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In re State

Court of Appeals of Texas, Eighth District, El Paso

July 10, 2019



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



         The State of Texas has filed a mandamus petition against the Honorable William E. Moody, Judge of the 34th District Court of El Paso County, Texas. The State requests that the Court order Respondent to vacate his order placing restrictions on the State's choice of expert witness and the manner of the expert's examination of the real party in interest, Jose Angel Varela. The petition for writ of mandamus is denied.


         Jose Angel Varela is charged with one count of capital murder and one count of murder. The State is not seeking the death penalty.

         Varela filed a motion to suppress his statements on the ground that they were involuntary and "taken in the absence of an intelligent and understanding waiver of the right to counsel." It is undisputed that Varela submitted to a psychiatric examination by the defense's mental health expert, Dr. James W. Schutte, and Varela intends to offer the testimony of Dr. Schutte at the suppression hearing regarding Varela's competency to waive his Miranda rights. Based on the Court of Criminal Appeals' decisions in Soria v. State, 933 S.W.2d 46 (Tex.Crim.App. 1996) and Lagrone v. State, 942 S.W.2d 602 (Tex.Crim.App. 1997), the State filed a motion that its mental health expert, Dr. Timothy J. Proctor, be allowed to examine Varela.

         At the hearing on the State's motion, the State agreed that Dr. Proctor's examination would be restricted to a determination of Varela's competency to waive his Miranda rights. The trial court granted the State's motion to examine Varela. Defense counsel then requested that the examination be recorded and that a third-party observer be present during the examination based on concerns about the reliability of Dr. Proctor's examination. The defense pointed out that the examination would have to be conducted through an interpreter because Varela does not speak English and Dr. Proctor does not speak Spanish. The trial court granted Varela's request for the examination to be recorded but he denied the request for a third-party observer.

         The State filed a motion to reconsider the trial court's ruling arguing that recording the examination would not only compromise the integrity and reliability of the examination but would also interfere with the State's ability to seek out and obtain useful psychiatric evidence to counter Varela's evidence. At the conclusion of the hearing, the trial court took the matter under advisement, but suggested that the State may need to find an expert witness willing to conduct the examination under the conditions imposed by the trial court. Both the State and Varela submitted additional briefing on the issue.

         After reviewing the briefs submitted by the parties the trial court conducted a final hearing to determine the issue. The State argued that (1) there is no legal authority for recording the examination; (2) the State's chosen expert had professional and ethical objections to the examination being recorded; (3) Texas courts had prohibited the presence of third-party observers in psychiatric examinations; (4) the current medical/psychological literature suggested that the presence of third-party observers or recordings impaired the validity of psychological testing; (5) recording invaded the province of the expert in determining how best to examine and evaluate the defendant; (6) the recording requirement would deny the State its right to the expert of its own choosing; and (7) Varela's concerns about the accuracy of the translation and community between Dr. Proctor and Varela could be addressed through voir dire and cross-examination of Dr. Proctor and the interpreter.

         Varela responded that the State had not cited any legal authority prohibiting the recording of the psychiatric examination and he noted that another jurisdiction expressly permitted recording. He also argued that the State's right under the Soria/Lagrone rule gave the right to an expert of its own choosing, but the State's choice is subject to the limitation that the State's expert speak the same language as the defendant. Varela went on to assert that if the chosen expert does not speak the defendant's language, then recording is necessary.

         The trial court entered the following order:

The Court is of the opinion that the Defendant's request to video-record the State expert's examination of the Defendant, if conducted by an expert requiring the use of an interpreter, should be and is hereby GRANTED. Subject thereto, the State has three options on how it may proceed:
1) The State may retain an expert, who would require use of an interpreter to examine the Defendant, in which case the Defendant's ...

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