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


                  No. 06-13-00199-CR



        CHARLES RAY OWENS, JR., Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 71st District Court
               Harrison County, Texas
              Trial Court No. 10-0461X




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Moseley
                                        OPINION
       Texas Department of Public Safety Trooper Dennis Redden stopped a truck driven in

Harrison County, Texas by Charles Ray Owens, Jr. because he believed Owens to be speeding.

A check by Redden revealed that Owens was shown to have an outstanding Michigan arrest

warrant but Owens had a child passenger with him. Rather than deal with the problem of

disposing of the child if Owens were to be immediately arrested, Redden agreed to allow Owens

to drive home in order to drop off his child passenger before submitting to arrest. Redden

followed Owens home, but as soon as the child exited his truck, Owens sped off and Redden

followed in hot pursuit. While chasing Owens, Redden came upon Owens’ truck, which had

become involved in a serious collision. Witnesses reported that they saw Owens’ truck speed

through an intersection and forcefully collide with a vehicle driven by Bobby Smith. Smith

suffered severe head injuries and was pronounced dead at the scene.

       Owens was charged with the felony murder of Smith.              He raised the issue of his

competency to stand trial based on his claim of amnesia for a period of time beginning a few

days before the fatal collision and continuing for a period of some days after it.

       Dr. Thomas Allen was appointed by the trial court to examine Owens and rendered his

opinion of Owens’ competency to stand trial. Thereafter, a competency hearing was conducted

and, although Owens objected to the fact that Allen did not meet the statutory qualifications as

an expert, Allen was permitted to testify. In that testimony, Allen opined that Owens was

competent to stand trial. Allen’s testimony was the sole evidence that contradicted Owens’

claim of incompetence to stand trial, and the jury rejected Owens’ claim of incompetence. A


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new jury was empaneled to hear the trial on the merits and found Owens guilty of felony murder.

Owens was then sentenced to forty years’ confinement.

          On appeal, Owens contends that the trial court erred (1) by admitting the expert

testimony of Allen regarding Owens’ competency, (2) by failing to quash the indictment, and

(3) because there is a fatal variance between the charge and the evidence adduced at trial.

          If we were to find that error existed in the refusal of the trial court to quash the

indictment, such a determination would be dispositive, rendering the other issues moot.

Accordingly, we deal first with the validity of the indictment.

I.        Did the Trial Court Err in Denying Owens’ Motion to Quash the Indictment?

          In his second point of error, Owens contends that the trial court erred by denying his

motion to quash the indictment. Just prior to the trial on the merits, on the eve of voir dire,

Owens orally objected to the indictment and moved to quash it, but there is no written motion in

the record on appeal. Motions to set aside an indictment and special pleas must be in writing.

TEX. CODE CRIM. PROC. ANN. art. 27.10 (West 2006); Faulks v. State, 528 S.W.2d 607, 609

(Tex. Crim. App. 1975). An oral motion to quash or dismiss an indictment preserves nothing for

review. Faulks, 528 S.W.2d at 609. Therefore, this point of error has not been preserved for our

review.




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II.     Did the Trial Court Err by Admitting the Testimony of Dr. Thomas Allen?

        In his first point of error, Owens contends that the trial court erred by allowing Allen to

testify on the question of Owens’ competence because Allen lacked the required statutory

qualifications to testify as an expert regarding such a determination.

        In most circumstances, a trial judge is required under Daubert 1 to determine whether a

proffered witness possesses the requisite credentials to testify as an expert. However, when the

issue regards the question of the competence of an individual to stand trial, persons who are

called as expert witnesses must meet certain statutory qualifications. A person who testifies as

an expert regarding a defendant’s competence to stand trial must be a licensed psychiatrist or

psychologist and must satisfy a precise list of requirements. See TEX. CODE CRIM. PROC. ANN.

art. 46B.021 (West 2006), art. 46B.022 (West Supp. 2013). Article 46B.022 of the Texas Code

of Criminal Procedure states, in pertinent part:

               (a)      To qualify for appointment under this subchapter as an expert, a
        psychiatrist or psychologist must:

               (1)     as appropriate, be a physician licensed in this state or be a
        psychologist licensed in this state who has a doctoral degree in psychology; and

                (2)     have the following certification or training:

                (A)     as appropriate, certification by:

                (i)     the American Board of Psychiatry and Neurology with added or
        special qualifications in forensic psychiatry; or

               (ii)    the American Board of Professional Psychology in forensic
        psychology; or

1
 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, (1993); Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App.
1992).
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               (B)     training consisting of:

             (i)    at least 24 hours of specialized forensic training relating to
       incompetency or insanity evaluations; and

              (ii)    at least eight hours of continuing education relating to forensic
       evaluations, completed in the 12 months preceding the appointment.

              (b)     In addition to meeting qualifications required by Subsection (a), to
       be appointed as an expert a psychiatrist or psychologist must have completed six
       hours of required continuing education in courses in forensic psychiatry or
       psychology, as appropriate, in either of the reporting periods in the 24 months
       preceding the appointment.

TEX. CODE CRIM. PROC. ANN. art. 46B.022.

       Here, the trial court appointed Allen on January 9, 2013, and that order was filed the next

day. Allen’s testimony established that although he was a licensed psychologist, he did not meet

the board certification described in 46B.022(a)(2)(A). Therefore, in order to qualify as an expert

to testify in this kind of determination, Allen was required to satisfy the training requirements set

out in 46B.022(a)(2)(B). When inquiry was made of Allen as to whether he had received “eight

hours of specialized training in forensic [p]sychology for the purposes of evaluating

incompetency,” as is required under (a)(2)(B)(ii), Allen responded that the last seminar he had

attended which regarded specialized training on incompetency or insanity was in November

2011 and that he did not “have any for the year of 2012.” Accordingly, Allen confirmed that he

did not satisfy the above statutory requirements to testify as an expert on the issue of Owens’

competency; absent those qualifications on Allen’s part, the trial court erred by overruling

Owens’ objection and by admitting Allen’s testimony and expert report. See TEX. CODE CRIM.

PROC. ANN. art. 46B.022(a)(2)(B)(ii).
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         The State does not dispute that Allen failed to satisfy the statutory qualifications for

expert testimony for such determinations but the State responds to Owens’ complaint regarding

this fact by arguing that (1) any error regarding Allen’s qualifications to testify is invited error,

(2) when all the circumstances are taken into consideration, admitting Allen’s testimony was not

error, and (3) there was other evidence of competence before the jury. 2

         A.       Invited Error

         The State argues that any error regarding Allen’s testimony was invited error because the

trial court found that the order appointing Allen was prepared by Owens’ attorney, that Owens’

counsel was the person who entered Allen’s name in the order, and by submission of the order,

Owens made the request to approve Allen as an expert. 3 The State contends that because Owens

requested this particular expert, “he should not be allowed to complain on appeal for getting

what he requested.”

         It is well-established law in Texas that an appellant cannot make “‘an appellate error of

an action [he] induced.’” Vennus v. State, 282 S.W.3d 70, 74 (Tex. Crim. App. 2009) (finding


2
 The State also points out, and the Texas Court of Criminal Appeals specifically noted in Morris v. State that “‘no
case yet reported . . . has held that the inability to recall the event charged because of amnesia constitutes mental
incapacity to stand trial.’” Morris v. State, 301 S.W.3d 281, 292 (Tex. Crim. App. 2009) (quoting Jackson v. State,
548 S.W.2d 685, 691 (Tex. Crim. App. 1977)). However, that history does not mean that no case can, or will ever,
prove that amnesia alone is a valid ground for incompetency. If no claims of amnesia need ever be considered in
determining competence, there would neither ever be a need for an expert witness to testify nor a jury to rule in such
circumstance.
3
 The order states that “there is evidence to support a finding of incompetency,” that Owens “should be examined as
provided by Article 46B.021,” and that Allen is ordered to examine Owens to determine his competency to stand
trial “as provided by Article 46B of the Texas Code of Criminal Procedure.” An expert appointed under Article
46B.021 is not appointed to aid one side or the other during the case but is, rather, the court’s expert. Von Byrd v.
State, 569 S.W.2d 883, 896 (Tex. Crim. App. 1978) (ruling under previous statute). The trial court was free to
appoint whomever it chose and to accept recommendations from any source. Therefore, even though Owens entered
Allen’s name in the order of appointment, Allen was the court’s appointed expert, not Owens’.
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invited error where defense prevented State from fully presenting evidence of probable cause by

objecting during suppression hearing) (quoting Druery v. State, 225 S.W.3d 491, 506 (Tex.

Crim. App. 2007)). If a party affirmatively seeks action by the trial court, that party cannot later

contend that action was error. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999).

“‘To hold otherwise would be to permit him to take advantage of his own wrong.’” Id. (quoting

Carbough v. State, 93 S.W. 738, 739 (Tex. 1906)).

       This Court has previously found invited error in State v. Dixon, where the State sought

findings of fact and conclusions of law at trial, but on appeal argued that the trial court erred by

making the very findings of fact and conclusions of law the State requested. State v. Dixon, 151

S.W.3d 271, 272 (Tex. App.—Texarkana 2004, pet. granted). Invited error was also found in

Russell v. State and Century 21 Real Estate Corp. v. Hometown Real Estate Co., where a party

invited prejudicial comments from a prospective juror, failed to object to the comment at the

time it was made, later sought a mistrial based upon the comment, and then appealed the trial

court’s failure to grant the mistrial.   Russell v. State, 146 S.W.3d 705, 716 (Tex. App.—

Texarkana 2004, no pet.); Century 21 Real Estate Corp. v. Hometown Real Estate Co., 890

S.W.2d 118, 129 (Tex. App.—Texarkana 1994, writ denied).

       The facts of this case are distinguishable from those of Dixon, Russell, and Century 21.

What the State’s brief does not mention is that Owens’ counsel was unfamiliar with Allen or his

qualifications and obtained his name from the office of the prosecutor as a person having been

used by the State and the local court in the past for such evaluations. Even though Owens

prepared the mutually agreed upon order appointing Allen, upon learning that Allen failed to

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meet the statutory requirements, Owens made a timely objection to the trial court and properly

sought Allen’s disqualification. Owens did not induce the trial court to overrule his objection.

Therefore, we find the law of invited error inapplicable to the facts of this case.

       B.       Entirety of the Circumstances

       The State contends that “allowing the testimony was not error because it has been held

that appointment of an expert in violation of the guidelines does not necessarily require

reversal.” In support of its argument, the State cites Von Byrd for the proposition that we “must

look at all of the circumstances.” Von Byrd, 569 S.W.2d 883. The State’s reliance on Von Byrd

is misplaced.

       In Von Byrd, the defendant argued that the trial court failed to appoint a disinterested

expert to examine him because the doctor who had been appointed (being employed by Rusk

State Hospital) was an employee of the State. Id. at 895–96. At the time, whether the doctor

was “disinterested” was an issue of first impression for the court, and in deciding a state-

employed expert could be disinterested, the court examined the applicable statutes, the legislative

history, and the fact that judges were legally disinterested despite the fact that judges are also

employed by the State. Id. at 896–97.

       Citing Von Byrd, the State urges this Court to consider Allen’s other qualifications and

the fact that he has testified in “over 1,000 trials and had done numerous competency

evaluations.” The present case is distinguishable from Von Byrd because the basis for the claim

of disqualification here is substantially different from those in Von Byrd. No one in Von Byrd

questioned whether the examining expert met the statutory qualifications set out in Article

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46B.022 of the Texas Code of Criminal Procedure; rather, the claim centered on the allegation

that the proposed expert was disqualified by reasons not contemplated in the statute. Here, the

State does not dispute the fact that Allen failed to meet the statutory qualifications.

       C.      Other Evidence

       The State also contends that reversal is not warranted because the jury had other

competency evidence before it, this evidence being in the form of a letter from Owens to the trial

court. Although the State contends that the “letter clearly shows that [Owens] is competent,” we

do not perceive how it does so, and the State fails to explain its conclusion to that effect.

       Furthermore, the statutory language indicates that expert testimony is required to

determine a defendant’s competence. Article 46B.021 states that once a court determines that

“evidence exists to support a finding of incompetency to stand trial, the court shall appoint one

or more experts” to examine the defendant, report to the court regarding his competence, and

testify as to the same. TEX. CODE CRIM. PROC. ANN. art. 46B.021(a), (b) (emphasis added).

Here, the trial court, after concluding that there was evidence to support a finding of

incompetence, was required to appoint a qualified expert, but failed to do so. See id.

       Because the sole evidence against Owens’ claim of incompetence was the testimony of

Allen and because Allen did not meet the statutory qualifications for an expert for that kind of

determination, we find the determination of his competence to be flawed. We further find that

determination and, thus, the testimony of Allen, to be harmful to Owens.

       For the reasons stated above, we sustain Owens’ first point of error.




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        A fatal flaw in the determination of Owens’ competence to stand trial renders anything

that occurred during the ensuing trial moot. Accordingly, it is unnecessary for us to examine the

third point of error raised by Owens (i.e., whether there was a fatal variance between the

indictment and the evidence at trial).

        Accordingly, we reverse the trial court’s judgment and remand the case to the trial court

for a new trial.

.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:        May 14, 2014
Date Decided:          June 27, 2014

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