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Affirmed and Majority
and Dissenting Opinions filed July 17, 2003.
 
 
 
 
 
 
 
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-02-00457-CR
NO.
14-02-00458-CR  
____________
 
JOSEPH REED,
Appellant
 
V.
 
THE STATE OF TEXAS,
Appellee
 





















 

On Appeal from the 351st District Court
                                                           Harris
County, Texas                       
Trial Court Cause
Nos. 770,116 and 770,135





















 
 

D I S S E N T I N G   O P I
N I O N
            Two years ago, a panel of this Court
(1) found “a mountain of evidence” raised a bona fide doubt as to appellant’s
competency, and (2) the trial judge should have conducted a competency hearing
(or “inquiry” as the majority describes), but did not.  See Reed
v. State, 14 S.W.3d 438, 442-43 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d).  A different panel now finds (1) the mountain
is merely a scintilla, and thus no evidence of incompetency,
and (2) a competency inquiry was conducted, though none appears in our
record.  Right or wrong, I would insist
that the lower court follow our previous opinion.  Because the Court does not, I respectfully
dissent.  
The Competency Inquiry
In his first point, appellant argues the trial judge failed
to conduct a competency inquiry.  See Tex.
Code. Crim. Proc. art 46.02 § 2(b). 
On the record before us, I agree. 

The trial judge read our opinion to require a new
psychological evaluation, and held several hearings trying to convince
appellant to cooperate.  He refused:
May 17, 2001 hearing
[Court:]  I want to visit with you a little bit about
where we are in the process. . . .  Now
before we can do the punishment hearing we need to—because the Court of Appeals
has ordered me to do it—they want me to have you psyched whether you like it or
anybody else likes it, they have ordered me to have a new psychiatric
evaluation. . . . If you don’t talk, cooperate and do the psychiatric
evaluation, you sit in jail.  But if you
want the process to go forward then you have to be evaluated.  If you don’t want the process to go forward,
you want to sit in jail till hell freezes over, then you can do that, too. 
[Appellant:]  I will take my chance.  I will sit in jail, Judge Ellis.
 
July 20, 2001 hearing
[Court:]  Nothing happens in your case and we are going
to keep doing this month after month until you change your mind and until you
get examined.
[Appellant:]  The Court of Appeals said it was remanding
the case back for resentencing; it didn’t say
anything about another psychiatric evaluation test again. 
*       *       *
[Court:]  I do know one thing that nothing will happen
until you talk to the doctor. 
[Appellant:]  Okay. 
I can’t make that decision.
[Court:]  We will see you next month.
 
October 31, 2001 hearing
[Court:]
The Court of Appeals having reversed the case only on punishment with the
admonishment that we get Mr. Reed psyched to make sure he is sane and competent
to participate in the punishment phase of the trial.  I have lost count.  This is probably the third or fourth time
we’ve done this.  Mr. Reed has
persistently refused to cooperate with any psych examination and so we’re here
again to try try again.  
*       *       *
            Mr. Reed, I don’t know how else to
explain this.  It’s as simple as it could
possibly be.  Unless and until you talk
with the doctor of the Forensic Unit of the Harris County Health and Mental
Retardation Authority at the Forensic Unit in the jail, unless and until that
happens, nothing happens to your case. . . So, I mean we’ve had this discussion
three or four times at least.  We are in
the same position we were in the first time we had this discussion, which is
nothing happens until you cooperate with the Forensic Unit. . . . Are you going
to cooperate with the Forensic Unit or not?
[Appellant:]  I can’t answer that question.
 
The only subject at each of these hearings was whether
appellant would submit to a new evaluation. 
The trial judge never asked appellant or the State if either had
evidence to offer on his competency.  And
none was—no witnesses were called, no exhibits admitted.  No one asked about appellant’s mental
condition, or his ability to communicate with his attorneys.  There is almost no mention of the 21 items
described in this Court’s opinion as “a mountain of evidence” suggesting incompetency.  See Reed, 14 S.W.3d at 442.  
It is not clear that a competency inquiry can be (or should
be) “informal.”  See McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim.
App. 2003) (holding trial court did not err “in failing to hold a formal competency inquiry”) (emphasis
added).[1]  In Mata
v. State, the Court of Criminal Appeals noted a competency inquiry “was not
as formal as it ideally might have been,” but affirmed because the trial judge
at least asked both the defense attorney and the defendant about the latter’s
educational level, history of mental illnesses, and understanding of the
charges and the proceedings.  632 S.W.2d
355, 360 (Tex. Crim. App. 1982).  No one asked those questions here.
Instead, all we have is a series of hearings in which the
trial judge pleaded with appellant to submit to a new psychological evaluation,
and he stubbornly refused.  The trial
judge finally gave up, conducted a new punishment hearing, and resentenced appellant to the same punishment as
before.  There was no competency inquiry.
The majority holds a competency inquiry occurred piecemeal
sometime during the last five years, perhaps before our previous opinion
(though we reversed because the record showed none) and perhaps after it when
the trial judge took judicial notice of the court’s files (now including a
competency opinion from 1998).  But
leafing through out-of-date records in the court’s file is not a competency
inquiry, informal or otherwise.  Nor can
the trial judge set aside our previous opinion on his own say-so:
April 25, 2002 hearing
[Court:]
For reasons that I don’t understand, that report did not make it into the file
until November 19th of 1998, which apparently what happened was that the Court
was aware that he had been evaluated sane and competent but it didn’t make it
into the record for purposes of appeal. 
So, the fact—for you guys and gals at the Court of Appeals, Mr. Reed was
found sane and competent before the plea, before the hearing on punishment, was
sane and competent at the time of the punishment hearing that we had in the
first place.  So, all your anger and
distress at this Court for not considering the mental competency of Mr. Reed at
the time we did the original plea is, I take it, a mistake because you did not
have the report.  
 
Perhaps the trial judge is correct that our previous opinion
would have been different if the 1998 competency report had been included in
the record.  But we must judge appeals on
the record before us.  And once we do,
trial judges are not at liberty to ignore us. 

We remanded for a competency hearing, but none occurred.  The trial judge properly tried to get
appellant to submit to a new evaluation; when he refused, the trial judge
should have proceeded without one. 
Because he did not, I respectfully dissent.


The Competency Hearing
In his second point, appellant argues the trial judge failed
to conduct a competency trial.  See Tex.
Code. Crim. Proc. art 46.02 § 4(a). 
Again, on the record before us, I agree. 

Because no competency inquiry took place, it is hard to say
what evidence was before the trial judge. 
As he also presided over appellant’s first trial, he undoubtedly was
aware of the evidence that—according to our first opinion—should have raised
bona fide doubts of competency in his mind. 
Whatever the evidence is, we must view it in appellant’s favor, and
disregard contrary evidence and inferences. 
See Reed, 14 S.W.3d at 441.
            In our previous opinion, we listed
21 items that “strongly” supported appellant’s claim of incompetency,
including a previous head injury, prescription drug treatment for psychosis,
periods of unconsciousness, frequent loss of memory, seizures, complaints about
his attorneys conspiring against him, and the “bizarre” crime alleged—stealing
a full-length aqua-green fur coat from a Sak’s
department store in broad daylight.  See Reed, 14 S.W.3d at 439-41.  
            The Court finds most of these items
irrelevant because they do not relate to appellant’s ability to understand the
proceedings or communicate with his attorney. 
But we do not know that—the record of appellant’s first trial (from
which the earlier panel gathered these facts) is not before us now.  Perhaps appellant’s seizures occurred long
before trial, or perhaps they occurred while he was on the witness stand.  Because we cannot tell, we cannot assume them
away.
            The Court also finds evidence of
appellant’s competency from his exchanges with the trial judge.  But if there was some evidence of incompetency, these conversations cannot be considered.  See Grider v. State, 69 S.W.3d 681, 685 (Tex.
App.—Texarkana 2002, no pet.) (suggesting trial court improperly considered
defendant’s arguments at hearings); see
also Moore v. State, 999 S.W.2d
385, 393 (Tex. Crim. App. 1999) (holding trial court
may only consider evidence tending to show incompetency,
and must disregard evidence of competency). 
For the same reason, appellant’s psychological evaluation from four
years earlier, and his refusal to submit to a new one, had to be disregarded to
the extent they might be considered evidence of competency.  
            The Court correctly notes that
evidence justifying a competency inquiry does not necessarily justify a
competency trial.  But it is not too much
to expect a trial judge to at least ask about the evidence that justified the
inquiry.  No one did here.
A trial court must empanel a jury to decide competency if
there is some evidence at the preliminary hearing to support a finding of incompetency.  See Tex.
Code. Crim. Proc. art 46.02 § 4(a); Pipkin v. State, 997 S.W.2d 710, 712 (Tex. App—Houston [14th Dist.] 1999,
pet. ref’d). 
Nothing in this record suggests why the evidence detailed in our
previous opinion—filling more than three pages in the Southwestern Reporter—is
no longer evidence.  Accordingly,
assuming what occurred below was a competency inquiry, a competency trial was
required.   
Conclusion
I concede that a fair reading of the record after remand
suggests appellant is not so much incompetent as incorrigible.  As criminal defendants may feign incompetence
to avoid facing a jury, we should not allow a mountain to be made out of a
molehill.  But neither should we make a
molehill out of what we previously declared a mountain, absent extraordinary
circumstances that require overruling our earlier decision.  See Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999) (stating exception to law-of-the-case
doctrine in exceptional circumstances, as when previous opinion was clearly
erroneous); O’Connor v. First Court of
Appeals, 837 S.W.2d 94, 96 (Tex.
1992) (holding panel decision constitutes decision of whole court of appeals
unless reheard en banc).  There are no
extraordinary circumstances here. 
Accordingly, I respectfully dissent.
 
                                                                        
                                                            /s/        Scott Brister
                                                                        Chief
Justice
 
Judgment
rendered and Majority and Dissenting Opinions filed July 17, 2003.
Panel
consists of Chief Justice Brister and Justices Yates and Edelman.
 Publish C Tex. R. App. P. 47.2(b).
 
 




[1]
The McDaniel court also indicated
inadmissible evidence could trigger an inquiry, but did not suggest such
evidence could be used at the inquiry itself. 
Id. at 710 n.19.  


