                                                                          ACCEPTED
                                                                     01-14-00366-CR
                                                           FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                               1/28/2015 10:02:56 PM
                                                                 CHRISTOPHER PRINE
                                                                              CLERK


        No. 01-14-00366-CR

                                                  FILED IN
    In ltre Court of AFpeaIs               1st COURT OF APPEALS
                                               HOUSTON, TEXAS
          For The First                    1/28/2015 10:02:56 PM
   JudiciaL District of Texas              CHRISTOPHER A. PRINE
          Houston,   Te:<as                         Clerk




CHRISTOPHER WASHINGTON, APPELLANT

              VERSI]S


   THE STATE OF TEXAS, APPELLEE




     ON APPEAL FROM THE 178rH
      JUDICIAL DISTRICT COURT
       HARRIS COUNTY, TEXAS
   TRIAL COURT CAUSIi NO. 1259853


         APPELLANT'S BRIEF




                              WENDELL A. ODoM JR.
                              TEXAS BAR # 15208500
                              440 LoursrANA ST., SrE 200
                              HousroN, TEXAS 77002
                              (713) 223-5575
                              (713)224-281s lF^xl

                              ATTORNEY FOR APPELLANT
                              CHRlsroPl-tER WASHINcToN




      IORAL ARGUMENT REQUESTED]
                                IDENTITY oF PARTIES AND COUNSELS




Christopher Washington                                             Appellant

Sta te   of Texas                                                  Appellee

Wendell A. Odom, Jr.                                               Appellate Counsel

440 Louisiana St., Ste 200
I{ouston, Texas 77002


Patrick McCann                                                     Trial Counsel

909 Texas Avenue, Ste 205
I-Iouston, Texas 77002



Devon Anderson                                                     District Attorney on
                                                                   Appeal
1201 Franklin St., Ste 600
Houston, Texas 77002

Maritza Antu                                                       Assistant District
                                                                   Attorney at Trial
120i Franklin St., Ste 600
Houston, Texas      7'7   002
                                     TABLD oF CONTENTS


                                                                                                    PAGE
IDDNTTTTDS oF PARTItrs AND       CoUNSDLS                                   ........................... ....i
TABLE oF CONTDNTS ............                                                        .................... ii
INDtrx oF AUTHORITIDS                                                         ..........".............'. iii
STATEMENT oF THE CAStr                                                            ,..........'.............1
STATEMtrNT REGARDING ORAL ARGUMENT       ........,.......                       ,,....'.'.'.'.'............2
QuESTroNs PRESENTED                                                           ..............'.......'......3
STATEMDNT oF FAcrs..........                                 '.........'......."..3
SuMMARy oF THE ARGUMDNT .,...............                 ......,,,...............,8
ARGUMDNT AND AurHoRITItrs ...............,.,,,,                ....................9
  I,   ISSUE 1_ WHDTHtrR THE APPELLANT WAS DENIED DUE PROCESS WHDN THE
          TRIAL COURT REFUSED TO ALLOW THtr DEFENDANT TO OBTAIN THE
          ASSISTANCE OF AN EXPERT.
          A. RULE oF LAw .................                   .................'...."....'..9
          B. Ttrsr UNDER TEXAS PENAL CODE S 7.02(8).........                ..........'...13
          C. TDST UNDER MorIoN To SUPPRDSS,.......            ..,..,.............."'.....21
          D. CoNCLUSToN .....................                  .......................,,,,27
  II.     ISSUE II _ WHETHER THE TRIAL COURT ABUSED THEIR DISCRETION WHEN
       THtrY DENIED THE APPELLANT A HEARING ON HIS MOTION FOR NEW TRIAL.
       A. RULD oF LAw..................                              .............................29
        B, TRrAL COURT ABUSED ITS DISCRETION......,........... ...........30
        C, CONCLUSTON .....,..,............                            ,.,.......,...........,....39
  III, ISSUE III - WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
        DENIED THE APPELLANT'S RtrQUEST FOR A COMPETENCY TRIAL UNDER
        TtrxAS CODE oF CnrurNa,l PROCEDURE 46B.
        A. RULE oFLAw..........                                                      .............41
        B. TRrAL COURT ABUSED ITS DISCRtrTION...........,,,......................,.............,..43
        C. CoNcLUSToN .....................                            ...........................46
PRAYDR FoR RtrLrDF.........,......                                               ......---........47
CERTTFIcATE oF SERVIcE                                                     ........-...........,..47
INDEX oF AUTHORITIES



       CASEs




      SrATUTtts
                                   No. 0I-14-00366-CR


                             In           of Agpeals
                                  Ttre Court
                                          First
                                     For The
                           JudiciaL District of Texas
                                    Houston, Texas



                     CHRISTOPHDR WASHINGTON, APPI,LLANT

                                        VERSUS


                          TH E STATE OF TEXAS, APPELLEE




                            ON APPEAL FRoM THE 178rr{
                             JUDICIAL DISTRICT COURT
                              HARRIS COUNTY, TEXAS
                          TRIAL COURT CAUSE NO. 1259853


                                   APPDLLANT'S BRIEF




TO THE HONORABLE JUSTICES OF SAID COURT:

       COMES NOW, CHRISTOPHER WASHINGTON, Appellant in the above styled

and numbered cause and would respectfully show the Court as follows:

                                 PRELIMINARY STATDMENT

       This is an appeal from a conviction for CAPITAL MURDER after     a   july trial in

which the Appellant was found guilty. The court assessed punishment at life in prison

with no possibility of parole.
          On Ju\, 16, 2010, Appellant was indicted in cause nunber 1259853 fot the

offense   ol Capital Murder, a capital felony, in violation of Texas          Penal Code $ 19'03

CR-l1'. On Aplil       8, 2014, jury trial commenced in this cause. On          April   10, 2014, the

jury found the Appellant guilty of Capital Murder. CR-148. The State of Texas did not

seek tlre death penalty    in this cause, and thus, on April 10,2014, the Court sentenced the

Appellant to life in prison with no possibility of parole. CR-148. The Appellant gave

timely notice of appeal on April 10,2014. CR-156.

                       STATEMENT REGARDING ORAL ARGUMENT

          APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT




I
 CR refers to the Clelk's Record followed by the page number, Thus CR-3 refers to the Clerk's Recold,
page 3. RR refers to the Repofter's Record followed by the volurne IIumbeI then the page number. Thus
RRI-l2 r'efels to the Reporter''s Reco|d, Volurne l, page   12,

                                                     2
                              OuESTroNs PRDSI,NTED

 1. Whether the Appellant was denied Due Ptocess when the Trial Courl refused to

           allow the Appellant to obtain the assistance of a psychological experl?

2. Whether the Trial Court abused its discretion when           it    denied the Appellant a

           hearing on his motion for new trial?

3. Whether the Trial Court abused its discretion when            it   denied the Appellant's

           request for a competency trial under Texas Code of Criminal Procedure 468?

                                 STATEMENT oF FACTS

A. Background

   Mr. Washington was born and raised in llouston, Texas with his rnother                and

cousin, Jamie Austin.      At four   or' five years   of age, Mr. Washington was hit by    a

taxicab while riding his bicycle through his neighbolhood. RR2-2i. Mr. Washington

was hospitalized for two days for injuries that were sustained to his head. RR20-21.

After this event, Mr. Washington was never quite the same. He was always slower

than the other kids in the neighborhood, and struggled to make passing grades in

school. RR4-63. Mr. Washington had attended public schools in Houston, but never

obtained a high school diploma or GED. RR2-9, CR-165. This intellectual slowness

affected   Mr. Washington throughout his life as he continued to live with family

assistance at the age of 39. RR4-66.      Mr. Washington lived with his molher fi'om the

time he was born until his conviction in this case. RR2-23. Simple tasks, such             as


writing a check or paying a bill, took a ton of concentration for Mr. Washington.

RR2-26. He struggled to maintain jobs         as simple instructions needed    to be repeated

multiple times, and Mr. Washington would slill complete the tasks incorrectly. RR2-


                                             3
    36-37. In his adulthood, Mr. Washington is viewed by those that know him best as

    still being a child that     needed constant adult supervision to          function. RR4-66. Mr.

    Washington continues to stluggle wilh all ofthese issues today.

    B. The Capital Murder             Case

    On the night of     April   18, 2010, Mr'. Washinglon was at his home              in Houston, Texas

visiting with his sister, Narsha Washington ("Narsha").2 Narsha was dating a co-

conspilator in this case, Robert Caslillo ("Flaco"). At some point that night, Flaco came

by Mr. Washington's home to visit with Narsha. During his visit, Flaco asked Mr.

Washington if he wanted to go for a ride with him and Flaco's brolher, Francisco Castillo

("Junior"). Mr. Washington obliged and went with Flaco and Junior. Junior was driving

Flaco's car, and Mr. Washington and Flaco were in the back seat. During this trip, the

three men saw the victim, David Rodriguez ("Mr. Rodriguez"), driving in his White

Cadillac in North I-Iouston. Mr-. Rodriguez's car had expensive rirns and a sound system

that caught the three men's attention. Flaco decided that he was going to rob Mr.

Rodriguez. Mr. Washington and Junior agreed               1o   participate in the robbery.

         Juniol pulled up behind Mr. Rodriguez's car in fi'ont of a house in Norlh Houston.

Flaco got out of his car, jumped into Mr. Rodriguez's car, and drove himself and Mr.

Rodriguez to a secluded area off of T.C. Jester and Fallbrook in North Houston. Mr.

Washington and Junior followed Flaco and Mr. Rodriguez to the location in Flaco's car.

When the thtee defendants and the victim auived at the location off of T.C. Jester, Mr.

Washington and Junior began going through Mr. Rodliguez's car. Mr. Washington and


2
  This entilo section "B - Capital Murder Case" cornes llorn the confession of the Appellant. This
confession is State's Exhibit 3A. The Repoflel's Record contains the entire confession, but they are in
diffelent audio files and rneshed together. This l akes it impossible to reference in any clear rnanner other
than to refelence the exhibit as a whole.

                                                      4
Junior starled taking speakers out of Mr. Rodriguez's Cadillac and placing them in

Flaco's car. While Mr. Washinglon was carrying the speakers to Flaco's car, he heald a

gunshot. When he turned around he realized that Flaco had fatally wounded Mr.

Rodrgiuez in the grassy area next to Mr. Rodriguez's car.

       Mr. Washington and Junior began to panic as killing Mr. Rodriguez was not part

of the agreement that nighl. Scared for his own well-being, Mr. Washington jumped into

Mr. Rodriguez's car and fled from the scene. About one half mile from the crime scene,

Officer Bilinovich spotted Mr. Rodriguez's Cadillac running                a   stop sign. Officer

Bilinovich altempted to pull over Mr. Washington for this violation, and Mr. Washington

fled from the officer. Moments later', Mr'. Washington was taken into custody for evading

arrest in a motor vehicle.

        On tl.re morning of April 19,2010, officers with the Halris County Sherifls

Office met with Mr. Washington in relation to the murder of Mr. Rodriguez. Mr.

Washington confessed to his role   ir.r   the crime, and gave information linking Flaco and

Junior to the crime as well. Mr. Washington was indicted for Capital Murder on July 16,

2010 in []arris County. Texas.

    C. Intellectual Disability - Procedure

    In the days leading up 1o trial, Trial Counsel noticed that Mr. Washington was having

trouble assisling in building lris defense 1o the charges. CR-165, CR-142-143. Notably,

he was unable keep a coherent lirneline of facts, agreed with anything that was told to

hirn, and struggled to solvs sirnple alilhmetic in preparation for his case. 1d. Trial

Counsel had asked     Mr. Washington about his       n-rer.rtal   health in the beginning of his

representation and nolhing had been revealed at that         time.    1d   Concerned aboul Mr'.



                                                5
Washington's inability     to consult with his attorney about his    defetrse, Trial Counsel

confronted   Mr. Washington's family about these newly appearing issues.           Id.   Mr.

Washington's family disclosed the incident where Mr. Washington suffered head injuries

when he was hit by a taxicab as a child, and his intellectual slowness throughout his life,

at that   tine. Id.    They adrnitted thal they had not advised Trial Counsel previously

because they were embarrassed, and didn't want           Mr. Washington to be viewed      as


"cra:2y".   Id.   Trial Counsel became concerned that Mr. Washington was suffelir.rg from

an intellectual disability and further, may not be competent to stand trial.

   Trial started on April 7,2010. On that day, Trial Counsel filed Appellant's Motion

lor an Intellectual Disability and Cornpetency Evaluation and an accotnpanying Motiori

for Continuance in order to have the evaluation perfotmed. CR-130. The Trial Court

conducted two hearings regarding this motion. The first hearing was in front of Judge

Wilkinson, a visiting judge in the    1781h   District Courl. RR2. During this hearing, Mr.

Washington's family testified to his issues delineated in the background section above     -
notably, Mr. Washington's accident when he was 4-5 years old, and his consistent

intellectual slowness since that time. See RR4. Judge Wilkinson denied the Appellant's

Motion for an Intellectual Disability and Competency Evaluation at that 1ime. RR4-80.

    A   second hearing was held the    following day on April 8, 2010 in front of a second

visitingjudge, Judge Mallia, regarding the Appellant's motion for an evaluation and short

continuance. RR4. Judge Mallia also presided over'the tlial lor Capital Murder. In the

second hearing, one mernber of Mr. Washington's family came forward to expound on

Mr. Washington's low intelligence that had been discussed the day before.          See RR4.

Trial Counsel also advised the Court that Mr. Washington was unable 1o assist in Voir



                                                6
Dire on April 7,2010, and detailed the usefulness of this evaluation for challenging the

motion to suppress and the foreseeable element of party     liability. RR2-5-11. Trial

Counsel discussed with the Trial Courl that he would need only a few days to conduct the

evaluation, and provided    a   neuropsychologist who was available     to   conduct the

examination immediately.   RR4-7. Visiting Judge Mallia denied the Motion for         arr


Intellectual Disability and Compelency Evaluation, and wanted the trial to go forward as

planned. RR4-80.

   On April 9, 2010, plior to the prosecution publishing Mr. Washington's confession,

Trial Counsel moved again for an inlellectual disability evaluation and a continuance to

allow the evaluation to occur. RR6-46-50. Trial Counsel again notified the Trial Court

that they had a neuropsychologist, Shawanda Anderson, available to do the evaluation

In support, Trial Counsel noted that he is re-urging now as the evaluation could be

valuable to the admissibility of the statenent, and to Mr. Washington's decision to

testify. RR6-46-50. Trial Counsel admitted the affidavit of his co-counsel at this time

revealing some     of the issues he had noticed while attempting to wol'k with       Mr.

Washington in preparation for   trial. RR6-46-5, CR-142-143. Further, Trial Counsel filed

Appellant's Motion for a Coutested Competency Trial under 458.003 and 468.051 of the

Texas Code of Crirninal Procedure at this tirne.   RR6-46-50. All motions were denied

by the Trial Court once again. RR6-50.




                                             7
                         SUMMARY OF THE ARGUMENT

         Appellant   filed a Motion for an Intellectual Disability and              Competency

Evaluation in this case prior to      trial. After two hearings,    the Trial Coufl denied the

Appellant's access to an exped that could assist the Appellant in building a defense to the

Capital Murder charges. The Trial Court again denied this tequest when Appellant

moved for the evaluation prior to the admission of his confession that was made to

investigators   in this case. This denial of         access   to expert   assistance violated the

Appellant's Due Prooess rights to the basic tools necessary to build a deferrse. These

rulings by the Trial Court called into question the fundamental fairness of the ttial, and

thus, the case should be remanded for a new trial on the rnerits.

         Appellant also filed a Motion for a Contested Competency Trial pursuant to 468

of the Texas Code of Criminal Procedure. Prior to the Trial Court's ruling, Appellant

placed a valiety of evidence before the Trial Courl lhat pointed to Appellant's inability to

assist in building his defense   -   notably that Appellant did not have the sufficient present

ability to consult with Trial Counsel with a reasonable degree of rational understanding.

The Trial Courl abused its discretion when it found that the evidence put forward was uot

more than a scintilla, and thus, denied Appellant's Motion for a Contested Competency

Trial.




                                                 8
                                    POINT OF'ERROR ONE

 WHETHER THE APPELLANT WAS DENIED DUE PROCESS WHEN THE
  COURT REFUSED TO ALLOW THE APPELLANT TO OBTAIN THE
         ASSISTANCE OF A PSYCHOLOGICAL EXPERT

                            ARGUMENT AND AUTHORITIES

      a.   Rule of Law

      Due Process under the United Stales Constitution requires that a defendant have

access 10 tlre basic raw materials integral to      building an effective defense. Ake     t,.


Oklahoma,47O U.S. 68, 105 (1985). These basic raw materials include the help                     ofa

defense expert. 1d. The irnporlant questior.r when deciding           if   an expert is needed, is how

important the scientific issue is in the case and how much help the def'ense expert will be

to the defendant's case. .Rey v. State,897 S.W.2d 333, 338 (Tex. Crim. App. 1995).


           A   defendant   is   entitled   to expert assistance if the defendant establishes              a


substantial need and that the fundamental fairness ofa trial is called into question without

that assistance. Rey, 897 S.W.2d 333, 338. There are three factors the coufls look at

wlren considering whether a Defendant is entitled to the assistance of an expefi. Ake                    v.


Oklahoma,470 U.S. 68, 77 (1985). The first factor is the private interest that is at stake.

Id.   The private interest of the defendanl lies in the accuracy ofthe outcome of a criminal

lrial. Id. at 78. This private intetest of the defeudant is "obvious              and weighs heavily"

due to the potential for loss of     liberly. Id.   aL   105. The second factor is the interest of the

Slate.     Id.   The State's only interest is judicial economy.        1d     The Coud has found that

this interest is "not substantial" in light of the Defendar.rt's and the S1a1e's interest it'l the

accuracy of criminal proceedings. Id.          a|79.     The third factor looks at how impo(ant the

expert testimony      will be to the Delendant irr building an effective defense as well               as to


                                                     9
the factfindel in resolving issues in the case. 1d
                                                   'l'he Coutts use tlle thl'ee lactor lcst to


delermine when an expell         is irnportant enough to truilding a   clefense   thal   zrcoess is


lequired, Iley, 897 S.W.2d 333, 337. The Court notes that a Defendant nray be devastated

by the absence of psychiatric testimony; while with that testimony they would have                a


reasonable chance ofsuccess. Ake, a|83.

    b.   Three Part Test in Ake

         Though the facls in Ake lelated to the aid of a psychiatric expert for the insanity

defense, Texas Coufis have expanded the      lfte decision to all expert   assistance. Rey, at


338. The Due Process test melely leans on the question of fundamental fairness

calculated by weighing three factors: 1) the private iuterest at stake, 2) the interest of the

state, and 3) the imporlance of testimony in building a defense and aiding the factfinder.

Id. a|337-38.

         1.   Private Interest


         The Defendant in this case was charged with Capital Murder, and was facing a

life sentence without the possibility of parole ifconvicted. The Courts have consistently

held that a Defendant facing any charge has a substantial interest in the accuracy ofthe

proceedings. Tl.re inlerest is obvious when the Liberty at stake is as substantial as the

punishment that follows a Capital Murder conviction. The Private interest in this case

weighs heavily.


         2.   Interest of the State


         The Courts have looked at two areas when reviewing the state's interest in an lfte

analysis, judicial economy and burden to provide the expefi. Rey, at        339, In Rey, lhe


                                                t0
Appellant asked for a pathologist to aid in building a defense to a Capital Murder charge

out ofRandall County, Texas. Rey, at335-36. The defendant filed the motion for expeft

assistance prior to   trial, and the trial court ruled on the nlotioll aftel healing the testinony

ofthe state's pathologist.    Id     In review, the Court of Criminal Appeals found that

because there was a pathologist available in a "one-day" drive to Dallas, Texas, and that

his fee was expected to be $2,200, that the state's interest in judicial economy was not

substantial in light ofthe their overlapping interest in the accuracy of the proceeding.

Rey, a1339.


        In this oase, the Appellant had acquired an expert to assist in building a defense

on a Capital Murder charge. RR6-47. This experl was able 1o evaluate the defendant

within 3-4 days. RR6-47. There was no fur.rding asked of the Court at the lime the

motion was filed or ruled upon. Appellant's Motion for an httellectual Disability

Evaluation and Continuance was filed and ruled on twice prior to the first witness taking

the stand, and again at the introduction of1he Appellant's confession. RR2-52, RR4-12,

RR6-46-50, In order to provide the defendant due process, the Trial Court in             Rey   would

have had to continue     trial for   a   brief period to allow the expert to review the case. This is

true, because the Trial Court ruled on the Motion lbr Pathologist during trial. Id. a|335-

336. The Appellant's Motion for Continuance does not separate this case from the

decision in Rey. Considering the state's conculrent interest wilh the defendant in the

accuracy ofthe proceedings, the state's interest in judicial economy is not-substantial in

light ofthe Appellant's interest. The Appellant's interest weighs more heavily than the

interest ofthe slale as in Ake and Rey.




                                                      i1
          3. Importance         of Expert Testimony      - Threshold Showing

          In the third pron g of the Ake test, the Defendant must make a threshold showing

that the issue for which the expefl is to testify or evaluate is "likely to be a significant

factor" attrial. Ake v. Oklahomq, 470 \J.5.68, 82-83, 86. In Rey, the Court found the

issue 1o   "likely be significant"   as it went 10 the core   ofthe Appellant's defensive theoty.

Rey, at 340-42. In cases where the threshold showing was not met under the Ake test, the

Defendant typically failed to articulate a defensive theory and why the defensive expert

would aid in establishing that theory. Id. at341; Moore v. Kemp,809 F.2d702,717-1'8

(1   lth Cir'. 1987)   (defendant's request not sulficient where he did not advise cout't     oftype

of expcrt sougl.tl or role expert would play, hc did not offbr namc of oxpoll that miglrt be

available or    s1a1e   what the expert coulcl have conlribulecl to <lefense); State   v   Edwards'

868 S.W.2d 682,698 ('l'cnn. Crirn. App. 1993) (clcfondant {'ailod to malic sullroiont

showing Ibr DNA expert r.vhele:.notion not supported u'ith aflidavit ol othet prool'

shou,ing particular nccd, dicl not discloso clcf'crrse tlrcory or disouss issttc   of

misidentihcation). In cases where the defendant has shown that they were entitled to the

use   of an exped, the defendant gonerally has made their defensive theory clear to the

court, and has supported that assertion with factual allegations on the reasons that the

experl could assist in establishing that theory. Rey, a1-341-342. Thus, to establish that the

Appellant was entitled to an expert the Appellant must show that 1) a defensive theory

was articulated to the Trial Court with factual allegations on the reasons the expen could

assist in establishing that theory and 2) how important the issue that the expert was going

to discuss was to the underlying case.




                                                    12
   Defensive Theories Presented


       In tl.ris case, the defendant arliculated two distinct defensive theories to the Trial

Coult with accompanying factual allegations on reasons that the expert could assist in

establishing those theories. The Trial Court was notified that the expett assistance would

be used to suppofi a defense to the elements under Texas Penal Code $ 7 02(b)       -   what the

defendant "should have anticipated", and to show that the Appellant's waiver of Mirandcr

was not   klowing and intelligent.

   D. "should have Anticipated" under Texas Penal Code 7'02(b)

                 a.   Rule of Law    -   Texas Penal Code $ 7.02(b)


          Under Texas Penal Code $ 7.02(b), a defendant may be liable for a felony

committed by another under these circumstances:

                 "if in the attempt to carry out a conspiracy ofone felony,   another felony is

                 committed by one ofthe conspirators, all conspirators are guilty ofthe

                 felorry actually committed, though having no intent to comrnit it, if the

                 offense was committed in furlherance of the unlawful purpose and was

                 one that should have been anticipated as a rcsult of carraing out thc

                 conspiracy."   (e   mph   as   i   s a dde d).


                 Tex. Penal Code $ 7.02(b).


          The courts have interpreted the "sliould have auticipated" term as meaning that

    the secondary felony should have been anticipated by this defendant (emphasis

    added) at trial. Anderson \,. State,416 S.w.3d 884, 891 (Tex. Crirn. App.2013). The

    Cour1 \n Anderson, stated that the "should have anticipated" Ianguage       in Texas Penal

                                                           13
    Code $ 7.02(b) is synonytnous with Pinkerton liability in Federal crirninal cases. 1d

    lJnder Pinkerton liabitity, the government nust prove, among other things, that "the

    defendant (entphasis added) couldhave reasonably foreseen that one ol more ofthe

    co-conspirators rnight cornmit the crime." [Jnited Slates v. O-Campo,973 F.2d i 015,

    1021 (1st CiL. 1992).       Thejury charge in this        case reflects tl.ris undelstanding      ofthe

    "should have anticipated" language as it states that, Capital Murder "was au offense

    that should have been anticipaled by the defendant as a result of carr-ying out the

    conspiracy." Supplemental Record                        5. The   language of Pinkerton, this       jury
                                                 -   Page

    charge and Texas Penal Code $ 7.02(b) make it clear that the defendant's personal

    characteristics may be taken into account when deciding if the defendant should have

    anlicipated the secondary crime.3 Any different interpretation ofthe statute would

    allow a defendant      1o be   held criminally liable for Capital Murder based on criminal

    negligence.


         This means that thejury would not decide if a teasonable, objective person should

    have atrticipated the secondary felony's oocurrence, but rather should the Appellant

    have anticipaled its occurrence. Given the subjective standard of $ 7.02(b), the

    defendant's mental slowness or mental retardation would have gone to shape his

    mental state in regards to what actious he "should have anticipated" the other co-

    conspirators underlaking during the aggravated robbery. Without this evidence, the

    .jury was left to detern-rine this element of the offense by asking what a normally

I The definition ofrecklessl]ess in Texas sheds some light on interpretillg the laDguage of
                                                                                                $ 7 02(b).
Reckless is defined under Texas PeDal Code $ 6.03(c) as when one aware  is       ofbut   consciously  disregards a
substantial and unjustifiable Iisk that the result will occur'. Reckless  has been interpreted by  the courts as
the defendanL being subj ectively awale of the risk and stil I choosing to disregardil. Williausv. Stdte,235
S.W.3d ?42 (Tex. Crirn. App.200?), This subjective standard nrakes any intelligence issues relevant in
defending against that lneus rea element. This is the least culpable mens rea elernent outside of criminal
negligence.

                                                        14
   functioning adult shoutd have anticipated. With this evidence, the defendant would

   change the standald that underlies parly liability by taking into account his

   intellectual disabilities or mental slowness. The question would become should the

   Appellant, a person with an intellectual disability, have anticipated that the co-

   conspirators would commit rnurder during the course ofthe robbery. The expert

   opinion and evaluation would have been used to bolster this defensive theory          as


   stated by Trial Counsel during his presentation ofthe motion.


                 b.   Defensive Theorv Articulated to the Court


       The Appellant arliculated this defensive theory on two separate occasions to the

Trial Courl before their denial ofthe Appellant's motion for an intellectual disability

evaluation by a neuropsychologist. The fir-st instance occurred during the Appellant's

second pre-trial healing on    April 8, 2010. When arguing for the Motion, Trial Counsel

for Appellant stated that:

       "it would      be a minor inconvenience to the   jury if I could get this [evaluation]

        done, but it would truly impact the defense on both the statement and the general

        intent, which is critical to this. We agree that Mr. Washington was there. You

        know, there's not an issue with that. The issue is what he knew and understood

        and intended that evening. His intellectual disability goes to the heart      ofthat. And

        I respectfully urge the Coufi to reconsider its ruling."

        RR4-8.

        "I don't think it's going to make a difference    1o   the dispensing ofjustice if we take

        a sholt break    to get this done. And I believe I can get it done. Ifnothing else, the




                                                 15
       IQ testing can be done, and I can get the raw scores back    1o   the Court as -- rather

       than a finished report and, ifnecessary, have the expefi come in and testify."


       Iil{4-9.


       Later on in that same hearing, Tlial Counsel again articulated for the Trial Court

the defensive theory that he wished to try the case on, and how a neuropsychologist's

evaluation could aid in that defense:

       "Bu1 I don't think that it's beyond pale to simply, in an abundance of caution,

       check to make sure thal this nran is in full possession of his faculties when we'te

       about to hear whether he knowingly and voluntarily waived them and when we're

       about to decide what he would find foreseeable, because that's the test. Not that

       it's that person in that circumstances, including whether or not he's intellectually

       disabled. It's not an objective standard. And that directly goes to 1he heart ofour

       defense. I'm asking for no more than a few days.     If I can't get it done, then I'll

       explain why I can't get it done, but I think the interest of.iustice would best be

       served by that."

       RR4-11-12

       The Appellant in tl.ris case clearly stated that the defensive expert would be used

to aid in his defense ofwhat was foreseeable under Pinkerton. and Texas Penal Code              $


7.02(b).

                  c.   Likely ro Be Sisnilicant   slltisl
        From indictment to conviction there was only one issue for the jury to decide in

this trial. That issue was whether the defendant should have anticipated that another



                                                  16
nrenrber of the robbery conspiracy would commit a murder in fultherance of that

conspiracy. The importance of this issue was divulged to the Trial Court prior to his

denials of the Appellant's Motion for an lntellectual Disability Evaluation.

       During the Appellant's second hearing on the Motion for an Intelleclual Disability

Evaluation, Trial Counsel gave notice to the Courl that he had no issue with the

Defendant being present at the crirne. Trial Counsel did not dispute that the Appellant

was present, Trial Counsel pointed out that the case lurned on the Appellant's mental

state. RR4-8 (noting that the evaluation goes to the heart ofthat defense). In response to

Trial Counsel's argument the State revealed their intention to plove the defendant's guilt

under Texas Penal Code $ 7.02 (b):

        "Mr. McCann and i disagree     as to the intent that is at issue in this case. The   intent

       -- the defendanl's intent at issue is the intent to participate in the robbery part   of

       1he capital murder,   not -- I'm not required to prove that the defendant intended the

       victim die that night. I will prove beyond    a reasonable doubt that   it was Roberl

       Castillo, the co-defendant who has been convicted, that it was he -- he was the

       one who intended to commit      -   to kill the complainant. He's the one who had the

       specific intent that night to kill the complainant and that the defendant in this

       case, undel the law ofconspiracy, agleed to parlicipate in the robber:y.     And I will

       prove that it was in fufiherance -- the robbery -- the murder was in futtherar.rce of

       the robbery and the murdcr was also foresecable to the defendant."

        RR4,6-7.

        The state advised the Trial Courl here that the specific intent ofthe Appellant

would not be at issue in this case. Texas Penal Code $ 7.02(a)(2) and the Capital Murder



                                                1l
stalute lequire specific intent to be found guilty of Capital Murder. At this stage, the

Trial Court was put on notice by the prosecution that          $ 7.02(b) was the statute that       would

be used to garner a     conviction. Tliis statute and   a defense to the "should have


anticipated" language became the central focus and issue in the case at that time

         In that same hearing and in response to the State, the Defendant again talked of

the need for an expert     undel   rese facts, stating that   it was imperative to evaluate the

Appellant before trial starled to detennine what was foreseeable to the Appellant. RR4-

11. Further, Appellant stated that the subjective standard of            $ 7.02(b) made    it irnperative

that we have an expefl evaluate for any intellectual disabilities.

          After hearing argument from both sides on the Motion for an Inlellectual

Evalualion the Trial Court denied the motion for a psychological evaluation.

          As the trial went forward, it became apparent that party liability under Texas

Penal Code $ 7.02(b) was in fact the centlal issue in the case as stated in the Motion for

an Intellectual     Disability Evaluation. The closing arguments from the Appellant and the

State reiterated their understanding     ofthe ultimate issue in this case. In closing

argument, the state advised thejury that they should go through a two part analysis to

arrive   a1 a   conviction for capital murder. RR7-   13 3 - 13   7.   One, the   jury should answer the

question on whether the defendant was a party to the underlying robbery. RR7-                  13   3. This

is undisputed, and the Appellant agreed that a guilty verdict on aggravated robbery is

appropriate in this case. The second part oflhe state's test for the jury was to answer

whether the defendant met the requirements ofTexas Penal Code $ 7.02(b). RR7-133-

1   36. The state expounded on the importance of        $ 7.02(b) by stating the       jury should

"focus on" this section, because tl.rat is "why we are here". R7-136-137. The state then
went one step fufiher and noted that they had no burden to prove that the defendant had

the specific intent to do anything olher than commit a robbely. RR7-133. For the state,

specific intent was "not at issue in this case."   Id.   Texas Penal Code $ 7.02(b) is the only

viable tlieory for the prosecution if specific intent is not at issue outside the underlying

robbery. AIl other theories of parly liability require      a specific intent on part   of the

Appellant in order to be guilty of the actions of co-conspirators. The State solidified their

dependence on this theory by stating that from opening statement to uow, the language            in

$ 7.02(b) has been the issue in this case. RR7-137.

        Defense Counsel built his defensive strategy arourd the fact that the defendant

should not have anticipated that one ofthe co-conspirators would take the life ofthe

robbery victim. The Appellant depended on distancing himself from the actions of his

co-conspirator    -   defending against the "should have anticipated" language of $ 7.02(b).

This was evident when Defense Counsel stated in closing argument: "But here's the other

truth: Christopher didn't kill hinr. He didn't agree to kill him. And no one could have

foreseen that David Rodriguez was going to die that night, except maybe the mad man

that did it."

                  d.    Conclusion

        The defendant meets the threshold showing requirement of Ake's third prong

The tlrird prong of Ake tequires the defendant to show that information from the expert

will likely   be significant at   trial. Appellate Courts   have looked at two different areas

when deciding whelher this threshold requilement ofsignificance has been met with the

Trial Court Judge: Whether the Defendant laid out 1) a defensive theory and how the




                                                   19
expert would aid in that theory, and 2) how impo(ant the issue that the expert was going

to discuss was to the underlying case.

       Here the defendant laid out to thejudge that he wanted an evaluation for

intellectual disability to support a defensive tl.reory related to the conspiracy allegation by

the State. More specifically, to go towards whether the defendant should have

anticipated that a co-conspirator would commit capital murder during the robbery.

Appellant articulated not only the reasons for his concerns about the defendant's mental

ability, but also outlined the subjectivity oftbe    $ 7.02(b) standard that was the crux    of tlre

State's case and how an evaluation could procure valuable evidence to fighting the

"should have anticipated" element. Trial Counsel atticulaled the defensive theory he

wished to expound upon, and how the expert could assist in that theory.

        Further, it cannot be overstated how central and crucial the "should have

anticipaled" language was during the prosecution of the Appellant. It was the crux of the

prosecution's case from pre-trial motions through closing argument. During the olal

motion for an evaluation prior to trial, the state conceded that $ 7.02(b) would be the

basis for their charge to   thejury, and in fact,   $ 7.02(b) was the only theory that the

proseoution laid out to the jury as a viable avenue for conviction in closing argument.

This was the central issue to the case, and the imporlance ofhaving expefi testimony to

combat that attack is apparent fi'om the record.

        The Defendant met his th eshold requirenent under Ake based upon his

articulation of 1) his defensive theory under $7.02,2) the way the expert would be used

to assist in building that theory, and 3) articulating the impofiance ofthe "should have

anticipated language" prior to 1he Trial Court ruling on the Motion.



                                                20
      E. Motion to Suppress Defendant's Statement Under Miranda

         a    Rule of Law


         In Mirttttdu v. Arizlna. the Supfeme Court or.rtlined 1he fiamework lot slatemenls

lhal arc made to the state duling custodial inte::rogatiou. 'l'he Coul't recognized that

r:ustotlizrl iutelrogations. by their ver1, natture, genelate "compelling pressurcs wliich          wotli

to underrninc thc iridividual's will to tesist ancl to contpcl hint to speak whole hc would

no1   othelwise do so lieely." Mirundu t,. lrizona,381 tJ.S.436,467 (1966). Inoldelto

cornbat the inlrcrenl conrpnlsior.r associatcd with custodial ititot't'ogatiot.t, fu[irandtt

ir.nposecl procedules     lhat police must Jbllow when denling with an aooused. A'lortut t'.

IJurbine,475 1J.S.412,420 (1986). Notab)y, Lhrtuda mandated that priolto the

initiation o1'queslior.ring. the   zrccused rnust be   fully inlbrmed oftheir rights to teurain

silerrt and 1o havc counsel ptcsct'rr. A4irutdtt,    a|468. Once the accnsed        hzrs   becn rcad his

lighls r:ndel Mirtmda,ll.re accused nrusl make a kuowiug, inlelligent, alld volutltary

waiver o1'those lights fol queslioning to contillue. Id.ar444.475. I'hc Mirutcla *:'aiver

has two distinct hurdlcs that rnust be orclssecl lbr'1he waiver 1o be         eflcctive. Brewer      v.


l!/illiunts,430 U.S. 387,404 (1977). ltirst. thc accused's waiver ofhis liglrts must bc

volunlaly     -   a producL o1'liee and deliberate choice   ralhet than intinidalion or coetoion.

.A4oran, at   421. Second,    1he accused nrust have     futl awareltcss of   Lroth the trature   of the

righls he is waiving and the consequences o1'the deoision to waive those righls. /d.

Considering the "totality ofthe cilolunstances", both oflheso staudards nrust be tnel

belbre a coLn't rnay oonolude theit ar ar,:ousecl's,l4irundu righls hacl been waivecl. Falc                t,.


A4ichael O., 442 \1.5.701 .125 (11)'79).




                                                    21
         Whcn looking at rvhethcl an accnsed has full arvarer.ress ofthc natute ofhis tights

ancl the oonsequences ol'1he decision 1o waive those rights, a courL n.rus1            look at the

particular thcts and cilcumstanccs, including the background, cxpetietlce, conduct, atld

ecluoation ol'the accused. ,Iohnson v. Zerbst,304 IJ.S.458,464 (1938).                 All   laots ur.rique

to the accuscd lhat havc bcaring ou his cotrptehcnsion of his rights ate relevant il.l

delernrining whethel the waivel is linowing alrd intelligent. L.eza v,Stttle,351 S.W.3d 344

'l'his u,ould ir.rclude lowcred intellect. dlug usc, ol othcr menlal clisorclers. Oursltourn r,

Srare,259 S.W.3d 159, 172 (Tex. Clim. App. 2008).


         The stale of Texas has codified Miranda iu Texas Code o[Climinal Pt'oceclule

38.22. tJnder'l'exas Code of Climinal Procedurc 38.22(2)(a),            an.   accused mltsl     Lre   tead

five lisred righls belil'e any questioning by oll'icers. Tex. Ctin. Proc. Ann, Lfl.38'22

Sec.   2(a). If tlrc statcmcnt ofthe   irccnsecl is vidco rccorded thcn these rigbts must bc

lead to 1he accrrsed on rer.:older prior'1o questioning, aucl the accusc.cl lntlst Illake a

l<no*'ing, ir-rteJlige:rt, ancl vo)untary waivcr of tliose rights. '.fex. Crinr. Proc. Anu. Art

38.22 Sec. 3(2).


         b. Articulatiott    o tlrc De e nsive Tlleor    to tlte   Tr ia l.   Ckturl


         Appellarrl lirs1 brought to the Tlial Clourt 1he need lor     zrn    experl 10 aicl in a 38.22

defonse in the first hcaring on 1ho Appellanl's Motjon      fol Iulcllectuarl Disability         and

Cornpeter.rcy Evalualion on     April 7 ,2010:

         "And   as   this Court is aware, under Osbourne v. State, a person's mental fitness or

         intellectual disability is relevant to a 38.22 issue, which is the subject ofa

         suppression motion before this Court. We would ask -- we have filed a motion                        for

         continuance, to which I have sworn, that we be set offfor this Court to order an

                                                 22
          intellectual disability evaluation, specifically IQ testing, and ifnecessary, adaptive

          deficit skills screening for Mr. Washington. I cannot, in good conscience, go

          forwald wilhout at least bringing tliis to the Coutt's attention."

          RR2-51-52.

 'llial   Counsel statcd that any intellcclual disability wor.rld plovidc valuable evidencc in

the rnotion to sllpllress the dellendant's slatement. Further,'frial Couttsel articulated thal

the Oulsbou'n issnc would tre the ccnlral issne in thal nrotion.
                                                                 'l'hc'hial Corut denied the

evaluation and use o1'1he expert at that tinte. RR2-50.


          In the second hearing ou Appellant's Motion lbr intellccltral Disability and

C-'ompctency l)valuation,    llial   C-'ourtscl agaiti presenled his plans to r"lsc the psychologiczrl


expert and her evaluation to suppless statements made by 1he Appellant to o1'ficels:


           "But looking at these things in totality, I want to point out that we'r'e about to do

          today a motion to suppress where his intellectual abilities would be critical, if I

           had that information to my motion to suppress, and critical to a38.22 instruction,

           or issue under Osbourne v. State. I think it's also crucial because it may inform

           his ability to sit there and follow along with tlie officer, understand his rights, and

           to knowingly, intelligently, and voluntarily waive them. Without that information

           in hand, I believe that I'm harmed in terms of being able      1o   proffer to this Coufi a

           reason that his staternent should not be in front of    it."

           1lR4-6.


           "But I don't think that it's beyond pale to simply, in an abundance of caution,

           check to make sure tl.rat this man is in   full possession of his faculties when we're

           about to hear whether he knowingly and voluntarily waived them."

                                                    23
        RR4-11.

        'liial   Counsel here oontinnes to request a psyohologicril evaluation ill older k)

clcfcnd thc Appellant agaiusl a confession conriug into evidence tlrat clid not comply with

llre nandates     irL   Miruntla aud 'l'exas Code o1'Clhrrirral Procedure 38.22. This is more

inrportant rvl.rcn it is rnaclc li:rou't't that 1he voluttlaly. kr.rorving and intclligcnt waivcl     ol

llie de1-endant's Mirantlu riglrts was the main issue lrelbre the'L'ial Conrt in the Motion                t<t


Sr"qrprcss. 'l his urolion was again dcnied, and            thc'l'rial Coutt did not allow the Appellant

an opportunity to obtain the assistance of an expert. During the Motion to Suppress, 1he

prosecution began using facts to bolster theit position that thc waiver was in fact

intelligently made. RR4-34-37. 'l'he ptosecution tiighliglrted certain points that they saw

impo(ant to shou,ing that the defendant was lucicl and acting              as other   intelligcnt peoplc

would in thal situation.       1rl In liglrt o1'the State's argurnellt,   Dei'ense Counsel again

nrovccl to liave 1he deli:ndant evaluatcd as he rvas n:rable to lay out thc nocessary lacts            1<;



lebut the ploseoution's posilion. RR1-34-37. This moLion wzrs again denied.


         c.    Likelv to be Sisnifican!      sLIL4l

         The Appellant's s1a1emer1 to oflicers was likcly to be signilicant at trial. l'he

s1a1cr11cl1t   made by thc dc{'endant was a ctxfl:ssion to the         ctirre. 'l'hc dcf'cndant laid out

in his statemenl the exacl lacts aud circLunslances that led to the lobbery aud t.uutder              o1


the victim in this casc. .lt should bc appal'ont to rnosl coufis thal conlcssious at's

impoltant pieces of evidence, and matry limes, lhe only piece ol evidence. Additionally,

Appellant nolified the'liial CoL['t o1'thc signifir:arrcc of thc statcll]eul wltcn ho lc-urged

the rnotion to have the Appellant evalualecl          lbl   an iulelleclual disability plior 10 the

oonfcssion being adrnittccl into cviclcnce - Appellant statccl that thc lnotion had 10 bc rc-


                                                      24
urgcd now bccallsc thc jury is about tlic sec the nlost significanl cvidcncc iu tlie casc lhat

will illeparably rnoltl their decision making. RR5-47-48.

           Alier reviewiug       1he   entite leootd, DelLnse Clounsel's thoughts atid preseutations

to   the'llial Corut       rverc in accord with tlre actual evidence at         ttial. Without that statetnent,

it is hart'l   1tl see   how lhe prosecutiou wottlcl have been able to convict the Appellarlt               o1'


Clnpital   Muldcr. 'lhc State's Witncsscs testifiecl           as   follows:


      a.   Dellick Iloggcss testillcd first. Mr'. Boggess was a local resitlent 1ha1 lived in thc

           neighborlit.rod that was adjacellt      1o   the orilne sccne o11'ol'IC.Jestel aud Fallbrook.

           Mr'. Iloggess testificd that hc sar.r' a whitc Cadillac and a small dall< sedan parked

           olf ol'lC Jesler al or"tnd 12:3 0 AM on the morniug ol'April                    19, 2010 as lrirn and


           his wife lreaded ou1 to gct son.rething to eat, IIis wifc called the aulholities and

           leporled a suspicious vehicle at thal locatiotr.


           Sec RR5-22-80.


      b,   Deputy Casey Bilinovich lestilied secoud. 'I'his o{Icer rvas the oue thal

           responded to Ms. Ilot'gess's call on the tnotning of                April   19,   2010. She tcstified

           that   a.s   she turnecl onto TC Jester Iionr    Fallblook she saw          a   White Cadillnc run the

           stop sign while making a right ttun onto            Irallblook. Shc gave           chasc 1o 1he vchicle

           The White Cadillac tled Jiom het'. aud uhitnalely rvrcoked iulo a posl in a r.realbl'

           neighborhood. 'l'hc drivcr of that vchicle was 1he Appellant, wlro was

           apprel.rended a1 the scelle. The passeugel j Lturped ovet a woodeu feuoe ancl

           escapccl.


           ,\'ce IUt5-80-132.



                                                          25
c.   'l'he thild person to testify for thc state \.\'as Sergeant Gary Srnith. I-le testifics that

     he arrivecl on the orime scene          olI ol'IC   Jester at 11:30        AM on the tnotuing          o1'


     ApLil 19, 2010. Sclgcanl Snith laid out thc crimc scene lbr thojury, including the

     localion o1'1lie viclirn's bocly. Further', he adds that he was able to collneot                      1he


     flccing While Cladillac fi'orn thc night belbrc             1o   this murclet sccnc based on thc

     call into dispatch Ii'orn Ms. Bolgess.


     Sec RR5- I 32- I 70.


d,   'fhe fourlh witness to testily was luvestigator Qtrintanilla. 'Ihis invesligator

     testified to thc ctimc sccue and the folcnsics that wcro t'un otl tlie victim's stolen

     white Caclillac, IIe conllmecl no iudependent evidence to link the del'endant to

     the crirre. '1-his investigatol was the onc that interviewcd the Appellanl duling his

     conl-essior.r, and        laid the predicate lor the eutrance of State's Exhibit 3A               -   video

     lecording of the confcssiou.


     S'cc Itll.5-   1   70-li I{(r- 1 0(r.


e.   Next, Malilyn Martincz 1estified. Shc is thc victim's cousin in this case. She

     testilled thal she saw a dark colorecl sedau aud het cousiu's white Cadillac leave

     quickly from the fiont of hcr housc on              1he   night   01-   April   1   8. 201 0. She offct'ed no

     other evidenoe to Iinh the dei'endant to 1lte crime.


     Sec RR6-10(r-128.


L    Next, \4ary Anzalone. MD testilLed. Doctor Anzalone verilied that the death                                  01'


     the victim was in facl cansed by the bullet woLtnd.


     Scc   ltl{7'5-33.

                                                    26
   g.   'l-he last witness to tcstify was DcpLrty .Toc Nogucla. DcpLrt5' Noguet'a attenpted


        to leconsll'uct the criure scene to   velily exactly how the victirn   rvas sl.rol. He


        tcstificd that thc victim rvould have bectr on liis ktlcr:s, aud the gnn would havc

        been close to the viotinr's head,


        &c RR7-33-1 16.

        The only picce o1'cvidence that was addLrced at tfial that allirmatively linked the

Appellant to the ctimc of Capital Murdcr, ol evctt tlre underlying Robbety. rvas that the

Appellant was seen tulning onlo T.Cl. Jcster itt the victiln's While Cadillac aliel'the

sr.rspicions call by Ms. Boggess. 'l'his piecc    of cvidcrtcc wonld havc sut'cl)' tnade 1hc

Appellant a suspecl to the murder o1'the victim in this case, bttt it rvould hzrve beeu

insufficient on its own to support a couviction for Capital Murder. llverything abor.rt          tJ:rc


under')ying story in this case hingecl ou lhe conl'ession o1'the     Appellaul 'l'he   pr<lsecutiou

understood as much r,vhon they put forwald quolc aftel quotc olthe Appcllarlt's

conlbssion during their olosing algumeirt. The defbndanl's t:onl'ession placed the

defcnclant at thc sccne. laid out thc rigreen'tent for the rutdcrlying robbel'y. and put fonvard

all o1'the key eviclence that the prosecution would use to shrtu' that the clel'endant should

have anticipateci that a nrnlder could happcn in furtl.rerance o1'1hc robbct'y couspiracy.

There is little dispule that the conli:ssion   lion    thc deltnclant is the key piece o1 eviclence

in tlrc casc against the defcndant,


        4.   C)verall Conclusion

        'l'he Duc Proccss Clause of the lJnitccl States Constilution guarantccs that all

delbndauts   will   have access to 1he rarv natelials necessary 1o build an effective defense.

'l'hese raw malcrials o{'ton includo the use of a clefonse expert to aid in challcnging issucs

                                                  27
in the casc. Appcllant in lhis case. tequcsted thc assislance of ii neuropsychologist in

diagnosing an iulelleclual disability. The results ofthat evaluation, and teslirronl' ofthe

expefi. would have becrl used to bolstel two distinct clclcnsivc tl.reories            -   challcnge to the

"shoulci have anlicipatecl" eleureut in Texas Penal Cbde S 7.02(b) and lo set the standard

in answcling lvhcthcr 1hc Appcllant made a knowing and intelligcnt waivet of liis

Mirandu riglrts. The impoltanoe of these 1wo issttes t'ele revealed            1o the      l   Lial Cottt't

along with the uidcLlying lacts of Appellant's intelligence issucs and how the expcfl

evalualion would be Lrsed to solidify Appellant's delense. Appellant alternptcd repeatedly

to gct thc assistance o1'an expert, ancl rcpcatedly was clerried acccss by the 'l'rial Court

Visiling Judge Mallia was put irr a dillicult position wilh Appellall asking I'or a

continuance so close to tlial, horvcver, the Due Ptocess Clanse lequires agcess to these

basio tools to insure the l'airness o1'the   trial, A rreu'ops,vohologist's      assistance in this

casc, nndcl thcse 1acts. was one of thosc basio fitndar.ncutal         tools. Without expert

assistance, the lundameutal lairness      ofthis   1r'ial is called into questi()ll.


        Appellirnt was denied access to an expel-t        a11er a   substantial tteed was sh<lwn, and

thus, his I)ue Pt'ocess lights wcrc violated rvhen the'frial Clourt lcfr-rscd to allow

Appellant access   10 a neur'<lpsychologist    lot an evaluation      arrd possible testimony.


Appellant has rnct all factols in tlre,4tc tes1. 'l'his casc shoulcl tre renattded for a ncw

tlial where Appellanl is nllowed    1o   build his defense wilh tlie aid of      a ueuropsychologist.
                                  POINT OF ERROR TWO

  WHETHER THE TRIAL COURT ABUSED TI]EIR DISCRETION WHEN
THEY DENIED THE APPELLANT A HEAzuNG ON HIS MOTION FOR NEW
                          TzuAL

                            ARGUMENT AND AUTHORITIES

      a.   Rule of Law

           A motion lbt new trial is a prelec;uisite to pleseuling a point ol ett'or on               appeal

onl1, whcn nccessary      to aclducc {acts not in the recold, 'l ex. Il.ule A14. Pl'oc 21.2. 'l'cxas

RLrle o1'Appellate Procedure 21.3 euunrerates grounds where,                 if rnet by tlie dcI'endant, the

'l'rial Clourt must grant a new trial. 'l'ex. Ilule App. Proc. 21.3. llot'evet, thcse               gr:ounds


ale not exclusive. See Slale v. Evans,843 S.W.2d 576,518-19 (Tex. Crirn. App. 1992);

Stare v. Read,965 S.W.2d        74,77    ('1'ex.   App.--Austin 1998, no pe1,). 'l'hc 'l'tial Cloufi has

the discrelion to consider lnattel's not on 1he list providecl in Texas Rule o1'Appellate

Ploccdnle 21.3 rvhen dcciding whethel to graut a ncrv trial.           1d.


           In hearing the molion 1br tiew tlial, the lrial cotttl may receive evidence                     by

affidavit ol othenvise. '1 ex. Rule App. Pt'oc. 2l,7.           If thel'ale offcrcd       and adnrittecl in

evicleuce, sworn motious ancl alhdavils ma)/ sclve as ploof. o1'allegalions                lbl   a nl:w trial.

Sce   Mclntire v. State,698 S.W.2d (r52, 65ti ('l'cx. CI'im. App. 1985). 'l'he Defcr.rdant may
                                                                                        'l'exas
also lequesl thal a hearing be held in order 1o adduce live testiurotry inlo evidetrce.

Itrrle   o1'   Appellatc Proccdurc 21.7. 1\ Ilealing on          a   Moliott tbr Ncrv 'l"rial has lrvo

pLfqroses. One, is 1o decide whelher the case should be retriecl, ,lrulllz v. Slate,286

S.W.3d 333,339 (Tex. Crirn. App.2009). 'l'he second is 10 prcpare a rccxrrd fut'appcal

should the molion be denied.       ftl



                                                      29
    A ;rrerccluisite to    a hearing. and as a nlatter of pleading, motions       for ncr'v trial mr'tst be

supportecl by an allidavit ofeilher'the accused or solueone else speci{ioally showing the

lruth of tlrc grolrnds asscrted . Mclntire v. Slqle,"698 S.W.2d 652, 65B ('l'ex. Crim. App.

1985). llowever, tlie a{lidavit is no1 r'e<;uired to lelleol every component legatly reqtriled

to cstaLrlish relicf. bu1 tl're motion fol ncrv tlial or alTldavit rnust lef-lect that lcasonatrlc

gr-ourrds exist    lbr holding thal sucl.r leliel'oould be glanted. Reyes v. ,\t.u|e,849 S.W.2d

812, 816 (1'ex. Crim. App. 1993). A dclendant necd onll' asselt reasonable gtor.tuds for'

reliel'rvhich iile not determinzrble lionr the lecord in ot'der to be entitled to a hoaririg. ft/.

'l-o deny the defcndaut a hcat'ing on an issue that is no1 cieterntinable fi orn the lecold


would deny the Appellant theil ohzrnce          a1   teceiving a new lrial ancl o1'obtaining

nrcarrirrgfirl appellatc review. Mclntire v. Slale,.698 S.W.2d 652, 658 (Tex. C)'im. App.

1985). When an accused cloes in         1ac1   present a motion for new trial raising matters not

determinable frorn the record, upon which the acr:used conld be ontitled to rclief, thc tlial

judge abuses his discretion in lailing to hold a healing. Reyes i,. Stqte,849 S.W.2d 812,

816 (Tex. Crim. App. 1993).


     b.    The Trial Court Abused its l)iscretion in failing to grant the
           Appellant's request for a hearing in his Motion for New Trial
           In older'1o l-rnd an abuse o1 discretion on lhe Tlial C'ourt's lailur:e to hold        a


hcaring on a motion lor nerv 1r'ial, the appe)lant must shcxv tlrat: 1) the moli.ou for uerv

tlial   rvas   lirnely liled, propelly presented, and suppofied by      a   swom alfidavit, 2) the

rurotion   fbl new lrial   ancl acconrpanying    affidavit nolifiod the.juclgc   o1 a reasonablo


glounds lha1 could entitle the defenclant 1o leliel, and 3) 1he issue t'aisecl is not

dcternirrablo f'r'onr the recorcl. Reyes v. State,849 S.W.2d 812, 816 (Tex. Crim. App.

1993); Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978).

                                                       30
              a.   A4ol   io n wos   T   nel.r l:'/lad antl Presenl.ed with Suorn Alfidavit


          On ApLil 10,2014. thc july lorurd the defendant guilty o1'Capital Murder'. and the

Tlial Court sentenced the del'endant 1o ti1'e in plison without the possibility ol parole. CR-

148. A notice of appeal was timcly filcd on Aplil 10,2014.                Cllt-l52      On May 9,2014,

tlie Appellant timely liled a Motion lbl New 'l-r'ial with the 178(l' Dislrict Cotrrt o1'Harris

County, l'cxas. Clt-157. 'l'lre Motion was prcscuted to thc cooldi:iatol of the 'flial Court

in conrpliance nith 'l'cxas Rule of Appellate Ptooeclut'e 2l.6. ,\ee C1t-i71. Attached to

tlre Motion fol New 'l'r'ial was an aflidavit from 'l'r'ial Counscl. 'l'he Motion for Ncrv l'r'ial

and supporting     alldavit delailed the       lac1s underlying the groutrds 1'or 1hc Appellant's

Motion for Ncw'l'r'iaJ      -   notably, the Trjal Corut's 1) dcriial of Appellanl's requcst to

obtain an expelt     1br- assistanoe     in building a deJ'ense under   -,1/rc,   2) denial o1'tlie

Appcllant's molion to continue so thc deltndant could be evaluated by tliat expert, and 3)

denial o{'the Appellant's request lbl a compelency trial. CR-157-166. The Appellant

rcqucstcd ar oral healing in ordcr to expand the record with live testimony lelating to thc

Appollant's intellectual disability thal'I'r'ial C'ounsel hacl not been allowetl to pursue

during 1hc tlial. 'l'his request 1br a hcaling rvas made 1o insure a correct decisiorr was

nrade in the Motion Ior New 1\'ial and meaningl'ul review could be olrtaiued on tlireot

appeal.


          'I'he Motion fol New'frial was timely Iiled, pr:opelly pleseuted to 1he'frial Cjourl.


and was supportcd by an          affidavit lrorn 'l'rial Couusel clelailing glouuds fol relief. 'l-his

lirst prong   o1 the antrlysis is met,




                                                      3l
              b.     Apnelku'rt's Motion fo r New Trial an.d suooortins affidut,it nolified
                     t lrc Triu l ('o t rrt,tf rcu.soua ls l t' g rounJs frtr rclicfthut \'(r( ttol

                     detenninable fi"om tlte record

                         i.    Rule of Lalv
         'l.'exas   Ilule of Appellatc Proccclurc 21.3 lays out a list o1'spccific grouucls that

woulcJ entitle      aDelendantto leliel'in     a   Motion 1'orNew'Tlial. lJnder'21 3(b),          a dcfendarlt


is entitlcd to a ncrv    tlial if the 'll ial Court has conimiltcd     a mzrterial    clrot likcly   1o   injure

tlie Delbnclant"s rights. Further, the Trial Courl is not limited to            1he   eight aleas Iocated in

'l'exas Rule o1'Appellate Proccdntc 21.1i, and l.ras discretion to glant              relicl'iri the

Del'endant's motiolL fol nerv trial lbr other reasous. "For I30 years, out trial oourls have

had the discretion to grant a new trial in the intcrest           ofiusticc. I{ule 21.3 does not

provicle an exhauslive         list." T'atlor v. Slate, 163 S,W.3d     277, 282 (Tex.      App.-Ausliu

200s).


           The Motion lbr New Trinl and suppo ing affidavit clelailed llvo distincl grounds,

that oould enlitle thc l)c{tndant to leliel'anci wero not clctclrlinabls fi'om thc rccord.

Since the denial of the Appellant's Motiori            lbl   a Clonipelency   'll ial under 468 could be

asosrtaincd frorn tho rccold,        it is no1 argued in this scction.


                         ii.   Ground for lLelief und er Ake           v,   Uniled Stales


                                   n,   Ann t'!luttt tttttilicd tlrc Trittl Ctttrrt ol rcusonublc
                                         rounds lhat cou.ld entitle l m lo relie
         'l'he first ground for lelief in the Appellant's Motion lbr Ncw'l't'ial rvas a


ohallerrge wder        t\rc. Priol'to   trial. Trial Counsel moved lbt au evaluatiou of the

Appcllant by a nouropsycJrologist in lwo hcaliugs on his Motion for lntellcclnal

Disabilily and Compelency Evzrlr,ration. "frial Counsel re-ltrgecl this rnotion il'hile


                                                        32
obiecting 10 l)re pr.osccution's offcr of tlic AppeJlant's conf'cssion in Slate L,)xhibit 3A. In

llie suppolting alhdai,il, Tlial Counsel detailed thal days bel'crre trial the del'endant had

been unablc to assist him in buildiug a de1-ense for his case. CIR-165. Atound that same

tirne, inlbrmation hatl beeu obtained fior.n 1he lamily thaL the Appellanl lterd been stluck

b5r a oar a1 a      yonllg age, and had not becn "r.ight" thcr.cafier. clR-165. 'l-rial counscl also

details how expert lestinony rvould have been usecl to aid in the del'ense o1'the Appellant

at   lrial thlough dcfcnding against whclhcr             1hc dcfendant oould reasol.rabll' .[oresee thc


actions ol'the co-oonspiir.ttors, and rvhether'1he del'enclant's waivel o{'l.ris Mirtutt}a rigl't|s

rvercknowing,intelligent,andvoluntaly,ClR-165.'lhcattackunder',4ftedctailcdaclaim

that the due lrrocess r.ights o1'the def'endant hac{ been violaled by the Trial             coutt rvlten

they failed 1o providc cxpefi assistance 1br use at trial.


              'Ihis issue lalls under relieflhat cau be sought uncler Texzrs Rule of Appellate

Proocclulc        21.3(b)      a matolial elror that is   liltely to iniuro tlie dcfonclant's tights. Ar the

very least, a violation oI the Appellanl's Clonstitulional Righls as sla|ed in Akc shoulcl lall

uncler 1he Court's discrolion as otltcr grotutds            lot lelicf   made in the inlerest ofjustioe

'lhis issue was plopelly taised to the l'r'ial Courl, and detailed leasonable glor"rnds thal

coulcl lravc cntitled the Appellant kr          lclicl

                                     b.   Th e Ake lsstte    i,s   t'tol Delerminable /rom lhe Record


               In detcrrtining a [)ue Proccss claitl uuclct ;{/rc, thc maiu issttc is hor.v i1'llpol'tant

llie scientilio issue is in the       case, aud how much help a defeuse expert could hzrve given

llclt   1t.   f1141u,   897 S.W.2d 333. 338 ('l'ex. Clim. App. 1995).




                                                           1.)
         Givcn thc standard 01'the Clonstitulional claitn unclet Ake,lliis issuc rvas not

determinable li'onr the trial lecord. The Trial Coult liad uo1 allowed         lbl   re Appellant tcr


be evaluatcd   fol an intellcctual disability prior to liis couviction. 'l'o determit.rc whcther

the Del'endant's DLre Process rights rvete violated the Trial and AppellaLe Clottt'ts musl

lool< at how importanl the scientific issue is in the case and how much help the defense

expert could havc bcen (emphasis added) to the Appellant's case at trial. Though the

Appellant was able to make a thleshold showing about the imporlance of the issue, he

was unable 1o give the concrete evidence that is needed to bolster the          lfre claim. In the

Appellant's Motion for New Trial, Trial Counsel included affidavits alleging the facts

within his knowledge that gave rise to the possibility ofan intellectual disability, but

these statements pale in comparison to the power thal live testimony on the issue could

have garnered. The Trial Court in the Motion for New         Tlial   and the Appellate Coutls

would have been greatly aided in hearing more concrete information on the subject of

Appellant's perceived intellectual disability.

         'l'he I\4otion fbr Nerv'l'rial requesled an olal hcariug so that thc tccord could be

expanded u,ith r.nole tangible inlblmation on the Appellant's jntellectual           state. Willioul

this adclitional ovidcnce, the'l'rial Court in thc Molion {bl Now'l'r'ial ancl 1hc Appollatc

Court on appeal cannot clelelmine the valiclity of the Duc Ptocess isstte raised ul.rder.,lka.

An cvaluation and firlther ovidence on any inlellectual disability was nceded in ordet ttr

mle on the ,,lfre issue and to expand the record fol Ayrpellate Cout1s to niake a decisiou on

a possiblc   violation of'1hc clcltndant's constitutionerl rights. Ciiven tltc two goals ofthe

Motion lbr New Tr:ial, to decide i1'Ihe case neetls to be lelried     at.rd   to expaud the r-ecorcl

lbl   meaningfr-rl nppeal,lhc l'r'ial Court should havc glantod the Appe llant's reqttesl {bl           a




                                                 34
I.rearing on the   Motion fol Nerv'l'r'ial. As it   stancls" the   Appcllatc Courts al'e stLlck to

pondel   ila   tlue intellectual <tisability exists in the Appellant. 'lhis evidence shotrld have

bcen allowcd ro be put       folwald in a livc hearirrg. 'l'lris issue is no1 dctcrniriablc from the

lecorcl, and a healing should have been gt'an1ed to aid the Trial Court in ruling on the

Motion Ibr Ncw'll'ial and thc Appclltrtc Cloults in cleciding this appcal


                      iii.   Ground for Relief Based on'Irial Court's Denial of
                             Appellant's Motion for Continuance
                                a.            Notified the Trial Court of RcasttnabLe
                                     ADD? llant
                                     Grou.nds o r Reli.e

         In olclel fot'the delendant    1o be gtarr.rlcd a   ucw lriatl based ou the Trial Coutl's

clenial of a I)ef'endanl's Motion 1br Coutinuancc. the clcltndant           nltst shou'lhat the lrial

court's denial was an abuse of discretion. (iallo t,. Sttrtc, 239 S.W 3d          7   57 ,7   64   ('lex'

Crirn. App. 2007). Hei,setbalzv. Slate,90(r S.W.2d 500,517 (l'ex. Crirn. App. 1995). l'o

show atr abuse o1 discrelion. the Appellalil rnusl shoiv thal: 1) the Trial c-'ourt en'ed in                Do1


granling the nrotiou ftrr cottliltuaucc. and 2) thc dclcnclaut was acltrally harmed by tbat

rnling. Ileiselbctz r,. Sta1e, 906 S.W.2d 500, 517 (Tex. Crirn App. 1995). A trial coult

ll'ill en'in not gr'anling   a molion   fbt oontinttanoe if thc oasc Ibt'a coutittuatlce was so

convir.rcing that no leasonable j uclge r.vould have urade that ruling in light ofoourL

scheduling and thc iuterest of the stale- Gonzales v. Slate,304 S.W.3d 838, 842 ("['cx.

Clim. App, 2010). 'lhe appellate court will lind hann in the denial of                a   uotion lo

contirue "'only if thc lccord shorvs rvith consiclolzrblo spcci{ici1y horv the clcltudalrt was

harrned by lhe absence        oltnole preparation title than he actually liad "'1d


         In the Motion lbr New Trizrl aucl the sr4rporting allidavit the facls lelating to the

Appcl)ant's Molion for Continuauce wcre outlined tblthc'i'rial Courl. CIR-157-165


                                                     35
'lrial Counsel askecl for a conlinnancc       at various stages of thc proccedings          in ordet to

obtain expert assistance to evaluate the Appellant l'crr au iutellectual disability, S'ze                Itll4-

80, Itl{2-52, Itlt6-50. 'll'ial Clounscl articulated 1he exaol clel'cnsivc theorics thal the

expert's testimony would nid in eslablishing. Trial Counsel notified the l'r'ial Cotrrt that

the contiunance would only lake a ferv days and thal a ncnropsychologist had already

been selected who was availnble 10 oonduct         1l.re   evaluation.


        Ilthc'l'rial Cburt did abuse thcil disclction in dcnying thc             Appe llarrl's   Motion lor

Cor inuance. lhis would be a tnalerial en'or thal was likely to inj ule the liglrts              o1   llie

clclcndant, cntitling the Appellantto lelief undcr'21.3(b). In adclition. any en:or iu the

denial o.fthe Appellanl's Motion 1br Continuance could hzrve enlitled the Appellant to

relief in the intcrest oljustice outsidc of the gror.rnds lislod in 'l'exas I{ulo of Appe)late

Procedure   21.3. l'he Appellant liolifir'd      the Tliarl Court ofleasonable grouncls that could

cnlitlc thc Appcllant   1o   rclicl

                               b.     The Mol iort fbr Cortl.inuance Lssue vtas nttt
                                      Determinable ft'ont tlrc llecord

    A'l'rial   Cour-t's "Denial of a Motion     lbr Continuance rvill        be found an abusc        of

disr:r'etion on appeal only il'the r-ecorcl shows with considelable specifioity liow the

clel-endant rvas halmecl Lry the abscnce      olmote preparation titne than lie actually had. 'l his

showing can orciinarily be matle only at a healing on            er   motion lbr uerv trial, beoause

almost ah,vays only at that tine will thc defendanl be ablc to ploduco evidencc as to what

adclitional inlblmalion, evidenoe or witnesses the           c1e1'ense   rvould hzrve had available if. the

motion fol delay had treen glanted." (ionzrtlev v. Statc,304 srv3d                83 8.   842-843 ('l'ex.

Clrirn. App.2010).



                                                    36
    ln Cionztles, the def'endant askcd fbr an expert          10 assist   in blrilding his defcnsc in   a


child sextral assault case. Id. ttt840. Specifically, 1he del'endant algued iat an expel1 was

needed to rcrricw the mcdical lecorcls         ofthe child victim in that case. /d at 841 'l'hc

del'endant's requesl lbt'a ueclioal expelt was ntade the day o{'1rial, and the trial oourt

dsnicd a rrotior.l for contiuuauce to allowthe expert 10 prcpare fot'trial.            Id   Aftct

conviotion, the delendant filed a rnotion fbl new tlial reqr:estiug an ol'al hearing to

dcvclop thc harrn related to the defetrdaut's allcgation that the'l'rial Cotrt abused theil'

discletion iri deni,ing the molion to continue. Id. al84l-842. The Trial Court cleniecl the

rnotion fol new tljal wilhout a hearing.


    The Ciourt       olCrirlinal Appeals     helcl tliat the Trial Courl did not zrbuse its discletion

by lnling on thc Motion lor Ncw '[ rial without a ltearing. 'l'he C]our1 in (iontrzttlcs, slalcd

tharl 1he   Trial   Clor"ut had to make a cleternrination on i1'there r.i,as   elror itt 1he denial o1'the

Defbndant's Molion lor Contiuuaucc bcfbre the harnt analysis was.justificd. Id. at 843-

843. If the Juclge tburd no enor iu the denial             o1'the coutinuance thcn the de1'endant

would not neccl to develop harm in the second patt ofthe analysis.                /d   Put dilI'crently' thc

Trial Clourt woulcl never       ge1   to the harm analysis, ancl therefore. thc issue coulcl be

dclclrnir-rable Ii'orn thc locold r'r'ithout livc tcstimony.      /d      In so linding, thc Corrrt of'

Clrirninal Appeals ernl:hasizecl Lhal continutlnccs based          ot.r   the abseuce o1'a witness

recpriro the clelenclant to dctail the due diligence that was lurdcflakeu in proclrrirrg tlro

rvilness, and why they were unable 10 requesL the rvitness unlil the da),oltrial.               1d ln
(ionzules, cotinsel for thc defendanl had beon on the casc for 8 months atid gavc uo

explanation for waiting unlil Lhe clay         oflrial belbrc requesting      arssislance frotn au expert

ancl a c<rrrtirrrrance.   ld. aI84l-843.


                                                      JI
    'l'his casc dil'lbrs fi'om ()onzclcs iu sonre vcry impofiant aspecls ln this case. during

the rnotion         fol colltinuarlce   as   well   as the   rnolion fot'new trial, the del'eudanl cletailed the

exact reasons behind thc latc tcquest fbr cxpert assistance and rvhy the motiou for

oontir]ual'rce was lilecl on the day            of'trial.a CR-157-165. TI-re'frial Courlwaspulon

notice that thc issucs detailcd irr the Molion fcrr Coutiuuance and Motion. lor Ncrv l l'ial

had c6me to J'rial Couusol's attentiou j ust a few days befirre                        trial. Furthet, Tlial Coturscl

asl<cd    fol   a   lbur day continuance in otdct to have the dcfendant evaluatcd by                       a


psychologist lhat had iilready []ecn contacted. Given tlie n]aguilucle o1'the allegations

nradc by the Appcllant itt rega::ds to the necd for expcrt assislance for his defense in a

Capital Murcler.tlial, a foul ciay conlinuance shoLrld gleatly oven'ide the illlerest thnl the

statc has in a pr.ompt trial or.the cjourt's scheduling. The case ntade                           by'I'rial clounscl was

so convinciDg thal no reasonable trial judge                    *ould     have not granted the motion to

continue in orclel to have thc dcjtndant cvaluated.                       11   q'as a srrall p|icc to pay for'


assulauce in the accuracy of a Ca1:ital Mtu'dc't' proseoution. The Trial Corut elred in

dcnyiug thc AppelJant's Motjon for Conliuuance, and thus.                             zr   harn.r arral-vsis was needecl


in orclel to rule ou the merits o1'this issue in the Motion for New Trial.


    Oloe it is lixurd that lhc'l rial Cotrrt orred                il1   dcllying a Motion fcrr Corrtinuancc, thc

Trial Court rnust base the viability ol tliis glound lbr leliel on the plesettce olactual hartl

1o tlrc   Appcllarrt. 'l his plong ofthe lest oanuot bc delettniued fitnr thc tecord                           as aolual


harn.r r.vould require knowledge               olwhat the clel'eusive expet't would have becn able to pr.(


a
  Trial Counsel notified the Trial Court that the farnily did not come forward wjth the accident where
Appellant was hit by a taxi until a few days before trial, because they were embatrassed ofhis slowness and
did notwanttobe viewed as "crazy", RR4-8-9. Trial Counsel advised tlte Tlial Court ofpeople's
reluctanc€ to come forward with issues dealing with mild letardalion and intellectual disability. RR6-49.
 See Poittt of Error Three at 44-45 in this brieffor specific.facts befot e the iudge on the Appellant's
Inlelligence        Lssues.

                                                                38
iuto evidencc at lr'ial. Thc dclcndant must be allorvecl to put forwald additional evidcnce

relaling to his intellectual disabiliq' in ot'der to show the aottlal harnl that was caused by

the denial of his motion lbr continuance. Witlrout thesc facts, the 1wo putposes of a

Molion lor New'Il ial are frustlatecl: decicling il'lhe case should be t'ett-iecl              ancl expanding


tlre rcoold   fol   a   nrcaningful appcnl to this Court.


     The Motion for Ncw 'I'rial and supporting affidavit raiscd              ar   teasonable ground Ibr

reliel'in relaLion to thc'llial Court's denial ofthc Appellanl's Motion lbr (\rntinnancc.

This issue rvas not delert.t.tiuable liom the record i1sell', as the 'I'rial Court no1' tl'Ie

Appcllatc Court can ascertain thc actual hartr            1o   thc Appellant r.r'i1hott1 morc evidelrce.

The Tlial Cloult abuscd theil cliscrelion in no1 grarntiug dte defcutlant's request for a

hearing in his Motion fbr New'l'rial to aid the'l'r'ial Court and this Courl ili theil'to'iow

o[this issue. Withoul          the healing, the Appellanl is uow uuable to tzrise the            Motion    1br


Clontinuanoc issue on appcal bccausc he rvas dcniecl thc               lighl to cxpancl tho rccorcl to

show harm.


              c.        Conclusion


         A Trial Court Juclge abuses theit discletion i{'they deny                 a del'endanl's request       lor

an oral Jrearing        with live lestiurouy on a Motiou fol New'll'inl           ii:   1) thc motion   for trew

tlial was timely Iiled. properll,       pleselLtecl to the    Trial Coult, and suppofied by        a    swotn

affidavit, 2) thc motion for ncw tlial ancl acconrpanying affidavit notilicd the'flizil Cloult

ol   a reasonable       glound that coLrld entitle the   c1e1'endant   to reliel. and 3) an issue is raised

tliat is rrot deteminable fionr thc tecold. 'l'he Motion lbl Ncw'l'rial rvas timely filed and




                                                         39
properly presenlcd      10   thc 'l'rial Cloru1 rvith an accompauyit'tg srvorn aflidavil that laid out

issues {ol reliell


         'I'he Molion fbr Nerv'l'rial notilied llie 'l'ria[    (bult ol'a   tcasonatrle glound that

could entitle the Appellzrnt to relief. Those grouuds fot'relielwete a violation olthe

Appollanl's l)uc Proccss righls undcr zlkc         -   thc 'l'rial (irurt crrod in donf ing Appcllanl

access 10 an expert lhat could assist in his defense; arid. the          Trial Court's eltor iu not

granting thc defcndanl's Motion lor (lonLinuanco. Iloth ofthese issues woulcl allow the

Tlial Coult to grant reliel'under'21.3(b) in drat tliey were matet'ial errors that are likely to

injr.n'e the   rights ol'tho clcfcndant. Cii,cn tlrc magnitude of lhc allegations, the'frial CoLtrt

was also rvell within        lheil discrelion to gtanl a new 1[ial ott grouuds not listccl      under'

'l'exas llulc o1'Appcllale Procedure 21.3 in the inlerosl ol'justicc.


         llotb ofthe     issues p; escnlcd wole not determinable fi'om thc         rccord. 'l'o ptopelly

pl'esen1 the issues, the deI'enclanl neecled au        olal hearillg rvith live testimol)y to expand on

the intcllcctual disabilily issr.res that u'ere at the cot'c of each olthcse argnmcttls. ln or-dct'

1o show    "lxrw much he\r an exllert oould have given", the I'rial Court is reqtlired to
                                                         -fhe'1iial   Cour-t lvould havc to kirow r.vhat
conducl an ar.ralysis similar to harmful crrot'.

1he expert woulcl have added          to the delerise to answeL a key question      inllca. Withoul live

tcstirnony and an expansion ollhe recold. the l'rial Court coultl no1 rnake their lr.tling on

the Motion       lbl New Trial    and this Clourt is   lell rvilh unansrvered cluestions. The      sarne is

true for the convcntional harm analysis that is rccluilcd frotn the'l'rial Court to rule ou the

issue lelaling to the'l'r'ial Cour-t's denial ol the Appellant's Motiou           lot Continuzuroe.

Without a lrealing. r.rcithcr Coult can auswcl the qnestion of n4rether thc Appellanl rvas

prejLrdiced or harmed by thc abser.rce ofadditional lirne to plepare             fol   Lrial,


                                                       40
         'l'hc observatiorrs l'rom'llial Cloutisel seeu in his affidavit palc in comparison to a

lirll evaluation   o1'the del'endanl to cletermine 1he lrresence ol'an intellectLral disability.

'l'his infomration was needed to rulc apptopriatcly on the Molion 1br Now'liial and for

the Appellate Coulls 10 rule on the issues in this erppeal. The               Tlial Coult Jttdge   abusecl


his cliscr:ction whcn hc detricd the dcfenclant an oral Jrcaling rvith live teslimony in his

Motion lill Nerv 'l'rial.


                                      POINT OF ERROR THREE

  THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED TI-IE
  APPELLANT'S REQUEST FOR A COMPETENCY TzuAL UNDER TEXAS
              CODE OF CzuMINAL PROCEDRURE 468


                                   ARGUMENT AND AUTHORITIES

    a.   Rule of Law


    A person whose mental condition is such that he lacks the capacity to understand the

nature of the proceedings against him or to help to build a defense cannot be put to trial.

McDatiel v. State,98 S.W.3d 704, 709 (Tex. Crim. App. 2003). Putting an incompetent

person to trial violates the due process rights            ofthe Defendant. ft/. Under the United

States Constitution and the State             ofTexas statute,    a defendant is not competent     to stand

trial unless he has a sufficient present ability to consult with his lawyer witli               a leasonable


degree   ofralional    ur.rdelstar.rding and a rational as        well as factual understanding ofthe

proceedings against him. Tunter v. Slule , 422 S.W.3d 676, 689 (Tex. Crim. App. 2013);

'l'cx. Crirn, Ploc. r\nn. Art. 4613.003(a), 'l hc Dcf'endanl musl n'Icet bolh prongs of thc tcst

10 be   conpelenl    1cl   stand   lrial   as the del'endanl's   abilily to lationally assist in his deletrse

is indispensablc to his cor.npetcucy. See'lurner, a|689.


                                                          41
   To protect the due process rights ofthe Defendant, the trial courl is obligated to

inquire into the accused's competency once the issue is sufficiently raised.     Id' A nere
suggestion of incompetency is sufficient to raise the issue. Turner, at 692. Orroe the

issue of the defendant's currpetetlcy to sland trial ltas beer1 suggested. 1he courl sl.rall

determine by "informal inquily" whetltet lhete is sotne evidence fi'om atiy soluce that

would support a findiug that the defendant rnay be incompetent to sland trial. Tex. Code

Crirn. Proc. Ann. afi.46B.004(c) (Vernon Supp. 2006). lf there is in fact son.re evidence

fronr any source to suggesl thal the de1'endant may (cntphasi's atlded) be incompetent          1o


stand tr:ial then the Trial Courl shall order a competeucy heariug. Turner, a| 692.       'fo

make the determinalion if some eviclence exists, the Tlial Court must put aside all

competillg evidence that suggests colnpetence. and decide if more than a scintilla of

evidenoe exisls that may rationally lead to a conolusion of incon-rpetency.      1d If this

standard is rllet then the Trial Courl rnust ordet'a competency     lrial. 1d. If a cour-t holds     a

trial to determine whether the defendant is illcompetent to stand 1rial, on the request of

either palty or the motion ofthe court, ajury shall make the determination. Tex. Code.

Crim. Proc. Ann. art. 468.051(a).


    Trial Counsel in this case filed   a   Motion for an Intellectual Disability and

Competency Evaluation and a Motion for a Contested Competency Tlial under Texas

Rule of Criminal Procedure 46B. CR-130, CR-136. Appellant also made nunterous

suggestions to the Trial Court relating to his concerns about the competency         ofthe

Appellant thloughout the ploceedings as detailed in the pr-ocedure facts portion of this

brief.   These motions and oral assefiions rnade to the Trial Couft were sufficient to raise

the issue of competency triggeling an informal inquiry by the Trial Court. The Trial



                                                  42
Court tnade this informal inquiry in two liearings where the Appellant's family testified

legatding the Appellant's intelligence issues, and affidavits ofthe Trial Counsel and his

co-counsel's observations were presetrted to the Trial Court and put in the Clerk's Record

on Appeal. RR2, RR4, CR-142. The only issue being contested is whether there was

more than a scintilla ofevidence that the Appellant did not have sufficient present ability

to consult with Trial Counsel with a reasonable degree ofrational understanding, such

that the Trial Court abused its disctetion in not granting a competency trial.


            a   The Trial Court Abused its Discretion by Not Granting the
                Appellant's Request for a Competency Trial under Texas Code
                of Criminal Procedure 468
    During the two hearings on the Appellant's Motion for lntellectual Disability and

Competency Evaluation, the Appellant put forward facts lelating to his intelligence

issues. This evidence came by way of testimony from the Appellant's family and

affidavits from Trial Counsel. The evidence is as follows:


    1.   Appellant never'finished lJigh School. Itl{2-9.


    2.   Appellant had issues rvith his mernot'y. RR2-18.


    3.   At four or Iive yeats old, Appellarrt rlas struck   Lry a taxicab r'vhile   riding liis

         bicycle. 'l'his inciclont causcd thc Appellant to bc hospitalizod fot two         days    fbr

         hcad irrj urics. RR2-34.
   .
    4.   Farnily mcmbers rnlrst repeal simple ir.rslr'uctions to the Appcllant over and ot'cr

         belbrc he undelstands. I{l{2-23,


    5.   Appollant is easily inlluenccd by olhers and I'ails   1o   think lbr himsclL l{11.2-26.




                                               43
6.    Appellant is unable to livc orr his own at the age of40. as he is unable to do the

     sinrple tasks it would tal<e to uraintain a resicleuoe. RR2-38


7.    Glowing up the Appellant's uiolutaure rvas "dodo"               dr're to   lris kl,r' intclligence anci

      slowncss. Itl{2-48.


8.    Appellant was uuable to actively palticipate in Jury Seleclion as secn by the trotes

      that he tooli during the plocess. Clll-135.


9.    Appellant is turable to do simple arilhnretic like adding two uttmbers. RR4-69.


10. Appellanl lepeatedly showed           Tlial Cotrusel an inabilily       1o   compteheud the

      dcf'enscs available. the   irrpact ofhis statenrent, ol his ability to tcstily on his own

      behall-.


      cR-137.


1   1 Appellant rvoukl   respond " 10 nrinutes" to any llc1 scettario legarding 1he case al

      tirrcs whcn thcy could rrol have been attywhclc near ten lril'tutes ClR-142.

12. Appellant r.r'or d ash   lhc samc question ot        cL attd    ovcl to 'l'r'ial Clouusel aftel J'r'ial

      Counsel had answeled i1 in that sante conversation. CR-143.


13. Appellant would aglee        with anything thal was presented to hitn by Trial Cot;nsel

      duling tlial prel;atation.   C   I{- 143.


14. Appcllant could not aid in         building a lime   lir.re   in his dcfcnsc. 'l'rial Clounsel askecl

      Appellant when he alrived, plotnpting lhat is was 55 lninutes afler 8:00.

      Appcllant would say 9:30. CR-143.




                                                  44
      15. During   Voil Dirc, Appcllant's only aclions wcrc to repeatcclll'ask if        thc Jury

         would senlence him. CR- I 43.


      A defendant is not competent to stand trial if he has an insufficient present ability to

consult with his lawyer with a reasonable degree ofrational understanding, or he does not

have a rational as well as factual understanding of the proceedings against            hirn. I'unter v

Stute.422 S.W.3d 676.689 ('l'cx.0im. App.2013);'l'ex. Ctiur. Proc. Ann. Art.

468.003(a). Evidence relevant       10 these issues   includes whethel'a del'endant can (1)

understand the chargcs against him and the potential consequctices ofthe pending

clirainal proceedings; (2) disolose    1o oouusel   peltilielll laots, ovents. arcl   states   olnrind;

(3) cngagc in a reasonecl choice o1'lcgal stt'ategics and options; (4) understand the

advelszrizrl natule   olcliminal proceedingsl (5) exlribit    apploprierle courtroolr behavior;

and (6) testily. Morris v. Sratc, 301 S.W.3d 281, 286-87 ('I'ex.        Clini. App 2009).

      'Ihe facts laid out before the'llial Corut prior 10 the mling on the Appellant's Motion

lbr   a Cornpelency   Trial sltow much more than a scintilla of evidetroe that the Appellant

did not lravc thc plcsent abilitl to consull rvith '[-rial (]ounscl rvith a reasonablc degrcc         of

tnder.standing. The Appellanl was unable to t{isclose to Trial Counsel relevalrt litcts zind

cvcnts in a nranner lhat tttadc scuse. W)rcn protnpted to l'ecall timcs for a time line ol'

events as lhey happeued, Appellant coulcl not felay this        inlbrnation iu a coherettt lnauller.

Appcllant u,as also not ablc    10 cngagc   in teasoned choicc in regalds 1o prcsentcd lcgal

sllategies. He 1'ailod to undersland or l'ollow the def'enses as lhey wete laid out irr liont oll

hirn. and did not r,u.rdelstand why his palcuts rvould no1 bo tcstilying in ccrtaiu

proceecliugs. CR-143. The entile pt'ocess seemed 1o overwhelm Appellant's ability tcl

lunotion.    l;ur1Jrer. Appel)altt was not cngaged     duringiury selcction evcn u'hcu prornpted


                                                 45
for assistancc b)'hjs l'rial Counscl. I1e sinrply sat and lepeated nonlrertiueut tlucslious

to Trial Counsel. Most inrpoltzinlly, Appellant rvas not in a conditiotr to lestify on his

own lre]ralf. lle would agree wilh anything thal was slated to him. and was lrot cohclellt

enough to telJ the stoly o1'whal happencd on the night in questiou, He was t-tot able to do

thc one thing that coulcl have beucliltcd hinr thc nrost in bis tl.ial - tcll his siclc oftbe

s1ory.


              b.   Conclusion

          Aliel hearing all   o1'the above evicience, the   Tlial Court   had 10 make a decisior.r on

whetlicr therc was "moLc than a scirrtilla ofevidence that rnay rationally lead to a

conclusion ol inconpelency." Turner, at 692. Under'Iexas Code of Crimitial Procedure

468, the l'rial Court must give a colnpetency trial to the defendant if tlris standald is met.

If   he does not, then the   Trial Courl has al:used its discretion. Turner, a|692. The

evidenco bofore the'Irial Courl was much mole than a scirtilla and went to show that

Appellanl was not able       1o   aid in building a defense. This inzrbility to consnll with Ttial

Counsel rvith a rational undcrstanding is at thc core ofcompetency.            'llris is evcn urot'c

importarlt rvhen a defendanl is rurable to assisl in a lrial lor Capital Mur:der'. The Trial

Court abused its discletion by denying Appellant's Motion lbr a Competency 'l.rial in this

case as lhele was much more than a          scinlilla of evidence that would rationally lead to a

conclusion of compelency.




                                                    46
                            PRAYER FOR RELIEF

        For the reasons herein alleged, Appellant respectfully requesls this court

reverse the.judgn-rent of the Trial Courl and remand the case for   a       new trial on the

merits, or renand the case to the Trial Courl for a hearing on the Motion for New

Trial




                                             ND     A.                  ,   JR.
                                          TexasBar# 15208500
                                          440 Louisiana, Suite 200
                                          Houston, TX77002
                                          (7 t3) 223-ss7 s
                                          (713)224-28rs (FA]{)

                                          Attorney for Appellant
                                          CI{RISTOPHER WASHINGTON




                          CERTIFICATE OF SERVICE

        As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all other parties, which are listed below
on January 28,2015, as follows:

               Devon Anderson
               I{arris County District Attorney
               Appellate Division
               1201 Franklin Street, Suite 600
               I{ouston, Texas 77 002
               Attorney for the State of Texas
               By:     ElectronicTransmission


                                                         WE         ]FLL


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