Court of Appeals of Texas, Eighth District, El Paso
from the 120th District Court of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Hughes, JJ.
T. Rodriguez, Justice.
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. 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
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)).
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.
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.
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
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.
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
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"
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.
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.
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
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
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
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
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.
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
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.
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
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 ...