Christopher Dewa Washington v. State
Opinion
ACCEPTED
01-14-00366-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/23/2015 5:32:43 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00366-CR
In the FILED IN Court of Appeals 1st COURT OF APPEALS HOUSTON, TEXAS
For the 11/23/2015 5:32:43 PM First District of Texas CHRISTOPHER A. PRINE At Houston Clerk
♦
No. 11249853
In the 178th District Court Of Harris County, Texas
♦
Christopher Dewa Washington Appellant
v.
The State of Texas
Appellee
♦
State’s Motion for Rehearing ♦
This is an appeal from the appellant’s conviction for capital murder. The appellant raised three points in his brief, the third of which claimed that the trial court erred by not holding a trial on his competency to stand trial. On November 19, 2015, this Court issued a “Memorandum Order of Abatement” sustaining the appellant’s third point and ordering the trial court “to determine whether it is feasible to conduct a retrospective competency trial, and if so, to order an
examination of appellant … and conduct a retrospective competency trial.” The State asks this Court to reconsider its order. The State believes that this Court has misread the record. Once these misreadings are removed from this Court’s order, the remaining evidence does not provide a scintilla of evidence that the appellant was incompetent to stand trial.
This Court’s order is based on serious misreadings of the record.
In the portion of its order holding that the trial court abused its discretion by not having a competency trial, this Court included two paragraphs listing what it believed was evidence that the appellant was incompetent. The second paragraph focused on an affidavit from one of the appellant’s trial attorneys:
In the affidavit attached to appellant’s motion for a competency trial, Salceda averred, among other things, that he was unable to meaningfully consult with appellant regarding the facts of the case and trial proceedings because whenever he asked appellant a question, appellant’s only response was, “ok.”
(Memorandum Order of Abatement at 11).
That is not an accurate statement of the record. If this Court does not grant rehearing, it should reissue its order without that sentence. What Salceda stated is:
On April 7, 2014, Patrick McCann and I visited with [the appellant] in the courtroom holding cell. Mr. McCann explained to [the appellant] how and why he had arrived at the decision to not have his family testify during guilt/innocence in the case. [The appellant] nodded his head and exclaimed “ok.” Mr. McCann explained to [the appellant] that if he was found guilty of one of the lesser included offenses, we would reconsider what witnesses to put on but in any event that portion of the case was going to be to the judge, not the jury. [The appellant] nodded his head and exclaimed “ok.” At that point Mr. McCann explained to [the appellant] that I wanted to go over a few things with him. Mr. McCann left the room and I stayed and explained several things that I was going to do during Voire Dire that I wanted [the appellant’s] input on. His only response to me was “ok.” I then asked him if he had any questions for me. He asked me if his family was going to testify as to his work history. I repeated the explanation Mr.
McCann gave to [the appellant] earlier and he again replied “ok.”
(CR 142-43).
There is no averment that Salceda was unable to meaningfully consult with the appellant. All Salceda averred is that he asked the appellant some questions, and the appellant replied: “Ok.” There is no averment that “ok” was an inappropriate answer to any of these questions, or that there was any information that Salceda wanted but the appellant was unable to convey. Further, this Court’s statement that “whenever [Salceda] asked appellant a question, appellant’s only response was, ‘ok’” is in direct conflict with Salceda’s statement that
when he asked the appellant if he had any questions, the appellant asked Salceda “if his family was going to testify as to his work history.”
Defense counsel’s unspecified difficulty in communicating with a defendant is not evidence of incompetence. Moore v. State, 999 S.W.2d 385, 394 (Tex. Crim. App. 1999). In Moore, the defendant made several inappropriate outbursts during trial, and defense counsel kept telling the defendant that this was inappropriate. Defense counsel told the trial court that the defendant did not understand what counsel was telling him, and that the defendant’s replies were inappropriate: “I'm talking in apples and the responses are in oranges.” Moore, 999. S.W.3d at 394. That statement is much more descriptive than Salceda’s affidavit, insofar as it actually states that the defendant’s replies were inappropriate, yet the Court of Criminal Appeals rejected it as insufficiently specific to require a competency trial. Ibid.
Even if one were to read into Salceda’s affidavit an averment that the appellant’s answers were inappropriate, there is no reason to believe that they show an inability to consult with his attorneys, rather than a simple refusal to do so. If the question is, “Was the appellant unable to consult with his attorneys, or just unwilling?”, Salceda’s affidavit would not constitute a scintilla of evidence one way or the
other: “When the circumstances are equally consistent with either of two facts, neither fact may be inferred.” City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005) (quoting Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805 (Tex.1991)).
This Court’s second serious misreading of the record also relates to the distinction between a defendant’s inability to aid his attorney, and a mere refusal to do so. This Court characterized another portion of Salceda’s affidavit as “illustrating appellant’s inability to meaningfully consult with his counsel regarding voir dire ….” What Salceda said is:
During Voire Dire, [the appellant’s] only participation was to ask three separate times whether the jury would assess punishment even after it had been explained by myself and by Mr. McCann on two separate occasions. His notes during voir dire were incomprehensible, they were words that could not be made out and he never expressed an opinion about individual panel members even though we had explained to him what we were doing and how we were going about it.
(CR 143). This is a statement only that the appellant did not consult with his attorneys during voir dire, not that he was unable to do so. Nothing in the record provides any way of determining whether this instance “illustrates” an inability to meaningfully consult with counsel, or whether it is simply an example of the appellant choosing not to discuss voir dire with his lawyers. In short, there is no evidence as to why the
appellant did not discuss voir dire with his attorneys. Thus, this example does not provide a scintilla of evidence one way or the other. See City of Keller, 168 S.W.3d at 813. Considering that the Legislature has established a statutory presumption of competence, see TEX. CODE CRIM. PROC. art. 46B.003(b), neither the trial court nor this Court should infer incompetence from evidence that is equally consistent with competence.
It is not obvious what meaningful input a defendant should have regarding voir dire, and Salceda’s affidavit did not state what sort of input he expected from the appellant. Disinterest in a phase of trial is not evidence of incompetence. See Moughon v. State, 967 S.W.2d 900, 901 (Tex. App.—Fort Worth 1998, no pet.); Turner v. State, 422 S.W.3d 676, 692, 696 (Tex. Crim. App. 2013) (evidence that defendant refused to cooperate with defense counsel is insufficient to require competency trial without evidence that such refusal was prompted by mental illness or disability).
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