone at all. When

Consuelo attempts to explain what is going on with Appellant’s case to her, “[s]he forgets many

things and she doesn’t know how to explain to me what’s going on here.” Appellant asks Consuelo

questions, but sometimes does not understand what Consuelo tells her. Consuelo repeats things to

Appellant three or four times “so that she understands what I’m trying to tell her.” According to

Consuelo, Appellant does not remember who her attorneys are and has not remembered any one

of them for longer than one day.

       Under cross-examination, Consuelo admitted that Appellant and her husband lived

together for a couple of years and did not live with her mother all her life. Consuelo also admitted

that Appellant’s ex-husband owned a truck that Appellant drove within an apartment complex.

Consuelo stated Appellant did not take the truck into the street but acknowledged she did not

observe Appellant every single minute of the day and could not be certain if she drove out into the

street. Consuelo acknowledged Appellant could drive but did not have a license. Consuelo

accompanied Appellant to the doctor and goes in with her while she is being examined. Consuelo

explained that her husband “got custody” of Appellant eleven months prior to the trial and

Appellant has been living with them since then. Consuelo told the court that prior to Appellant

living with her and her husband, she would see her mother-in-law and Appellant every weekend.

Consuelo testified they would visit with her mother-in-law and Appellant either at home or go to

the park. Appellant would cook, feed, and move her mother from one point to another and bathe

her. Appellant was very close to her mother who suffered from diabetes and was blind. Appellant

was very good to her mother and took care of her as a daughter should according to Consuelo.

Consuelo attested that Appellant took good care of her mother until she passed away in April 2009.



                                                 8
Consuelo stated that Appellant had never been to a club or a party. The State introduced a picture

of Appellant with two other ladies purportedly showing wristbands indicative of attendance at a

nightclub.

        Consuelo acknowledged that Appellant is not subject to a guardianship and the only

documents Appellant’s brother must act for her come from the Social Security office. Appellant’s

brother is listed on Appellant’s bank account first and Appellant second for the last six months

prior to trial. Prior to that, Appellants’ sister, Enriqueta Codina, was listed first.

        Appellant assisted Consuelo in the care of her granddaughter, after she was born in 2011,

while her daughter was having surgery. However, Consuelo stated that she never left Appellant

alone with her granddaughter. Consuelo was aware of her niece’s children, twin premature girls.

Consuelo agreed with the State that Appellant was smarter than an eight-year-old, and the family

trusted her to take care of her disabled mother. Consuelo conceded that Appellant’s mother was

well cared for by Appellant and an eight-year-old could not be trusted to do what Appellant did

with her mother. Appellant also took care of the twin girls along with her mother, after they were

taken from the oxygen, thirteen years before the trial. At the time, Appellant and her mother took

care of the twin girls, Appellant’s mother was fifty-three years’ old and her diabetes was under

control. The State introduced a picture of Appellant holding the twin infant girls into evidence.

Consuelo acknowledged the picture showed the girls with oxygen tubes in their noses. Consuelo

explained that Appellant travelled to Denver to help their mother care for the twins. Consuelo

conceded she was wrong when she stated Appellant took care of the girls after they had been

weaned off the oxygen. Consuelo stated that the mother of the twins was also disabled as she had

been born without a hand. According to Consuelo, Appellant helped the disabled mother with the

care of the twin girls who had been born premature and on oxygen. Consuelo stated that Appellant



                                                   9
had also looked after the twin girls’ mother and her brother, Ubaldo Codina, when they were

children. Consuelo clarified that Appellant assisted with the care of the twins’ mother and Ubaldo,

when they were brought to Appellant’s mother’s house to be cared for. Consuelo acknowledged

Appellant also babysat Ubaldo’s children, a four-year-old girl and two boys that were a little bit

older. According to Consuelo, Appellant took care of all three children while their parents, Ubaldo

and his wife went to school at night. Consuelo told the jury that Appellant had never worked

outside the home and was not paid for any of the work she did for family members.

        On re-direct, Consuelo explained Appellant’s mother went to look after the twin premature

babies on oxygen in Denver and Appellant only accompanied her. Consuelo acknowledged that

Appellant would help her mother by changing the babies’ diapers and feeding them. Consuelo

told the jury Appellant could not take the babies to the doctor or even go shopping at a grocery

store unassisted. Consuelo stated Appellant only went grocery shopping with her husband or

father. Consuelo testified that Appellant can change and bathe on her own but must be reminded

to take her medicine.

                                                 State’s Case

        The State presented seven witnesses. They were Appellant’s nephew and his wife, Ubaldo

Codina, Jr. and Claudia Holguin Codina; Appellant’s niece, Kathleen Codina; and Appellant’s

nephew, Julio Cesar Codina.2 The three remaining witnesses were Claudia Codina’s mother,

Elvira Padilla de Perez; her father, Barbaro Perez Meza and her brother, Jose Antonio Perez. The

State’s examining psychiatrist, Dr. Cynthia Rivera, who ultimately found Appellant incompetent,

was not called to testify.



2
  We note that the alleged victim of the underlying indictment is a child of Ubaldo Codina and Claudia Holguin
Codina, a niece of Kathleen Codina, Julio Cesar Codina, and Jose Antonio Perez; and a granddaughter of Elvira Perez
and Barbaro Perez. However, the family relationships to the alleged victim were not disclosed at trial.

                                                        10
                                       Ubaldo Codina, Jr.

       After Appellant’s mother died, Appellant went to live with Ubaldo’s mother, Appellant’s

older sister. Later, Appellant lived with Ubaldo and his wife to help them because they were both

going to school. Ubaldo worked eight to twelve hours a day and went to school at night. Appellant

came to stay with Ubaldo and his wife to take care of their three children for about two to three

months. Appellant shared a room with his three-year-old daughter and kept some of her clothes

there. They left the children with Appellant once a week for four hours. His two older boys were

twelve years’ and nine years’ old at that time. She babysat the children, cooked, fed them, and

made sure they bathed. Ubaldo stated that Appellant would clean their house, cook for the family,

walk with the kids around the block, play cards with the kids, watch TV with them, and put movies

on.

       Ubaldo had known his aunt, Appellant, all his life and had no concerns about her mental

ability. He told the jury that Appellant can cook Mexican food very well and make tortillas.

Further, Appellant could carry “normal family conversations.” Ubaldo explained that as a

correctional officer for nine years, he could readily recognize if someone “was mentally retarded

[or] slow” and he never considered Appellant as “being like that.” He stated that if he had thought

she was, he would have never left her with his kids. Ubaldo recalled Appellant helping his sister

in Colorado with her new-born twins but did not believe his grandmother would have accompanied

Appellant.




                                                11
       Ubaldo acknowledged he knew Appellant received SSI.3 However, he stated he did not

know why she received the benefits nor was he ever told why. Further, he had never been told

that Appellant was mentally retarded. Ubaldo stated that Appellant would take care of all the kids

in the family, anytime there was a “get together,” someone would bring Appellant so “she could

take care of more kids.” He admitted that Appellant only enjoyed doing that “sometimes.” He

had never heard anyone in the family question Appellant’s ability to babysit kids. Ubaldo also

witnessed her taking care of other family members’ children in Houston. He has also seen her

drive her husband’s truck in the apartment complex to wash and to a nearby convenience store.

He also observed Appellant with her husband. Ubaldo stated Appellant and her husband appeared

to have a normal relationship in the beginning.

       Ubaldo believed Appellant is smarter than an eight-year-old. He had attended her high

school graduation and knew she was in special education classes. However, he stated he did not

know why she was in the special education classes as he was still a child then. Appellant

participated in family activities such as tag, handball, frisbee, and cooking. He stated, “[s]he would

do anything.” Ubaldo testified that she was a good softball player and could catch the ball. She

would also play Uno, a card game and La Lotteria, a Mexican bingo game. Ubaldo testified that

Appellant was very fast, and she would pay close attention during the Mexican bingo game

winning “[a]ll the time.” In addition to playing softball, Appellant also played handball and tennis.

According to Ubaldo, she was very athletic, and she was able to follow the rules of the game “all




3
  The SSI program is administered by the federal Social Security Administration (SSA) to provide
cash assistance to individuals who are aged, blind, or disabled and who have limited incomes or
resources. See 42 U.S.C.A. §§ 1381-1381a.

                                                  12
the time.” Ubaldo told the jury he never saw her have any problems following the rules of a game

“because she was really good on anything, any sport.”

       Ubaldo told the jury his mother, Enriqueta Codina handled Appellant’s social security

funds for a short period of time before his uncle took over. Ubaldo acknowledged that Appellant’s

mother oversaw her social security money before Enriqueta took over. According to Ubaldo, while

he was aware of the money, he was completely unaware as to why Appellant received it or why

his grandmother and his mother oversaw the funds. Ubaldo insisted that Appellant had a card and

he never witnessed any other individual handle Appellant’s money. He stated he misunderstood

and he was unaware if his mother handles Appellant’s funds, but that his mother was “in charge”

of Appellant after his grandmother passed away. He could not recall when his grandmother passed

away nor did he know how old Appellant was. Eventually under cross-examination, Ubaldo

conceded his grandmother died when he was thirty-three or thirty-four. At the time of trial, Ubaldo

stated he was thirty-six years of age. Ubaldo agreed that Appellant was at least forty years’ of age

when her mother died, and someone had to take possession or custody of her. Ubaldo told the jury

that the conversations with Appellant were about cooking, cleaning, and taking care of kids.

       Under re-direct, Ubaldo stated his grandmother oversaw Appellant because his

grandmother relied on Appellant for everything, like cooking and cleaning, so she was afraid of

losing Appellant. He refuted the idea that his grandmother had to take care of Appellant. He said

his grandmother was afraid Appellant would leave her because Appellant “was in love” and

“wanted to get married” to the next-door neighbor. According to Ubaldo, Appellant would tell

him stories about her love interest. When asked if these were adult conversations, he responded,

“[y]es, big time, yes.” Ubaldo spoke to his grandmother about Appellant getting married. His

grandmother did not want Appellant to get married, but the whole family agreed and eventually



                                                13
his grandmother acquiesced. Appellant then married. Ubaldo testified that before Appellant

married, she took very good care of her mother and was very capable.

       On cross-examination, Ubaldo admitted he was unaware that Appellant’s husband took her

every day to take care of her mother. After his grandmother’s death, Ubaldo explained his mother

took Appellant in not because she needed to be taken care of and handle her funds but rather

because “she didn’t want to go with nobody else but my mom, but not because somebody had to

take care of her.”

                                   Claudia Holguin Codina

       Claudia testified she has three children, is married to Ubaldo Codina and Appellant is her

husband’s aunt. At the time of trial, she was attending school and volunteering as a nurse.

According to Claudia, when Appellant came to stay with her and her husband it was “Just to, I

guess, hang out.” She initially testified Appellant did not take care of her kids. Later in her

testimony, Claudia stated Appellant took care of the children during the day on one occassion.

Claudia told the jury that Appellant did not keep any clothes at Claudia’s house. She stated

Appellant did bathe her daughter and put her to bed. Claudia was going to school at night and

Appellant would take care of the kids. According to Claudia, that occurred only once. Claudia

also testified that Appellant would cook for them mostly Mexican food. Claudia reported that

Appellant had no difficulty cooking the Mexican food and she did not consider Appellant slow or

mentally retarded. Claudia told the jury that Appellant and she had conversations about clothes,

make-up, and hairstyles. Claudia never perceived Appellant as a child. Claudia had known

Appellant about ten years and seen her “on and off.” Further, Claudia explained Appellant could

dance to Mexican music. In addition, Claudia stated Appellant would watch TV novelas and could




                                               14
only speak in Spanish. Claudia stated Appellant did not read books. Claudia told the jury she had

spent time with Appellant, gone places with her, and knew her well.

       In addition, she stated Appellant had a cell phone that she could use, and that Claudia was

unaware if Appellant ever needed help managing her money. Claudia recounted that on one

occasion, Appellant withdrew money from an ATM machine with a pin number. Claudia admitted

she knew that Appellant received SSI but stated she was unaware why Appellant received the

money from the government. Claudia had observed Appellant playing cards and Loteria. Claudia

stated that only adults play that game not children. When Claudia was asked if Appellant can

“keep her beat in her feet and everything going the right direction?” She responded “yes” and that

she is a good dancer. Claudia identified a photograph of Appellant at a Quinceanera in which she

starting to dance a waltz. Claudia observed Appellant with her husband and believed it to be a

“normal relationship.”

       Claudia told the jury that Appellant had the ability to consent to the marriage and was not

certain if Appellant was divorced. Claudia acknowledged that Appellant had left her husband.

Claudia stated that Appellant left her sister’s house to come stay with Claudia of her own volition

and was not subject of a guardianship. In fact, Claudia told the court that Appellant came to

Claudia’s house “because she wanted to.” Further, Claudia said Appellant made that decision on

her own and Appellant did not have to get permission from the court or social security to move in

with Claudia.

       Claudia opined that Appellant is much smarter than an eight-year-old and “can do

everything.” Claudia testified Appellant can dance, cook, manage her money, interact with adults,




                                                15
and children. Claudia stated that Appellant “can do mostly everything.” Further, Claudia attested

that Appellant is smart enough to make her own decisions and Claudia would not have left her

children with Appellant if she did not think Appellant was capable.

       Under cross-examination, Claudia admitted she did not know how Appellant’s funds were

deposited in her account but knew that Appellant did not have a job to earn the money in her

account.   When questioned as to whether Claudia was aware her mother-in-law handled

Appellant’s money, Claudia responded that she did not know. Claudia maintained that Appellant

stayed at her house less than one week and not two or three months.

                                            Julio Cesar Codina

       Julio is Appellant’s twenty-one-year-old nephew. Appellant lived with him, his mom, and

their family about a year before the trial. His mother is Enriqueta Codina and his sister is Kathy

Codina. Appellant lived with him, his mother, his sister, and her two children, and the sister’s

“baby daddy.” He explained that his mom, Enriqueta Codina is Appellant’s older sister. Julio

stated that Appellant cared for his sister’s two daughters, a three-year-old and a four-year-old. He

told the jury Appellant just cooked and cleaned. When asked by the State whether he considered

her to be mentally retarded, he replied “she’s aware of her surroundings. That’s all.” Julio testified

Appellant cooked “anything,” and “[s]he makes tortillas – that’s my favorite thing about her, but

– food like rice, beans, cooks meat.” According to Julio, he has held a conversation with her and

she understands, but “[s]ometimes she would ask me to repeat myself . . . .” Julio testified that

Appellant did not forget how to make tortillas, or cook, or how to get dressed.

       The State asked if Julio had ever thought of her as slow, to which he replied, “[a]t times.”

However, he never worried about Appellant taking care of herself or his nieces. Julio stated

Appellant would play with the girls, play cards, and color coloring books with them. Appellant



                                                 16
fed them, bathed them, and was left alone with them. Julio said he never had any concern of the

girls being left alone with Appellant. Julio opined that Appellant is a lot smarter than an eight-

year-old. He agreed with the State that Appellant is not a rocket scientist, but neither are most

others. Julio would observe Appellant clean, listen to the radio, and play cards with Julio’s father.

Appellant would play “Go Fish” with a regular poker deck, and on a couple of occasions

“Solitaire.” Julio reported Appellant had no difficulty playing “Soltaire.” Julio considered

Appellant a regular adult because she “walks around like to the stores and cooks, cleans.” Julio

also observed Appellant grocery shopping by herself. Julio explained that Appellant would

grocery shop for his mom or for herself. Julio stated Appellant would walk to the grocery store

on her own. Julio was aware Appellant had graduated from high school. Julio testified Appellant

would walk to the grocery store, some seven to ten blocks away and purchase groceries. According

to Julio, Appellant did not get lost or forget the groceries and would pay either with money she

was given or with her card.

       Under cross-examination, Julio stated he was unaware Appellant participated in special ed

classes in high school. Julio had taken Appellant to the store and had seen her drive as a child but

did not know if she has a driver’s license. Julio affirmed he spoke to Appellant about her cooking,

her tortillas, card games, and family members, but he had never discussed politics, city

government, court cases, or issues with police with her. Julio admitted that when he saw Appellant

playing Solitaire, he had no idea whether she was playing correctly or not.

       Julio, during re-direct examination, told the jury he had seen Appellant drive a vehicle on

the roadway in the afternoon when he was eleven years old. Julio testified Appellant married his

grandmother’s neighbor.

                                             Kathleen Codina



                                                 17
          Kathleen testified that she was twenty-five years’ old, the mother of two girls aged five

and six, and the daughter of Enriqueta Codina. She explained that Appellant is her mother’s sister.

Kathleen stated she had lived with Appellant and had allowed her to take care of her daughters up

“to a certain point.” Kathleen said most of the time she was home, and Appellant would babysit

when Kathleen had to leave the house “occasionally.” Kathleen never doubted Appellant’s ability

to look after the children. However, Kathleen testified she considered Appellant “slow.” Kathleen

stated that she thought Appellant was slow because “she repeats the same thing over and over.”

Kathleen agreed with the State that Appellant is smarter than an eight-year-old. Kathleen asserted

Appellant is “[w]ay smarter than an 8-year-old.” Kathleen stated Appellant cleaned, cooked, and

Kathleen did not have any problems conversing with her. She had never seen Appellant drive a

car. Kathleen testified Appellant did not have a problem understanding whatever Kathleen asked

of her.

          Kathleen explained that Appellant “repeats her same conversation like two, three times,

but she understands and she know what she’s saying.” According to Kathleen, Appellant routinely

repeated her conversation, but Kathleen pointed out she does the same and she is twenty-five years

old. The State asked if it was akin to what older people do when they repeat the same stories over

and over, to which Kathleen answered in the affirmative. Kathleen told the jury she believed

Appellant understood her because Appellant would answer her appropriately. Kathleen testified

Appellant could identify colors correctly.

          Kathleen stated Appellant lived with her and her family for three years. Kathleen and

Appellant were together in the home all day. Kathleen told the State that she did not have to take

care of Appellant. Kathleen explained Appellant would go the grocery store with Kathleen’s mom.

Kathleen told the jury that Appellant would choose the things that she wanted to buy at the store



                                                 18
and had no difficulty doing so. Further, Appellant had no difficulty cooking a meal. Kathleen

explained that her sister would drive their mom and Appellant to the store. Kathleen affirmed that

her mom did not have to babysit Appellant.

       When the State asked, “why would your mom take her?” Kathleen responded, “[b]ecause

my mom was her – like, her guardian.” Kathleen explained that her mom was not Appellant’s

“legal guardian.” Kathleen told the State that her mom “receives, like, her SSI money, and my

mom was, like, the one that was in charge of it.” Kathleen said her mom “would take her – the

money out so she can buy her groceries or whatever she needed – her expenses.” Kathleen stated

her mom would handle the money for Appellant and help Appellant only with “the money

situation.”

       Kathleen told the jury that Appellant is not very good with money because “she’ll just

waste it on anything. Like, my mom would get her – give her her card – her debit card and she

would get her money out and then she would give it back to my mom because she would misplace

it.” Kathleen further testified that like her aunt, the Appellant, she is not very good with money

and Kathleen said, “[i]f I get it, I’ll waste it all.” The State asked again if Kathleen’s mother was

the guardian over the money and Kathleen answered yes. However, Kathleen stated that her

mother was not Appellant’s guardian over “the rest of her life.” Kathleen said she had seen

individuals who were mentally retarded, but did not believe Appellant to be mentally retarded.

Kathleen stated she was sure because mentally retarded people cannot do what Appellant can do

such as cook, clean, and hold a conversation. Kathleen knew Appellant married but did not attend

the wedding.

       Under cross-examination, Kathleen conceded her conversations with Appellant concerned

cooking, cleaning, and taking care of kids. Kathleen observed Appellant would also talk about



                                                 19
when she lived with her mother and stories “from before.” Kathleen said Appellant would talk

about cooking and cleaning for Kathleen’s grandmother. Kathleen explained Appellant “speaks

about [cooking and cleaning] because that’s something that she does on a daily basis.” Kathleen

admitted that is “pretty much all” Appellant “does on a daily basis.” Kathleen told the defense

that her mother was just the guardian of the SSI funds from the Social Security Administration.

Kathleen stated her mother told her that Appellant received the money because Appellant is

mentally disabled. Kathleen conceded that “the reason [Appellant] has to have somebody else to

take care of the money is because she can’t because she’s not mentally capable of doing it herself.”

       Kathleen, on re-direct examination, reiterated that Appellant was mentally disabled but she

was never told that Appellant was mentally retarded. Kathleen has no idea what mental disabilities

Appellant suffers from.

                                           Elvira Perez

       Elvira is the mother of Claudia Codina and the mother-in-law of Ubaldo Codina. She has

known Appellant for about fourteen years. Elvira would see Appellant very infrequently at family

reunions. She saw Appellant cook, make flour tortillas by hand, make soup, and bake beans.

Elvira acknowledged that it is hard to make flour tortillas. She also said Appellant would make

pasta soup from scratch which Elvira viewed as a difficult task. Further, Elvira observed Appellant

would do this on her own without any difficulty. She never saw anything wrong with Appellant.

She spoke with her on occasion and Appellant never appeared mentally slow or mentally retarded.

She never saw Appellant take care of children. She spoke to Appellant about her wedding. Elvira

attended a bachelorette party for Appellant. On that occasion, they played games and dinner was

served. Appellant participated in the games, and according to Elvira, had no difficulty following

along. Elvira had only seen her twice, once at the bachelorette party and the second at Elvira’s



                                                20
grandchild’s birthday party. Each time she saw Appellant, she appeared normal to her. Elvira was

aware that Appellant had married and had what appeared to her “a normal marital relationship.”

Elvira told the jury that Appellant cooked for her husband. Elvira saw her at her grandson’s

birthday party and Appellant helped to serve food and was very hardworking. To Elvira, Appellant

served the food like an adult not a child. The State asked if Appellant played on the swing set with

the children, to which Elvira responded no.

       Under cross-examination, Elvira conceded she had never spoken to Appellant about;

President Obama, immigration problems in the U.S., City Council elections in El Paso, school

district problems in El Paso, Elvira’s checking account, and Appellant’s checking account. Elvira

acknowledged that Appellant had never driven her to the store or the doctor. Elvira was unaware

that Appellant does not drive a vehicle, or whether she has a driver’s license, or if she can read a

book, or understands English. Elvira further conceded that she did not know if Appellant

understands how the police and prosecutors work. Elvira had also not spoken to Appellant about

courts and judges. Elvira had never spoken to Appellant about school or “about school for any of

her nieces and nephews.”

       The State asked, on re-direct examination, if Elvira had any reason to discuss with

Appellant; about panda bears, immigration issues, Obama, City Council, Elvira’s checking

account, or Elvira’s financial affairs, or asked about Appellant’s financial affairs. Elvira responded

no. Elvira stated that Appellant assisted her with the tostaditas and helping to serve the food, and

she did not hit the pinata at the party. Under re-cross examination, Elvira said she had seen

Appellant more than twice, but could only recall those two times specifically.

                                              Barbaro Perez




                                                 21
       Barbaro is married to Elvira. He knows Appellant because she went to his house once. He

saw her one other time at his son-in-law’s house. He has never had a conversation with her. He

had heard her speak to other individuals. He told the jury that she never appeared slow or mentally

retarded to him. He saw her in the kitchen but did not see what she was doing. Appellant never

appeared confused or disoriented to him, and he never noticed anything unusual about her. When

Appellant came to his house, he discovered her talking with his daughter Claudia and his son-in-

law. He never saw Appellant take care of his grandchildren.

                                           Jose Antonio Perez

       Jose Antonio knows Appellant because he has seen her about four times. Jose Antonio

stated Appellant is related to his brother-in-law. He has seen her at two parties at his mother’s

house and one party at his house. He observed her serving food and speaking with relatives. He

thought she was a normal person. He opined that she may be shy. He never thought she might be

slow. He had observed her take care of his sister’s children. He knew Appellant was left alone

with the children when they were eleven, seven, and three years old. According to Jose Antonio,

Appellant took care of the children on her own in the afternoons when his sister and her husband

went to school. He reported that on one occasion, Appellant offered to make tortillas at his house.

       On cross-examination, Jose Antonio conceded he had only seen Appellant four times in his

life. He observed her taking care of the children once after his grandfather’s funeral. He had heard

she made “really good tortillas, and so I asked her one day if she could make tortillas at my house

so that we could taste them, and she offered and said yes.” Jose Antonio testified on the day of

the funeral, Appellant babysat an eleven, seven, and four-year-old for about six hours by herself.

                                             Exhibits




                                                22
       In addition to the testimony, the State introduced three photographs of Appellant; one with

two other ladies; another with her twin grand-nieces, and the third beginning a dance at a

quincerea. The defense introduced the two psychiatric reports from Dr. Rodriguez-Cheverez. The

jury found Appellant competent to stand trial. This appeal ensued.

                                           ANAYLSIS

       Appellant’s burden was to prove by a preponderance that she was incompetent because she

did not have: “(1) sufficient present ability to consult with [her] 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). Relevant factors include

whether Appellant can: (1) understand the charges against her and the potential consequences of

the pending criminal proceedings; (2) disclose to counsel pertinent facts, events, and states of

mind; (3) engage in a reasoned choice of legal strategies and options; (4) understand the adversarial

nature of criminal proceedings; (5) exhibit appropriate courtroom behavior; and (6) testify.

Morris, 301 S.W.3d at 286. We review the evidence in a neutral light and sustain Appellant’s

factual sufficiency claim if the jury’s finding of competency is against the great weight and

preponderance of the evidence so as to be manifestly unjust, conscience-shocking, or clearly

biased. Matlock, 392 S.W.3d at 671.

       Turning to the case at hand, Appellant was found incompetent to stand trial by the

Defense’s examining psychiatrist, Dr. Rodriguez-Cheverez and the State’s examining psychiatrist

Dr. Cynthia Rivera. In addition, a psychologist, Dr. Natalcio found Appellant to have an I.Q. of

60, according to Dr. Rodriguez-Cheverez is equivalent to an eight-year-old. Dr. Rodriguez-

Cheverez opined that Appellant, during his evaluation, clearly demonstrated she lacked the ability

to understand the proceedings in court and to be able to participate appropriately in her defense.



                                                 23
He stated that she does not understand how a lawyer would assist her, what is a prosecutor’s role,

no idea or concept of the role of the jury or a witness, and could not define a judge or explain what

a judge does. In his opinion, Appellant was not malingering. He testified Appellant could not

consult with her attorney with any degree of rational understanding nor did she have a rational or

factual understanding of the charges she was facing. Dr. Rodriguez-Cheverez stated Appellant

graduated from high school but attended special education classes for the entirety of her scholastic

career. Dr. Rodriguez-Cheverez diagnosed Appellant as mildly mentally retarded and would not

become competent.

       Dave Contreras, Appellant’s former defense counsel echoed Dr. Rodriguez-Cheverez’

findings and conclusions. He stated she lacked the ability to effectively consult with him or

disclose pertinent, relevant facts related to the charges against her. In fact, Appellant had failed to

recognize him. Contreras explained he had been an attorney for twenty-three years, seven years

in which he had handled cases with severely mentally ill clients, and in his interactions with her,

she failed to understand her case and could not make decisions.

       Consuelo acknowledged Appellant receives social security benefits because she is

disabled. Consuelo’s husband is authorized by the Social Security Office to act on behalf of

Appellant and controls her bank account. Appellant has never lived on her own or worked outside

the home and was never paid for the work she did for any of the family members. Consuelo, with

whom Appellant had been living for the last eleven months, testified Appellant could not

remember her attorneys longer than a day and does not understand what is going on in court.

Consuelo stated Appellant is smarter than eight-year-old and was capable of cooking, feeding, and

taking care of her mother.




                                                  24
       Ubaldo and Claudia testified that Appellant is smarter than an eight-year-old. According

to them she could cook, clean, play cards, bathe children, babysit children on her own, watch TV

with their kids, and make tortillas. They had no concerns about her mental abilities and never

considered her being mentally retarded. If they had any concerns, both testified they would have

not left their children with her. She also played numerous physical activities with the family.

Ubaldo admitted his mother oversaw Appellant after his grandmother died, but Appellant had the

ability to get cash with her card. He acknowledged Appellant was forty years old when her mother

died, and a family member had to take possession or custody of her. Ubaldo only spoke to her

about cooking, cleaning, and the kids. He maintained Appellant wanted to go live with his mother.

Claudia cooked for them, spoke only Spanish, danced very well, and had her own cell phone. Both

maintained Appellant had a normal marriage. According to Claudia, Appellant could manage her

money, interact with adults and children, cook, dance, and is smart enough to make her own

decisions.

       Julio and Kathleen, Ubaldo’s brother and sister, both agree that Appellant is smarter than

an eight-year-old. Appellant cared for Kathleen’s children, cooked, and cleaned for the family.

She cooks well, and the family enjoyed her tortillas. Julio in responding to whether Appellant is

mentally retarded said, “she’s aware of her surroundings. That’s all.” He considered her slow

“[a]t times” but considered her an adult because she can walk around a store unassisted and cooks,

cleans without supervision. She listens to the radio, plays cards such as Go Fish and Soltaire. He

said she understands conversations but would ask him to repeat himself. They would talk about

cooking, cleaning, card games, and family members. He also pointed out that she went grocery

shopping by herself and he saw her drive once. He had no concerns when she babysat his nieces.




                                               25
Kathleen allowed Appellant to take care of her daughters up “[t]o a certain point.” She did consider

Appellant “slow.” She based her opinion on the fact that Appellant “repeats the same thing over

and over.” Kathleen did not experience any problems in conversing with Appellant. Further,

Kathleen testified that Appellant could correctly identify different colors. Appellant knew exactly

what she wanted to buy at the store. Kathleen did confirm that her mother acted as Appellant’s

guardian in handling Appellant’s SSI money. Kathleen did not believe Appellant is mentally

retarded. She based her opinion on the fact Appellant can cook, clean, and hold a conversation.

She acknowledged that Appellant is mentally disabled and cannot take care of her money because

“she’s not mentally capable of doing it herself.” Kathleen was not aware of the exact nature of

Appellant’s mental disabilities.

       Claudia’s parents and brother testified that Appellant appeared normal and did not seem

slow or mentally retarded. Elvira recalled two specific occasions, Barbaro only once, and Jose

four times. Elvira witnessed Appellant cook, make tortillas, and help serve food at family

functions. Elvira reported Appellant could play games at parties and seemed to have a normal

marital relationship. Elvira had no idea if Appellant understands how courts, judges, police, or the

prosecution work. Barbaro had never spoken to Appellant but had seen her once. He never saw

her confused or disoriented. Jose observed Appellant serving food and speaking with family

members. He had also seen her take care of his sister’s children. She appeared normal to him.

       The State argues these facts are like Galvan in that the neuropsychologist deemed Galvan

incompetent, determined his I.Q. was 54 which indicated mental retardation. Galvan v. State, 324

S.W.3d 233, 235 (Tex.App.—Eastland 2010, pet. ref’d). The doctor acknowledged that Galvan

was manipulative and attempting to appear more impaired than he was. Id. The doctor opined

that Galvan was still borderline mentally retarded. Id. The doctor concluded Galvan did not have



                                                26
a present ability to consult with his attorney with a reasonable degree of rational understanding.

Id. He did not render an opinion as to whether Galvan understood the proceedings. Id. The lay

witnesses collectively testified Galvan was normal, conversed normally, without difficulty and

appropriately. Id. at 236. The Eastland Court, in upholding the jury’s verdict that Galvan was

competent, noted that the jury was not bound by the opinion of the neuropsychologist. Id. at 235-

36. Further, we recognize, as the State points out, that expert witnesses may not dictate the jury’s

determination of competency. Graham v. State, 566 S.W.2d 941, 949 (Tex.Crim.App. 1978).

       The State, after examining four cases that overturn a jury’s verdict of competency, argues

factual sufficiency can only be supported when a defendant produces substantial testimony support

for the plea of incompetency and the State produces no contradicting evidence, or relies solely on

cross-examination, or intentionally contrives weak evidence in support of the defendant’s

competency. See Meraz v. State, 714 S.W.2d 108 (Tex.App.—El Paso 1986), aff’d, 785 S.W.2d

146 (Tex.Crim.App. 1990); Jackson v. State, 857 S.W.2d 678 (Tex.App.—Houston [14th Dist.]

1993, pet. ref’d); Aragon v. State, 910 S.W.2d 635 (Tex.App.—Beaumont 1995, pet. ref’d); Nunez

v. State, 942 S.W.2d 57 (Tex.App.—Corpus Christi 1997, no pet.). While that may be true, it

belies the state of the evidence in these cases. We find the Nunez case instructive. Three expert

witnesses, each an examining psychiatrist, found Nunez incompetent. Nunez, 942 S.W.2d at 59.

Each testified they did not believe he was faking the behavior but acknowledged that was always

a possibility. Id. at 59. The State did not call any other witnesses. Id. at 60.

       The State’s closing argument at trial posited that Appellant was smart and was playing

dumb as evidenced by her ability to cook, clean, take care of children, dance, play cards, drive,

marry, and use an ATM machine. These activities, according to the State refuted Dr. Rodriguez-

Cheverez’s conclusion that Appellant was retarded. The State urged the jury to find Appellant



                                                 27
competent because Appellant’s family members knew her better than the examining experts and

the defense failed to put on Dr. Rivera and Dr. Natalcio. In addition, Dave Contreras, her former

defense attorney, was not an expert psychiatrist and therefore, lacked the ability to testify to

Appellant’s competency.

       Here, we have two psychiatrists, who have fully and completely conducted two evaluations

and found Appellant incompetent. Dr. Rodriguez-Cheverez concluded Appellant lacked both the

ability to consult with her attorney with a reasonable degree of rational understanding or a rational

as well as a factual understanding of the proceedings. He was certain she was not malingering.

His conclusion was buttressed by her I.Q. of 60, which he explained was equivalent to an eight-

year-old. Further, Appellant had completed high school only by participating in special education

classes throughout her scholastic career. Appellant also received SSI as the result of her mental

disabilities, ostensibly for her sub-intellectual functioning.

       Mr. Contreras, an attorney well experienced with clients suffering from mental health

issues and disabilities, reiterated again and again how Appellant could not assist him, failed to

comprehend the charges against her, and did not even recall who he was. He concluded that she

did not have a present ability to consult with him with a reasonable degree of rational

understanding nor did she possess a rational and factual understanding of the proceedings against

her.

       While some of Appellant’s family members acknowledged her “slowness” and mental

disabilities, however all opined she was smarter than an eight-year-old and appeared normal. That

testimony wholly failed to refute or address the Morris factors of whether Appellant (1)

understands the charges against her and the potential consequences of the pending criminal

proceedings; (2) is able to disclose to counsel pertinent facts, events, and states of mind; (3) engage



                                                  28
in a reasoned choice of legal strategies and options; (4) understand the adversarial nature of

criminal proceedings; (5) exhibit appropriate courtroom behavior; and (6) testify. See Morris, 301

S.W.3d at 286. The State’s witnesses’ testimony supported Dr. Rodriguez-Cheverez diagnosis of

mild mental retardation but did not overcome the testimony relevant to Article 46B.003(a) of the

Code of Criminal Procedure.

        Accordingly, we hold that the jury’s verdict that Appellant was competent to stand trial

was so against the great weight and preponderance of the evidence as to be manifestly unjust and

sustain Appellant’s point of error.

                                        CONCLUSION

        We reverse the judgment of the trial court and remand for a new competency hearing and

a new trial.



March 29, 2019
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., Not Participating

(Publish)




                                               29
