                                                                ACCEPTED
                                                            01-14-00582-CR
                                                 FIRST COURT OF APPEALS
                                                         HOUSTON, TEXAS
                                                      6/18/2015 11:30:48 AM
  No. 01-14-00582-CR                                  CHRISTOPHER PRINE
                                                                     CLERK
           In the
    Court of Appeals
          For the
  First District of Texas                 FILED IN
                                   1st COURT OF APPEALS
        At Houston                     HOUSTON, TEXAS
                        6/18/2015 11:30:48 AM
                                   CHRISTOPHER A. PRINE
        No. 1408007                         Clerk

 In the 179th District Court
  Of Harris County, Texas
 

RODNEY WAYNE ROBINS
       Appellant
          V.
 THE STATE OF TEXAS
       Appellee
 

STATE’S APPELLATE BRIEF
  

                         DEVON ANDERSON
                         District Attorney
                         Harris County, Texas

                         DAN MCCRORY
                         Assistant District Attorney
                         Harris County, Texas
                         mccrory_daniel@dao.hctx.net

                         DAVID OVERHULS
                         Assistant District Attorney
                         Harris County, Texas

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

                         Counsel for Appellee

ORAL ARGUMENT WAIVED
               STATEMENT REGARDING ORAL ARGUMENT


       Pursuant to TEX. R. APP. P. 39.7, the State waives oral argument since the

applicable legal principles are settled and both parties have clearly set forth their

positions in their briefs.




                                           i
                                        TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ..................................................i

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

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

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

SUMMARY OF THE ARGUMENT ......................................................................... 1

REPLY TO POINT OF ERROR ONE ....................................................................... 2

CONCLUSION ........................................................................................................ 14

CERTIFICATE OF SERVICE ................................................................................. 15

CERTIFICATE OF COMPLIANCE ....................................................................... 15




                                                          ii
                                 INDEX OF AUTHORITIES


CASES

Baugh v. State,
  No. 14-06-00553-CR, 2007 WL 1247311 (Tex. App.--Houston [14th Dist.]
  May 1, 2007, no pet.) (not designated for publication)........................................12
Ex parte Amezquita,
  223 S.W.3d 363 (Tex. Crim. App. 2006) ................................................................9

George v. State,
 446 S.W.3d 490 (Tex. App.--Houston [1st Dist.] 2014, pet. ref’d)..................6, 12
Hobbs v. State,
 359 S.W.3d 919 (Tex. App.--Houston [14th Dist.] 2012, no pet.) .........................8
LaHood v. State,
  171 S.W.3d 613 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d) ...........8, 9, 11

McDaniel v. State,
 98 S.W.3d 704 (Tex. Crim. App. 2003)............................................................ 9, 11

Montoya v. State,
 291 S.W.3d 420 (Tex. Crim. App. 2009) ................................................8, 9, 11, 12
Roberson v. State,
  No. 13-10-00531-CR, 2011 WL 3821059 (Tex. App.--Corpus Christi
  Aug. 25, 2011, pet. ref’d) (not designated for publication) ................................10
Thompson v. State,
  12 S.W.3d 915 (Tex. App.--Beaumont 2000, pet. ref’d) ......................................10

Turner v. State,
  422 S.W.3d 676 (Tex. Crim. App. 2013)..........................................................6, 12

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 46B.003 (West 2006) ................................. 6, 8, 9


                                                   iii
TEX. CODE CRIM. PROC. ANN. art. 46B.004 (West Supp. 2014) ................................7
TEX. CODE CRIM. PROC. ANN. art. 46B.024 (West Supp. 2014) ................................7

OTHER AUTHORITIES

STEPHEN R. COVEY, THE SEVEN HABITS OF HIGHLY EFFECTIVE
  PEOPLE (1989)....................................................................................................10

RULES

TEX. R. APP. P. 39.7 .................................................................................................... i




                                                            iv
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of possessing cocaine,

enhanced by two prior felony convictions. (CR 11). After a jury found appellant

guilty of the charged offense, the trial judge found the allegations in the

enhancement paragraphs true and assessed punishment at six-years confinement.

(CR 75).


                            STATEMENT OF FACTS

      An officer was patrolling a “high crime narcotics area” when he saw

appellant seated on a bucket at a car wash. (RR III 13-15). Appellant appeared to

be smoking something. (RR III 15). As the officer approached him, appellant

tossed a crack pipe. (RR III 16-17). The officer arrested him and found a crack

rock in his pocket during a search incident to arrest. (RR III 17-18).


                        SUMMARY OF THE ARGUMENT

      After observing appellant’s conduct and demeanor first-hand, the trial judge

expressly found there was no suggestion of incompetency during appellant’s silent

episode. A reviewing court must afford great deference to this finding since, unlike

an appellate judge, the trial judge is able to observe a defendant’s body language
and other nonverbal methods of communication to gauge the defendant’s

involvement in and understanding of the proceeding.

      Furthermore, appellant’s silence was a short isolated event. During the

remainder of the trial, appellant appropriately responded to the judge and displayed

no signs of incompetency.


                      REPLY TO POINT OF ERROR ONE

      In his sole point of error, appellant contends the trial judge erred by failing

to conduct an informal inquiry into appellant’s competency. Appellant maintains

there was a suggestion of his incompetency created by his refusal to speak on

occasion when addressed by his lawyer and the judge.

Relevant facts

      While the jury was waiting in the hallway for the voir dire proceeding to

begin, the trial judge addressed the parties and noted that, earlier in the day,

appellant had chosen to not speak with his attorney or the judge. (RR II 4). The

prosecutor and defense counsel both confirmed that appellant would not speak to

them earlier. (RR II 5). The judge then directed several questions to appellant who

provided no response. (RR II 5-6). The entirety of this exchange reads as follows:

THE COURT: If he does not answer arraignment I’ll enter a not guilty plea on his
behalf. What was Mr. Robins’ offer this morning guys?

MR. OVERHULS: 3 years.



                                         2
THE COURT: Would you invite Mr. Robins out, please?

(Defendant approaches)

THE COURT: Okay guys let’s talk about it. It is June the 30th at 11:10 a.m. We’re
in open court on case number 1408007, the State versus Rodney Wayne Robins.
Mr. Robins is present in the courtroom with defense counsel Mr. Arlan J.
Broussard. And the State’s attorney Mr. Overhuls is also present. There is a jury in
the hallway. Mr. Robins is charged by indictment with a state jail felony cocaine
offense, twice enhanced with two prior state jail felonies possible sentencing range
2 to 10 years in the state penitentiary up to a $10,000.00 fine. This morning we
invited Mr. Robins to speak with us at the bench with all parties and counsel
present. He chose not to do that this morning. He chose not to speak with either
myself or his attorney. Mr. Robins scoot up. Scoot up. There you go. Mr. Broussard
we brought Mr. Robins out to speak with him. He refused to speak with either
myself or you. Is that correct Mr. Broussard?

MR. BROUSSARD: It is Your Honor.

THE COURT: We -- I conveyed a recommendation of three years TDCJ to Mr.
Robins this morning. Is that correct State?

MR. OVERHULS: That’s correct Judge and Mr. Robins stood mute at the time,
would not speak with me nor his lawyer.

THE COURT: And Mr. Robins we’re about to pick your jury. Right here is called
an election of sentence. If you do not sign the election with your lawyer if you’re
found guilty, it would be my job not the Jury’s job to assess punishment if you’re
found guilty. Do you understand Mr. Robins?

THE DEFENDANT: No response.

THE COURT: He’s chosen to remain mute. So I’ll take that as a refusal to sign. If
he’s found guilty we’ll do Court sentencing not jury sentencing pursuant to Section
3707. And Mr. Robins is wearing an orange jail jumpsuit at this time and I believe
Mr. Broussard you offered Mr. Robins the opportunity to wear civilian clothes at
his trial. Is that correct?




                                         3
MR. BROUSSARD: That’s correct Your Honor. Clothes were provided to him and
made clear to him that he had the opportunity to wear something other than the
orange jumpsuit. He remained mute.

THE COURT: Mr. Robins you aren’t helping your lawyer being tried in orange
jumpsuit. You’re making that choice against my advice, against your lawyer’s
advice. Do you understand Mr. Robins?

THE DEFENDANT: No response.

THE COURT: Mr. Robins chooses to remain mute so he’ll be charged in his jail
clothes. Mr. Broussard any indication of mental health abuse in Mr. Robins file? I
looked at his file. He has 15 convictions. Was he ever found to be incompetent or
insane in his years here in Harris County?

MR. BROUSSARD: Not to my knowledge Your Honor.

THE COURT: There is no indication of Mr. Robins lack of competency. He’s just
chosen to remain mute at this time. And Mr. Robins you want to say anything
before the jury comes in? It’s time for you to say what’s on your mind Mr. Robins.
Do you have anything you’d like to tell us at this time Mr. Robins?

THE DEFENDANT: No response.

THE COURT: Mr. Robins remains mute. He has nothing to tell us. Yes, sir, Mr.
Broussard.

MR. BROUSSARD: I would like to also state for the record Your Honor that I
asked Mr. Robins about prior convictions that the State might use to enhance his
punishment and to those inquiries he remained mute and I couldn’t get no response
from him.

THE COURT: I suspected that.

THE BAILIFF: Ready for the panel Judge?

THE COURT: As ready as I want to be. Mr. Robins you sure you want to do this?

(Panel Seated)



                                        4
(RR II 4-7).

      No further questions were directed to appellant during the ensuing voir dire

examination. (RR II 7-94). Nor is there any evidence that appellant made any

outbursts or demonstrated any other inappropriate or bizarre conduct during the

proceeding. (RR II 7-94).

      The guilt-innocence proceeding was conducted the following day. At the

beginning of the proceeding, the prosecutor arraigned appellant and appellant

personally announced a plea of not guilty. (RR III 7). Appellant did not stand mute

in response to any questions addressed to him, as he had done before the voir dire

examinations the previous day.

      The State presented two witnesses and rested, and the defense then rested

without presenting any witnesses. Both parties presented a closing argument and

the jury later returned a guilty verdict. (RR III 55-63). There is no indication of

appellant exhibiting any unusual, obstinate, or bizarre behavior during this

proceeding. (RR III 6-64).

      Later in the day, the judge conducted the punishment proceeding. The judge

asked appellant for his plea to the allegations in the enhancement paragraphs and

appellant personally replied “true” without incident. (RR IV 6).        The State

presented two witnesses and the defense presented none. (RR IV 7-16). There is

no indication in the record that appellant exhibited any inappropriate conduct



                                        5
during this proceeding. (RR IV 6-18). He personally announced “I want to appeal

it and I want a transcript of the trial” after the State rested. (RR IV 16).

Standard of review and applicable law

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

violating due process. Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App.

2013); George v. State, 446 S.W.3d 490, 499 (Tex. App.--Houston [1st Dist.] 2014,

pet. ref’d). As such, 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 with violating the federal constitution. Turner, 422 S.W.3d at 688-89.

      The Texas Legislature has developed a statutory scheme that provides a

standard for determining competency and that describes the circumstances that

require, and procedures for making, a determination of whether a defendant is

competent to stand trial. Id. at 689. A person is incompetent to stand trial if he

does not have: (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. TEX. CODE CRIM. PROC. ANN. art.

46B.003(a) (West 2006). A defendant is presumed competent to stand trial. TEX.

CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2006).




                                            6
      On suggestion that the defendant may be incompetent to stand trial, the trial

judge shall determine by “informal inquiry” whether there is some evidence from

any source that would support a finding that the defendant may be incompetent to

stand trial. TEX. CODE CRIM. PROC. ANN. art. 46B.004(c) (West Supp. 2014).

Either party may suggest by motion, or the trial court may suggest on its own

motion, that the defendant may be incompetent to stand trial. TEX. CODE CRIM.

PROC. ANN. art. 46B.004(a) (West Supp. 2014). A suggestion of incompetency is

the threshold requirement for an informal inquiry and may consist solely of a

representation from any credible source that the defendant may be incompetent.

TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West Supp. 2014).

      Evidence suggesting the need for an informal inquiry may be based on

observations made in relation to the defendant’s capacity to: (1) rationally

understand the charges against him and the potential consequences of the pending

criminal proceeding; (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. TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-

1) (West Supp. 2014); TEX. CODE CRIM. PROC. ANN. art. 46B.024(1) (West Supp.

2014). It may also be based on any evidence indicating that the defendant is

incompetent within the meaning of article 46B.003. Id.



                                        7
      An appellate court reviews a complaint that the trial court erred in not

conducting an informal competency inquiry for an abuse of discretion. Montoya v.

State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009); Hobbs v. State, 359 S.W.3d

919, 923-24 (Tex. App.--Houston [14th Dist.] 2012, no pet.). The appellate court

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

whether the trial court’s decision was arbitrary or unreasonable. Id.

Argument and analysis

      Appellant maintains that his initial unexplained silence suggested to the trial

judge that he might be incompetent, thereby triggering the need for an informal

inquiry as mandated by article 46B.004. This claim is meritless because there was

no suggestion of incompetency.

      The statute providing the test for competency speaks in terms of a

defendant’s present ability to consult with his lawyer. TEX. CODE CRIM. PROC.

ANN. art. 46B.003(a) (West 2006); Montoya, 291 S.W.3d at 425. Therefore, when

the trial judge observes the behavior alleged to have raised a competency issue, he

is in the best position to determine whether the defendant is presently competent.

Montoya, 291 S.W.3d at 426; LaHood v. State, 171 S.W.3d 613, 619 n.2 (Tex.

App.--Houston [14th Dist.] 2005, pet. ref’d) (trial judge in much better position

than appellate court to assess defendant’s demeanor during alleged period of

confusion). An appellate court cannot ignore the trial judge’s first-hand factual



                                          8
assessment of the defendant’s mental competency. McDaniel v. State, 98 S.W.3d

704, 713 (Tex. Crim. App. 2003). The trial judge’s factual findings about the

defendant’s competency are entitled to “great deference” by a reviewing court. Id.;

Montoya, 291 S.W.3d at 426.

      The trial judge in this case observed first-hand appellant’s silence. (RR II 4-

7). Having personally observed appellant’s demeanor during this time, the judge

expressly stated that there was “no indication” that appellant was incompetent. (RR

II 6). In other words, the trial judge determined that there was no suggestion that

appellant lacked the present ability to consult with his lawyer or failed to

understand the nature of the proceedings.      TEX. CODE CRIM. PROC. ANN. art.

46B.003(a) (West 2006).

       The trial judge’s express assessment of appellant’s competency must be

afforded great deference since he was much better positioned than any of the

current appellate participants to assess appellant’s competency during the

proceeding. Montoya, 291 S.W.3d at 426; McDaniel, 98 S.W.3d at 713; LaHood,

171 S.W.3d at 619 n.2. Having personally observed appellant’s demeanor during

his period of silence, the judge may have been able to gauge appellant’s level of

involvement in the proceeding by means of eye contact or other physical

manifestations of perception such as body language. See Ex parte Amezquita, 223

S.W.3d 363, 368-69 (Tex. Crim. App. 2006) (Cochran, J., concurring) (recognizing



                                         9
that trial judge has ability to make determinations about demeanor that the cold

appellate record cannot adequately convey to appellate court); Thompson v. State,

12 S.W.3d 915, 925 (Tex. App.--Beaumont 2000, pet. ref’d) (Stover, J., concurring)

(“It has been posited that ten percent of spoken communication is by the words we

say, thirty percent by the sounds we make and sixty percent by body language, or

nonverbal communication.”) (quoting STEPHEN R. COVEY, THE SEVEN

HABITS OF HIGHLY EFFECTIVE PEOPLE 241 (1989)); Roberson v. State, No.

13-10-00531-CR, 2011 WL 3821059, at *3-4 (Tex. App.--Corpus Christi Aug. 25,

2011, pet. ref’d) (not designated for publication) (trial judge noted that defendant

made eye contact with him when the judge spoke to defendant even though

defendant refused to respond to judge’s questions and refused to change out of jail

clothes for trial).

       Nonverbal cues sometimes may convey information as effectively as a

spoken thought.       For example, despite remaining silent, appellant may have

demonstrated meaningful eye contact with the judge and reacted nonverbally to the

judge’s inquiries through such eye contact or other nonverbal manners of

communication to such an extent as to exhibit and convey a level of understanding.

Admittedly, given the cold appellate record, it is also possible that he maintained a

vacant look in his eyes accompanied by body language consistent with an utter

lack of comprehension or understanding. But since the trial judge personally



                                         10
observed appellant’s behavior and demeanor, he was best positioned to determine

whether appellant’s conduct and demeanor was more consistent with the former

category than the latter. Montoya, 291 S.W.3d at 426; LaHood, 171 S.W.3d at 619

n.2.

       And the record does, in fact, reflect that appellant was responsive in some

manner to the judge’s direction. For example, during appellant’s silent episode, the

judge instructed him to scoot up and appellant seemed to comply, which would

suggest appellant was following the proceeding and aware of his surroundings.

(RR II 5) (“Mr. Robins scoot up. Scoot up. There you go.”). Furthermore, the

judge stated several times that appellant had “chosen” to remain mute. (RR II 5-6).

The judge’s assessment that appellant’s silence was the result of a choice to remain

silent, rather than an inability to communicate, is consistent with the judge having

interpreted appellant’s demeanor and nonverbal conduct as indicating his silence

was not suggestive of incompetency.

       Therefore, the trial judge’s express determination that there was no

suggestion of incompetency should be afforded great deference on appeal.

McDaniel, 98 S.W.3d at 713 (“We cannot ignore the trial court’s firsthand factual

assessment of appellant’s mental competency. His factual findings, that appellant

understood the nature of the proceedings and assisted his counsel in his defense,

are entitled to great deference by the reviewing court.”). And the trial judge’s



                                        11
finding that there was no suggestion of incompetency is buttressed by the fact that

appellant’s own attorney expressed no concern or suspicion about appellant’s

competency. (RR II 4-7).

      Moreover, the trial judge’s determination that there was no suggestion of

incompetency based simply on appellant’s silence is consistent with case law. For

example, the Fourteenth Court of Appeals has noted that “defendants often choose

to remain silent” at certain pretrial proceedings such as arraignments. Baugh v.

State, No. 14-06-00553-CR, 2007 WL 1247311, at *3 (Tex. App.--Houston [14th

Dist.] May 1, 2007, no pet.) (not designated for publication). A such, appellant’s

silence was not unusual. Similarly, this Court and the court of criminal appeals

have observed that a defendant’s refusal to communicate or cooperate with his

attorney is not probative of incompetence and does not overcome the presumption

of competency. Turner, 422 S.W.3d at 691; George, 446 S.W.3d at 500.

      Furthermore, an examination of the entire record supports the trial judge’s

determination that appellant’s initial silence was not suggestive of incompetency.

Montoya, 291 S.W.3d at 426 (criticizing lower appellate court for considering

instances of defendant’s confusion in isolation and out of context of the rest of the

record).   Despite his momentary silence at the beginning of the voir dire

proceeding, there is no evidence that he engaged in any questionable behavior

during the remainder of the voir dire proceeding. (RR II 7-94). The following day,



                                         12
appellant responded appropriately during the guilt proceeding when addressed by

the judge and there is no evidence of any inappropriate conduct during that

proceeding. (RR III 6-64).

      Similarly, appellant responded appropriately to the judge during the

punishment hearing and stated “I want to appeal it and I want a transcript of the

trial” after the State rested its punishment case. (RR IV 6, 16). There was no

evidence of inappropriate conduct during the punishment proceeding. (RR IV 6-

18). Neither the judge, the prosecutor, nor the defense attorney expressed any

concern about appellant’s competency at any stage of the trial. Id. (there was no

suggestion from the judge, prosecutor, or defense counsel that defendant appeared

incompetent). Therefore, the remainder of the record reveals that appellant’s initial

silence was a short isolated incident and that his conduct during the remainder of

the trial shows that this isolated incident was not suggestive of incompetency.

      Accordingly, the trial judge did not abuse his broad discretion by finding no

suggestion of incompetency or by failing to conduct an informal inquiry. Point of

error one is meritless and should be overruled.




                                         13
                                  CONCLUSION

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

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas

                                                 /s/ Dan McCrory
                                                 DAN McCRORY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 755-5826
                                                 TBC No. 13489950
                                                 mccrory_daniel@dao.hctx.net




                                         14
                         CERTIFICATE OF SERVICE

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

following email address via TexFile:

      Sarah V. Wood
      Assistant Public Defender
      Sarah.wood@pdo.hctx.net

                                                /s/ Dan McCrory
                                                DAN McCRORY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 13489950



                      CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this computer-generated document
has a word count of 2,990 words, based upon the representation provided by the
word processing program that was used to create the document.


                                                /s/ Dan McCrory
                                                DAN McCRORY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 13489950
Date: 6/18/2015



                                         15
