IN THE TENTH COURT OF APPEALS
No. 10-11-00260-CR
GARY HOWARD FULTON, Appellant v.
THE STATE OF TEXAS, Appellee
From the 66th District Court Hill County, Texas Trial Court No. 36394
MEMORANDUM OPINION
The jury convicted Gary Howard Fulton of the offense of driving while
intoxicated, third offense or more, and assessed punishment at 50 years confinement
and a $10,000 fine. We affirm.
Fulton does not challenge the sufficiency of the evidence to support his
conviction. In his first issue, he argues that the trial court erred by “allowing the trial to
take place without knowing if [Fulton] was competent to stand trial.“ In the second issue, Fulton complains that the trial court erred in denying his request for the
appointment of an expert to determine his competency to stand trial.
Prior to trial, the trial court appointed a licensed psychologist to evaluate
Fulton’s competency to stand trial and his sanity at the time of the offense. Dr. Verl
Childers evaluated Fulton and found:
Based upon available historical information, test results, and interview data, Mr. Fulton has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding. Has a rational and factual understanding of the proceedings pending against him. It is my opinion that he is competent to stand trial on the charges pending.
Dr. Childers further found that Fulton was sane at the time of the offense.
During trial, Fulton interrupted the trial proceedings by speaking out to the trial
court. Fulton first objected to the video taken at the time of his stop for driving while
intoxicated. The State and Fulton’s attorneys agreed to mute the portion of the video
stating that Fulton was on parole. Fulton wanted the entire video and audio played for
the jury. Fulton’s attorneys would not agree to play the entire audio portion of the
video. After discussions with his attorneys and the trial court, Fulton agreed to mute
the audio portion of the video stating that he was on parole. Fulton also objected that
his attorneys were not asking the “questions that need to be asked.” Fulton became
upset that witnesses were testifying outside the presence of the jury while the trial court
determined the admissibility of the testimony.
The trial court admonished Fulton on his right not to testify. Fulton stated that
he can read and write, but that he is “very slow.” Fulton stated that he is on medication
for blood pressure and that he uses an inhaler. He also stated that he is taking
Fulton v. State Page 2 antibiotics and a decongestant for a sinus infection. Fulton also said that he had
received psychiatric treatment prior to being arrested. Fulton explained to the trial
court that he wished to testify because his attorneys were not presenting evidence to the
jury that someone else was driving the vehicle. Fulton decided against testifying at
trial.
On the third day of trial after both sides had rested and closed, Fulton informed
the trial court that he changed his mind about testifying. Fulton stated that “… I have a
change of heart about not testifying. I want to testify. I want the - - I think it would be
very important that the jury know the facts of this case, which my attorneys have not
presented …” As the trial court prepared to read the charge to the jury, Fulton
interrupted and asked the court if he would be able to testify. After repeated
interruptions by Fulton, the trial court had him removed from the courtroom. Fulton
was able to observe the proceedings on a monitor in another room. After the jury
reached a verdict, the trial court informed Fulton he could return to the courtroom, but
Fulton stated that he would prefer to view the verdict on the monitor.
At the punishment phase of the trial, the trial court again informed Fulton that
he could return to the courtroom for the proceedings, but that he must comply with the
rules of courtroom decorum. Trial counsel stated that he instructed Fulton that it was
in his best legal interest to stay in the courtroom. Fulton stated “I’m mentally
challenged at this time and I’m tired.”
Fulton contends that although he had been found competent to stand trial, the
trial court should have conducted another inquiry into his competency after his erratic
Fulton v. State Page 3 behavior at trial. A person is incompetent to stand trial if the person does not have
sufficient present ability to consult with counsel with a reasonable degree of rational
understanding; or a rational as well as factual understanding of the proceedings against
him. TEX. CODE CRIM. PRO. ANN. art. 46B.003 (West 2006). Either party may suggest by
motion, or the trial court may suggest on its own motion, that the defendant may be
incompetent to stand trial. TEX. CODE CRIM. PRO. ANN. art. 46B.004 (a) (West Supp.
2011)1. If evidence suggesting the defendant may be incompetent to stand trial comes to
the attention of the court, the court on its own motion shall suggest that the defendant
may be incompetent to stand trial. TEX. CODE CRIM. PRO. ANN. art. 46B.004 (b) (West
Supp. 2011). On suggestion that the defendant may be incompetent to stand trial, the
court shall determine by informal inquiry whether there is some evidence from any
source that would support a finding that the defendant may be incompetent to stand
trial. TEX. CODE CRIM. PRO. ANN. art. 46B.004 (c) (West Supp. 2011).
An inquiry into competency must be conducted when there is evidence
sufficient to raise a bona fide doubt in the mind of the judge whether the defendant is
legally competent. Gonzales v. State, 313 S.W.3d 840, 842 (Tex. Crim. App. 2010), cert.
den’d –U.S.--, 131 S.Ct. 928, 178 L.Ed.2d 768 (2011). A bona fide doubt may exist if the
defendant exhibits truly bizarre behavior or has a recent history of severe mental illness
or at least moderate mental retardation. Id. We review a trial court's failure to conduct
1 TEX. CODE CRIM. PRO. ANN. art. 46B.004 was amended effective September 1, 2011. The changes apply only to proceedings conducted after September 1, 2011. Because Fulton was tried in June 2011, the new provisions are not applicable in this case.
Fulton v. State Page 4 a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d
385, 393 (Tex. Crim. App.1999).
The record shows that Fulton disagreed with his attorney’s trial strategy and that
he has a history of disagreeing with his counsel. Fulton asked for his previous counsel
to be removed, and the trial court appointed new counsel to represent Fulton. At trial,
Fulton repeatedly interrupted the proceedings to express his displeasure with his trial
counsel’s representation. However, vocal disagreement with trial counsel does not
show that Fulton was incompetent to stand trial.
Fulton does not have a history of severe mental illness, and we do not find his
behavior to be truly bizarre. The trial court did not abuse its discretion in failing to
conduct a second inquiry into Fulton’s competency. We overrule the first issue.
Fulton argues that he was denied an expert to evaluate him for competency
during the trial and was again “denied an expert post-proceedings” to evaluate his
medical records to give insight into his competency at the time of trial. We review a
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IN THE TENTH COURT OF APPEALS
No. 10-11-00260-CR
GARY HOWARD FULTON, Appellant v.
THE STATE OF TEXAS, Appellee
From the 66th District Court Hill County, Texas Trial Court No. 36394
MEMORANDUM OPINION
The jury convicted Gary Howard Fulton of the offense of driving while
intoxicated, third offense or more, and assessed punishment at 50 years confinement
and a $10,000 fine. We affirm.
Fulton does not challenge the sufficiency of the evidence to support his
conviction. In his first issue, he argues that the trial court erred by “allowing the trial to
take place without knowing if [Fulton] was competent to stand trial.“ In the second issue, Fulton complains that the trial court erred in denying his request for the
appointment of an expert to determine his competency to stand trial.
Prior to trial, the trial court appointed a licensed psychologist to evaluate
Fulton’s competency to stand trial and his sanity at the time of the offense. Dr. Verl
Childers evaluated Fulton and found:
Based upon available historical information, test results, and interview data, Mr. Fulton has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding. Has a rational and factual understanding of the proceedings pending against him. It is my opinion that he is competent to stand trial on the charges pending.
Dr. Childers further found that Fulton was sane at the time of the offense.
During trial, Fulton interrupted the trial proceedings by speaking out to the trial
court. Fulton first objected to the video taken at the time of his stop for driving while
intoxicated. The State and Fulton’s attorneys agreed to mute the portion of the video
stating that Fulton was on parole. Fulton wanted the entire video and audio played for
the jury. Fulton’s attorneys would not agree to play the entire audio portion of the
video. After discussions with his attorneys and the trial court, Fulton agreed to mute
the audio portion of the video stating that he was on parole. Fulton also objected that
his attorneys were not asking the “questions that need to be asked.” Fulton became
upset that witnesses were testifying outside the presence of the jury while the trial court
determined the admissibility of the testimony.
The trial court admonished Fulton on his right not to testify. Fulton stated that
he can read and write, but that he is “very slow.” Fulton stated that he is on medication
for blood pressure and that he uses an inhaler. He also stated that he is taking
Fulton v. State Page 2 antibiotics and a decongestant for a sinus infection. Fulton also said that he had
received psychiatric treatment prior to being arrested. Fulton explained to the trial
court that he wished to testify because his attorneys were not presenting evidence to the
jury that someone else was driving the vehicle. Fulton decided against testifying at
trial.
On the third day of trial after both sides had rested and closed, Fulton informed
the trial court that he changed his mind about testifying. Fulton stated that “… I have a
change of heart about not testifying. I want to testify. I want the - - I think it would be
very important that the jury know the facts of this case, which my attorneys have not
presented …” As the trial court prepared to read the charge to the jury, Fulton
interrupted and asked the court if he would be able to testify. After repeated
interruptions by Fulton, the trial court had him removed from the courtroom. Fulton
was able to observe the proceedings on a monitor in another room. After the jury
reached a verdict, the trial court informed Fulton he could return to the courtroom, but
Fulton stated that he would prefer to view the verdict on the monitor.
At the punishment phase of the trial, the trial court again informed Fulton that
he could return to the courtroom for the proceedings, but that he must comply with the
rules of courtroom decorum. Trial counsel stated that he instructed Fulton that it was
in his best legal interest to stay in the courtroom. Fulton stated “I’m mentally
challenged at this time and I’m tired.”
Fulton contends that although he had been found competent to stand trial, the
trial court should have conducted another inquiry into his competency after his erratic
Fulton v. State Page 3 behavior at trial. A person is incompetent to stand trial if the person does not have
sufficient present ability to consult with counsel with a reasonable degree of rational
understanding; or a rational as well as factual understanding of the proceedings against
him. TEX. CODE CRIM. PRO. ANN. art. 46B.003 (West 2006). Either party may suggest by
motion, or the trial court may suggest on its own motion, that the defendant may be
incompetent to stand trial. TEX. CODE CRIM. PRO. ANN. art. 46B.004 (a) (West Supp.
2011)1. If evidence suggesting the defendant may be incompetent to stand trial comes to
the attention of the court, the court on its own motion shall suggest that the defendant
may be incompetent to stand trial. TEX. CODE CRIM. PRO. ANN. art. 46B.004 (b) (West
Supp. 2011). On suggestion that the defendant may be incompetent to stand trial, the
court shall determine by informal inquiry whether there is some evidence from any
source that would support a finding that the defendant may be incompetent to stand
trial. TEX. CODE CRIM. PRO. ANN. art. 46B.004 (c) (West Supp. 2011).
An inquiry into competency must be conducted when there is evidence
sufficient to raise a bona fide doubt in the mind of the judge whether the defendant is
legally competent. Gonzales v. State, 313 S.W.3d 840, 842 (Tex. Crim. App. 2010), cert.
den’d –U.S.--, 131 S.Ct. 928, 178 L.Ed.2d 768 (2011). A bona fide doubt may exist if the
defendant exhibits truly bizarre behavior or has a recent history of severe mental illness
or at least moderate mental retardation. Id. We review a trial court's failure to conduct
1 TEX. CODE CRIM. PRO. ANN. art. 46B.004 was amended effective September 1, 2011. The changes apply only to proceedings conducted after September 1, 2011. Because Fulton was tried in June 2011, the new provisions are not applicable in this case.
Fulton v. State Page 4 a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d
385, 393 (Tex. Crim. App.1999).
The record shows that Fulton disagreed with his attorney’s trial strategy and that
he has a history of disagreeing with his counsel. Fulton asked for his previous counsel
to be removed, and the trial court appointed new counsel to represent Fulton. At trial,
Fulton repeatedly interrupted the proceedings to express his displeasure with his trial
counsel’s representation. However, vocal disagreement with trial counsel does not
show that Fulton was incompetent to stand trial.
Fulton does not have a history of severe mental illness, and we do not find his
behavior to be truly bizarre. The trial court did not abuse its discretion in failing to
conduct a second inquiry into Fulton’s competency. We overrule the first issue.
Fulton argues that he was denied an expert to evaluate him for competency
during the trial and was again “denied an expert post-proceedings” to evaluate his
medical records to give insight into his competency at the time of trial. We review a
ruling on a request for the appointment of an expert for abuse of discretion. See Deason
v. State, 84 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). In Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme
Court explained that due process requires access to the raw materials integral to the
building of an effective defense. Griffith v. State, 983 S.W.2d 282, 286 (Tex. Crim. App.
1998). In other words, the State must provide a defendant with the basic tools to
present his defense within our adversarial system. Id. In implementing this right to
Fulton v. State Page 5 receive an expert, the burden is on the defendant to make a sufficient threshold
showing of the need for the expert's assistance. Griffith v. State, 983 S.W.2d at 286-7.
Fulton was examined prior to trial and determined to be competent to stand trial.
Fulton’s interruptions during trial did not require the trial court to appoint a second
expert to evaluate him. In his motion for new trial, Fulton presented the affidavit of a
nurse from the jail that just prior to trial, he was given a new medication after
complaining of a cold and a headache. Fulton was prescribed an antibiotic and an
antihistamine. The nurse stated that the common side effects of the antihistamine are
“dizziness and drowsiness. She further stated that other side effects include “poor
coordination, fatigue, anxiety, euphoria, confusion, and parasthesia, neuritis.” The
nurse further stated that during the time she dealt with Fulton, she did not observe any
changes in his behavior and that he was rational and coherent during June, the month
in which he was tried. Fulton has not shown that the trial court abused its discretion in
refusing to appoint an expert to evaluate him for competency. We overrule the second
issue.
The judgment of the trial court is affirmed.
AL SCOGGINS Justice
Fulton v. State Page 6 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 27, 2012 Do not publish [CRPM]
Fulton v. State Page 7