           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0967-14



                       CHARLES RAY OWENS, JR., Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SIXTH COURT OF APPEALS
                           HARRISON COUNTY

      H ERVEY, J., delivered the opinion of the Court in which K ELLER, P.J.,
M EYERS, J OHNSON, K EASLER, R ICHARDSON, Y EARY, and N EWELL, JJ., joined.
A LCALA, J., filed a dissenting opinion.

                                      OPINION

       Appellant, Charles Ray Owens, was charged with felony murder after he led police

on a high-speed chase during which he hit two vehicles and killed one of the drivers.

Before trial, he filed a motion arguing that he was incompetent to stand trial. Appellant

claimed that, due to traumatic brain injury caused by the crash, he suffered from amnesia

and was unable to remember anything about the wreck. After a mental-health assessment,
                                                                                     Owens–2

the defense expert concluded that, even if Appellant did suffer from amnesia (which the

expert could not rule out), such condition did not render him incompetent to stand trial.

At the ensuing competency trial, Appellant called the expert to the stand to testify about

his conclusions, but before the expert could testify regarding the substance of his report,

Appellant objected to his own witness and argued that the expert was not qualified to be

appointed or testify as a competency expert. His complaint was founded on the belief that

the witness did not meet a necessary continuing-education requirement. The judge

allowed Appellant to argue (and he did) that the expert was not statutorily allowed to be

appointed but otherwise overruled his objection and allowed the expert to testify.

Appellant was found competent and later convicted of felony murder. He appealed the

ruling of the trial court, and the court of appeals reversed and remanded for a new trial. It

held that the trial court erred because the expert did not meet the statutory qualifications

for a competency expert and that Appellant was harmed by that error. We will reverse the

judgment of the court of appeals and remand this case for it to address Appellant’s

remaining point of error.

                            I. F ACTS AND PROCEDURAL HISTORY

A. The offense

       Appellant was driving with his fourteen-year-old son when he was pulled over for

speeding. During the traffic stop, the officer learned that Appellant had an outstanding

arrest warrant from Michigan. While awaiting confirmation of the warrant from dispatch,
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the trooper offered to let Appellant “drive [his] kid to where he needs to go, because we

need to go and take care of this.” Appellant turned his truck around and drove home.

According to the officer, as Appellant approached the residence, “he slow roll[ed] and

drop[ped] the kid off” and drove away in his truck at a high rate of speed. The trooper

pursued him but “fell off” because they were in a residential area and kids were standing

in the vicinity. As Appellant approached a highway intersection from the west, the trooper

saw the truck “go[] up in the air and [he] knew that [Appellant] had evidently hit

something.” Appellant had raced into the intersection after running a stop sign and

crashed into two vehicles driving south on the highway. The driver of one of the vehicles

died at the scene from severe head injuries.

B. Competency

       The State charged Appellant with felony murder. The defense filed a motion

challenging Appellant’s competency to stand trial, arguing that Appellant was

incompetent because his amnesia prevented him from remembering the crash. To prove

its incompetency claim, the defense sought to have Dr. Thomas Allen appointed to

evaluate Appellant, and the judge agreed to appoint him.

       Allen concluded that Appellant was competent to stand trial because, even if he

suffered from amnesia caused by injuries sustained in the crash, he could still consult

with his attorney with a reasonable degree of rational understanding and had a rational
                                                                                            Owens–4

understanding of the proceedings against him.1 T EX. C ODE C RIM. P ROC. art. 46B.003(a)

(grounds for trial incompetence).

       A competency trial was subsequently held, and the defense called Allen as its first

witness. During direct and redirect examination, defense counsel questioned Allen

extensively about his credentials and eventually objected to proceeding with him as an

expert because Article 46B.022 sets out qualifications of an expert to testify regarding

competency and [Allen] testified that he did not meet the requirement. See T EX. C RIM.

P ROC. art. 46B.022 (requirements for an expert who is appointed to review trial

competency). The trial court ruled that Allen could testify because defense counsel

prepared the order appointing him. Defense counsel responded that, regardless of how

Allen was appointed, he “should be able to tell the jury [Allen] is not qualified to do this

study.” The court replied that, “at this point, you know, that is up to you to direct



       1
       Allen’s explanation for finding Appellant competent to stand trial, even if he suffered
from amnesia, was that

       For [Appellant] to have a rational understanding of the conduct charged, if you
       have evidence that you can present to him and he told me that you -- that he had
       seen it, he can rationally understand that evidence. There was no impairment from
       hallucinations, delusions, his is simply I don’t remember doing that. I saw the
       video and police report and whatever, something like that.

                                          *      *       *

       [The competency statute] talks about rational and factual only in terms of the
       proceeding. Does he understand what he is charged with. Does he know who the
       players are in this deal. Does he know that it is adversarial. So if you go strictly by
       the Statute he doesn’t even have to tell you factually what happened and it is not
       uncommon for clients to lie even to their defense lawyers, their Priest, their wives.
                                                                                      Owens–5

that . . . . You will be entitled to go into the appointment of [him].” Subsequently, the

defense argued to the jury that Allen was not qualified under the Texas Code of Criminal

Procedure to be appointed as a competency expert, much less to evaluate a defendant’s

trial competency or render an opinion thereon. Allen testified that Appellant was

competent to stand trial, the jury found him competent to stand trial, and he was

subsequently convicted of felony murder and sentenced to forty years’ imprisonment.

       On appeal, Appellant claimed that the trial court erred when it allowed Allen to

testify regarding Appellant’s competency, and that he was harmed by that error. See

Owens v. State, 437 S.W.3d 584, 586 (Tex. App.—Texarkana 2014, pet. granted). The

State responded that Appellant should not receive a windfall because he invited the error

when he prepared the order appointing Allen but failed to sufficiently review his

credentials. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). The court

of appeals rejected the State’s invited-error argument and held that defense counsel did

not invite the error because Appellant’s attorney was unfamiliar with Allen, he prepared

the motion appointing him only upon the prosecutor’s recommendation, and once he

determined that Allen did not satisfy the statutory prerequisites, he timely objected and

properly asked that Allen be disqualified from testifying. See Owens, 437 S.W.3d at 588.

The court concluded that, because “the sole evidence against [Appellant’s] claim of

incompetence was the testimony of Allen,” the determination of Appellant’s competency

was fatally flawed, and he was harmed by that determination. Id. at 589. It further
                                                                                       Owens–6

concluded that the proper remedy was to reverse the judgment of the trial court and

remand for a new trial because “[a] fatal flaw in the determination of [Appellant’s]

competence to stand trial renders anything that occurred during the ensuing trial moot.”

Id. The court of appeals found it unnecessary to examine Appellant’s third ground—an

alleged evidentiary variance—because it granted him a new trial based on his competency

claim. Id.

       We granted the State’s petition for review to determine whether “the appellate

court erred in reversing the conviction in lieu of abating the appeal and ordering a

retrospective competency trial.” 2

                                       II. D ISCUSSION

       For the reasons we explain below, we conclude that the court of appeals erred in

reversing Appellant’s conviction and remanding for a new trial. Even if the competency

proceedings were flawed, the proper remedy would have been to abate the appeal and

remand to the trial court for further proceedings. But because we ultimately hold that any

error in allowing Allen to testify was harmless, we need not abate this appeal and remand

the case for a retrospective competency hearing.

A. The court of appeals erred when it reversed the conviction and ordered a new trial.

       We have long held that the appropriate remedy when there is an error in

competency proceedings is to abate the appeal and remand the cause to the trial court to

       2
       In this opinion, we do not address whether Allen was properly appointed as a
competency expert.
                                                                                    Owens–7

determine the feasability of a retrospective competency proceeding. Turner v. State, 422

S.W.3d 676, 696–97 (Tex. Crim. App. 2013); see Brandon v. State, 599 S.W.2d 567, 573

(Tex. Crim. App. 1979). However, notwithstanding our extensive precedent, the court of

appeals reversed Appellant’s conviction for felony murder and remanded for a new trial.

The court decided that a new trial was necessary because the flawed competency

determination “render[ed] anything that occurred during the ensuing trial moot.” Owens,

437 S.W.3d at 589.

       It violates principles of due process to put an incompetent person to trial. See

Turner v. State, 422 S.W.3d 676, 687 (Tex. Crim. App. 2013); see also Pate v. Robinson,

383 U.S. 375 (1966). Thus, if a defendant were tried and convicted, but later was found to

have been incompetent to stand trial, that trial is rendered invalid on due-process grounds.

However, if on remand the trial court determines that a retrospective competency

evaluation is possible, and it is further found that the defendant was competent to stand

trial when he was tried, then the defendant’s conviction remains valid and there has been

no due-process violation. Ex parte Winfrey, 581 S.W.2d 698 (Tex. Crim. App. 1979); see

Barber v. State, 737 S.W.2d 824, 829 (Tex. Crim. App. 1987); Caballero v. State, 590

S.W.2d 714, 714 (Tex. Crim. App. 1980). Based on this principle and our precedent, the

court of appeals would not have known whether Appellant’s felony-murder trial would

have been rendered invalid because it did not first abate the appeal and remand the case

for a retrospective competency hearing (assuming such a hearing is feasible).
                                                                                         Owens–8

Consequently, the court of appeals erred when it reversed Appellant’s conviction and

remanded for a new trial.

B. Even if it was error to allow Allen to testify, any error was harmless.3

       Our examination of the record shows that the only evidence that Appellant was

incompetent came from his attorney, who testified that “we believe that [Appellant’s]

inability to confer in regard to the reality of the events [because of his amnesia] is

[a]ffecting his abilities to rationally communicate with me about those events.” 4 In

contrast, to prove that Appellant was competent, the State introduced a redacted four-page

letter written by Appellant to the judge, who previously presided over the case expressing

remorse that the wreck happened and for the loss of life, but professing to remember

nothing “from four days before the accident up until just before Christmas a little over a

month later.” Appellant also said in his letter that, although he does not remember the

wreck, he knows that “[he] had no intent to hurt anyone” and that he plans to compensate

the victim’s family after he “serve[s] punishment” for what he has done. He concluded

that he does “not feel that [he] should be charged for murder as tragic as th[e] crime is,”

and that he thought a “vehicular manslaughter charge” was more “accurate.”

       Addressing the State’s argument that any error was harmless, the court of appeals


       3
       We do not address whether the trial court erred when it allowed Allen to testify because
we conclude that, even if the judge erred, any error was harmless.
       4
        Appellant argues only that Allen failed to meet the statutory qualifications to be
appointed as a competency expert. He does not claim that he was prevented from presenting
relevant evidence.
                                                                                      Owens–9

held that Appellant was harmed because it found that the letter from Appellant was not

evidence that he was competent to stand trial, and it went on to say that, “[b]ecause the

sole evidence against [Appellant]’s claim of incompetence was the testimony of Allen

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

determination, we find the determination of his competence to be flawed.” 5 Owens, 437

S.W.3d at 589.

       We disagree that, as a matter of law, the letter had no bearing whatsoever on the

relevant issues, i.e., whether Appellant was competent to stand trial. T EX. C ODE C RIM.

P ROC. art. 46B.003(a). Indeed, Appellant’s argument that he should not have been

charged with murder, but some kind of lesser vehicular-manslaughter charge, was

compelling evidence that he understood the seriousness of the charge he was facing and,

therefore, had a rational and factual understanding of the proceedings against him. See

Turner, 422 S.W.3d at 689 (“There is no reason to doubt that he understood that his life

and liberty were at stake and what roles the various participants in the proceedings

played.”).

       Moreover, although defense counsel’s narrative testimony focused on the fact that



       5
        The court of appeals seems to have decided that, because there was no proof of
competency after excluding Allen’s testimony from its analysis, Appellant must have been
harmed. However, that is not necessarily so.
       In Texas, a person is presumed to be competent “and shall be found competent” unless
proven incompetent by a preponderance of the evidence. TEX . CODE CRIM . PROC. art.
46B.003(b). Thus, the relevant issue is not whether any evidence of competency was put on, but
whether the defendant has overcome the presumption of competency. Id.
                                                                                           Owens–10

Appellant was incompetent to stand trial because he could not recall the wreck, in making

that argument counsel also said that he visited his client multiple times, yet he never

complained or even suggested that, during those visits, his client lacked a present ability

to consult with him. See Gonzales v. State, 313 S.W.3d 840, 843 (Tex. Crim. App. 2010)

(stating that for amnesia to rise to the level of trial incompetence, the amnesia would have

to compromise a defendant’s ability to think rationally at the time of trial). Additionally,

counsel developed a trial-competency defense only because Appellant explained that, due

to injuries he sustained in the wreck, he could not remember the circumstances of the

offense. Turner, 422 S.W.3d at 690–91 (“These legislative criteria for competency

contemplate a defendant who is at least minimally able to interact with his trial counsel in

a ‘reasonable and rational’ way (even if they do not necessarily agree) in formulating

decisions how most effectively to pursue his defense.”). Counsel does not argue that he

could not rationally communicate with Appellant. His only argument is that Appellant

was incompetent to stand trial because he could not remember the wreck, and thus,

according to defense counsel, no mens rea defense could be prepared. But, although

Appellant claims to not remember the facts of the offense, he could have nevertheless

relied upon the circumstances of the offense to develop a mens rea defense.6


       6
        In his letter, Appellant addressed his state of mind based on only the circumstances of
the offense as recorded on video:

                It is painfully clear to one that I am to blame for what happened. The
       Officer allowed me to drive the child that was with me home. He followed me,
       but fell behind quite a bit. I turned down a different road by the time he made a
                                                                                          Owens–11

       The court of appeals erred when it reversed Appellant’s conviction and remanded

the case for a new trial due to a perceived fatal flaw in the competency proceedings.

Further, we hold that any error in allowing Allen to testify because he was not qualified as

a competency expert under Chapter 46B of the Code of Criminal Procedure was

harmless.7 We reverse the judgment of the court of appeals and remand this cause to that

court to address Appellant’s third point of error.

                                                            Hervey, J.

Delivered: October 28, 2015

Publish




       turn I dropped off the child and was gone.
               Watching the video I could not believe my eyes. I am still having a hard
       time dealing with it. All of this time I have thought that there was some
       explainable misunderstanding or something. There is no excuse for what
       happened.
       7
         To prove harm when error is non-constitutional, a defendant must establish that the error,
defect, irregularity, or variance affected his substantial rights. TEX . R. APP. P. 44.2(b).
