Brown, David Earl

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1723-12

DAVID EARL BROWN, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

C OCHRAN, J., filed a concurring opinion in which M EYERS and A LCALA, JJ.,

joined.

I join the majority opinion and agree to remand this case for a retrospective

competency hearing. I write separately because the resolution of this unusual case is largely

dependant upon its specific facts. We do not frequently encounter the situation in which a

defendant has shot himself in the head during the trial. Appellant’s absence from trial was

“voluntary” in the sense that he attempted to commit suicide, but he was also “incompetent”

in the sense that he was unable to assist his attorneys throughout the rest of the trial and

during the punishment phase. Indeed, there is apparently a question of whether appellant is

Brown Concurring Opinion Page 2

still incompetent under Article 46B.003.1 The legal issue is not a pure “Alphonse and

Gaston” of which comes first–“voluntary absence” or “incompetency.” Rather, the issue is

whether, viewing the totality of the facts, there was a “suggestion” of incompetency. If so,

the trial judge cannot avoid an informal inquiry and, if warranted, a formal hearing, by

finding that the defendant “voluntarily” tried to commit suicide and therefore “voluntarily”

absented himself from trial.

Certainly a person could voluntarily attempt suicide with full awareness of the

consequences and an appreciation of the final nature of that act. But the very act of shooting

oneself in the head may well be an irrational act and is certainly some evidence of mental

disturbance.2 And that was precisely the testimony of Dr. Root, appellant’s treating

1

TEX . CODE CRIM . PROC. art. 46B.003(a) (“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.”).

2

See, e.g., United States v. Mason, 52 F.3d 1286, 1290-93 (4th Cir. 1995) (trial court erred

in denying motion for retrospective competency hearing by deciding that defendant’s suicide attempt

was subject to “competing inferences”; instead, trial court must consider all of the evidence,

“including evidence of irrational behavior, the defendant’s demeanor at trial, and medical opinions

concerning the defendant’s competence”; trial judge “must ‘look at the record as a whole and accept

as true all evidence of possible incompetence’ in determining whether to order a competency

hearing.”); United States v. Latham, 874 F.2d 852, 858-59 (1st Cir. 1989) (“It defies common sense

to maintain that a sane defendant would attempt suicide to avoid a trial on drug charges. And, death

is not the type of ‘voluntary absence from trial’ that concerns us.”); United States v. Crites, 176 F.3d

1096, 1098 (8th Cir. 1999) (trial judge did not commit clear error in finding that defendant’s suicide

attempt “by intentionally ingesting a potentially lethal mix of intoxicants and by leaving a suicide

note” was a voluntary absence); Peacock v. State, 77 So.3d 1285, 1290-91 (Fla. Dist. Ct. App. 2012)

(holding that “the issue of whether a suicide attempt constitutes a willful absence from sentencing

is not susceptible to a bright-line rule, but rather is a factually intensive question that ordinarily must

be addressed on a case-by-case basis. . . . Although a suicide attempt could be deemed voluntary in

some circumstances, a suicide attempt could also be an involuntary product of mental illness.”);

Brown Concurring Opinion Page 3

psychiatrist.3 Furthermore, the fact that appellant was being treated by a psychiatrist for

“depression” after fatally shooting his neighbor is additional evidence of mental disturbance,

as was the fact that appellant was “despondent” the night he shot himself. And the evidence

showed that, as a result of his wounds, appellant was comatose and on life support. He was

indisputably not capable of assisting in his own defense at that time.4

I agree that this evidence was sufficient to raise an issue of possible incompetency

State v. Reed, 992 P.2d 1132, 1134 (Ariz. Ct. App. 1999) (disagreeing with cases that purport to hold

“that all absences resulting from attempted suicide are a voluntary waiver of the defendant’s right

to attend trial,” but crediting doctor’s testimony that this defendant, although depressed was not

psychotic, and he understood what he was doing when he decided “‘to abort his trial by killing

himself’” with an unsuccessful suicide attempt).

3

As the court of appeals noted, Dr. Root testified that “(1) if the wound were self-inflicted,

there would be a suggestion of mental illness and (2) the extent of [appellant’s] injuries made it

unlikely that he could provide information to assist in the remainder of the trial.” Brown v. State,

393 S.W.3d 308, 312 (Tex. App.–Houston [1st Dist.] 2012).

4

An expert who is appointed to exam a defendant whose competency has been questioned,

shall consider, inter alia,

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant 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[.]

TEX . CODE CRIM . PROC. art. 46B.024(1). Quite obviously, appellant could do none of these things

the day after he shot himself, although he did all of these things the day before he shot himself.

Brown Concurring Opinion Page 4

under Article 46B.004(c)5 because there was “some evidence” to support such a finding.6

As we noted in Druery, “[a] determination that there is ‘some evidence’ of incompetency

then leads to a formal hearing before a jury.”7 Because the trial had already begun at the time

of appellant’s suicide attempt, the trial judge had authority to continue the trial and hold a

formal competency hearing–addressing both retrospective and prospective competency–

some time before sentencing.8 But at the sentencing hearing–a time at which a defendant

must be competent–the trial judge refused to even consider defense counsel’s competency

motion.9

5

TEX . CODE CRIM . PROC. art. 46B.004(c) (“On suggestion that the defendant may be

incompetent to stand trial, the court 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.”).

6

See Druery v. State, 412 S.W.3d 523, 538 (Tex. Crim. App. 2013) (noting that a trial judge

conducting an informal inquiry into possible incompetence “should not weigh competing evidence

of incompetency because the informal hearing is not the appropriate venue for determining the merits

of the claim. Rather, the informal inquiry is intended to determine if the issue is sufficiently raised

to merit a formal hearing.”).

7

Id. I am uncertain whether appellant is necessarily entitled to a formal competency hearing

or whether experts should first be appointed to examine him pursuant to Article 46B.021(a). I think

that there is “some evidence” suggesting incompetency, but if psychiatric experts conclude that

appellant’s attempted suicide was not the product of such mental disturbance as to affect his

“capacity to engage with counsel in a reasonable and rational manner,”Article 46B.024(4), then an

informal inquiry into competency would have sufficed. Here, it seems that the trial judge did not

conduct even a full informal inquiry into appellant’s competence.

8

TEX . CODE CRIM . PROC. art. 46B.005(d) (“If the issue of the defendant’s incompetency to

stand trial is raised afer the trial on the merits begins, the court may determine the issue at any time

before the sentence is pronounced.”).

9

No sentence may be pronounced upon a defendant who is incompetent. TEX . CODE CRIM .

PROC. art. 42.07 (“Reasons to prevent sentence”) (a sentence may not be pronounced if “the

defendant is incompetent to stand trial; and if evidence be shown to support a finding of

Brown Concurring Opinion Page 5

In this case, the trial judge apparently took the position that, because appellant

voluntarily shot himself in the head, he was ipso facto voluntarily absent from trial, and

therefore, it would not matter if he were incompetent either before or after he shot himself.10

Under that theory, appellant could be crazy as a coot, but if he could not attend the rest of the

trial because he had shot himself, the incompetency statutes do not apply. After hearing the

evidence presented the day after the suicide attempt, the trial judge denied the request for a

competency hearing, finding “that the Defendant was–the Defendant is voluntarily absent.

And the Court is also finding that he was competent–he was allowed to testify.” 11

incompetency to stand trial, no sentence shall be pronounced, and the court shall proceed under

Chapter 46B”).

At appellant’s sentencing hearing, the trial judge said, “[R]egarding the Defendant’s

competency at this time, I’m not going to entertain any type of motion for hearing on it.” Defense

counsel nonetheless persevered in his request for a competency hearing, stating, “[T]he reason is that

we think that since he’s unable to understand the nature of the proceeding against him and

unable–capable to consult with me and his other lawyers in helping with–in the process, then it’s a

due process violation” and a violation of Texas statutes.

Clearly the trial judge erred in refusing to even consider the issue of appellant’s competency

at the time of sentencing. At oral argument, the State agreed that this case should be remanded for

the trial judge to conduct a competency-to-be-sentenced hearing, but I have a hard time

understanding why there should be a distinction between the right to a competency hearing for

purposes of the sentencing stage, but no such right for purposes of either the guilt or punishment

stages.

10

The State argues that appellant “cannot claim incompetency by causing it” and that his

suicide attempt forfeited his right to complain about his incompetency. That argument, however,

flies in the face of Drope, discussed infra. If appellant intentionally caused his incompetency by

shooting himself in the head with the express purpose to avoid the trial or cause a mistrial (but not

to cause his own death), then the State has an excellent point. But at least so far there is no such

evidence in the record. When this case is remanded for a retrospective competency determination,

that issue may be addressed.

11

The trial judge may have mistakenly thought that, if a defendant is competent at the time

he testifies on his own behalf, it does not matter that he later becomes incompetent. That is not the

law. Rather, the defendant has a right to be competent at every stage of the trial, including the

Brown Concurring Opinion Page 6

As the majority correctly notes, in Drope12 the Supreme Court unanimously rejected

this very reasoning. The trial judge in that case stated that Drope’s absence from trial “‘was

due to his own voluntary act in shooting himself; done for the very purpose of avoiding

trial.’”13 The Supreme Court noted that it did not need to address the state court’s conclusion

“that an attempt to commit suicide does not create a reasonable doubt of competence to stand

trial as a matter of law”14 because there was other evidence of Drope’s possible incompetence

and his suicide attempt “did not stand alone.” 15

In this case, as in Drope, the self-inflicted gunshot wound was “near vital organs [and]

does not suggest malingering.”16 Like the Supreme Court, I recognize that there is not a

necessary correlation between a suicide attempt and mental illness or incompetence,17 but a

bona fide attempt to kill oneself surely deserves some psychiatric inquiry and consideration

sentencing hearing.

12

Drope v. Missouri, 420 U.S. 162 (1975).

13

Id. at 167.

14

Id. at 180.

15

Id. (internal quotation marks omitted).

16

Id. at 181 n.16.

17

Id. The Supreme Court noted,

Of course we also recognize that “the empirical relationship between mental illness

and suicide” or suicide attempts is uncertain and that a suicide attempt need not

always signal “an inability to perceive reality accurately, to reason logically and to

make plans and carry them out in an organized fashion.”

Id. (citing Greenberg, Involuntary Psychiatric Commitments to Prevent Suicide, 49 N.Y. U.L.REV .

227, 234, 236 (1974) and Pokorny, Myths about Suicide, in SUICIDAL BEHAVIORS 64-65 (H. Resnik

ed. 1968)).

Brown Concurring Opinion Page 7

of other evidence suggesting incompetence.18 Here, as in Drope, even assuming that the right

to be present at one’s trial may be waived by attempted suicide, it is “clear that there was an

insufficient inquiry to afford a basis for deciding the issue of waiver.” 19

Because the trial judge did not make a sufficient inquiry into appellant’s possible

incompetency, either the day after the suicide attempt or at the sentencing hearing, I agree

that this case must be remanded for a retrospective hearing.

Filed: March 19, 2014

Publish

18

As the Supreme Court delicately put it, Drope’s absence “was due to an act which suggests

a rather substantial degree of mental instability contemporaneous with the trial.” Id. at 181.

19

Id. at 182. The State cites Bottom v. State, 860 S.W.2d 266, 267 (Tex. App.–Fort Worth

1993, no pet.) for the proposition that a defendant who had attempted suicide by ingesting pills after

his trial began had voluntarily rendered himself absent; therefore, the trial judge properly continued

the trial. But in that case, the trial court did “order a competency hearing from which Bottom was

found competent to stand trial.” Id. That is precisely what appellant wanted in this case. The State

also relies on Maines v. State, 170 S.W.3d 149, 150 (Tex. App.–Eastland 2005, no pet.), but in that

case the defendant took an overdose of pills after the first day of trial, so the judge recessed the case

for a day, and the defendant was brought from the hospital to the courtroom on the third day. When

defense counsel suggested that his client was groggy and might have competency issues, the trial

judge conducted an informal competency inquiry, but concluded that there was insufficient evidence

to convene a separate jury hearing. Id. And by that afternoon the defendant was fully recovered. Id.

That situation bears no resemblance to the present one.