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Perez v. State

Court of Appeals of Texas, Eighth District, El Paso

March 29, 2019


          Appeal from the 120th District Court of El Paso County, Texas (TC# 20110D01249).

          Before McClure, C.J., Rodriguez, and Hughes, JJ.


          Yvonne T. Rodriguez, Justice.

         Zenaida Perez, Appellant, was charged with four counts of indecency with a child. She was convicted and sentenced to four years' imprisonment on Count I and two years' on Counts II through IV.[1] Appellant asserts the jury's finding she was competent to stand trial is against the great weight and preponderance of the evidence. We reverse the judgment and remand for further proceedings consistent with this opinion.


         A legally incompetent criminal defendant 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.'")(quoting Medina v. California, 505 U.S. 437, 453 (1992)); Turner, 422 S.W.3d at 688-89 ("'It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to trial.'")(quoting Drope v. Missouri, 420 U.S. 162, 171 (1975)). To be adjudicated competent to stand trial, a criminal defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and must have a "rational as well as factual understanding of the proceedings against him." Turner, 422 S.W.3d at 689 (citing Dusky v. United States, 362 U.S. 402, 402 (1960)).

         A defendant may raise a factual-sufficiency challenge to the jury's adverse finding on his incompetency claim. The seminal case on factual sufficiency in competency trials is instructive. Meraz v. State, 785 S.W.2d 146, 147 (Tex.Crim.App. 1990). In Meraz, the Court of Criminal Appeals adopted the civil standard of factual sufficiency review of "preponderance of the evidence." Id. at 153-55; Matlock v. State, 392 S.W.3d 662, 671 (Tex.Crim.App. 2013). When the defendant makes a factual sufficiency claim, he is asserting that, considering the entire body of evidence, the jury's rejection of his incompetency plea was so "against the great weight and preponderance" of that evidence to be manifestly unjust. Matlock, 392 S.W.3d at 671; Meraz, 785 S.W.2d at 154-55. We view the entirety of the evidence in a neutral light and defer to the jury's credibility determinations. Matlock, 392 S.W.3d at 671; see Morris v. State, 301 S.W.3d 281, 292 (Tex.Crim.App. 2009). We sustain Appellant's factual sufficiency claim only if, after setting out all the relevant evidence and explaining precisely how the contrary evidence greatly outweighs the evidence supporting the verdict, we clearly state why the verdict is so much against the great weight of the evidence so as to be manifestly unjust, conscience-shocking, or clearly biased. Matlock, 392 S.W.3d at 671. A clearly wrong or unjust verdict is one which "shocks the conscience," or "clearly demonstrates bias." Santellan v. State, 939 S.W.2d 155, 164-165 (Tex.Crim.App. 1997). A reviewing court may not substitute its judgement in place of the jury's assessment of the weight and credibility of the witnesses' testimony. Matlock, 392 S.W.3d at 671.

         In Texas, "[a] defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence." Tex.Code Crim.Proc.Ann. art. 46B.003(b). A defendant is incompetent to stand trial if he does not have "(1) sufficient present ability to consult with [her] lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." Tex.Code Crim.Proc.Ann. art. 46B.003(a). Facts relevant to this determination include whether a defendant can.


         During the competency trial, the defense called three witnesses: Dr. Angel Rodriguez-Cheverez, one of the psychiatrists who had examined Appellant; Dave Contreras, Appellant's former defense counsel; and Appellant's sister-in-law, Consuelo Perez.

         Dr. Angel Rodriguez-Cheverez

         At the competency trial, the jury heard the expert testimony of Dr. Angel Rodriguez-Cheverez, a forensic psychiatrist, who after examination, found Appellant incompetent to stand trial. Further, in his report, he opined, to a reasonable degree of medical certainty, he found it was "highly unlikely [and a] poor possibility" that she could be restored to competency given that her condition would "last a lifetime." Dr. Rodriguez-Cheverez diagnosed her with mild mental retardation, which was corroborated through psychological testing which determined her I.Q. score to be 60. According to Dr. Rodriguez-Cheverez, an I.Q. of 60 is equivalent to an eight-year-old.

         Appellant told Dr. Rodriguez-Cheverez that she had been born in Mexico. While in Mexico, she attended school for special education. Eventually she graduated from high school in Houston through special education. She had never been gainfully employed, because she is "too slow" and has difficulties learning anything new. She receives social security benefits. She was married for a few months and has been separated for about three years. Dr. Rodriguez-Cheverez found her "having difficulties understanding my questions." She was cooperative, no signs of thought disorder, not delusional, but was a poor historian with "difficulties arranging events in a chronological and accurate manner." In fact, Appellant's sister Andrea, who accompanied her to the evaluation, assisted in completing the evaluation.

         Dr. Rodriguez-Cheverez based his finding of incompetency on Appellant's inability to "understand exactly what goes on in a court of law and be able to participate appropriately" in her defense. His written report indicates Appellant did not understand what a lawyer would do for her; she had no idea of the prosecuting attorney's role; she could not explain who a judge is or what a judge does; no comprehension of the jury's role; and had no idea the role of a witness. He also explained to the jury that he was certain Appellant was not malingering. He testified Appellant would not be able to consult with her lawyer with a degree of rational understanding and did not have a rational and factual understanding of the charges against her. Dr. Rodriguez-Cheverez stated Appellant would never gain the ability to consult with her attorney with "a degree of rational understanding" or attain a "rational and factual understanding of the charges" against her.

         Dr. Rodriguez-Cheverez also testified that he based his opinion on cognitive testing by Dr. Natalicio, a psychologist, who measured Appellant's I.Q. He, further explained, that he also based his opinion on a second psychiatric evaluation by Dr. Cynthia Rivera. Dr. Cynthia Rivera, had evaluated Appellant and found her competent initially, but after a second evaluation agreed with Dr. Rodriguez-Cheverez, finding Appellant, ultimately, incompetent.

         Dave Contreras

         Appellant's former defense attorney, Dave Contreras, testified that Appellant does not have the ability to "disclose pertinent facts to counsel." Mr. Contreras attested that Appellant was unable to effectively consult with him for the purposes of her defense. According to Mr. Contreras, when he spoke with her, "sometimes it's just like it's not registering. Sometimes I'll ask her a question and the answer won't come. She won't answer, so it's either she didn't understand me or she didn't hear me." Further, Mr. Contreras said, "[a]nd I have to go over and over and over again, and she has a very short-term memory problem." He told the jury that he had to "repeat everything twice" and "I talk to her one week, the next week she won't remember what we discussed." Mr. Contreras stated that Appellant did not understand what he would tell her about the case and could not make decisions. Mr. Contreras opined that she would be "annihilated by cross-examination" if she were to take the stand in her own defense because everything must be repeated to her over and over again, she is not responsive, and she forgets what she had told him earlier.

         On cross-examination by the State, Mr. Contreras rejected the proposition that Appellant would be better served by female defense counsel, answering "[n]ot with her limitations. It doesn't matter." The State posited that Mr. Contreras, as an attorney, was not qualified to render an opinion as to Appellant's limitations. Mr. Contreras responded,

Well, when she can't help me prepare her defense, when she can't relate facts to me, when she doesn't have a rational understanding of the charges against her, it's like going into a courtroom with my hands tied behind my back. It's like I would be discovering the case against her in court, and that would be malpractice for me to do that.

         Mr. Contreras acknowledged that he did not know what was going on in Appellant's head; or know why she does not answer or know what Appellant remembers and what she does not remember or whether she is lying to him. He stated Appellant did not remember meeting him which had occurred some three months prior. When pressed, Mr. Contreras told the jury that when he encountered Appellant again, he asked her, "[d]o you remember me? I represented you in the past." Appellant just looked at him. Mr. Contreras admitted he could not read Appellant's mind.

         When questioned as to the basis of his opinion that Appellant could not testify, Mr. Contreras responded, "[j]ust in talking to her. I mean, we have enough experience to understand when somebody can testify, as you know. You deal with complaining witnesses, and we know when somebody can't testify, their limitations . . . ." Mr. Contreras acknowledged while it is possible Appellant does not want to testify or could be malingering, he did not believe that to be the case. In response to whether he could "get in her head," Mr. Contreras stated "[b]ecause she doesn't remember when I just talked to her an hour earlier." Again the State pressed "[c]an you get in her head?" Mr. Contreras responded, "I can just go by observations." The State followed up "[s]o looking at somebody, you can tell what's going on in their head?" He answered, "[n]o. If I ask somebody a question and they can't answer." The State challenged whether Appellant willfully refuses to answer, and Mr. Contreras explained "[s]he tries. That, I've got to hand it to - I mean, she tries to communicate, but she can't help me. She can't."

         When the State questioned whether Mr. Contreras was sufficiently qualified to opine on Appellant's ability to consult with him, he answered "[a]ll I can tell you is the difficulty I had with her when I'm trying to prepare for trial." The State asked whether Mr. Contreras should be testifying to Appellant's mental abilities given that he is not a doctor and only has a law license, he responded "__one of the things that__what you look for in competency is the client's ability to consult . . . to a reasonable degree of rational understanding as to the charges against them . . . ." Mr. Contreras acknowledged he was not a mental health expert but that he is assigned a majority of cases involving mentally ill clients. He explained that he had seven years on-the-job training and experience in handling severely mentally ill clients, twenty-three years practicing law. Mr. Contreras told the jury that he has been unable to consult with Appellant to prepare the case for trial or get her ready to testify.

         Consuelo Perez

         Consuelo Perez, Appellant's sister-in-law, testified that Appellant lived with her. Consuelo testified she had brought Appellant to court that day and takes her to the doctor when she is ill. According to Consuelo, Appellant "forgets many things. She's ill. She's disabled." She stated that her husband, Appellant's brother, has authority to act for Appellant through Social Security. Consuelo said she has known Appellant twenty-nine years and has lived with her the last eleven months. Consuelo explained that Appellant lived with her mother all her life until her mother died about four years ago. After that she went to live with her older sister, Enriqueta Codina. Consuelo acknowledged Appellant was married for two years but her husband would take Appellant to her mother's house every day. Appellant would help take care of her mother, who was blind and had diabetes. Consuelo stated Appellant has never lived on her own. Appellant cannot manage her bank account or take care of her money monthly, so Appellant's brother does that. She can pay bills, so long as someone accompanies her and tells her what to do. According to Consuelo, Appellant cannot buy groceries without assistance and has never held a driver's license. Nor can Appellant get on a bus or get to the courthouse on her own. Appellant has gotten lost going to the restroom in the courthouse. As a result, Consuelo does not leave Appellant alone at all. When Consuelo attempts to explain what is going on with Appellant's case to her, "[s]he forgets many things and she doesn't know how to explain to me what's going on here." Appellant asks Consuelo questions, but sometimes does not understand what Consuelo tells her. Consuelo repeats things to Appellant three or four times "so that she understands what I'm trying to tell her." According to Consuelo, Appellant does not remember who her attorneys are and has not remembered any one of them for longer than one day.

         Under cross-examination, Consuelo admitted that Appellant and her husband lived together for a couple of years and did not live with her mother all her life. Consuelo also admitted that Appellant's ex-husband owned a truck that Appellant drove within an apartment complex. Consuelo stated Appellant did not take the truck into the street but acknowledged she did not observe Appellant every single minute of the day and could not be certain if she drove out into the street. Consuelo acknowledged Appellant could drive but did not have a license. Consuelo accompanied Appellant to the doctor and goes in with her while she is being examined. Consuelo explained that her husband "got custody" of Appellant eleven months prior to the trial and Appellant has been living with them since then. Consuelo told the court that prior to Appellant living with her and her husband, she would see her mother-in-law and Appellant every weekend. Consuelo testified they would visit with her mother-in-law and Appellant either at home or go to the park. Appellant would cook, feed, and move her mother from one point to another and bathe her. Appellant was very close to her mother who suffered from diabetes and was blind. Appellant was very good to her mother and took care of her as a daughter should according to Consuelo. Consuelo attested that Appellant took good care of her mother until she passed away in April 2009. Consuelo stated that Appellant had never been to a club or a party. The State introduced a picture of Appellant with two other ladies purportedly showing wristbands indicative of attendance at a nightclub.

         Consuelo acknowledged that Appellant is not subject to a guardianship and the only documents Appellant's brother must act for her come from the Social Security office. Appellant's brother is listed on Appellant's bank account first and Appellant second for the last six months prior to trial. Prior to that, Appellants' sister, Enriqueta Codina, was listed first.

         Appellant assisted Consuelo in the care of her granddaughter, after she was born in 2011, while her daughter was having surgery. However, Consuelo stated that she never left Appellant alone with her granddaughter. Consuelo was aware of her niece's children, twin premature girls. Consuelo agreed with the State that Appellant was smarter than an eight-year-old, and the family trusted her to take care of her disabled mother. Consuelo conceded that Appellant's mother was well cared for by Appellant and an eight-year-old could not be trusted to do what Appellant did with her mother. Appellant also took care of the twin girls along with her mother, after they were taken from the oxygen, thirteen years before the trial. At the time, Appellant and her mother took care of the twin girls, Appellant's mother was fifty-three years' old and her diabetes was under control. The State introduced a picture of Appellant holding the twin infant girls into evidence. Consuelo acknowledged the picture showed the girls with oxygen tubes in their noses. Consuelo explained that Appellant travelled to Denver to help their mother care for the twins. Consuelo conceded she was wrong when she stated Appellant took care of the girls after they had been weaned off the oxygen. Consuelo stated that the mother of the twins was also disabled as she had been born without a hand. According to Consuelo, Appellant helped the disabled mother with the care of the twin girls who had been born premature and on oxygen. Consuelo stated that Appellant had also looked after the twin girls' mother and her brother, Ubaldo Codina, when they were children. Consuelo clarified that Appellant assisted with the care of the twins' mother and Ubaldo, when they were brought to ...

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