                                                                               ACCEPTED
                                                                           03-14-00559-CR
                                                                                   5926044
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                       7/2/2015 3:52:06 PM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
                    NO. 03-14-00559-CR


                    COURT OF APPEALS             FILED IN
                                          3rd COURT OF APPEALS
                                              AUSTIN, TEXAS
                       FOR THE            7/2/2015 3:52:06 PM
                                            JEFFREY D. KYLE
           AUSTIN SUPREME JUDICIAL DISTRICT       Clerk




                   ZANE LYNN BARTON,
                          Appellant

                           VS.


                   THE STATE OF TEXAS,
                          Appellee


                      APPEAL FROM

           THE 274TH JUDICIAL DISTRICT COURT

                   HAYS COUNTY, TEXAS
            TRIAL COURT CAUSE NO. CR-13-0614


                     STATE'S BRIEF




                          Laura Garcia
                          Asst. Criminal District Attorney
                          712 S. Stagecoach Trail, Suite 2057
                          San Marcos, Texas 78666
ORAL ARGUMENT IS          Ph: (512) 393-7600 / Fax: (512) 393-2246
 NOT REQUESTED            State Bar No. 24074249
                          laura.garcia@co.hays.tx.us
                          Attorney for the State of Texas




                                                                Pagei
                           NAMES OF PARTIES

Appellee;                  State of Texas


Attorneys for the State;   Wesley H. Mau, Hays County District Attorney

At trial:                  Laura Garcia, Asst. Criminal District Attorney

                           Brian Erskine, Asst. Criminal District Attorney

On appeal;                 Laura Garcia,
                           Asst. Criminal District Attorney
                           712 S. Stagecoach Trail, Suite 2057
                           San Marcos, Texas 78666
                           State Bar No.24074249
                           Attorney for the State of Texas

Appellant;                 Zane Lynn Barton

Attorney for Appellant;
At trial:                  Jesus "Gabriel" Hernandez
                           507Westl0'''Street
                           Austin, Texas 78701

                           Tracy Reyes Franklin
                           1920 Corporate Drive, Suite 108A
                           San Marcos, Texas 78666

On appeal:                 Amanda Erwin
                           The Erwin Law Firm, L.L.P.
                           109 East Hopkins Street, Suite 200
                           San Marcos, Texas 78666




                                                                             Page ii
                         TABLE OF CONTENTS

NAMES OF PARTIES                                                   II
TABLE OF CONTENTS                                                 HI
INDEX OF AUTHORITIES                                              IV
STATEMENT OF THE CASE                                               2
STATEMENT REGARDING ORAL ARGUMENT                                   2
STATEMENT OF FACTS                                                  2

SUMMARY OF THE ARGUMENT                                             3
 STATE'S RESPONSE TO POINT OF ERROR                                 3

 L APPELLANT HAS FAILED TO ESTABLISH ERROR THAT FALLS
 BELOW     THE    STANDARD   FOR   TRIAL   COUNSEL   AS    THE
 DEFENDANT WAS FOUND TO BE COMPETENT IN A MENTAL
 HEALTH EVALUATION                                                  5

 2. APPELLANT HAS FAILED TO ESTABLISH ANY FAILURE TO
 CONVEY THE PLEA OFFERS TO THE APPELLANT AS WELL AS
 FAILS TO MEET HIS BURDEN TO SHOW SUFFICIENT PREJUDICE              7

 3.   APPELLANT    HAS   FAILED   TO   ESTABLISH   HOW    TRIAL
 COUNSEL'S MENTION OF APPELLANT'S POSSIBLE TESTIMONY
 IN TIOAL WAS AN EGREGIOUS ERROR THAT FELL BELOW THE
 STANDARD OF REASONABLE ASSISTANCE. IF ERROR AT ALL,
 NO PREJUDICE IS SHOWN AS THERE WERE MULTIPLE CURES                 8

CONCLUSION                                                         12

PRAYER                                                             12

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P.,
RULE 9.4                                                           13

CERTIFICATE OF SERVICE                                             14




                                                              Page iii
                          INDEX OF AUTHORITIES

FEDERAL CASES


Strickland v. Washington, 466 U.S. 668 (1984)                  3,4, 5, 7, 8, 10

STATE CASES


Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App.2006)                     4

Lopez V. State, 343 S.W.3d 137 (Tex. Crim. App.2011)                  4, 5, 10

Nava V. State, 415 S.W.3d 289 (Tex. Crim. App.2013)                          4

Menefields. State, 363 S.W.3d 591 (Tex. Crim. App. 2012)                 5, 10

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999)                       5

Ex Parte Argent, 393 S.W.3d781 (Tex. Crim. App. 2013)                        8

Piland v. State, 453 S.W.3d 473 (Tex. App. —^Texarkana 2014,
   pet. struck)                                                              8

STATE STATUTES


Tex. R. App.P. 38.2                                                          2

Tex. R.APP.P. 39.1                                                           2

Tex. R.APP.P. 39.7(e)                                                        2




                                                                       Page iv
                            NO. 03-14-00559-CR


                            COURT OF APPEALS


                                  FOR THE


                  AUSTIN SUPREME JUDICIAL DISTRICT



                           ZANE LYNN BARTON,
                                    Appellant

                                     VS.


                          THE STATE OF TEXAS,
                                    Appellee


                               APPEAL FROM

                 THE 274TH JUDICIAL DISTRICT COURT

                          HAYS COUNTY, TEXAS
                  TRIAL COURT CAUSE NO. CR-13-0614



                              STATE'S BRIEF



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW the State of Texas, by and through her Assistant District

Attorney, Laura Garcia, and files this Brief in Opposition to Appellant's Brief




                                                                        Page 1
pursuant to Texas Rules of Appellate Procedure Rule 38.2 and would show the Court

the following:


                                STATEMENT OF THE CASE

       The State does not object to the Appellant's Statement of the Case.


                  STATEMENT REGARDING ORAL ARGUMENT

       The State does not request oral argument. The facts and legal arguments are

adequately presented in the briefs and record and the decisional process would not be

significantly aided by oral argument.' Should the Court desire the parties to appear
                                                       /•j

and argue, the State would appear for oral argument.


                                 STATEMENT OF FACTS

       The State does not object to the Appellant's Statement of the Facts.


                            SUMMARY OF THE ARGUMENT

       The Appellant complains that he was denied effective assistance of counsel

and cites three acts of alleged deficient performance. The Appellant cites the trial

counsel's failure to investigate his competency or sanity to stand trial; trial counsel's

failure to convey the plea offer; and trial counsel's mention in front of the jury that

the defendant would testify in the punishment phase. However, the appellant fails to


^See Tex. R.APP. P. 39.1.
^See Tex. R. App. P. 39.7(e).

                                                                                  Page 2
overcome the strong presumption of reasonableness or, otherwise, meet his burden to

prove any trial counsel error so egregious to fall below the standard. In addition,

Appellant has failed to demonstrate prejudice to his defense sufficient to suggest a

reasonable probability that the outcome of the trial was affected by trial counsel's

failure. Therefore, Appellant's claims are meritless. His conviction and sentence

should be affirmed.



                                       ARGUMENT

                    STATE'S RESPONSE TO POINT OF ERROR:


            APPELLANT'S TRIAL COUNSEL WAS NOT INEFFECTIVE.


          The Strickland standardfor ineffective assistance ofcounsel

          The standard for testing claims of ineffective assistance of counsel is set out in

Strickland v. Washington^ as a two pronged test. To prevail on an ineffective

assistance of counsel claim, an Appellant must prove by a preponderance of the

evidence first, that his counsel's representation fell below an objective standard of

reasonableness and second, that the deficient performance prejudiced the defense.'*

The burden of proving ineffective assistance claims is on the petitioner.^ Failure to

meet the burden of either the deficient performance or sufficient prejudice prong



^Strickland V. Washington, 466 U.S. 668 (1984).
       at 687.
^Id.

                                                                                     Page 3
defeats the ineffectiveness claim.® Since each prong must be met, if the Appellant

fails to meet the first prong, the court need not consider thesecond prongJ

          In order to satisfy the first prong, the appellant must prove, by a preponderance

of the evidence, trial counsel's performance fell below an objective standard of

reasonableness under the prevailing professional norms.^ Appellant's right to

effective assistance counsel does not guarantee an entirely errorless counsel.^

Appellant must show the trial counsel's "errors were so serious as to deprive the

defendant of a fair trial.'"" It is not sufficient to meet his burden for the Appellant to

show, with the benefit of hindsight, that his counsel's actions or omissions were

questionable.

          Appellate review of counsel's representation is highly deferential. The "courts

indulge in a strong presumption that counsel's conduct was not deficient."'^ The

Appellant must overcome the strong presumption that trial counsel's decisions were

reasonably professional and motivated by sound trial strategy.'^ To rebut the

presumption, the Appellant's claim of ineffective assistance must be "firmly founded

in the record" and the deficiency claimed must be "affirmatively demonstrated" in

®/Jat700.
'Id.
    Id at 687-88.
9
    Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App._2006).
    Strickland at 687.
    Lopez V. State, 343 S.W.3d 137, 142-143 (Tex. Crim. App. 2011).
    Nava V. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Strickland at 689.
     Strickland at 686.


                                                                                    Page 4
the record.''^ Rarely willthe trial court record on its ownbe sufficient to overcome the

presumption and fulfill the Appellant's ineffective assistance claim on direct appeal/^
       In order to satisfy the second prong, the appellant must show that the particular

errors of trial counsel prejudiced the defense.'^ Merely showing that the errors had

some conceivable effect on the proceedings will not met the appellant's burden.^' To

prove prejudice, appellant must show that there is a reasonable probability that, but

for counsel's errors, the result of the proceeding would have been different.'^ A

reasonable probability is a probability sufficient to undermine the confidence in the

outcome.'^

           1. Appellant hasfailed to establish error thatfalls below the standardfor
              trial counsel as the defendant was found to be competent in a mental
               health evaluation.


Appellant's first assertion of deficient performance fails. Appellant asserts that trial

counsel failed to investigate the Appellant's mental health.^" This assertion was made

with the false assumption that the Appellant was not evaluated for competency or

sanity.




  Menefieldv. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012).
  Lopez at 143.
  Strickland at 689.
'Vjat693.
  Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
  Strickland at 687.
^°App. Brf., pg. 15.

                                                                                 Page 5
          The initial court appointed counsel filed a motion to evaluate Appellant for

competency and sanity with the court on October 16, 2013.^^ Although an order to

conduct an evaluation is not found in the clerk's record, a forensic evaluation and

report was completed?^ Dr. Matthew L. Ferrara, Ph.D. was appointed by the court to

perform Appellant's forensic evaluation for competency and sanity. On October 26,

2013, Dr. Ferrara completed his forensic evaluation report.The forensic report was

addressed to Appellant's counsel at the time and faxed to the presiding court.^'^ Dr.

Ferrara's evaluation "consisted of psychological testing, review of records, and face

to face contact" with the Appellant.^^ Based on that data, he found the Appellant to

be competent to stand trial and not insane at thetime ofthe offense.^^

          The Appellant fails to meet his burden and establish trial counsel error.

Counsel's conduct in relying on the forensic report is well within reasonable

assistance. Trial counsel made no indications on the record that he had any suspicion

or indication that the Appellant was suffering from any current mental health issues.

Appellant fails to rebut the strong presumption that trial counsel's decision was
                                                                                  I)

reasonably professional. The Appellant has failed to establish the first Strickland



     1 CR 15-16.
22
     See State Exhibit 1- Forensic Report.


^'Id.
26
     Id


                                                                               Page 6
prong of deficient performance. As the first prong has failed there is no need for the

Court to consider the second prong of prejudice.^^ All allegations of prejudice made

by Appellant were baseless as they wrongfully presumed a lack of an evaluation for

competency and sanity.

              2. Appellant has failed to establish any failure to convey the plea offers
                 to the Appellant as well as fails to meet his burden to show sufficient
                 prejudice.

          Appellant fails to meet his burden of proof for trial counsel's second alleged

act of deficient performance. Appellant asserts trial counsel failed to inform him of

the plea offers.^^ Both the clerk and court record are silent on this issue. Appellant's

brief contains a footnote that refers to the Appellant never being aware of a particular

plea bargain.^^ Appellant's comment is self-serving, unsubstantiated, and lacks

context of various plea offers, offer rejections and offer withdrawals made during the

pretrial process. Perhaps in hindsight the Appellant wishes he had previously

accepted a plea bargain, but there is no evidence that trial counsel failed to relay the

plea offers to the Appellant.

          No statements or evidence is present in the record to overcome the strong

reasonable representation presumption cloaking the trial counsel. Nothing in the




27
     Strickland at 700.
28
 ^App. Brf., pg. 17.
 'App. Brf., pg. 17, fii. 1.
29




                                                                                 Page?
record "affirmatively demonstrates" any deficiency claimed.^® Appellant fails to

meet his burden and this first Stricklandprong is not met. As the first prong of error

was not met, the court need not discuss the second prejudice prong.^'

       In the event the court finds error that falls below the objective reasonableness,

the Appellant still fails to meet the burden to demonstrate prejudice to the defense.

Courts have held to establish prejudice fi^om the ineffective act of failing to convey a

plea offer, the Appellant must show a:

                 "reasonable probability that
                 (1) he wouldhave accepted the offer if it had been communicated;
                 (2) the prosecutionwould not have withdrawn the offer; and
                 (3) the trial court would have accepted the plea agreement."^^

       In order to successfully meet that probability on direct appeal, the Appellant

must demonstrate this through evidence or statements fi-om counsel, the client and

the trial court." Appellant fails to demonstrate any such evidence. The Appellant

fails to meet his burden on the second prong of prejudice. Appellant's second claim

also fails.


              3. Appellant has failed to establish how trial counsel's mention of
                 Appellant's possible testimony in trial was an egregious error thatfell
                 below the standard of reasonable assistance. If error at all, no
                 prejudice is shown as multiple curative instructions were provided to
                 thejury.


  Strickland at 686.
     at 700.
  See Ex Parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013).
" Pilandv. State, 453 S.W.3d 473,476 (Tex. App. —^Texarkana 2014, pet. struck).

                                                                                  Page 8
        Appellant's third assertion of deficient performance fails. The Appellant

claims trial counsel's commenting to the jury that the defendant would testify at the

punishment phase was ineffective error since the defendant did not testify.^'^

        This innocuous mention that the defendant would testify must be placed in

context. At the end of the State's punishment case and at the end of the business day

the following transpired:

                State:       No further witnesses. The State rests.


                Court:       Is the Defense going to call any witnesses during
                             punishment?

                Defense:     I am, Your Honor.

                Court:       Are they here, ready?

                Defense:     It's going to be Mr. Barton, Your Honor. So we — I know
                             we talked about the —we didn't have a jury charge ready
                             or a jury pattern ready and we weren't going to give it to
                             the jury today. I didn't know if you want to break for the
                             day and start again with my one witness in the morning
                             before we got it to them.

                Court:        Okay. Ladies and Gentlemen, I am going to go ahead and
                              break for the day.^^


        When the discussion is placed in context, it is reasonable to believe that this

minor mention of the defendant testifying was simply in response to the courts


^'^App. Brf., pg. 18.
  4 RR 113. In the record, the State is "Ms. Garcia" and the Defense is "Mr. Hernandez".

                                                                                           Page 9
questioning. The questioning was for scheduling purposes. The answering of the

court's questions, which happened to be in front of thejury, demonstrates a prepared,

forthcoming, and reasonable counsel showing respect for the court and knowledge of

his case. When taking the comment in context as a whole one cannot say it is "so

outrageous that no competent attorney" would have responded to questioning as trial

counsel did.^^ At the time trial counsel stated the Appellant was going to testify he
had no reason to believe he wasn't. Now with the luxury of hindsight, we know the

next day the Appellant decided not to testify.^' However, an error viewed in hindsight

is not the standard.^® Appellant cites no fact-specific authority supporting his claims
that this act rendered his trial counsel so outside the wide range of reasonable

assistance to deem him ineffective. Appellant fails to meet his burden for the first

Stricklandprong. As the first prong of error was not met, the court need not discuss

the second prejudice prong.^^

       In the event the court finds error that falls below the objective standard of

reasonableness, the Appellant still fails to satisfy the second prong of prejudice. The

record clearly reflects multiple cures to the error. The next trial day, when the

defendant decided not to testify, the state, trial counsel, and the court discussed the


  Menefield at 592.
^^5RR4.
  Zopez at 142-143.
  Strickland at 700.


                                                                              Page 10
need to give an instruction to the jury since thejury was told the defendant would be

testifying/" As the jury was brought in that morning, the defense rested without

calling anypunishment witnesses and thejudge gavethis instruction:

             Okay. Ladies and gentlemen, you heard yesterday that the
             defendant was considering testifying. I'm going to remind you he
             has a Fifth Amendment right not to testify. The fact that he may
             have changed his mind or changed strategy is not to be held
             against the defendant.

             That language will be in my charge, but I will tell you it's a
             constitutional right. It's a Fifth Amendment right to remain silent.
             The fact that he's chosen to remain silent cannot and should not
             be held against him in your deliberations regarding punishment.''^

      Additionally in the written punishment charge an instruction was given to the

jury discussing the Appellant's Fifth Amendment Right and that the jury is not to

consider the fact that the defendant did not testify.'*^ This instruction was also read to

the jury.'^^ So the jury was admonished three times not to consider the trial counsel

comment vis-a-vis Appellant's right not to testify.

      There is no evidence the Appellant was prejudiced by counsel's comment.

Appellant has failed to demonstrate prejudice to the defense sufficient to suggest a

reasonable probability that the outcome of the trial was affected by trial counsel's

failure. In fact, there is quite the opposite; the great weight of the evidence and


'^°5RR4.
  5RR9.
  1 CR 98.
  5 RR 12.


                                                                                 Page 11
testimony against him proves an appropriately just sentence for this heinous crime.

Appellant's third claim fails.


                                   CONCLUSION

      Appellant's sole Point of Error is meritless and should be overruled. Appellant

has failed to demonstrate deficient performance on the part of his trial counsel or that

he suffered prejudice because of the alleged errors. No error was supported by the

record. Appellant has thus failed to meet his burden. The overwhelming evidence

was sufficient to support the Appellant's judgment and sentence in the case.


                                      PRAYER

       The State prays that this honorable court affirm the jury's judgment and

sentence.


                                        Respectfully submitted,



                                        Laura
                                        Asst. Criminal District Attorney
                                        712 S. Stagecoach Trail, Suite 2057
                                        San Marcos, Texas 78666
                                        State Bar No. 24074249
                                        laura.garcia@co.hays.tx.us
                                        Attorney for the State of Texas




                                                                               Page 12
               CERTIFICATE OF COMPLIANCE WITH TEX. R.
                           APR P.. RULE 9.4

       I certify that this brief contains 1,978 words, exclusive of the caption, identity

of parties and counsel, statement regarding oral argument, table of contents, index of

authorities, statement of the case, statement of issues presented, statei^ent of

jurisdiction, statement of procedural history, signature, proof of service, certification,

certificate of compliance, and appendix.



                                           By:
                                         Laura G^ofa
                                         Asst. Cnminal District Attorney
                                         712 S. Stagecoach Trail, Suite 2057
                                         San Marcos, Texas 78666
                                         State Bar No. 24074249
                                         laura.garcia@co.hays.tx.us
                                         Attorney for the State of Texas




                                                                                 Page 13
                          CERTIFICATE OF SERVICE

      I certifythat a true copy of the foregoing brief has been e-dehvered to:

Amanda Erwin
amanda@theerwinlawfirm.com
The Erwin Law Firm, L.L.P.
109 East Hopkins Street, Suite 200
San Marcos, Texas 78666

on this the 2nd day of July, 2015.




                                       Laur^(3arcia
                                       Asst. Criminal District Attorney




                                                                                 Page 14
EXHIBIT A
                                                                                                                    2 of
/26/2013 3:19 PM                  From- Matthew L Ferrara, PhD / ph: 512-708-0502 To: 15123937713




                                              Matthew L. Ferrara, Ph.D.
                                                  Clinic^ and Forensic Psychology
                                     2500W. William Gannon Drive •Suite 703 • Austin, TK •78745
                                                Tele: 512-708-0502 • Fax: 512-708-0557
                                                        m fBTTaraphd@att.net




              October 26, 2013

              Martin Clauder
              P.O. Box 171
              Gonzales, TX 78629

              Re: State ofTexas vs. Zane Barton GR-13-0614; 22"'' District Court of Hays County
              Dear Mr. Clauder,
                      Per your request, on 10-25-13 I conducted a forensic evaluation of Zane Barton (DOB:
              08-11-84). Mr. Barton w:as informed that there would be no confidentiality between him and the
              examiner and that anything he said, did, or wrote could be included in a report that would be
              sent to his attorney, the district attorney, and the judge presiding over his case.
                     The evaluation consisted of psychological testing^ review of records, and face to face
              contact with Mr. Barton. Based upon the data collected during the assessment process, I
              completed a competency evaluation and an insanity evaluation for Mr. Barton. The following
              summarizes my current opinions regarding Mr. Barton.

                   1. Competency Evaluation: The competency evaluation was conducted to determine if
                      Mr. Barton (1) has sufficient present ability to consult with his attorney with a
                      reasonable degree of rational understanding; (2) has a rational understanding of the
                      proceedings against him; and, (3) has a factual understanding of the proceedings
                      against him. Based upon the results of this evaluation, Mr. Barton Is competent to
                      stand trial.
                   2. Insanity Evaluation: The insanity evaluation was conducted to determine if at the
                      time of the charged conduct, Mr. Barton as a result of severe mental disease or defect,
                      did not know that his conduct was wrong. For the purpose of this evaluation, the term
                      "mental disease or defect does not include abnormality manifested only by repeated
                      criminal or otherwise antisocial conduct. Based upon the results of this evaluation, Mr.
                      Barton was not insane at the time of the alleged charged conduct.
                   3. Overall Opinion: Mr. Barton has a mental illness but this mental illness does not
                      interfere with his competency, nor did it impair his legal sanity at the time ofhis charged
                      conduct. Mr. Barton does not require any special considerations to undergo a trial.
                      Dr. Ferrara is licensed as a psychologist (Texas License Number: 22795) and Licensed
               Sex Offender Treatment Provider (Texas License Number: 9469). Dr. Ferrara has worked full
               time with forensic clients since February 1985. He has conducted competency evaluations in
               the past, As a condition of continuing licensure, Dr. Ferrara complies with all requirements for
               continuing education.



                                                               Page 1 of 6
/26/2013 3:19 PM                From: Matthew L Ferrara, PhD / ph: 512-708-0502 To: 15123937713                   3 of




                   This is a forensic evaluation and report and it will be utilized in a legal proceeding. This
             examiner has been conducting forensic evaluations oh a regular basis since 1990. This
             examiner's forensic evaluations have been used In a variety of legal proceedings including
             criminal, civil, and administrative courts. Based upon this examiner's decades of experience and
             ongoing training on an annual basis, this examiner has the appropriate knowledge of and
              competence in all underlying areas of psychology in the matters related to this case.
                    This examiner has based all forensic opinions offered in this report based upon the
              methodology listed in this report. The methodology used by this examiner is sufficient to
              provide appropriate substantiation for each finding. This examiner has not offered an opinion in
              any area or matter about which the examiner does not have the appropriate knowledge or
              competency to render a professional opinion. In the opinion ofthis examiner, there is sufficient
              information to render a professional opinion in this matter.
                     This examiner is only offering an opinion about Mr. Barton's psychological
              characteristics. This examiner is not offering an opinion about the psychological characteristics
              of any individual that this examiner did not examine. If there are comments about the
              psychological characteristics in this report about anyone this examiner did not have contact
              with, those comments were offered by Mr. Barton and this examiner is merely reporting Mr.
              Barton comments without endorsing them.

              Sincerely,

              Signed Electronically: MattfiewL. ^Ferrara,




                                                            Page 2 of 6
/26/2013 3:19 PM             From: Matthew L Ferrarai PhD / ph; 512-708-0502 To: 15123937713   4 of




                                                    Methodology

                   Contact with Mr. Barton:
                      >   Clinical Interview
                      > Social History
                      > Mental Status Exam
                   Psychological Testi na •
                      > Minnesota Multiphasic Personality Inventory - 2
                   Materials Reviewed
                      > San Marcos Police Department Incident ReportIncident #: 13-28369
                      > Hays Count Sheriffs Department Offense Report CL13-12784




                                                        Page 3 of 6
                                                                                                                                5 of
/26/2013 3:19 PM                 From: Matthew LFerrara. PhD /ph; 512-708-0502 To; 1512393771^^



                                                  Competency Evaluation
              Clinical Observations                                                               u                  a ^
                     Mr. Barton had no difficulty on tasks that require abstract reasoning. He appeared to
              have at least average intelligence. His thinking was logical and rational. Mr. Barton repotted a
              history of auditory and visual hallucinations but he did not appear to be responding to auditory
              or visual hallucinations during this evaluation. He did not appear to have difficulty wth reahty
              testing during this evaluation. He knew where he was, who was, and what he was doing. Mr.
              Barton is capable of distinguishing right from wrong. Mr. Barton appeared to have a dysphonc
              mood. The emotions that he showed tended to be blunted. He claimed that he experienced
              chronic paranoia and he gave convindng historical examples of being paranoid, e.g., If he
              leaves an open drink In a room, when he returns to the room, he must pour out the drink
              because he fears that his drink has been tampered with. Mr. Barton showed no difficulty
              recalling recent or remote events, except when it came to the matter of his charged conduct.
              Mr. Barton said that he was amnestic for the period of time In which his charged conduct is
              alleged to have occurred. Mr. Barton said that he has never experienced amnesia before or
              after the time of his charged conduct, which makes his claim of amnesia suspect. Mr. Barton's
              attention span was sufficient for the purposes of this Interview. Mr. Barton related to this
              examiner In a submissive manner, which is somewhat odd for a paranoid person. Overall, Mr.
              Barton gave the appearance of having intellectual functioning in the average range. Mr, Barton
              probably does suffer from a bona fide mental illness.
              Current Medications                                                                 ,             •           j
                      Mr. Barton stated that he currently takes Risperdal, Depakote, Elavll, Cogentin, and
               Prozac. He said that in the past, this medication regime helped him control his psychological
               symptoms. He said that the medication no longer has the same effect and he Is hopeful that he
               gets a change In medication. Mr. Barton said that since being In jail, he has tried to get his
               medication changed and the psychiatrist responds by increasing his Risperdal, which only
               makes him sleep more.

               Diaanoisis                                                                             .     ,   j-      j
                      Mr. Barton said that he has been diagnosed with chronic depression, bipolar disorder
               and schizophrenia. Mr. Barton doesn't appear to be schizophrenic. Mr. Barton said that he
               began feeling depressed during his youth, even before he started using drugs and alcohol. Mr.
               Barton has a history that would be consistent with a bipolar disorder.
               Competency Analysis                                                                        , .   r- j-
                      Based upon the available information, the following is a summary of the findings
               regarding Mr. Barton's psycholegal capacities:
                   1. Rational understanding current charges and potential
                          consequences                                                  —
                                                                                                      Yes
                      •     Understands that he was arrested
                                                                                                      Yes
                      •     Rational understanding of why he was arrested
                                                                                                      Yes
                      •     Knows the crime(s) he Is charged with committlncj
                                                                                                      Yes
                      •     Knows the countsfs) he Is charged with
                                                                                                      Yes
                      •     Has a rational understanding of what It means to be charged
                            with the crimefs)
                                                                                                      Yes
                      •     Knows the range of punishment for the crime(s)

                                                             Page 4 of 6
/26/2013 3:19 PM                    From: Matthew L Ferrara, PhD / ph: 512-708-0502   To: 15123937713         6 of




                     •     Understands what will happen to him if he is put on                          Yes
                           probation
                     •     Able to explain how probation works                                          Yes
                     •     Understands how his life would be different if he was put on                 Yes
                           probation
                     •     Able to explain prison                                                       Yes
                     •     Understands how his life would be different if he was sent to                Yes
                           prison
                   2. Ability to disclose pertinent facts, events and states of
                         mind to counsel
                     •     Able to describe facts that could prove him innocent                         Yes
                     •     Able to describes facts that could prove him guilty                          Yes
                     •     Understands mitigation                                                       Yes
                     •     Able to describe mitigatinq factors in this case                             Yes
                     •     Able to describe his psychological state at the time of his                  Yes
                           charged conduct
                     •     Able to accurately describe the psychological states of others               Yes
                           around the time of his charged conduct
                   3. Ability to engage in a reasoned choice of legal
                         striategies and options
                     •      Has a rational goal                                                         No
                     •      Able to articulate a rational defense against his charges                   Yes
                     •     Has thought of more than one defense strategy or has a                       Yes
                           multifaceted defense strategy
                     •     Has a rational understanding of what it means to plead                       Yes
                           guilty
                     •     Has a rational understanding of what it means to plead                       Yes
                           innocent
                     •      Knows if he has entered a plea in this case                                 Yes
                     •      Has a rational understanding of a plea bargain                              Yes
                     •      Has a rational understanding of competency                                  Yes
                     •      Personally believes he is competent to stand trial                          Yes
                     •      Has a rational understanding of his relationship with his                   Yes
                           attorney
                   4. Understands the adversarial nature of the proceedings
                     • Knows his attorney's name                                                        Yes
                     •      Knows how he obtained his attorney                                          Yes
                     •     Has a rational understanding of his attorne/s job                            Yes
                     •     Has a rational understanding of the district attorney's job                  Yes
                     •     Shows an understanding that the district attorney is                         Yes
                            adversarial
                     •      Has a rational understanding of the role of a judge in a                    Yes
                            criminal trial
                     •      Rational understanding of the role of a jury in a criminal trial            Yes
                     •      Rational understanding of the role of a witness                             Yes
                     •      Rational and effective response to a witness who lies                       Yes
                     •      Shows some ability to protect himself/herself in dealing with               Yes


                                                                Page 5 of 6
                                                                                                                /••OT   ps
/26/2013 3:19 PM
                                 From: Matthew L. Ferrara, PhD /ph: 512-708-0^02 to; 15123937713




                         the district attorney                                 —
                   5 Ability to exhibit appropriate courtroom behavior
                                                                                                   Yes
                     • Has been to court in the past and wasn't reprimanded for
                                       behavior
                         inappropriate ww
                                                                                                    Yes
                         Shows
                         anuwa an
                               ell I understanding
                                     ullu«^iaLaiiw...v, of
                                                        W. proper courtroom behavior V
                                                                                                    Yes
                         Shows ah understanding of proper courtroom clothing and
                         grooming
                   6. Ability to testify                                                           Unsure
                        Willing to testifi/ in this case                                            No
                          Has
                          n o j successfully testified in the past
                                                              .
                                                                                                    Yes
                          Understands what it takes to offer good testimony
                                                                                                    No
                          Believes he would make a good witness                                     Yes
                          Has
                          na& a  rational understanding of
                               d Idumiai                — periuty
                                                           r — j — i
                                                                                                    Yes
                          Understands that there are the penalties for penur/




               nSSrSSI.crss
               Based upon the results of this evaluation, Mr. Barton was not insane at the time of the allege
               charged conduct.

                   TnMnitv Evaluation                                          ————       j—        True
                       • In general, understands the wrongful nature of his charged
                           rnnHiJCt                                                ^
                                                                                                    False
                       • Was NOT experiencing mental health symptoms at the time
                           of his charged conduct                                                    True
                       • In the twenty-four hours prior to charged conduct,
                           consumed alcohol                                                          True
                       • Inthe twenty-four hours prior to charged conduct,
                           consumed drugs
                                                                                                     True
                       • At the time of charged conduct, knew that the charged
                           conduct was wrong                                                ^
                                                                                                     True
                       • At the time of his charged conduct, he knew that he could
                            hp arracf-pri fnr fnqaqino in the charged conduct
                                                                                                     True
                        • At the time of the charged conduct, he knew that people
                          could get punished for this type of charged conduct




                                                                 Page 6 of 6




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