Billy V. Anderson v. State of Texas--Appeal from 144th Judicial District Court of Bexar County

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State: Texas

Court: Texas Northern District Court

Docket No: 04-00-00751-CR

Case Date: 11/20/2002

Plaintiff: BEATRICE MARY MONTES

Defendant: THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

Preview:Billy V. Anderson v. State of Texas--Appeal from 144th Judicial District Court of Bexar County
No. 04-00-00751-CR Billy Vernon ANDERSON, Appellant v. The STATE of Texas, Appellee From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2000-CR-1384 Honorable Mark R. Luitjen, Judge Presiding Opinion by: Catherine Stone, Justice Sitting: Catherine Stone, Justice Sarah B. Duncan, Justice Karen Angelini, Justice Delivered and Filed: March 20, 2002 ABATED AND REMANDED Billy Vernon Anderson appeals his murder conviction. A jury found Anderson guilty of fatally shooting Walter Shoulders and assessed punishment at eighty-years imprisonment and a $10,000.00 fine. Anderson challenges his conviction complaining of, among other things, the trial court's failure to provide him with a competency inquiry. Because the record contains evidence raising a "bona fide doubt" as to Anderson's competency, we hold that the trial court erred by not providing Anderson with a competency inquiry. Therefore, we abate this appeal and remand the cause to the trial court for a retrospective competency inquiry. Background Before trial, the trial court ordered Anderson to undergo a psychiatric evaluation to determine both his sanity at the time of the alleged offense and his present competency to stand trial. After receiving the results of the evaluation, the trial court stated the following when Anderson's attorney raised the issue of Anderson's competency before voir dire: Okay. Let the record reflect that the Court was in a position to observe the defendant in this case on this past Thursday, and if I'm not mistaken, then again on Friday. Also, the Court contacted Dr. Garcia, who has -- is one of the other psychiatrists here in Bexar County, and was informed by Dr. Garcia that the defendant is malingering and that he puts on this act with the dropped -- the effect of the mouth open and tongue hanging out and so forth. And that based upon those -- and this last week. And it's also in both files, copies of psychiatric evaluations. The defendant is competent, the defendant was not -- or was sane. And with what you have presented to me, I don't find there's any information necessary to hold a hearing. So, if that was -- and I assume it was a motion of some kind -- it's denied with respect to the competence of the defendant. Throughout the trial, Anderson's attorney continued to raise the issue of Anderson's competency, and the trial court refused to hold a competency inquiry each time. (1) A jury eventually found Anderson guilty of murder. Anderson now contends that the trial court erred by not holding a competency inquiry because the court had evidence before it raising a "bona fide doubt" as to his competency.

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Anderson presents six issues challenging his conviction. In his first four issues, Anderson complains of the trial court's failure to conduct a competency [inquiry] to determine his competency to stand trial and to assist his attorney in his defense. In his fifth issue, Anderson alleges that there is insufficient evidence to identify him as the perpetrator of the offense. Anderson's sixth issue alleges that the trial court erred by limiting his cross-examination of an eyewitness. Due to our holding, we need not address Anderson's fifth and sixth issues. Competency Inquiry & Hearing Due process requires that the accused be competent to stand trial. Pate v. Robinson, 383 U.S. 375, 385 (1966). In Texas, a defendant is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46.02, 1A(b) (Vernon Supp. 2002). A defendant is considered competent to stand trial if he has: (1) a sufficient present ability to consult with his attorney with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against him. Id. at 1A(a)(1), (2) (Vernon Supp. 2002). A competency determination consists of two stages, a competency inquiry and a competency hearing. At the competency inquiry, the trial court determines in a bench proceeding whether there is some evidence to support a finding of incompetency. Tex. Code Crim. Proc. Ann. art. 46.02, 2(a), (b) (Vernon 1979). "Some evidence" means a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetency. Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980). The trial court is to consider only the evidence tending to show incompetency, and not evidence showing competency during this inquiry. Id. If "some evidence" is presented, the trial court must then hold a competency hearing. Tex. Code Crim. Proc. Ann. art. 46.02, 4(a) (Vernon Supp. 2002). For the competency hearing, the trial court empanels a jury to determine whether the defendant is competent to stand trial. Id. On appeal, Anderson challenges the trial court's failure to conduct a competency inquiry both before and during his trial. For Anderson's challenge to succeed, the record must contain evidence raising a "bona fide doubt" as to his competency. Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001); Collier v. State, 959 S.W.2d 621, 625 n.7 (Tex. Crim. App. 1997) (citing G. Dix & R. Dawson, Texas Criminal Practice and Procedure 26.54 at 720 (1995)) (recognizing bona fide doubt standard is applied when considering to conduct a competency inquiry, regardless of whether the inquiry occurs before or during trial). The evidence needed to raise a bona fide doubt about competency -and thus trigger a competency inquiry before the bench -- need not be sufficient to support a finding of incompetence. Mata, 632 S.W.2d at 358. Generally, a bona fide doubt arises when evidence indicates recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant. Collier, 959 S.W.2d at 625. The test, however, "is not whether the accused labored under some mental, behavioral, or psychological impairment; rather, the critical inquiry [for the court] is whether the defendant has the ability to consult with his attorney with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him." Rice v. State, 991 S.W.2d 953, 957 (Tex. App.-- Fort Worth 1999, pet. ref'd); Tex. Code Crim. Proc. Ann. art. 46.02, 1A(a)(1), (2). Evidence of Competency Dr. Sellers, a psychiatrist with the Bexar County Correctional Health Care Facility, provided the trial court with three documents after he evaluated Anderson: (1) a "competency evaluation," received by the trial court on August 3, 2000; (2) a "sanity evaluation," received by the trial court on August 3, 2000; (2) and (3) a competency "findings page," received by the trial court on September 19, 2000. The competency evaluation, dated July 6, 2000, is a five-page document summarizing Anderson's personal history and Dr. Sellers's conclusions regarding Anderson's present condition. According to the document, Anderson suffered a severe head injury in 1996, which left him temporarily in a coma. Three years later, Anderson began to show signs of depressed mood, suicidal thoughts, and auditory hallucinations. He was diagnosed with a major depressive disorder with psychotic features. Anderson's treatment for this illness continued through the date of the evaluation. The evaluation also provides Anderson's scores on a clinical competency test evaluating his abilities to understand, reason, and appreciate information. Anderson's test results reveal he has significant impairment to his reasoning ability. When presented with two facts and asked to select the one most important to tell his attorney, Anderson had "serious
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difficulty." On several questions, Anderson failed to identify the fact that was most important to tell his attorney, while on others he selected the correct fact, yet could not provide a reason for his choice. The evaluation further states: Mr. Anderson has a mental illness, Major Depressive Disorder with Psychotic [F]eatures, as manifest by the following: depressed mood, trouble concentrating and auditory hallucinations. . . . These symptoms are not considered to be due to a temporary state or malingering. **** Mr. Anderson's mental illness . . . causes impairments in [his] initiative, reasoning, and concentration. This directly affects his ability to assist his attorney in [the] preparation of his defense. **** Mr. Anderson has a mental illness . . . that impairs his ability to assist his attorney with a reasonable degree of rational understanding. The competency evaluation is accompanied by a "findings page" dated June 15, 2000. This page provides that Anderson: (1) is not mentally competent to stand trial; (2) is mentally ill and requires treatment and hospitalization; and (3) is not mentally retarded. On September 19, 2000, the court received a second competency "findings page" contradicting the original findings page from Dr. Sellers. This second findings page, dated June 15, 2000, provides that Anderson: (1) is mentally competent to stand trial; (2) is mentally ill, but does not require any treatment or hospitalization; and (3) is not mentally retarded. It does not contain any other information. In light of the competency evaluation and its accompanying findings page, we believe that Anderson was denied his fundamental right to due process by the trial court's failure to hold a competency inquiry. Dr. Sellers provided the trial court with both a competency evaluation and a findings page stating unequivocally that Anderson was not competent to stand trial. The competency evaluation indicates Anderson suffers from a major depressive disorder with psychotic features. More importantly, it expressly states that Anderson's mental illness affects his initiative, reasoning, and concentration to such a degree that he cannot assist his attorney with a reasonable degree of rational understanding. We recognize that the trial court also had before it a second "findings page" stating that Anderson is competent. For several reasons, however, this findings page should not have deterred the court from holding a competency inquiry. First, the document neither refers to the contents of the competency evaluation nor explains why it is inconsistent with Dr. Sellers's earlier conclusions regarding Anderson's competency. More importantly, the "findings page" does not change the fact that Dr. Sellers concluded Anderson's scores on the clinical competency exam indicate that his illness significantly impairs his ability to reason, which in turn, renders him incapable of consulting with his attorney with a reasonable degree of rational understanding. Thus, the document should not have caused the trial court to disregard the contents of the competency evaluation or the conclusions within its accompanying findings page. The State claims the first findings page was submitted in error, and points to testimony from Dr. Sellers in support of its claim. Following his testimony before the jury, Dr. Sellers was questioned by the trial court outside the presence of the jury as follows: The Court: All right. Doctor, the reason that I've asked you to stick around, as I was just going through this file, the court's file, and I've got -- the first report I saw from you said that this defendant is incompetent. And then there's a note attached saying that this is attached to the wrong note. It should have been Lisa Sedberry. I don't know if you remember her. The Witness: Yes, sir. The Court: Let me -- and it looks to me like the body of the report is exactly the same with respect to what you did and so forth. I mean, is this a -- is this wrong or not? I got this one, too. That's what I'm saying.

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The Witness: This was a draft. The date on this is July 6th. The Court: Right. And this is -- . The Witness: July 27th. The Court: Right. The Witness: It's the July 27th report. The Court: So the first one we received is incorrect then? The Witness: Yes. The Court: So you never did find him to be incompetent, I mean, at any time? Just a typo or -- . The Witness: That's correct. The State claims this testimony establishes that Dr. Sellers never found Anderson incompetent, thus rendering harmless any decision to forgo a competency inquiry. We disagree. The exchange between the trial court and Dr. Sellers is less than clear. There are no references to numbered exhibits, and the date referred to -- a July 27th report -- does not correspond with the date of the competency evaluation. Rather, the record contains a July 27th sanity evaluation. Further, the record contains a fax cover sheet with the notation, "This (Billy Anderson) was attached to wrong cases (Sedberry)." The cover sheet, as presented in the clerk's record, is not followed or preceded by pages that have any relevance. In short, from both the clerk's record and the brief exchange at trial, it is not clear that Dr. Sellers did anything other than conclude that Anderson was incompetent to stand trial. We hold that the trial court had before it sufficient evidence to raise a bona fide doubt as to Anderson's competency. Because we have determined that a competency issue was raised, the trial court must conduct a competency inquiry. See Pipken v. State, 671 S.W.2d 626, 629 (Tex. App.-- Houston [1st Dist.] 1984, no pet.). Therefore, we abate this appeal and remand the cause to the trial court with the following instructions: (1) The court shall determine if there is "some evidence" to support a finding of incompetency. (2) If such evidence does exist, the court must impanel a jury to decide whether Anderson was competent to stand trial. (3) Alternatively, if the trial court determines that a retrospective determination of competency is not practicable because of the passage of time, the trial court shall grant a new trial. (4) The court shall file with this court a supplemental record detailing the actions taken. See id. at 629-630. The appeal is abated and removed from the court's active docket. The appeal will be reinstated once the trial court files a supplemental record in compliance with this opinion. However, mandate will not issue until the trial court files its supplemental record and the merits of the appeal are resolved by this court. Anderson is remanded to the custody of the Sheriff of Bexar County, and the cause is remanded for proceedings consistent with this opinion. After the retrospective competency determination, Anderson may file an additional brief to address any issues presented at his competency determination. This court will also consider an appropriate motion to reinstate this appeal filed by either party. Conclusion

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We abate this appeal and remand the cause for a retrospective competency determination. Based on the foregoing, we need not address Anderson's remaining points of error. Catherine Stone, Justice DO NOT PUBLISH 1. Anderson raised the issue of his competency during the guilt/innocence phase of the proceeding when he wanted to testify on his own behalf and again at the close of the sentencing phase of the trial. When Anderson's attorney raised the issue during the guilt/innocence phase, the trial court engaged in a brief colloquy with the defendant. After this colloquy, the trial court determined that Anderson "understands what's going on" and proceeded with the trial. The Court of Criminal Appeals has stated that if the court acts sua sponte, even an informal dialogue between the defendant and the judge may constitute a competency inquiry. Mata v. State, 632 S.W.2d 355, 360 (Tex. Crim. App. 1982). While an informal dialogue may constitute a competency inquiry in some instances, it is insufficient when, as in this case, the competency issue is specifically raised by the defendant. 2. The "Sanity Evaluation"is dated July 27, 2000. It indicates that Anderson knew the wrongfulness of his actions despite suffering from a severe mental illness at the time of the crime.

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