Gregory John George v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00172-CR
____________________
GREGORY JOHN GEORGE, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 08-03474
________________________________________________________ _____________
MEMORANDUM OPINION
Gregory John George appeals from his conviction for aggravated assault.
Based on his “long history of mental health issues,” he contends that the trial court
violated his due process rights by not conducting a formal evaluation of his
competency to stand trial. The trial court conducted an informal inquiry and found
him competent to stand trial. We affirm the conviction.
1
Underlying Facts and Procedural History
On May 1, 2008, George was indicted for aggravated assault. On or about
June 9, 2008, George’s attorney requested a competency evaluation of George, and
the trial court requested an evaluation. In July 2008, a psychiatrist diagnosed
George with “[s]chizophrenia - acute exacerbation[,]” and concluded that George
was not competent to stand trial. On August 18, 2008, the trial court concluded
George was “presently incompetent” to stand trial and ordered him committed to
the North Texas State Hospital—Vernon Campus (Vernon or Vernon facility) “for
further examination and treatment towards the specific objective of obtaining
competency to stand trial.” George received treatment at the Vernon facility. In a
December 18, 2008 letter to the court, the chief psychiatrist at Vernon, which is
part of the Texas Department of State Health Services, attached a competency
evaluation stating that the psychiatrist diagnosed George with “Bipolar I Disorder,
Most Recent Episode Mixed, Severe with Psychotic Features[,]” but determined
that George was competent to stand trial. Thereafter, the Department requested that
George be placed in the custody of the Jefferson County Sheriff and transported
back to Jefferson County “for further proceedings[.]” The trial was set for January
12, 2009.
2
At the January 2009 plea hearing, George pleaded guilty, pursuant to a plea
bargain, to aggravated assault, a second degree felony. See Tex. Penal Code Ann. §
22.02(a), (b) (West 2011). The trial court deferred adjudication of guilt and placed
him on unadjudicated community supervision 1 for ten years. Among other
conditions of his probation, George was placed on the “Mental Health Caseload,”
and he was to enter and successfully complete an “Anger Management Program.”
In December 2011, an administrative hearing was held wherein it was alleged that
George was “non-compliant with his mental health medication” and in violation of
the terms of his community supervision. A recommendation was made by the
administrative agency to the State to revoke George’s probation.
On January 6, 2012, the State filed a revocation motion alleging George
violated three terms of his community supervision. Another competency evaluation
was performed on January 25, 2012, and a psychiatrist determined George was not
competent to stand trial. The trial court ordered George to be transferred back to
the Vernon facility “for further examination and treatment towards the specific
objective of obtaining competency to stand trial.” In May 2012, the Texas
1
We recognize that in 1993 the statutory term for “probation” was changed
to “community supervision.” We use both terms interchangeably in this opinion to
refer to the same process because the references and documents in the record use
both terms. See Riley v. State, 378 S.W.3d 453, 455 n.1 (Tex. Crim. App. 2012).
3
Department of State Health Services determined George was competent to stand
trial, and he was returned to Jefferson County for further proceedings.
On August 6, 2012, a hearing was held on the State’s motion to revoke
probation. The trial court continued the previously ordered community supervision,
and the court also ordered George to participate in services provided by the
Spindletop MHMR Center and to “remain medication compliant.” On or about
March 22, 2013, the State filed another motion to revoke, alleging that George
violated the terms of his community supervision order. On April 8, 2013, the trial
court held a hearing on the motion to revoke. George entered pleas of “not true” to
the allegations that he failed to participate in the mental health initiative and that he
failed to successfully complete the anger management program. The trial court
heard testimony from witnesses, revoked George’s community supervision,
adjudicated him guilty of aggravated assault, and sentenced him to twenty years in
prison. George filed an appeal in which he raises one issue regarding his
competency to stand trial. 2 We affirm.
2
George’s initial appellate counsel filed an Anders brief. See Anders v.
California, 386 U.S. 738 (1967). This Court reviewed the clerk’s record, the
reporter’s record, and the Anders brief. Based on that review, we concluded that, in
view of Chapter 46B of the Code of Criminal Procedure, further briefing was
necessary to determine whether arguable grounds for appeal existed regarding
George’s competency to stand trial. We granted appellate counsel permission to
withdraw as counsel of record, abated the appeal, and remanded the case to the
4
Issue on Appeal
George argues that his due process rights pertaining to his competency to
stand trial were violated under Chapter 46B of the Texas Code of Criminal
Procedure, because the trial court failed to conduct a “formal competency
evaluation.”
Discussion
A. Standard of Review.
We review a complaint that the trial court erred in not conducting a formal
competency inquiry for an abuse of discretion. See Montoya v. State, 291 S.W.3d
420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds, as
stated in Turner v. State, 422 S.W.3d 676, 692 (Tex. Crim. App. 2013); Johnson v.
State, 429 S.W.3d 13, 18 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Under
this standard, we do not substitute our judgment for that of the trial court, but we
determine whether the trial court’s decision was arbitrary or unreasonable.
Montoya, 291 S.W.3d at 426.
trial court for appointment of new counsel to re-brief the appeal and raise any
arguable issues, including the competency-to-stand-trial issue. See Bledsoe v. State,
178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); Stafford v. State, 813 S.W.2d
503, 510-11 (Tex. Crim. App. 1991). The newly-appointed appellate counsel filed
a brief specifically addressing the competency issue.
5
B. Competency.
The prosecution and conviction of a defendant while he is legally
incompetent to stand trial violates the Due Process Clause of the United States
Constitution. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003)
(citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). Such protection is also
afforded to a criminal defendant at a revocation hearing. See id. at 710; Lindsey v.
State, 310 S.W.3d 186, 188 (Tex. App.—Amarillo 2010, no pet.); see also Tex.
Code Crim. Proc. Ann. art. 42.07 (West 2006). Chapter 46 of the Texas Code of
Criminal Procedure codifies the constitutional standard for competency to stand
trial and the procedural requirements to be applied by the trial court in determining
whether a defendant is competent to stand trial. See Turner, 422 S.W.3d at 689-93;
see also Tex. Code Crim. Proc. Ann. arts. 46B.001-.171 (West 2006 & Supp.
2014). A defendant is presumed competent to stand trial unless proven
incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art.
46B.003(b) (West 2006). “A person is incompetent to stand trial if the person does
not have: (1) sufficient present ability to consult with the person’s lawyer with a
reasonable degree of rational understanding; or (2) a rational as well as factual
understanding of the proceedings against the person.” Id. art. 46B.003(a) (West
2006).
6
A trial court must inquire into a defendant’s mental competence once the
issue is sufficiently raised. See generally McDaniel, 98 S.W.3d at 709. The
relevant time frame for determining a defendant’s competence is at the time of the
proceeding. Lasiter v. State, 283 S.W.3d 909, 925 (Tex. App.—Beaumont 2009,
pet. ref’d). When evidence suggesting a defendant is incompetent comes to the trial
court’s attention, “the court on its own motion shall suggest that the defendant may
be incompetent to stand trial” and “shall determine by informal inquiry whether
there is some evidence from any source that would support a finding that the
defendant may be incompetent to stand trial.” Tex. Code Crim. Proc. Ann. art.
46B.004(b), (c) (West Supp. 2014); Jackson v. State, 391 S.W.3d 139, 141 (Tex.
App.—Texarkana 2012, no pet.). The suggestion of incompetency “may consist
solely of a representation from any credible source that the defendant may be
incompetent.” Tex. Code Crim. Proc. Ann. art. 46B.004(c-1) (West Supp. 2014).
“A further evidentiary showing is not required to initiate the [informal] inquiry,
and the court is not required to have a bona fide doubt about the competency of the
defendant.” Id.
“Evidence suggesting the need for an informal inquiry may be based on
observations made in relation to one or more of the factors described by Article
46B.024 or on any other indication that the defendant is incompetent within the
7
meaning of Article 46B.003.” Id. The factors outlined in article 46B.024 include
whether the defendant can: “(A) rationally understand the charges against [him]
and the potential consequences of the pending criminal proceedings; (B) disclose
to counsel pertinent facts, events, and states of mind; (C) engage in a reasoned
choice of legal strategies and options; (D) understand the adversarial nature of
criminal proceedings; (E) exhibit appropriate courtroom behavior; and (F)
testify[.]” Id. art. 46B.024(1) (West Supp. 2014). “If after an informal inquiry the
court determines that evidence exists to support a finding of incompetency, the
court shall order an examination under Subchapter B to determine whether the
defendant is incompetent to stand trial in a criminal case.” Id. art. 46B.005(a)
(West 2006). George does not dispute that the trial court conducted an informal
competency review. He contends that, as a result of that informal review, the trial
court should have concluded that a formal competency review was required. We
disagree.
The reporter’s record from the motion to revoke reflects that prior to
hearing testimony in the proceeding, the trial judge directed various questions to
George. We are unable to determine from the record George’s demeanor and
credibility while he was answering the questions and we must give great deference
to the trial court’s evaluation on these matters. See McDaniel, 98 S.W.3d at 713
8
(citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Based on the
responses and statements made by George during the informal inquiry, we
conclude that the trial court’s finding that George was competent was not arbitrary
or unreasonable. The trial court could have reasonably concluded that George’s
responses to the Court’s questions were cogent. Although George’s comments may
have been argumentative regarding a definition for the meaning of “mental health
initiative,” the exchange demonstrated George’s mental acuity. Further, George’s
comments reveal that he understood the allegations regarding his failure to comply
with the terms of his probation specifically pertaining to anger management classes
and treatment. And, his responses indicate he was capable of understanding and
disputing the charges. For example, George expressly stated that he had been
attending the classes. He further stated that he was not “angry ever” and that he felt
he did not need the classes. After the colloquy, the trial court concluded that
George “fully understands what’s going on” and the Court found him competent.
The hearing continued with the testimony of the State’s witness, Trazarra Stelly,
George’s probation officer.
Stelly testified that George was noncompliant with some of the community
supervision terms, that he “refused the mental health initiative caseload to work
with the forensic department at Spindletop[,]” he “refused to listen[,]” “he [had to
9
be] escorted out,” and “he was argumentative.” Stelly further testified that “they”
tried to work with George but he told them they “weren’t qualified to tell him
anything.”
After his attorney advised him of his right to remain silent and to refuse to
testify, George elected to testify at the hearing. His remarks once again reflect that
he knew he had been charged with the offense of aggravated assault which had
occurred several years earlier. He understood that he had been placed on probation,
and he explained that the State’s filing of the motion to revoke was not right
because he had not “committed any form of aggravated assault, supposedly, since
2009.” George also indicated he understood that he was now before the trial court
because the State alleged he did not attend his anger management classes. He again
denied the allegation and claimed that he had attended “8 to 9 classes,” and that he
had already taken everything he needed for probation purposes. He stated that he
met with counselors and Ms. Stelly, that she “didn’t state or explain” forensics or
the “mental health initiative,” and that he left Stelly’s office and told her that “I
don’t want to participate in that because I take my meds nightly.” He also testified
he did not “need anyone to govern [him] about anything[.]” George also stated that
he was not a threat to anyone.
10
George’s testimony and comments at the hearing further demonstrated his
ability to understand the proceedings and that he was capable of assisting with a
defense. More specifically he testified that (1) he had no prior criminal record; (2)
he was previously before the trial court on an alleged “failure to I.D.,” which
George specifically denied; (3) he had an architectural degree and a minor in civil
engineering; and (4) he was taking the depression medication prescribed for him,
even though he was not depressed. He further testified that he goes to MHMR
“[e]very two months[,]” and that he has been reporting and going to classes.
Contrary to his counselor’s testimony, George explained that he did not have to be
escorted out of the classes, but walked out of them on his own. He further stated
that the probation officer lied and never explained what it meant to participate in
the “mental health initiative caseload[,]” and that it was a lie that he was aggressive
or that he was “kicked out” of the anger management program.
The record reveals that George understood the nature and purpose of the
revocation proceeding. He specifically demonstrated an ability to respond to
questions posed to him at the hearing by his counsel and the trial judge. By
explaining why there should be no finding of “true” to the alleged community
supervision violations, George further demonstrated he had a present ability on the
date of the hearing to comprehend and assist in his defense. See Montoya, 291
11
S.W.3d at 425-26. Simply because he had been diagnosed with a mental disorder
in the past, or that he might be schizophrenic, or that there had been prior findings
of incompetency, would not necessarily suggest that George was incompetent at
the time of this proceeding. See, e.g., McDaniel, 98 S.W.3d at 712; Thomas v.
State, 312 S.W.3d 732, 736-37 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)
(As the reviewer of the facts and credibility, the trial court, in accordance with
article 46B.004(c), conducted an inquiry into defendant’s conditions and abilities,
and did not abuse its discretion in concluding the defendant was competent to stand
trial.); see also Brown v. State, No. 02-12-00532-CR, 2014 Tex. App. LEXIS
4245, at **7-18 (Tex. App.—Fort Worth Apr. 17, 2014, no pet.) (mem. op.)
(unpublished opinion); Johnson, 429 S.W.3d at 16-19.
The trial court had the opportunity to observe George in open court, to hear
him speak, to observe his demeanor, and to engage in a lengthy colloquy with him.
George directly answered the trial judge’s questions, as well as those of his
counsel, demonstrating he understood the nature of the proceedings against him
and that he was able to effectively communicate with his attorney and assist in his
defense. Therefore, we conclude that the trial court did not act unreasonably or
arbitrarily in finding, based upon the evidence presented at the hearing, that
George was competent to stand trial and in concluding that no formal competency
12
hearing was required. We overrule George’s issue and affirm the trial court’s
judgment.
AFFIRMED.
______________________________
LEANNE JOHNSON
Justice
Submitted on September 4, 2014
Opinion Delivered September 17, 2014
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
13