Ex Parte David Michael Flint

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00852-CR

Ex parte David Michael Flint

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. D1-DC-090-205372, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

MEMORANDUM OPINION

David Flint was arrested and charged for the crime of aggravated assault with a deadly

weapon. See Tex. Penal Code § 22.02. Shortly thereafter, Flint’s attorney filed a motion to have

Flint examined by a psychiatrist because the attorney questioned whether Flint was competent to

stand trial, and the district court issued an order directing a psychiatrist to examine Flint. After

reviewing the psychiatrist’s report, the district court determined that Flint was not competent

“to stand trial at this time” and ordered Flint to be committed to a state hospital for a period not

to exceed 120 days. See Tex. Code Crim. Proc. art. 46B.073(b) (empowering trial court to commit

individual charged with crime to hospital for purpose of restoring his competency).

During Flint’s commitment, two doctors prepared reports regarding Flint’s

competency. See id. art. 46B.079 (requiring head of facility to prepare report informing trial court

if defendant has attained competency or if defendant is not likely to attain competency in

“foreseeable future”). First, Dr. Christopher Hasseltine explained that after examining Flint, he

concluded that Flint is likely to cause harm to others and is suffering “severe and abnormal mental,

emotional or physical distress.” Further, Dr. Hasseltine recommended that Flint be recommitted and

opined that his chronic disorder will respond slowly to treatment. The report also described Flint

as aggressive and abusive and not competent to stand trial and mentioned that Flint was unlikely

to achieve trial competency “in the near future.” In addition to the report by Dr. Hasseltine,

Dr. Sandy Le also prepared a report based on her assessment of Flint. In her report, Dr. Le agreed

that Flint is likely to cause serious harm to others and is suffering from “severe and abnormal mental,

emotional or physical distress.” Dr. Le also recommended that Flint be recommitted and explained

that his chronic disorder will only slowly respond to treatment.

After reviewing the reports and recommendations of the treating doctors, the

district court issued a judgment finding that Flint “remains incompetent to stand trial,” that “there

is no substantial probability that [Flint] will attain the competency to stand trial within the

foreseeable future,” and that there is evidence that Flint “is mentally ill and requires commitment

to a mental health facility.” See Tex. Code Crim. Proc. art. 46B.084(a) (requiring court to make

determination regarding defendant’s competency after evaluative commitment was completed).

Further, the district court scheduled a hearing before a jury to determine whether Flint was

mentally ill and whether he required treatment in a mental hospital. See id. arts. 46B.084(e), .102(a)

(specifying that if court determines defendant is incompetent but does not dismiss charges, court

should schedule hearing to determine if “defendant should be court-ordered to mental health

services). In addition, the district court ordered that Flint be confined pending the hearing.

A few days after the district court scheduled the hearing, Flint filed a writ of habeas

corpus challenging his confinement, and the hearing to consider whether Flint was mentally

ill and required treatment in a mental hospital was cancelled pending resolution of the

habeas corpus proceeding. In his petition for writ of habeas corpus, Flint sought to have the

commitment proceedings against him vacated and requested that he be released from confinement.

After reviewing the petition for writ of habeas corpus and convening a hearing regarding the petition,

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the presiding magistrate issued various findings of fact and conclusions of law and denied Flint’s

requested relief. The district court adopted the magistrate’s proposed findings and conclusions and

denied Flint’s request for habeas relief. Flint challenges the district court’s ruling.

Generally speaking, a trial court’s ruling on a habeas petition will only be

overturned if the trial court clearly abused its discretion. Ex parte Wolf, 296 S.W.3d 160, 166

(Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Accordingly, appellate courts review the

“evidence in the light most favorable to trial court’s ruling” and will reverse the ruling only if the

trial court acted without reference to any guiding rules or principles or acted arbitrarily or

unreasonably. Id. Although appellate courts afford almost total deference to findings made by

the trial court that are based on credibility and demeanor, Ex parte Amezquita, 223 S.W.3d

363, 367 (Tex. Crim. App. 2006), the trial court’s legal conclusions are reviewed de novo, see

Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). In this case, the essential facts are

not contested, and the challenges presented are to the constitutionality of the governing

statutory framework. Accordingly, we review de novo the district court’s determinations regarding

the constitutionality of the statutes at issue.

In one group of arguments on appeal,1 Flint contends that his continued confinement

under the statutory scheme governing individuals who have been deemed incompetent to stand trial

but whose charges have not been dismissed does not comply with due process. In particular, he

urges that a determination that he was not competent to stand trial and that it is unlikely that he will

attain competency in the foreseeable future necessarily means that a trial will never occur, and

therefore, he insists that his continued confinement cannot serve the constitutionally permissible

1

In the table of contents of his brief, Flint lists 26 issues on appeal, but the brief primarily

focuses on two groups of assertions that he repeats throughout the brief. In this opinion, we have

limited our discussion to those groups of assertions.

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purpose of ensuring his presence at trial. Similarly, he argues that once a determination was made

that he was not competent to stand trial, his charges should have been dismissed.

As support for these propositions, Flint points to Jackson v. Indiana, 406 U.S. 715

(1972). Jackson had the intelligence of a “pre-school child” and could not “read, write, or otherwise

communicate except through limited sign language.” Id. at 717. After a trial court ordered a

competency determination, two psychiatrists examined Jackson and determined that it was unlikely

that he would ever develop the skills necessary to minimally communicate with anyone. Id. at 718-

19. In light of this testimony, the trial court ordered Jackson confined until the governing agency

deemed him sane. Id. at 719. Ultimately, the Supreme Court determined that the trial court

could not “constitutionally commit [Jackson] for an indefinite period simply on account of his

incompetency to stand trial.” Id. at 720.

In Jackson, there was nothing in the record that demonstrated the possibility that

Jackson’s condition might improve in the future. Id. at 725-26. In fact, all of the evidence showed

that Jackson would never improve. Id. When discussing the evidence, the Supreme Court said

that if there was evidence that Jackson’s condition would improve, its decision might be different.

Id. at 725. Moreover, although the Court did not set out any time limits for confinement, the Court

noted that Jackson had been confined for three and a half years. Id. at 738-39. In light of that, the

Court held that “a person charged by a State with a criminal offense who is committed solely on

account of his incapacity to proceed to trial cannot be held more than a reasonable period of time

necessary to determine whether there is a substantial probability that he will attain that capacity in

the foreseeable future.” Id. at 738.

We believe Flint’s reliance on Jackson is misplaced. As a preliminary matter, we

note that the Court in Jackson was concerned that Jackson had been continuously confined simply

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because of his incompetency to stand trial, but the Court has also expressed its intention that a

defendant may be confined without violating the holding in Jackson if there is evidence that

the accused had committed criminal acts or was otherwise dangerous. Cf. Jones v. United States,

463 U.S. 354, 364 n.12 (1983). In this case, the evidence presented to the district court demonstrated

Flint’s currently aggressive demeanor and explained that Flint posed a serious risk of harm to others.

In any event, in the Jackson case, the Court did not hold that an individual who is

deemed incompetent to stand trial is entitled to release immediately after that determination is

made; on the contrary, the Court expressly refused to make a determination regarding the time frame

under which someone should be released or scheduled for a civil commitment hearing and simply

held that an individual cannot be held for more than a reasonable amount of time necessary to

determine if he will attain capacity in the future. Jackson, 406 U.S. at 738. Unlike Jackson, who

had been held for over three years, Flint was only confined for a few days after the district court

made its initial competency determination before Flint filed his habeas petition. Also, in this case,

the district court had scheduled a jury hearing to determine whether Flint was mentally ill and

whether he should be committed, and the hearing was only delayed because Flint filed his writ.

Moreover, unlike the copious evidence in Jackson demonstrating that Jackson would never be able

to effectively communicate or attain competency, the medical evidence in this case showed that

although Flint had not yet attained competency, his condition was slowly responding to treatment.

See United States v. Magassouba, 544 F.3d 387, 417 (2d Cir. 2008) (differentiating Jackson because

evidence that defendant will regain competency with additional treatment).

For all of these reasons, we do not believe that Flint’s continued confinement in this

case has run afoul of any due process considerations identified in Jackson and accordingly overrule

this group of issues.

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In a second set of arguments, Flint contends that the governing statutory framework

improperly distinguishes between individuals who have been deemed incompetent and had

their charges dismissed from those whose charges have not been dismissed. In light of the different

treatment, Flint insists that the governing framework violates the Equal Protection Clause and the

Due Process Clause. In particular, Flint notes that individuals whose criminal charges are dismissed

are afforded benefits and substantial procedural protections unavailable to those whose charges are

not dismissed, including the possibility of being released prior to a scheduled commitment hearing.

In addition, Flint urges that because he was found to be permanently incompetent, he should have

been released from confinement and treated no differently than someone being civilly committed.

Finally, Flint insists that the correct standard for reviewing the propriety of the differential treatment

is strict scrutiny.

Before addressing Flint’s issues, a brief overview of the relevant governing law

that Flint is challenging is helpful to frame the arguments on appeal. As highlighted by Flint, the

code of criminal procedure distinguishes between criminal defendants who are found to be

incompetent to stand trial and whose charges are dismissed from those whose charges are not

dismissed. See Tex. Code Crim. Proc. art. 46B.084(e), (f). For defendants whose charges have

been dismissed, the code requires the criminal court to determine if there is evidence supporting

a determination that the defendant is mentally ill and, if so, to transfer “the defendant to the

appropriate court for civil commitment proceedings” under the provisions of the mental health code

located in the health and safety code. Id. arts. 46B.084(f), .151(b). When transferring the defendant

for civil commitment proceedings, the transferring court may place the defendant in jail or a similar

placement or release the defendant into the care of a responsible person. Id. art. 46B.151(b). If the

trial court elects to place the individual in a facility pending the hearing, the defendant may only be

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detained at the facility if the head of the facility agrees and if an order of protective custody is issued.

Id. art. 46B.151(c). If the court elects not to detain the defendant pending the hearing, it must release

the defendant. Id. art. 46B.151(d). After conducting a hearing, if the trial court determines that the

individual is mentally ill, the court may issue an order committing the person to a mental health

facility for treatment or to outpatient care. Tex. Health & Safety Code § 574.036(e). In addition,

the facility administrator to which the individual has been committed must release the individual

when the commitment order expires and may release the individual before the expiration of the

order if he determines that the patient “no longer meets the criteria for court-ordered mental health

services.” Id. §§ 574.085, .086(a). If the facility administrator releases the individual early, his

decision terminates the commitment order. Id. § 574.086(c).

For defendants whose charges have not been dismissed, the code requires the

criminal court to hold a hearing regarding “whether the defendant should be court-ordered to mental

health services.” Tex. Code Crim. Proc. arts. 46B.084(e), .102(a). The code also provides that

individuals, like Flint, who have been charged with violent offenses must be placed in a maximum

security unit pending the hearing. Id. art. 46B.104; see id. art. 17.032(a) (listing qualifying violent

offenses). But see id. art. 46B.106 (requiring defendant charged with non-violent offense who has

charge pending to be committed to facility or outpatient treatment program). However, the code also

requires that a defendant be evaluated for potential dangerousness shortly after his commitment in

the maximum security facility and be transferred to a less secure facility if it is determined by a

review board that the defendant is not “manifestly dangerous.” Id. art. 46B.105.

Regarding the mental-illness hearing, the governing statutes specify that the

proceedings will be conducted under the portions of the mental health code unless the mental health

code provisions conflict with the code of criminal procedure. Id. art. 46B.102(b). Consistent with

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that proposition, the mental health code provisions governing civil commitment proceedings state

that the provisions “relating to the discharge, furlough, or transfer of a patient do not apply to a

person charged with a criminal offense who is admitted to a mental health facility under” the

provisions of the code of criminal procedure listed above. Tex. Health & Safety Code § 571.011(b).

In addition, the code of criminal procedure specifies that if the defendant is deemed incompetent

after the hearing, the trial court will make the ultimate decision regarding whether the defendant

qualifies for release from commitment after receiving a recommendation from the head of the

treating facility and that a trial court may at any time inquire into whether the defendant has regained

competency. Id. arts. 46B.107, .108(a).

Regarding the type of review that is warranted here, we have been unable to locate

any case applying strict scrutiny to the types of statutes at issue in this case; on the contrary, cases

addressing commitment statutes have seemingly employed the rational-basis standard of review,

see Foucha v. Louisiana, 504 U.S. 71, 79 (1992) (explaining that nature of commitment must

“bear some reasonable relation to the purpose for which the individual is committed”); cf. United

States v. Salerno, 481 U.S. 739, 748-49 (1987) (relating that government’s interest in community

safety can outweigh liberty interest and that government may detain mentally unstable individuals

who present danger to others and dangerous defendants who become incompetent for trial), which

only requires that the challenged classification be rationally related to a legitimate governmental

purpose, Cannady v. State, 11 S.W.3d 205, 215 (Tex. Crim. App. 2000). Accordingly, we agree

with the district court’s determination that the standard of review in this case is rational basis. See

Schweiker v. Wilson, 450 U.S. 221, 230 (1981) (explaining that unless statute employs “inherently

invidious” classification or impinges fundamental rights, courts have limited power to review

acts of legislature); see also Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)

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(stating general rule that legislation is presumed valid if classification is rationally related to

legitimate interest).

Although commitment proceedings for individuals who have not had their

charges dismissed are governed by the provisions of the mental health code that also govern

civil commitments, see Tex. Code Crim. Proc. art. 46B.102 (explaining that health and safety code

provisions apply except to extent they conflict with provisions of code of criminal procedure),

Flint correctly points out that individuals with criminal charges pending are treated differently. For

example, Flint notes that individuals facing a civil involuntary commitment after their charges have

been dismissed may only be detained under a protective custody order issued after a physician has

determined that the individual is mentally ill and if it is determined that the individual presents a

threat to himself or others, Tex. Health & Safety Code § 574.022(a), whereas those individuals

who are determined to be incompetent and who have charges pending against them are subject

to continued detention pending their commitment proceedings. In addition, Flint highlights that

the ultimate competency determination for individuals with charges pending is made by a criminal

trial court but that the determination for individuals whose charges have been dismissed is made by

medical professionals.

While Flint highlights the differential treatment, he also points out the reason for

it: Flint is currently the subject of a pending indictment for a violent offense. In other words, a

grand jury has determined that there is probable cause to believe that he has committed a violent

offense, and the State has evidenced its intention to prosecute Flint after a competency determination

rather than dismiss the charges. As the district court explained, the criminal and the civil

commitment tracks serve the purpose of confining “a dangerous mentally ill person for the protection

of the public or the person,” but the criminal track has the added purpose of “providing persons with

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treatment for the specific purpose of obtaining competency to stand trial.” Cf. Baxstrom v. Herold,

383 U.S. 107, 111 (1966) (explaining that distinctions may be made provided that distinction has

relevance to purpose for which classification was made and that classification of mentally ill as

insane or dangerously insane may be reasonable distinction for purpose of determining custodial

arrangements). Moreover, the district court explained that “[t]he State has a substantial interest in

prosecuting crime, and enforcing efforts to make defendants obtain competency.” See Sell v. United

States, 539 U.S. 166, 180 (2003) (noting important governmental interest “in bringing to trial an

individual accused of a serious crime”). For that reason, the district court concluded that “using the

grand jury determination of probable cause that the person committed certain violent offenses . . .

serves as an initial screening to protect the public.” In addition, the district court concluded that

placing the ultimate decision on whether the “criteria for release” under the health and safety code

have been met in the hands of the criminal court for cases in which the charges against an individual

have not been dismissed “ensures the decision will be made based upon the law, insulated from the

pressures of bed space and other administrative considerations that might subtly influence the

decision making of the head of a facility.” In light of the preceding, the district court explained that

although Flint may believe that there are better ways to effect the relevant State’s interests, the

differential treatment provided by the governing statutory framework is rationally related to a

legitimate governmental interest, and we agree with the reasoning of the district court. Accordingly,

we overrule Flint’s second set of arguments on appeal.2

2

Although we need not exhaustively discuss them in this case, we note that the statutes

governing the competency and confinement of individuals whose charges have not been dismissed

do provide due process protections, including the requirement that an individual committed to

a maximum security facility prior to a mental-illness hearing be subjected to a dangerousness

evaluation shortly after being committed to assess whether the placement is appropriate, Tex. Code

Crim. Proc. art. 46B.105(b), a limit on the maximum period of confinement, id. art. 46B.0095(a)

(mandating that person may not be committed for period of time that exceeds maximum permissible

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Having overruled both sets of issues on appeal, we affirm the district court’s

judgment denying Flint’s requested habeas-corpus relief.3

__________________________________________

David Puryear, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: July 25, 2013

Do Not Publish

punishment for offense charged), and the protections of the mental health code provisions that do

not conflict with the code of criminal procedure, id. art. 46B.102(a), (b).

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In its adopted findings and conclusions, the district court determined that claims that Flint

presented regarding his yet-to-be-held commitment hearing under chapter 46B of the code of

criminal procedure were premature and that “[w]hatever due process concerns there may be about

indefinite confinement under the authority of [chapter 46B], those evils have not yet touched [Flint].”

Further, the court explained that those claims “would only become ripe after the 46B.102 extended

commitment proceedings hav[e] taken place, with a developed record.” In his brief on appeal, Flint

focuses on his pre-hearing detention and challenges that continued confinement. To the extent

that Flint seeks to challenge treatment or placement after the commitment hearing is held, we

agree with the district court that those issues are not yet ripe for consideration. See Ex parte Cross,

69 S.W.3d 810, 814 (Tex. App.—El Paso 2002, pet. ref’d) (explaining that ripeness doctrine serves

constitutional interests of prohibiting advisory opinions by avoiding premature adjudication).

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