Justice Cody McCoy v. the State of Texas ( 2022 )

AFFIRMED and Opinion Filed October 25, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01156-CR
JUSTICE CODY MCCOY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-80798-2021
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia
Opinion by Justice Garcia
A jury convicted appellant of aggravated assault with a deadly weapon and
assessed punishment at eighteen years in prison. In three issues, appellant argues: (i)
the trial court erred in denying his second motion for continuance; (ii) the trial court
abused its discretion by excluding his physician’s testimony about a traumatic brain
injury; and (iii) the trial court erroneously denied his request to present an insanity
defense. Concluding appellant’s arguments are without merit, we affirm the trial
court’s judgment.
Background
On the day in question, appellant called 911 to report that he believed he had
stabbed a woman in Fairview, Texas. When the police arrived, appellant was
standing outside his white truck with his hands up and a knife laid on the tailgate.
Appellant was wearing a green shirt with dark pants and had blood stains on his
clothes, face, and arm.
Appellant lived in an apartment one floor above AE, the complainant, but she
had never seen him before the attack. When she left her apartment to go work out
that morning, she heard keys jingling. She turned and saw a man coming down the
stairwell as she passed.
When AE put her car key in the lock, the man came up from behind her and
slid a knife across her throat. AE dropped her belongings and fought back, and her
fingers were severely injured in the process. She ran to her apartment and banged on
the door. Her boyfriend opened the door and took her to the hospital, and a neighbor
called 911.
AE described the man who attacked her as wearing a green shirt and dark
pants. She believed he left in a white pickup truck.
Appellant was charged with aggravated assault with a deadly weapon. A jury
found him guilty of the charged offense and assessed punishment at eighteen years
in prison. The trial court entered judgment accordingly and this timely appeal
followed.
–2–
Analysis
A. The Motion for Continuance
Appellant’s first issue argues the trial court erred in denying his second motion
for continuance. Specifically, he argues that he was unable to prepare an adequate
defense because his mitigation expert had not had time to evaluate appellant and he
needed more time to prepare for three additional charges against him.1
We review the denial of a motion for continuance for an abuse of discretion,
giving a wide degree of deference to the trial court. See Gallo v. State, 239 S.W.3d
757, 764 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC. ANN. art.
29.06(6). A defendant must satisfy a two-prong test to show reversible error
predicated on the denial of a pretrial motion for continuance. Gonzales v. State, 304
S.W.3d 838, 843 (Tex. Crim. App. 2010). First, the defendant must show that “the
case made for delay was so convincing that no reasonable trial judge could conclude
that scheduling and other considerations as well as fairness to the State outweighed
the defendant’s interest in delay of the trial.” Id. Second, the defendant must show
that he was actually prejudiced by the denial of his motion. Id.The State evaluates the denial of the motion as involving an absent witness.
While we agree that appellant’s motion did not comport with the requirements of
1
The State provided notice of its intent to present evidence of appellant’s 2015 juvenile probation for
aggravated sexual assault of a child and two 2020 indictments for sexual assault of a child.
–3–
article 29.06(3) or 29.07, see TEX. CODE CRIM. PROC. ANN. art. 29.06(3) (motion
shall state “the facts which are expected to be proved by the witness, and it must
appear to the court that they are material.”); TEX. CODE CRIM. PROC. ANN. art. 29.07
(additional requirements for subsequent motions), neither the written motions nor
the arguments to the court argued that the mitigation expert was not available.2
Instead, the essence of appellant’s argument was that the expert needed additional
time to assess and prepare. He seeks to advance this same argument on appeal.
Counsel entered an appearance in the case on March 16, 2020 and filed his
first motion for continuance on August 25, 2021. The first motion argued that
counsel’s trial and appellate docket was very busy, and he was still awaiting receipt
of the medical records he subpoenaed. There was no mention of the additional
offenses. The court granted the motion to allow time for a mitigation expert to review
the case and re-set the trial for December 14, 2021. Appellant’s counsel subsequently
requested and received additional funds for the expert.
2
If a defendant’s first motion for continuance is based on an absent witness, it is necessary to show
(1) that the defendant has exercised diligence to procure the witness’s attendance; (2) that the witness is not
absent by the procurement or consent of the defense; (3) that the motion is not made for delay; and (4) the
facts expected to be proved by the witness. Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005);
see TEX. CODE CRIM. PROC. ANN. art. 29.06. It must appear to the trial court that the facts are material.
TEX. CODE CRIM. PROC. ANN. Art. 29.06(3). “Mere conclusions and general averments are not sufficient
for the court to determine the materiality of the facts, and the motion for continuance must show on its face
the materiality of the absent testimony.” Harrison, 187 S.W.3d at 434.
Subsequent motions for continuance must comply with article 29.06 and must also state (1) that the
testimony cannot be procured from any other source known to the defendant, and (2) that the defendant has
reasonable expectation of procuring the same at the next term of the court. TEX. CODE CRIM. PROC. ANN.
art. 29.07.
–4–
The second motion for continuance was filed on November 16, 2021. The
motion does not explain why additional time is needed. Instead, it simply recounts
the history of requesting an expert in August and subsequently requesting and
receiving additional funding. Nothing in the motion suggests that the expert is
unavailable.
The court heard the motion on December 3, 2021. Appellant’s counsel told
the court that he still had a busy docket and the mitigation expert had insufficient
time to complete the report. The court observed that counsel’s busy docket may have
prevented him from realizing that he needed a mitigation expert before his August
request. The motion was denied.
Appellant’s counsel re-urged the motion on the day of trial. Counsel argued
that the expert’s report was not complete, but the expert had interviewed appellant.
During that interview, “some concerns did come up [from the expert’s interview of
appellant] . . . regarding possible–not having competence during the time he was
accused of the offense, and he just didn’t have enough information to go into it.”
Counsel told the court that the expert needed more time to review the medical
records “so that he can prepare, if necessary, [an] insanity defense during the time
of the commission of the offense.” Counsel then confirmed that appellant was
“currently competent and knows what is going on.” Again, there was no mention of
evaluating the three additional offenses. The motion was denied.
–5–
Appellant now argues that he needed additional time to evaluate the three
additional charges and for the expert to complete his assessment. Because the first
aspect of the argument was not raised in the court below, it was not preserved for
our review. See TEX. R. APP. P. 33.1. Therefore, our inquiry is confined to appellant’s
request for a continuance to allow the expert more time to prepare.
Appellant’s request for more time for his expert to conduct an evaluation was
unsubstantiated. Other than a reference to the expert reviewing numerous telephone
calls, he offered no details about what the expert had been provided or reviewed.
Although counsel stated that the expert’s report was not complete, he provided no
detail about what further steps or additional information was required. And he
offered no estimate of the time necessary to complete these tasks. Indeed, at that
juncture, there was no indication that the expert had formed any opinions. Instead,
additional time was requested to assess the viability of a defense. Moreover,
appellant was not entirely clear about whether the expert wanted to investigate
competence or insanity, nor did he distinguish between the two.3
The Gonzalez court observed that a defendant filing a motion for continuance
based upon a need for additional trial preparation must show diligence as a
precondition to the motion. Gonzalez, 304 S.W.3d at 843. To this end, the court
3
“The defense of insanity at the time of the offense . . . and the test for incompetency to stand trial . . .
are wholly distinct issues with no common elements. Grahm v. State, 566 S.W.2d 941, 954 (Tex. Crim.
App. 1978). “Furthermore, to the extent that both issues are concerned with the mental status of the person,
they are concerned with that status at different times.” Id.–6–
noted that “[a] request for delay to permit further investigation or other preparation
for trial is based on nonstatutory and therefore equitable grounds. It is particularly
within the discretion of the trial court. Id. at 844 n.11.
Here, the trial court could reasonably conclude that appellant and his expert
had ample opportunity to assess potential defenses but failed to diligently do so. As
the court noted during the second hearing, appellant did not act on his need for a
mitigation expert until August, several months after he appeared in the case.
Nonetheless, the court gave counsel an additional three months to complete the
mitigation review. The retention of the expert was promptly approved, as was the
request for additional funds. Yet the expert did not interview appellant until
sometime after the December 5 hearing on the motion. There was no mention of an
insanity defense until the day of trial, and even then, appellant could not be any more
specific than describing it as a “possibility,” based on the expert’s amorphous
“concerns.” And there is nothing to indicate that additional investigation would have
yielded a viable defense.
In addition, the trial court could also consider the previous continuance at
appellant’s request, as well as the fact that the very purpose of that prior continuance
was to facilitate the mitigation expert’s review of the case. See Rosales v. State, 841
S.W.2d 368, 374 (Tex. Crim. App. 1992) (previous continuance may be relevant).
As the trial judge noted, she had already made accommodations for counsel’s busy
schedule, and there was no indication that his need for further accommodations
–7–
would not persist. The judge also said that she had not yet heard whether the court
or the jury would decide punishment, but if it was the former, she would have a lot
more leeway to spread things out a bit more.
On this record, appellant’s argument that he had inadequate time, without
more, does not establish an abuse of discretion. See Heiselbetz v. State, 906 S.W.2d
500, 512 (Tex. Crim. App. 1995) (asserting that counsel did not have adequate time
to investigate medical records for potential mitigating evidence failed to establish
abuse of discretion).
Moreover, appellant has not demonstrated that the denial of his motion caused
prejudice. To show prejudice requires “considerable specificity as to how the
defendant was harmed,” such as by demonstrating “what additional information,
evidence, or witnesses the defense would have had available if the motion for delay
had been granted.” Gonzales, 304 S.W.3d at 842–43. Ordinarily, this showing can
be made only at a motion for new trial. Id.There was no motion for new trial here, and appellant’s brief offers only that
he “was clearly harmed.” This bare assertion does not suffice to establish prejudice.
See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). Accordingly,
we conclude that appellant has not shown that his “case for delay was so convincing
that no reasonable trial judge could conclude that scheduling and other
considerations as well as fairness to the State outweighed the defendant’s interest in
–8–
delay of the trial” nor has he demonstrated “with considerable specificity” how he
was harmed. Id. Appellant’s first issue is resolved against him.
B. The Expert Testimony
Appellant offered the testimony of Dr. Louis Coates, his family physician, to
show a “possible physical impairment that would likely negate appellant’s mental
state at the time of the offense.” The State objected to the testimony as not relevant,
and the objection was sustained. Appellant’s second issue argues that the exclusion
of this testimony was erroneous.
We review the trial court’s exclusion of evidence for an abuse of discretion.
See Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). As long as a trial
court’s decision is within the zone of reasonable disagreement, no abuse of
discretion occurs. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
Texas law presumes that a criminal defendant intended the natural
consequences of his acts. Ruffin v. State, 270 S.W.3d 586, 591 (Tex. Crim. App.
2008). Evidence that is relevant to negate that intent, including evidence of a
defendant’s history of mental illness, mental diseases, or defects may be admissible.
Id. at 593–595. But such evidence may still be excluded if it does not meet the
requirements under the evidentiary rules and if it does not truly negate the required
mens rea. Id. at 595-96; see also Mays v. State, 318 S.W.3d 368, 381 (Tex. 2010)
(mental illness testimony may be relevant for mitigation during the punishment
–9–
phase, but “expert testimony that does not directly rebut the culpable mental state
usually may be excluded at the guilt phase.”).
Dr. Coates testified at a hearing outside the jury’s presence. He said that
appellant was a patient from 2005-2017, and he first saw appellant when he was nine
years old.
In 2010, appellant was in a car accident that resulted in a concussion and
pelvic fracture. Appellant complained of syncopal episodes, also known as
“blackouts” twice during the time he was a patient. The first episode was the
concussion caused by the car accident head trauma. The second episode was in 2017,
two years before the offense.
Dr. Coates admitted that appellant was diagnosed with syncopal episodes
from a therapeutic, not psychological level. He was not referred to a neurologist, and
Dr. Coates could not locate in his records whether appellant had been given
diagnostic tests or what the results might have been. He said that he would not be
able to testify that because of one syncopal episode appellant did not know right
from wrong and did not know what he was doing at the time of the offense. He
further admitted that his testimony would be based solely on appellant’s self-
reported blackout in 2017 and the concussion he suffered in 2010.
Dr. Coates testified that syncopal episodes cause people to collapse to the
ground and not remember what happened, and that recurrent concussions can cause
–10–
the inability to function and think correctly. But he conceded that recurrent
concussions were not part of appellant’s medical history.
Aggravated assault with a deadly weapon can be committed intentionally,
knowingly, or recklessly. See TEX. PENAL CODE ANN. § 22.02(a)(2). A person acts
intentionally when it is his conscious objective or desire to engage in the conduct of
cause the result. TEX. PENAL CODE ANN. § 6.03(a). A person acts knowingly when
he is aware of the nature of his conduct or that the circumstances exist. Id. §6.03(b).
A person acts recklessly when he is aware of but consciously disregards a substantial
and unjustifiable risk that the circumstances exist or the result will occur. Id. at
6.03(c). Dr. Coates’s testimony about appellant’s syncopal episodes would not
negate any of these mental states at the time appellant committed the offense.
Appellant’s self-reported blackout occurred in 2017—two years prior to the
offense. There is no evidence that he experienced a syncopal episode when he
committed the assault, nor is there evidence of any other impairment that would
negate his mental state at that time. The concussion appellant experienced in 2010
is even further removed, and there is no evidence that he continued to experience
any ill effects nine years later.
Appellant also argues that the medical records were admissible to show that
he had multiple years of treatment for ADHD and sleep issues. But the records were
not offered or admitted into evidence, and Dr. Coates did not testify about any of
these issues. Instead, at the court’s suggestion, the records were included in the Dr.
–11–
Coates offer of proof for record purposes only. Appellant did not mention the ADHD
or the sleep issues during that offer of proof, nor did he argue that these issues
negated his mental state at the time of the offense.
Based on the foregoing, we conclude the trial court did not abuse its discretion
by excluding Dr. Coates’s testimony. See Nikmanesh v. State, No. 05-16-00363-CR,
2017 WL 2774445, at *3 (Tex. App.—Dallas June 27, 2017, no pet.) (mem. op., not
designated for publication) (expert testimony properly excluded because it did not
negate mental state); Cortez v. State, No. 03-18-00751-CR, 2020 WL 6495107, at
*8-9 (Tex. App.—Austin Nov. 5, 2020, no pet.) (mem. op., not designated for
publication) (trial court did not abuse its discretion in excluding doctor testimony
about defendant’s mental illness because the doctor could not testify that he was
having a dissociative episode at the time of the offense and doctor acknowledged he
was relying on self-reporting from defendant).
Appellant’s second issue is resolved against him.
C. The Insanity Defense
Appellant’s third issue argues that the trial court erred in denying his request
to present an insanity defense. We disagree.
–12–
The Texas Penal Code provides that insanity may be raised as a defense to a
criminal prosecution. TEX. PENAL CODE ANN. § 8.01(a).4 However, the Code of
Criminal Procedure requires that the defendant file notice of his intention to raise
the defense at least twenty days before the date the case has been set for trial. TEX.
CODE CRIM. PROC. ANN. art. 46C.051(a)-(b). The trial court may, on a finding of
good cause for failure to serve timely notice, still allow evidence of insanity. Id. art.
46C.052.
Here, appellant did not request that he be allowed to present evidence of
insanity. He merely mentioned that insanity was a possibility that his expert needed
more time to explore. Because the record does not reflect a specific and timely
request to the trial court or a ruling on that request, this issue has not been preserved
for our review. See TEX. R. APP. P. 33.1.
Appellant’s brief states that “because he had not had an opportunity to fully
consult with the expert, he should have had the opportunity to move forward with
the insanity defense by presenting Dr. Coates and his medical records.” The record
demonstrates, however, that Dr. Coates’s testimony was offered to show that
appellant did not act intentionally, knowingly, or recklessly, not as evidence of
4
Specifically, the Code provides that, “It is an affirmative defense to prosecution that, at the time of
the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct
was wrong.” Id.
–13–
insanity. Again, appellant did not request that Coates be permitted to testify about
insanity. See TEX. R. APP. P. 33.1.5
In addition, even if the insanity issue had been preserved for our review, the
record does not reflect that appellant timely filed a notice of intent to raise an insanity
defense in this case. See TEX. CODE CRIM. PROC. ANN. art. 46C.051. Likewise, the
trial court did not find, nor does the record reflect that appellant showed good cause
for his failure to serve the requisite notice. See id. art. 46C.052; see also Newsome
v. State, 235 S.W.3d 341, 343 (Tex. App.—Fort Worth 2007, no pet.) (refusing to
allow an untimely notice of insanity where the defendant produced no evidence of
good cause). Appellant’s third issue is resolved against him.
Having resolved all of appellant’s issues against him, we affirm the trial
court’s judgment.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
211156F.U05
5
Even if appellant had made such a request, Dr. Coates’s testimony would not have supported an
insanity defense. Dr. Coates testified that he was “not sure either way” if appellant knew what he was doing
at the time of the offense, and he did not know the legal definition of insanity. He also said that he would
not be able to testify that appellant did not know right from wrong because of his blackout.
–14–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JUSTICE CODY MCCOY, On Appeal from the 416th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 416-80798-
No. 05-21-01156-CR V. 2021.
Opinion delivered by Justice Garcia.
THE STATE OF TEXAS, Appellee Justices Myers and Pedersen, III
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered October 25, 2022
–15–