Lox Gorme v. State

Opinion

Opinion issued May 12, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00551-CR ——————————— LOX GORME, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1272297

MEMORANDUM OPINION

Appellant, Lox Gorme, without an agreed punishment recommendation from

the State, pleaded guilty to the offense of murder. 1 After a pre-sentence

investigation (“PSI”) hearing, the trial court assessed his punishment at

1 See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011). confinement for forty-eight years. In his sole issue, appellant contends that the

trial court erred in not conducting, sua sponte, an informal inquiry into his

competency during the sentencing phase of trial.

We affirm.

Background

A Harris County Grand Jury issued a true bill of indictment, accusing

appellant of having committed the offense of murder on July 28, 2010.

Appellant’s counsel then moved for a psychiatric examination to determine

appellant’s competency to stand trial on the grounds that appellant had a “history

of psychiatric problems” and his “behavior caused concerns about [his] ability to

understand [the] process.” And the trial court granted the motion.

Dr. R. Laval subsequently filed a forensic psychiatric evaluation report with

the court. In his report, Laval states that he examined appellant on May 27, 2011

and found him to be calm and cooperative, with organized, coherent, and logical

thought processes. Appellant reported a history of auditory hallucinations, namely,

“voices that never stop” and tell him “things that are happening and sometimes

good or bad things about [him].” Appellant told Laval that he had not been taking

medication prior to his arrest, but had been “self-medicating with alcohol,” which

helped “suppress” the voices. Since his arrest, Laval had undergone three

psychiatric assessments, been diagnosed with “Schizophrenia, Paranoid Type,” and

2 been started on medication. In the latest assessment report, the examiner had

found that appellant was “still experiencing auditory hallucinations ‘about past

events,’ but not as much as before.” And appellant told Laval that he was

continuing to experience auditory hallucinations, despite his medication.

However, noting that there was “no significant decline in his attention,

concentration or memory function,” Laval found that appellant was “cognitively

intact and seemed not to be responding to internal stimuli.” And he diagnosed

appellant with “Psychotic Disorder Not Otherwise Specified and Alcohol

Dependence.”

Dr. Laval further determined that appellant had a “clear and rational

understanding of the charges against him and of the possible consequences of

conviction,” “demonstrate[d] the ability to disclose to counsel pertinent facts,

events and states of mind associated with the alleged offense,” and exhibited a

“sufficient understanding of the criminal justice system and of the adversarial

nature of prosecution.” Laval opined that appellant had “sufficient present ability

to consult with [c]ounsel with a reasonable degree of rational understanding, and

ha[d] the ability to understand, both rationally and factually, the pending charges

and criminal proceedings against him.” Laval further opined, thus, that appellant

was competent to stand trial.

3 Appellant subsequently pleaded guilty to the offense. In the plea documents,

appellant stated that he understood the allegations and had fully discussed the case

with his attorney, and he represented that he was “mentally competent to stand

trial.” Appellant’s attorney also signed the plea documents, representing that he

had fully discussed the case with appellant and believed that he was “competent to

stand trial.” The trial court, in signing the plea documents, stated that it had

ascertained that appellant appeared “mentally competent.”

Following the plea hearing, a PSI report was prepared. The PSI report,

which was admitted into evidence, states that in March and April 2011, appellant

was diagnosed with “Axis 1 schizophrenia, paranoid type” and “major depression

disorder with recurring psychotic features.” The report also reflects that appellant

had reported that since starting his medication on May 1, 2012, “he [was] feeling

better and [did] not hear the voices,” which he “attribute[d] . . . to the medication

he [was] currently taking.”

At the PSI hearing, appellant’s counsel objected to the PSI report, insofar as

it stated that appellant had reported that he was feeling better and was no longer

hearing voices, because appellant had told him that, “in fact, he is still hearing

voices.” And appellant clarified, “It is just not as loud.” The trial court stated that

it would “take notice of that.” And appellant’s counsel did not request an informal

inquiry into appellant’s competency.

4 At the PSI hearing, Ruth Fernandez testified that at the time of the offense,

appellant, who is her brother, was living with her, her husband, her ex-husband,

Paul Johnson, who is the complainant, and her four children. On July 28, 2010,

while Fernandez was in her bedroom with her seven-year-old daughter, appellant

entered and confronted her about a note that she had left him, accusing him of

having left the front door open at 5:00 a.m. Appellant was angry and approached

her with his “right hand behind his back,” and she thought he was going to “punch

her.” After appellant said, “I’m not a F-ing liar, you F-ing B,” he ran from the

room. She then “heard the gun go off,” and she screamed and froze. Appellant

then returned to the bedroom, “held the gun to [Fernandez’s] head,” and asked her

if she “wanted some of it.” While Fernandez’s daughter was underneath a blanket,

appellant began “waving [the firearm] around toward” her. After appellant “ran

away,” Fernandez ran out of the house with her daughter and called for emergency

assistance. She then saw appellant walk out of the house “casually” with a

backpack.

Fernandez’s twelve-year-old daughter testified that on July 28, 2010, while

she was in the dining room talking through a pass-through window with the

complainant as he washed dishes in the kitchen, she heard appellant yelling at

Fernandez. Appellant then appeared in the kitchen, said the complainant’s name,

and “shot him.” She then ran into a bathroom and locked the door. When things

5 got quiet, she emerged from the bathroom and “started running upstairs” to her

brother and sister. She encountered appellant at the top of the stairway, where he

put a “gun to [her] head and said F-you.” She then ran and hid behind a computer

desk. After she saw appellant go downstairs, she hid in a closet with her brother

and sister.

Appellant testified that he shot the complainant, “had no reason to do it,”

and was “very sorry for it.” He noted that prior to the shooting, although he

“wasn’t in anguish or anything like that,” he had been drinking for “about a week.”

And he was “really super, super angry . . . [a]bout them saying some things on a

note,” especially that his sister had “mentioned that [he had] left the door ajar on

purpose.” Although the complainant was not involved, appellant had entered the

kitchen to “get an answer from him,” and a “shot went off.”

As he left the kitchen, appellant saw Fernandez and one of the kids run past

him. However, he denied having spoken to them. He then “went into the bedroom

to grab [his] two bags,” which were already packed, went downstairs and left the

house. Appellant boarded a bus to Ottawa, Canada, where he was later

apprehended at an airport, carrying over $16,000 in cash and attempting to catch a

flight to Singapore.

6 Competency

In his sole issue, appellant argues that the trial erred in not conducting, sua

sponte, an informal inquiry into his competency to “proceed with sentencing”

because it was “aware of [his] mental health history, in addition to the current

auditory hallucinations” from which he suffered. Appellant asserts that it is “self-

evident that Axis I schizophrenia, paranoid type and major depressive disorder

with recurring psychotic features is evidence of severe mental illness.” And such

diagnoses, along with Dr. Laval’s finding that appellant had experienced auditory

hallucinations, and defense counsel’s statement that appellant was “in fact, still

hearing voices,” were “sufficient to show that an inquiry into competency was

required.”

We review a trial court’s decision not to conduct an informal competency

inquiry for an abuse of discretion. See Luna v. State, 268 S.W.3d 594, 600 (Tex.

Crim. App. 2008); George v. State, 446 S.W.3d 490, 499 (Tex. App.—Houston

[1st Dist.] 2014, pet. ref’d). “A criminal defendant who is incompetent may not be

put to trial without violating due process.” Turner v. State, 422 S.W.3d 676, 688

(Tex. Crim. App. 2013). “‘[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.’” Id. at 688–89 (quoting Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct.

7 896, 903 (1975)). Thus, a defendant is incompetent to stand trial if he does not

have a sufficient present ability to consult with his lawyer with a reasonable degree

of rational understanding or a rational, as well as factual, understanding of the

proceedings against him. TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (Vernon

2006).

A defendant is presumed competent to stand trial and shall be found

competent unless proved incompetent by a preponderance of the evidence. Id. art.

46B.003(b). Upon a suggestion that a defendant may be incompetent, a trial 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. Id. art. 46B.004(c) (Vernon Supp. 2014); see Druery v. State, 412 S.W.3d

523, 538 (Tex. Crim. App. 2013). Either party may suggest by motion, or a trial

court may suggest on its own motion, that a defendant may be incompetent to stand

trial. TEX. CODE CRIM. PROC. ANN. art. 46B.004(a). A suggestion of

incompetence “may consist solely of a representation from any credible source.”

Id. art. 46B.004(c-1). “A further evidentiary showing is not required to initiate the

inquiry, and [a] court is not required to have a bona fide doubt about the

competency of [a] defendant.” Id. “Evidence suggesting the need for an informal

inquiry may be based on observations made in relation to one or more of the

factors described by Article 46B.024 or on any other indication that the defendant

8 is incompetent within the meaning of Article 46B.003.” Id. The factors include

whether the defendant can: “(A) rationally understand the charges against [him]

and the potential consequences of the pending criminal proceedings; (B) disclose

to counsel pertinent facts, events, and states of mind; (C) engage in a reasoned

choice of legal strategies and options; (D) understand the adversarial nature of

criminal proceedings; (E) exhibit appropriate courtroom behavior; and (F) testify.”

Id. art. 46B.024(1) (Vernon Supp. 2014).

Here, the record reveals that appellant suffered from mental illness. The fact

that a defendant is mentally ill, however, does not by itself mean that he is

incompetent to stand trial. See Turner, 422 S.W.3d at 691. The inquiry is whether

a defendant’s mental illness “operates in such a way as to prevent him from

rationally understanding the proceedings against him or engaging rationally with

counsel in the pursuit of his own best interests.” Id. “Evidence that raises this

possibility necessitates an informal inquiry . . . .” Id.

Dr. Laval found that appellant, notwithstanding his mental health issues, had

a “clear and rational understanding of the charges against him and of the possible

consequences of conviction,” “demonstrate[d] the ability to disclose to counsel

pertinent facts, events and states of mind associated with the alleged offense,” and

a “sufficient understanding of the criminal justice system and of the adversarial

nature of prosecution.” See TEX. CODE CRIM. PROC. ANN. art. 46B.024(1). He also

9 noted that appellant had demonstrated an ability to behave appropriately in court

and could “communicate logically, coherently, and relevantly.” See id. Although

appellant “continue[d] to experience auditory hallucinations,” he was “cognitively

intact and seemed not to be responding to internal stimuli.” Laval opined, thus,

that appellant was competent to stand trial.

Nothing in the record suggests that appellant’s mental status had materially

changed after Dr. Laval’s competency determination such that a sua sponte,

informal competency inquiry was required. In the plea documents, appellant

represented that he understood the allegations and was “mentally competent to

stand trial.” Appellant’s attorney also signed the plea documents, representing that

he had fully discussed the case with appellant and believed that he was “competent

to stand trial.” And the trial court had ascertained that appellant appeared

“mentally competent.” Further, appellant’s testimony at the PSI hearing was

articulate, logical, and reflected his understanding of the charges against him. See

Ryan v. State, 937 S.W.2d 93, 106 (Tex. App.—Beaumont 1996, pet. ref’d)

(concluding defendant’s testimony “a good barometer” of competency). And he

responded appropriately to questioning during the proceedings. There is no

suggestion that appellant engaged in abnormal or bizarre behavior during the

hearing. And appellant’s attorney never complained that he could not effectively

communicate with appellant. See Bill v. State, No. 01-12-00125-CR, 2012 WL

10 4857922, at *2 (Tex. App.—Houston [1st Dist.] Oct. 11, 2012, no pet.) (mem. op.,

not designated for publication).

A trial court’s first-hand factual assessment of a defendant’s competency is

entitled to great deference on appeal. Ross v. State, 133 S.W.3d 618, 627 (Tex.

Crim. App. 2004). Nothing in the record before us suggests that appellant lacked

“sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding or a rational as well as factual understanding of the

proceedings against [him].” See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a);

Hobbs v. State, 359 S.W.3d 919, 925–26 (Tex. App.—Houston [14th Dist.] 2012,

no pet.) (holding trial court did not err in not conducting additional inquiry into

defendant’s competency before sentencing because neither defendant’s history of

mental illness nor fact he might have been on psychiatric medication sufficient to

warrant competency inquiry absent evidence of present inability to communicate

with attorney or understand proceedings); Grider v. State, 69 S.W.3d 681, 685

(Tex. App.—Texarkana 2002, no pet.) (holding evidence defendant schizophrenic,

took medication, heard voices, and saw things insufficient to demonstrate inability

to consult with lawyer or understand proceedings).

Accordingly, we hold that the trial court did not err in not conducting, sua

sponte, an informal inquiry into appellant’s competence during the punishment

phase of trial. See Luna, 268 S.W.3d at 600; George, 446 S.W.3d at 499.

11 We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings Justice

Panel consists of Justices Jennings, Higley, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).