Opinion
13-23-00232-CR
08-16-2024
KEITH JAMAAL MCKINNEY, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. TEX. R. APP. P. 47.2(B).
ON APPEAL FROM THE 24TH DISTRICT COURT OF REFUGIO COUNTY, TEXAS
Before Justices Longoria, Silva, and Pena
ORDER OF ABATEMENT
PER CURIAM
Appellant Keith Jamaal McKinney appeals his conviction for possession of a controlled substance, penalty group 1-four grams or more but less than 200 grams-a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(D). After returning a guilty verdict against McKinney, the jury found the enhancement paragraph in the indictment to be true, elevating the sentence to that of a first-degree felony, and sentenced him to forty-four years' imprisonment. See TEX. PENAL CODE ANN. § 12.42(D). Because McKinney sufficiently raised the issue of his incompetency to stand trial, see TEX. CODE CRIM. PROC. ANN. art. 46B.004(c), we abate this appeal and remand to the trial court.
I. Background
In a one-count indictment, McKinney was charged with possession of a controlled substance, penalty group 1-four grams or more but less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d). An enhancement paragraph, see TEX. PENAL CODE ANN. § 12.42(d), alleged that McKinney had been previously finally convicted of manufacture or delivery of a controlled substance, penalty group 1-four grams or more but less than 200 grams, see TEX. HEALTH & SAFETY CODE ANN. § 481.112(d), and possession of a controlled substance, penalty group 1-four grams or more but less than 200 grams. See id. § 481.115(d).
On October 26, 2020, the trial court granted a motion to withdraw filed by prior defense counsel at McKinney's request, set his case for a plea docket on November 23, 2020, and for a jury trial on November 30, 2020. The trial court notified new defense counsel of his appointment and the settings in the case on November 16, 2020.
On November 23, 2020, defense counsel filed an opposed motion for continuance generally arguing that he did not have adequate time to prepare for trial and investigate the facts of the case. The trial court denied the motion for continuance, noting that McKinney is the one who had requested a new attorney, and appointed previous defense counsel as second chair. On November 28, 2020, defense counsel filed a "Motion Suggesting Incompetency and Request for Examination." This motion requested that "one or more disinterested experts be appointed as provided by Article 46B of the Texas Code of Criminal Procedure to examine" McKinney and that "[i]n the event that the court determines that there is evidence to support a finding of incompetency, an incompetency trial is requested as provided by Article 46B of the Texas Code of Criminal Procedure." Defense counsel also filed a sealed ex parte opposed second motion for continuance. In McKinney's second motion for continuance, in addition to generally requesting additional time to prepare for trial, defense counsel stated that he had learned that McKinney had a "history of severe mental illness," "suicidal ideations," a history of suicide attempts, "numerous commitments to various mental treatment facilities," and a history of "ongoing auditory hallucinations" which "were interfering with his ability to discuss the case with counsel, and to assist him in preparing for trial."
On November 30, 2020, the trial court held an ex parte hearing on McKinney's request for examination and second motion for continuance. Although defense counsel stated that he was "pretty sure [McKinney] understands the nature of the proceedings and what he's charged with," defense counsel argued that his "main concern is that [McKinney is] unable to assist [him] at trial." Defense counsel stated, "[s]pecifically, my client did advise me that he has been having auditory and visual hallucinations since being a teenager, and he is actually having those up and through . . . when I talked to him [last]." The trial court and defense counsel then proceeded to ask McKinney several questions, in response to which he affirmed that: he was currently "having auditory and visual hallucinations"; he was "hearing voices right now"; the voices were telling him to kill himself and to "hurt other people"; when discussing the case with defense counsel in preparation for trial, he was "hearing voices and having visual hallucinations while [they] were talking"; he had been placed in a mental health treatment facility while previously incarcerated; and that he was in the process of "getting back on" medication. The trial court denied McKinney's second motion for continuance but did grant McKinney's request for a competency examination and signed an order that same day appointing Dr. Troy Martinez to examine McKinney to determine if he is competent to stand trial pursuant to Article 46B of the Texas Code of Criminal Procedure.
Trial in the case began on December 3, 2020. Before voir dire began, the trial court noted that it had revoked McKinney's bond and placed him in custody after the prior ex parte hearing because of suicidal and violent behavior. After hearing from Captain Daniel Jaramillo from the Refugio County Sherriff's Department that there were no longer any behavioral concerns with McKinney after McKinney had spoken with his defense counsel, the trial court proceeded with trial and ordered McKinney restrained at counsel table. A jury was empaneled and at the end of testimony on the first day of trial, the trial court reinstated McKinney's bond with trial to resume the following week. Also, on the first day of trial, the trial court entered a second order appointing Dr. Martinez to conduct a competency examination of McKinney and set deadlines requiring that Dr. Martinez be provided all necessary documents by December 7, 2020, and requiring that the expert report be submitted "not later than the 30[th] day after the date this order was signed (Article 46B.026, Code of Criminal Procedure)." As with the prior expert appointment order, this order required that Dr. Martinez's expert report comply with the statutory requirements set out in Chapter 46B. See TEX. CODE CRIM. PROC. ANN. ART. 46B.025 (setting out requirements for expert competency examination reports). .
On the morning trial resumed, McKinney failed to report to court. The trial court then orally forfeited McKinney's bond and issued a capias for his arrest. Defense counsel then urged another motion for continuance based on McKinney's possible incompetence and the need for psychological examination, informing the trial court of McKinney's desire to testify at trial. The trial court denied defense counsel's motion and the trial proceeded in McKinney's absence. See TEX. CODE CRIM. PROC. ANN. art. 33.03. At the close of evidence on December 8, 2020, the jury found McKinney guilty as alleged in the indictment. Throughout the proceedings, defense counsel re-urged his motion for continuance, a motion for mistrial based on McKinney's absence, and a motion for continuance as to punishment only, all of which were denied. After the trial court entered a plea of not true on behalf of McKinney in absentia, the jury found the enhancement paragraph to be true and sentenced him to forty-four years' imprisonment. See id. art. 37.06.
McKinney was arrested and remanded to the custody of the Refugio County Sherriff's Department on June 8, 2021. With McKinney in custody, the trial court pronounced sentence and entered its judgment of conviction on January 6, 2022. See id. arts. 42.01,42.03; see also In re Risley, 190 S.W.3d 853, 855-56 (Tex. App.-Fort Worth 2006, no pet.) (granting habeas relief requiring that "the trial court pronounce [appellant]'s sentence in his presence" where he had previously been "sentenced in absentia"). The record indicates that no competency examination was conducted pursuant to the trial court's orders prior to or after the sentence was pronounced in McKinney's presence. Afterwards, McKinney filed an application for writ of habeas corpus based on his inability to timely appeal his conviction because his appointed appellate counsel had not been notified that McKinney had been arrested and a judgment of conviction entered. The Texas Court of Criminal Appeals granted relief and permitted McKinney to file an out-oftime appeal. This appeal followed.
See Ex parte McKinney, No. WR-94,779-01, 2023 WL 3494853 (Tex. Crim. App. May 17, 2023) (not designated for publication).
II. Standard of Review &Applicable Law
"A criminal defendant who is incompetent may not be put to trial without violating due process." Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013); see Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) ("We have repeatedly and consistently recognized that the criminal trial of an incompetent defendant violates due process." (cleaned up)). A defendant is presumed competent to stand trial unless it is shown by a preponderance of the evidence that he is incompetent, i.e., that he lacks "sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding," or "a rational as well as factual understanding of the proceedings against" him. TEX. CODE CRIM. PROC. ANN. ART. 46B.003(a), (b).
"[A] trial court employs two steps for making competency determinations before it may ultimately conclude that a defendant is incompetent to stand trial. The first step is an informal inquiry; the second step is a formal competency trial." Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). An informal inquiry is triggered by a suggestion by either party or the judge that the defendant may be incompetent to stand trial. See TEX. CODE CRIM. PROC. ANN. art. 46B.004(A). “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.” Id. art. 46B.004(c). Upon a showing of “some evidence” of incompetency, "the trial court must order a psychiatric or psychological competency examination, and except for certain exceptions, it must hold a formal competency trial." Boyett, 545 S.W.3d at 563 (citing TEX. CODE CRIM. PROC. ANN. ARTS. 46B.005(a), (b), 46B.021(B)); see Turner, 422 S.W.3d at 696 ("[T]he standard for requiring a formal competency trial is not a particularly onerous one-whether, putting aside the evidence of competency, there is more than a scintilla of evidence that would support a rational finding of fact that the accused is incompetent to stand trial[.]"). Further, "[o]n a suggestion that the defendant may be incompetent to stand trial," the trial court "may appoint" an expert to conduct a competency examination and to "testify as to the issue of competency or incompetency of the defendant at any trial or hearing involving that issue." TEX. CODE CRIM. PROC. ANN. ART. 46B.021(A)(1), (2).
Where a trial court does not adequately ensure that a defendant is competent to stand trial, the proper remedy is to abate the appeal and remand to the trial court to determine the feasibility of a retrospective competency inquiry, with instructions to conduct the appropriate proceeding if feasible. See Bautista v. State, 605 S.W.3d 520, 530-31 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (abating the appeal and remanding to the trial court to determine the feasibility of a retrospective competency inquiry and, if one is feasible, directing the trial court to "conduct an informal inquiry into appellant's competency to stand trial," and a subsequent formal competency trial if required); Laflash v. State, 614 S.W.3d 427, 433-34 (Tex. App.-Houston [1st Dist.] 2020, no pet.) (same); see also Turner, 422 S.W.3d at 696-97 (abating the appeal and remanding to the trial court to determine the feasibility of a retrospective competency trial, and if one is feasible, directing the trial court to conduct a formal competency trial).
III. Discussion
If McKinney was incompetent to stand trial, his conviction would violate due process. See Turner, 422 S.W.3d at 688; Cooper, 517 U.S. at 354; see also Pate v. Robinson, 383 U.S. 375, 378 (1966) (noting that "the conviction of an accused person while he is legally incompetent violates due process, and that state procedures must be adequate to protect this right" (citation omitted)). Here, defense counsel successfully suggested to the trial court that McKinney was incompetent to stand trial. See TEX. CODE CRIM. PROC. ANN. ART. 46B.004(C); see Turner, 422 S.W.3d at 691 ("Evidence that raises th[e] possibility [of incompetency] necessitates an informal inquiry, and if that inquiry reveals that the possibility is substantial, a formal competency trial is required."); see also Clark v. State, 592 S.W.3d 919, 925 (Tex. App.-Texarkana 2019, pet. denied) ("The amount of information necessary to trigger an informal inquiry is low. It may consist solely of a representation from any credible source that the defendant may be incompetent.").
Upon suggestion that McKinney was incompetent, the trial court granted McKinney's request for a competency examination and appointed an expert to "testify as to the issue of competency or incompetency of the defendant at any trial or hearing involving that issue." By appointing an expert under Chapter 46B, the trial court implicitly found at the very least that an informal inquiry was warranted, as the threshold for permitting the discretionary appointment of an expert to conduct a competency examination and requiring an informal inquiry is the same: a suggestion that the defendant may be incompetent to stand trial. See TEX. CODE CRIM. PROC. ANN. 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." (emphasis added)), art. 46B.021(a) ("On a suggestion that the defendant may be incompetent to stand trial, the court may appoint one or more disinterested experts[.]" (emphasis added)); see also Laflash, 614 S.W.3d at 428-29 (reviewing a case in which an expert was appointed to conduct a competency examination before an informal inquiry was held). In addition, the record supports the trial court's finding.
Once an informal inquiry was triggered, the trial court was obligated to, in fact, "determine" whether there was "some evidence" to support a finding of incompetency and require a formal competency trial. Id. art. 46B.004(c); see Bautista, 605 S.W.3d at 53031; Laflash, 614 S.W.3d at 433-34. Here, the trial court appointed an expert to conduct a competency examination and issued orders requiring Dr. Martinez to determine whether McKinney was incompetent to stand trial and submit a corresponding report, including an order signed the day of trial setting deadlines for Dr. Martinez to receive documents and submit his report after the trial on the merits would already be in progress and possibly concluded. See TEX. CRIM. PROC. ANN. arts. 46B.025 (setting out the requirements for an expert's competency examination report), 46B.026 (affording an appointed expert up to thirty days to submit its competency examination report). However, no expert examination of McKinney's competency to stand trial was conducted pursuant to the trial court's orders prior to or after sentence was pronounced in McKinney's presence, and the trial court held no further hearings on the matter. Thus, the trial court failed to adequately ensure that McKinney was competent to stand trial. See Turner, 422 S.W.3d at 688; Bautista, 605 S.W.3d at 530-31; Laflash, 614 S.W.3d at 433-34.
IV. Disposition
Because the record establishes that McKinney was entitled to an informal inquiry, see TEX. CODE CRIM. PROC. ANN. art. 46B.004(c), we abate his appeal and remand the cause to the trial court. See Bautista, 605 S.W.3d at 530-31 (abating appeal and remanding case to trial court for determination of whether it was feasible to conduct retrospective competency inquiry); Laflash, 614 S.W.3d at 433 (same); see also Turner, 422 S.W.3d at 696 (abating appeal and remanding the case to the trial court for a determination whether it was feasible to conduct a retrospective competency trial). On remand, the trial court shall, within 30 days, initially determine the feasibility of a retrospective competency inquiry given the passage of time, availability of evidence, and any other pertinent considerations. See Turner, 422 S.W.3d at 696 (citing 43 George E. Dix &John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 31:81, at 89-90 &n.10 (3d ed. 2011)). If the trial court determines a retrospective competency inquiry is feasible, it shall conduct an informal inquiry into McKinney's competency to stand trial. See Bautista, 605 S.W.3d at 531. If the informal inquiry establishes that there is some evidence of incompetency, it shall conduct a formal competency trial. See id. Regardless of whether the trial court deems a retrospective competency inquiry feasible or not, the record of the trial court's proceedings on remand shall be filed with this Court on or before 90 days from the date of this order for reinstatement of McKinney's appeal.