                                                                                      ACCEPTED
                                                                                  01-14-00366-CR
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            11/23/2015 5:32:43 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                         No. 01-14-00366-CR

                                   In the                       FILED IN
                            Court of Appeals             1st COURT OF APPEALS
                                                             HOUSTON, TEXAS
                                  For the                11/23/2015 5:32:43 PM
                          First District of Texas        CHRISTOPHER A. PRINE
                                At Houston                        Clerk

                         ♦
                             No. 11249853
                       In the 178th District Court
                        Of Harris County, Texas
                         ♦
                  Christopher Dewa Washington
                            Appellant
                                    v.
                           The State of Texas
                                Appellee
                         ♦
                   State’s Motion for Rehearing
                          ♦



      This is an appeal from the appellant’s conviction for capital

murder. The appellant raised three points in his brief, the third of which

claimed that the trial court erred by not holding a trial on his

competency to stand trial. On November 19, 2015, this Court issued a

“Memorandum Order of Abatement” sustaining the appellant’s third

point and ordering the trial court “to determine whether it is feasible to

conduct a retrospective competency trial, and if so, to order an

                                    1
examination of appellant … and conduct a retrospective competency

trial.” The State asks this Court to reconsider its order. The State believes

that this Court has misread the record. Once these misreadings are

removed from this Court’s order, the remaining evidence does not

provide a scintilla of evidence that the appellant was incompetent to

stand trial.


This Court’s order is based on serious misreadings of the record.

      In the portion of its order holding that the trial court abused its

discretion by not having a competency trial, this Court included two

paragraphs listing what it believed was evidence that the appellant was

incompetent. The second paragraph focused on an affidavit from one of

the appellant’s trial attorneys:

      In the affidavit attached to appellant’s motion for a
      competency trial, Salceda averred, among other things, that
      he was unable to meaningfully consult with appellant
      regarding the facts of the case and trial proceedings because
      whenever he asked appellant a question, appellant’s only
      response was, “ok.”

(Memorandum Order of Abatement at 11).

      That is not an accurate statement of the record. If this Court does

not grant rehearing, it should reissue its order without that sentence.

What Salceda stated is:

                                     2
     On April 7, 2014, Patrick McCann and I visited with [the
     appellant] in the courtroom holding cell. Mr. McCann
     explained to [the appellant] how and why he had arrived at
     the decision to not have his family testify during
     guilt/innocence in the case. [The appellant] nodded his
     head and exclaimed “ok.” Mr. McCann explained to [the
     appellant] that if he was found guilty of one of the lesser
     included offenses, we would reconsider what witnesses to
     put on but in any event that portion of the case was going to
     be to the judge, not the jury. [The appellant] nodded his
     head and exclaimed “ok.” At that point Mr. McCann
     explained to [the appellant] that I wanted to go over a few
     things with him. Mr. McCann left the room and I stayed and
     explained several things that I was going to do during Voire
     Dire that I wanted [the appellant’s] input on. His only
     response to me was “ok.” I then asked him if he had any
     questions for me. He asked me if his family was going to
     testify as to his work history. I repeated the explanation Mr.
     McCann gave to [the appellant] earlier and he again replied
     “ok.”

(CR 142-43).

     There is no averment that Salceda was unable to meaningfully

consult with the appellant. All Salceda averred is that he asked the

appellant some questions, and the appellant replied: “Ok.” There is no

averment that “ok” was an inappropriate answer to any of these

questions, or that there was any information that Salceda wanted but

the appellant was unable to convey. Further, this Court’s statement that

“whenever [Salceda] asked appellant a question, appellant’s only

response was, ‘ok’” is in direct conflict with Salceda’s statement that


                                   3
when he asked the appellant if he had any questions, the appellant

asked Salceda “if his family was going to testify as to his work history.”

      Defense counsel’s unspecified difficulty in communicating with a

defendant is not evidence of incompetence. Moore v. State, 999 S.W.2d

385, 394 (Tex. Crim. App. 1999). In Moore, the defendant made several

inappropriate outbursts during trial, and defense counsel kept telling

the defendant that this was inappropriate. Defense counsel told the trial

court that the defendant did not understand what counsel was telling

him, and that the defendant’s replies were inappropriate: “I'm talking in

apples and the responses are in oranges.” Moore, 999. S.W.3d at 394.

That statement is much more descriptive than Salceda’s affidavit, insofar

as it actually states that the defendant’s replies were inappropriate, yet

the Court of Criminal Appeals rejected it as insufficiently specific to

require a competency trial. Ibid.

      Even if one were to read into Salceda’s affidavit an averment that

the appellant’s answers were inappropriate, there is no reason to

believe that they show an inability to consult with his attorneys, rather

than a simple refusal to do so. If the question is, “Was the appellant

unable to consult with his attorneys, or just unwilling?”, Salceda’s

affidavit would not constitute a scintilla of evidence one way or the
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other: “When the circumstances are equally consistent with either of

two facts, neither fact may be inferred.” City of Keller v. Wilson, 168

S.W.3d 802, 813 (Tex. 2005) (quoting Tubelite, a Div. of Indal, Inc. v.

Risica & Sons, Inc., 819 S.W.2d 801, 805 (Tex.1991)).

      This Court’s second serious misreading of the record also relates

to the distinction between a defendant’s inability to aid his attorney, and

a mere refusal to do so. This Court characterized another portion of

Salceda’s affidavit as “illustrating appellant’s inability to meaningfully

consult with his counsel regarding voir dire ….” What Salceda said is:

      During Voire Dire, [the appellant’s] only participation was to
      ask three separate times whether the jury would assess
      punishment even after it had been explained by myself and
      by Mr. McCann on two separate occasions. His notes during
      voir dire were incomprehensible, they were words that
      could not be made out and he never expressed an opinion
      about individual panel members even though we had
      explained to him what we were doing and how we were
      going about it.

(CR 143). This is a statement only that the appellant did not consult with

his attorneys during voir dire, not that he was unable to do so. Nothing

in the record provides any way of determining whether this instance

“illustrates” an inability to meaningfully consult with counsel, or

whether it is simply an example of the appellant choosing not to discuss

voir dire with his lawyers. In short, there is no evidence as to why the
                                    5
appellant did not discuss voir dire with his attorneys. Thus, this example

does not provide a scintilla of evidence one way or the other. See City of

Keller, 168 S.W.3d at 813. Considering that the Legislature has

established a statutory presumption of competence, see TEX. CODE CRIM.

PROC. art. 46B.003(b), neither the trial court nor this Court should infer

incompetence from evidence that is equally consistent with competence.

      It is not obvious what meaningful input a defendant should have

regarding voir dire, and Salceda’s affidavit did not state what sort of

input he expected from the appellant. Disinterest in a phase of trial is

not evidence of incompetence. See Moughon v. State, 967 S.W.2d 900,

901 (Tex. App.—Fort Worth 1998, no pet.); Turner v. State, 422 S.W.3d

676, 692, 696 (Tex. Crim. App. 2013) (evidence that defendant refused

to cooperate with defense counsel is insufficient to require competency

trial without evidence that such refusal was prompted by mental illness

or disability).

      On its face, this portion of Salceda’s affidavit shows that the

appellant did not speak to his attorneys about voir dire, and that he

wrote some illegible words, but the affidavit provides no explanation as

to why he did speak with his attorneys or take legible notes. Nothing else

in the record suggests that this “illustrate[d]” an inability to aid his
                                    6
attorneys, as opposed to a choice not to say anything and spend his time

doodling or writing sloppily. If this Court does not grant rehearing, it

should modify its order to delete the assertion that Salceda’s description

of the appellant’s behavior during voir dire was evidence of

incompetence.


The remainder of this Court’s order cited no evidence related to the
appellant’s competence.

       In discussing what it believes is evidence of incompetence, this

Court references the appellant’s “traumatic childhood head injury,”

(Memorandum Order of Abatement at 11), but there is nothing in the

record that supports an inference that this injury had any connection to

the appellant’s competence to stand trial. The only information in the

record about this “traumatic childhood head injury” is that the appellant

was struck by a taxi when he was 5 years old and he went to the hospital

for a brain injury. 1 (CR 143; 2 RR 20). The only evidence regarding the

severity of this injury is a witness’s statement that the appellant was in

the hospital for only “a couple of days.” (2 RR 20). From that bare

information, the appellant’s attorneys at trial and on appeal have

1The appellant’s witnesses testified only that the appellant suffered a head injury.
The only evidence of a brain injury is Salceda’s characterization of what the
appellant’s family had told him.

                                         7
assumed — without any medical records, expert evidence, or even any

lay witness testimony — that this injury was somehow relevant to the

appellant’s mental functioning more than thirty years later. That

assumption has no support in the record. 2

      As further evidence of incompetence, this Court refers to Salceda’s

discussion, in his affidavit, of the appellant’s failure to help his attorneys

explain the timeline of the night of the murder. (Memorandum Order of

Abatement at 12). This failure is indicative of guilt, not incompetence.

Moreover, Salceda’s affidavit referred to two isolated discussions with

the appellant without mentioning whether the appellant had been able

to provide a satisfactory timeline during any other discussion, yet this

Court characterizes it as demonstrating an inability to perform simple

arithmetic. If the appellant were genuinely unable to perform the simple

arithmetic necessary to aid in his defense, surely this would have come

to defense counsel’s attention during the 45 prior months of

representation. Because Salceda’s affidavit detailed instances of

confusion without noting whether those were isolated instances or

indicative of other conversations, or whether those instances were


2 Indeed, the record contains no evidence that the injury affected his mental
functioning at the time it occurred. There is evidence of an injury, and evidence of
below-average intellectual functioning, but no evidence that the two are connected.
                                         8
related to any mental illness or disability, this is not sufficient evidence

to require a competency trial. Montoya v. State, 291 S.W.3d 420, 426

(Tex. Crim. App. 2009). If it were, every guilty defendant who failed to

help his attorneys produce a timeline consistent with the defensive

theory of the case would be entitled to a competency trial.

      The other evidence cited by this Court as showing incompetence

to stand trial related exclusively to the appellant’s supposed below-

average intellectual functioning, but that evidence was never connected

to the appellant’s ability to understand the proceedings against him or

assist his attorneys. Thus the only statements in this Court’s order that

support its conclusion are inaccurate characterizations of the record.




                                     9
                              Conclusion

      This Court should grant rehearing and withdraw its order. In the

alternative, this Court should revise its order to more accurately reflect

the record.



                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ C.A. Morgan
                                              CLINTON A. MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.274.5826
                                              Texas Bar No. 24071454




                                   10
                 Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 1,846 words.

      I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

      Wendell A. Odom, Jr.
      wendell@wendellodom.com

      Brian T. Hobson
      brian@wendellodom.com

                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                713.274.5826
                                                Texas Bar No. 24071454


Date: November 23, 2015




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