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Osorio-Lopez v. State

Court of Appeals of Texas, Sixth District, Texarkana

August 14, 2019


          On Appeal from the 115th District Court Upshur County, Texas Trial Court Nos. 17914 & 17927

          Before Morriss, C.J., Burgess and Stevens, JJ.


         Following a single trial, Edwin Antonio Osorio-Lopez was convicted of aggravated assault with a deadly weapon, for which he was sentenced to twenty years' incarceration, [1] and evading arrest or detention with a vehicle, [2] for which he was sentenced to ten years' incarceration. The sentences were ordered to run concurrently.[3]

         On appeal, Osorio-Lopez contends that (1) the evidence was insufficient to establish that a food tray was a deadly weapon and (2) the trial court erred in refusing his request for a competency examination. Because there was some evidence that Osorio-Lopez was incompetent, we abate this matter to the trial court.

         I. Factual and Procedural Background

         On February 5, 2018, Osorio-Lopez was scheduled to enter guilty pleas on charges of evading arrest or detention with a vehicle and unauthorized use of a motor vehicle. Osorio-Lopez declined to enter guilty pleas and instead elected to proceed to trial before the court. On February 13, 2018, Osorio-Lopez returned to court for a pretrial hearing. The trial court acknowledged that the case was set for a bench trial that afternoon, but stated that Osorio-Lopez' interpreter and the attorneys had approached it with some concerns about Osorio-Lopez. The trial court then proceeded to explain the adversarial process to Osorio-Lopez and confirmed that he had a seventh- grade education. Osorio-Lopez indicated that he had experienced mental and emotional problems and had been hospitalized in Wichita Falls following a period of incarceration in Fort Worth. At the conclusion of the hearing, the trial court ordered Osorio-Lopez to be examined by Tom Allen, Ph.D., to determine Osorio-Lopez' competency to stand trial.

         Allen issued an evaluation report in which he concluded that Osorio-Lopez was incompetent to stand trial.[4] According to Allen, Osorio-Lopez "appeared to be having considerable difficulty responding to many questions in linear, logical fashion and tended to provide rambling responses and memorial details were very vague." Allen further concluded that Osorio-Lopez exhibited paranoid ideation and suffered from impaired insight. Based on Allen's report, the trial court found Osorio-Lopez incompetent to stand trial and, in conformity with Article 46B.073 of the Texas Code of Criminal Procedure, ordered Osorio-Lopez' commitment to Rusk State Hospital on April 26, 2018, for a period not to exceed 120 days for further examination and treatment.

         On August 8, 2018, the trial court was advised by Larry Hawkins, M.D., Unit Psychiatrist at Rusk State Hospital, that after a period of observation and treatment, Osorio-Lopez was re-evaluated and was determined to be competent to stand trial. Hawkins warned, "Current medications are necessary to maintain the defendant's competence."[5] A new trial date was scheduled for October 8, 2018.

         Three days before the scheduled trial, Osorio-Lopez' appointed counsel filed a motion to withdraw. Counsel informed the trial court that Osorio-Lopez requested that counsel withdraw because Osorio-Lopez could not communicate with counsel. When the trial court asked Osorio-Lopez to explain, he stated that he had a problem in Fort Worth involving a false identification. Osorio-Lopez told the court there was a report from an official who detained him stating that counsel did not listen to Osorio-Lopez. Osorio-Lopez also told the trial court that counsel threatened him on several occasions and sided with the police officers.

         Trial counsel explained that Osorio-Lopez was referring to a case he had in Tarrant County in which he was represented by a different attorney. After the trial court explained to Osorio-Lopez that this case had nothing to do with Fort Worth, Osorio-Lopez stated that counsel would not be able to defend him because of the issue he had the first time. Osorio-Lopez remained adamant that appointed counsel in the current case was the same attorney who represented him in Fort Worth. Counsel stated that he never had a case in Fort Worth. The trial court denied the motion to withdraw.

         Following jury selection, Osorio-Lopez' court-appointed counsel filed a verified motion for continuance outlining his inability to effectively communicate with Osorio-Lopez. The motion stated that after Osorio-Lopez was determined to be competent and was returned to Upshur County, he was able to effectively communicate with counsel in writing and with the help of counsel's bi-lingual assistant. Counsel went on to state,

Communications have deteriorated to the point that Defendant is adamant that undersigned counsel had represented him on a prior matter in Tarrant County and despite all attempts of Undersigned Counsel and the court appointed interpreter to convince him otherwise, this thought remains with Defendant. Defendant deems any advice of undersigned counsel to be against his best interest. Trial Counsel requests a continuance to have Dr. Thomas Allen examine Defendant again for competency.

         At the hearing on the motion, counsel elaborated,

As we got closer to jury selection and with communications I was able to do through [the interpreter, ] it seemed to me that he was starting to have irrational thoughts, for instance, one the court is aware where he thought I represented him in another county in another matter and in his opinion had sold him out on a prior criminal matter. At jury selection[, ] he presented written documentation to [the interpreter] that [the interpreter] was able to translate and get back to me last Thursday afternoon and was information he thought would be helpful in his defense. However, it appeared to me that he obviously had a lot of in my opinion irrational thoughts that he deemed were factual. And in furtherance of that[, ] this morning he's made serious communications with me about things that he thinks or believes is happening down in the jail that would be horrific if true but to me seem to be irrational thoughts . . . . [H]e basically goes against every piece of advice I give him and gone as far as not signing essential documents like the application for community supervision because he ...

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