ACCEPTED 03-14-00559-CR 5926044 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/2/2015 3:52:06 PM JEFFREY D. KYLE CLERK NO. 03-14-00559-CR
COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE 7/2/2015 3:52:06 PM JEFFREY D. KYLE AUSTIN SUPREME JUDICIAL DISTRICT Clerk
ZANE LYNN BARTON, Appellant
VS.
THE STATE OF TEXAS, Appellee
APPEAL FROM
THE 274TH JUDICIAL DISTRICT COURT
HAYS COUNTY, TEXAS TRIAL COURT CAUSE NO. CR-13-0614
STATE'S BRIEF
Laura Garcia Asst. Criminal District Attorney 712 S. Stagecoach Trail, Suite 2057 San Marcos, Texas 78666 ORAL ARGUMENT IS Ph: (512) 393-7600 / Fax: (512) 393-2246 NOT REQUESTED State Bar No. 24074249 laura.garcia@co.hays.tx.us Attorney for the State of Texas
Pagei NAMES OF PARTIES
Appellee; State of Texas
Attorneys for the State; Wesley H. Mau, Hays County District Attorney
At trial: Laura Garcia, Asst. Criminal District Attorney
Brian Erskine, Asst. Criminal District Attorney
On appeal; Laura Garcia, Asst. Criminal District Attorney 712 S. Stagecoach Trail, Suite 2057 San Marcos, Texas 78666 State Bar No.24074249 Attorney for the State of Texas
Appellant; Zane Lynn Barton
Attorney for Appellant; At trial: Jesus "Gabriel" Hernandez 507Westl0'''Street Austin, Texas 78701
Tracy Reyes Franklin 1920 Corporate Drive, Suite 108A San Marcos, Texas 78666
On appeal: Amanda Erwin The Erwin Law Firm, L.L.P. 109 East Hopkins Street, Suite 200 San Marcos, Texas 78666
Page ii TABLE OF CONTENTS
NAMES OF PARTIES II TABLE OF CONTENTS HI INDEX OF AUTHORITIES IV STATEMENT OF THE CASE 2 STATEMENT REGARDING ORAL ARGUMENT 2 STATEMENT OF FACTS 2
SUMMARY OF THE ARGUMENT 3 STATE'S RESPONSE TO POINT OF ERROR 3
L APPELLANT HAS FAILED TO ESTABLISH ERROR THAT FALLS BELOW THE STANDARD FOR TRIAL COUNSEL AS THE DEFENDANT WAS FOUND TO BE COMPETENT IN A MENTAL HEALTH EVALUATION 5
2. APPELLANT HAS FAILED TO ESTABLISH ANY FAILURE TO CONVEY THE PLEA OFFERS TO THE APPELLANT AS WELL AS FAILS TO MEET HIS BURDEN TO SHOW SUFFICIENT PREJUDICE 7
3. APPELLANT HAS FAILED TO ESTABLISH HOW TRIAL COUNSEL'S MENTION OF APPELLANT'S POSSIBLE TESTIMONY IN TIOAL WAS AN EGREGIOUS ERROR THAT FELL BELOW THE STANDARD OF REASONABLE ASSISTANCE. IF ERROR AT ALL, NO PREJUDICE IS SHOWN AS THERE WERE MULTIPLE CURES 8
CONCLUSION 12
PRAYER 12
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P., RULE 9.4 13
CERTIFICATE OF SERVICE 14
Page iii INDEX OF AUTHORITIES
FEDERAL CASES
Strickland v. Washington, 466 U.S. 668 (1984) 3,4, 5, 7, 8, 10
STATE CASES
Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App.2006) 4
Lopez V. State, 343 S.W.3d 137 (Tex. Crim. App.2011) 4, 5, 10
Nava V. State, 415 S.W.3d 289 (Tex. Crim. App.2013) 4
Menefields. State, 363 S.W.3d 591 (Tex. Crim. App. 2012) 5, 10
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) 5
Ex Parte Argent, 393 S.W.3d781 (Tex. Crim. App. 2013) 8
Piland v. State, 453 S.W.3d 473 (Tex. App. —^Texarkana 2014, pet. struck) 8
STATE STATUTES
Tex. R. App.P. 38.2 2
Tex. R.APP.P. 39.1 2
Tex. R.APP.P. 39.7(e) 2
Page iv NO. 03-14-00559-CR
COURT OF APPEALS
FOR THE
AUSTIN SUPREME JUDICIAL DISTRICT
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW the State of Texas, by and through her Assistant District
Attorney, Laura Garcia, and files this Brief in Opposition to Appellant's Brief
Page 1 pursuant to Texas Rules of Appellate Procedure Rule 38.2 and would show the Court
the following:
STATEMENT OF THE CASE
The State does not object to the Appellant's Statement of the Case.
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument. The facts and legal arguments are
adequately presented in the briefs and record and the decisional process would not be
significantly aided by oral argument.' Should the Court desire the parties to appear /•j
and argue, the State would appear for oral argument.
STATEMENT OF FACTS
The State does not object to the Appellant's Statement of the Facts.
SUMMARY OF THE ARGUMENT
The Appellant complains that he was denied effective assistance of counsel
and cites three acts of alleged deficient performance. The Appellant cites the trial
counsel's failure to investigate his competency or sanity to stand trial; trial counsel's
failure to convey the plea offer; and trial counsel's mention in front of the jury that
the defendant would testify in the punishment phase. However, the appellant fails to
^See Tex. R.APP. P. 39.1. ^See Tex. R. App. P. 39.7(e).
Page 2 overcome the strong presumption of reasonableness or, otherwise, meet his burden to
prove any trial counsel error so egregious to fall below the standard. In addition,
Appellant has failed to demonstrate prejudice to his defense sufficient to suggest a
reasonable probability that the outcome of the trial was affected by trial counsel's
failure. Therefore, Appellant's claims are meritless. His conviction and sentence
should be affirmed.
ARGUMENT
STATE'S RESPONSE TO POINT OF ERROR:
APPELLANT'S TRIAL COUNSEL WAS NOT INEFFECTIVE.
The Strickland standardfor ineffective assistance ofcounsel
The standard for testing claims of ineffective assistance of counsel is set out in
Strickland v. Washington^ as a two pronged test. To prevail on an ineffective
assistance of counsel claim, an Appellant must prove by a preponderance of the
evidence first, that his counsel's representation fell below an objective standard of
reasonableness and second, that the deficient performance prejudiced the defense.'*
The burden of proving ineffective assistance claims is on the petitioner.^ Failure to
meet the burden of either the deficient performance or sufficient prejudice prong
^Strickland V. Washington, 466 U.S. 668 (1984). at 687. ^Id.
Page 3 defeats the ineffectiveness claim.® Since each prong must be met, if the Appellant
fails to meet the first prong, the court need not consider thesecond prongJ
In order to satisfy the first prong, the appellant must prove, by a preponderance
of the evidence, trial counsel's performance fell below an objective standard of
reasonableness under the prevailing professional norms.^ Appellant's right to
effective assistance counsel does not guarantee an entirely errorless counsel.^
Appellant must show the trial counsel's "errors were so serious as to deprive the
defendant of a fair trial.'"" It is not sufficient to meet his burden for the Appellant to
show, with the benefit of hindsight, that his counsel's actions or omissions were
questionable.
Appellate review of counsel's representation is highly deferential. The "courts
indulge in a strong presumption that counsel's conduct was not deficient."'^ The
Appellant must overcome the strong presumption that trial counsel's decisions were
reasonably professional and motivated by sound trial strategy.'^ To rebut the
presumption, the Appellant's claim of ineffective assistance must be "firmly founded
in the record" and the deficiency claimed must be "affirmatively demonstrated" in
®/Jat700. 'Id. Id at 687-88. 9 Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App._2006). Strickland at 687. Lopez V. State, 343 S.W.3d 137, 142-143 (Tex. Crim. App. 2011). Nava V. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Strickland at 689. Strickland at 686.
Page 4 the record.''^ Rarely willthe trial court record on its ownbe sufficient to overcome the
presumption and fulfill the Appellant's ineffective assistance claim on direct appeal/^ In order to satisfy the second prong, the appellant must show that the particular
errors of trial counsel prejudiced the defense.'^ Merely showing that the errors had
some conceivable effect on the proceedings will not met the appellant's burden.^' To
prove prejudice, appellant must show that there is a reasonable probability that, but
for counsel's errors, the result of the proceeding would have been different.'^ A
reasonable probability is a probability sufficient to undermine the confidence in the
outcome.'^
1. Appellant hasfailed to establish error thatfalls below the standardfor trial counsel as the defendant was found to be competent in a mental health evaluation.
Appellant's first assertion of deficient performance fails. Appellant asserts that trial
counsel failed to investigate the Appellant's mental health.^" This assertion was made
with the false assumption that the Appellant was not evaluated for competency or
sanity.
Menefieldv. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). Lopez at 143. Strickland at 689. 'Vjat693. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Strickland at 687. ^°App. Brf., pg. 15.
Page 5 The initial court appointed counsel filed a motion to evaluate Appellant for
competency and sanity with the court on October 16, 2013.^^ Although an order to
conduct an evaluation is not found in the clerk's record, a forensic evaluation and
report was completed?^ Dr. Matthew L. Ferrara, Ph.D. was appointed by the court to
perform Appellant's forensic evaluation for competency and sanity. On October 26,
2013, Dr. Ferrara completed his forensic evaluation report.The forensic report was
addressed to Appellant's counsel at the time and faxed to the presiding court.^'^ Dr.
Ferrara's evaluation "consisted of psychological testing, review of records, and face
to face contact" with the Appellant.^^ Based on that data, he found the Appellant to
be competent to stand trial and not insane at thetime ofthe offense.^^
The Appellant fails to meet his burden and establish trial counsel error.
Counsel's conduct in relying on the forensic report is well within reasonable
assistance. Trial counsel made no indications on the record that he had any suspicion
or indication that the Appellant was suffering from any current mental health issues.
Appellant fails to rebut the strong presumption that trial counsel's decision was I)
reasonably professional. The Appellant has failed to establish the first Strickland
1 CR 15-16. 22 See State Exhibit 1- Forensic Report.
^'Id. 26 Id
Page 6 prong of deficient performance. As the first prong has failed there is no need for the
Court to consider the second prong of prejudice.^^ All allegations of prejudice made
by Appellant were baseless as they wrongfully presumed a lack of an evaluation for
competency and sanity.
2. Appellant has failed to establish any failure to convey the plea offers to the Appellant as well as fails to meet his burden to show sufficient prejudice.
Appellant fails to meet his burden of proof for trial counsel's second alleged
act of deficient performance. Appellant asserts trial counsel failed to inform him of
the plea offers.^^ Both the clerk and court record are silent on this issue. Appellant's
brief contains a footnote that refers to the Appellant never being aware of a particular
plea bargain.^^ Appellant's comment is self-serving, unsubstantiated, and lacks
context of various plea offers, offer rejections and offer withdrawals made during the
pretrial process. Perhaps in hindsight the Appellant wishes he had previously
accepted a plea bargain, but there is no evidence that trial counsel failed to relay the
plea offers to the Appellant.
No statements or evidence is present in the record to overcome the strong
reasonable representation presumption cloaking the trial counsel. Nothing in the
27 Strickland at 700. 28 ^App. Brf., pg. 17. 'App. Brf., pg. 17, fii. 1. 29
Page? record "affirmatively demonstrates" any deficiency claimed.^® Appellant fails to
meet his burden and this first Stricklandprong is not met. As the first prong of error
was not met, the court need not discuss the second prejudice prong.^'
In the event the court finds error that falls below the objective reasonableness,
the Appellant still fails to meet the burden to demonstrate prejudice to the defense.
Courts have held to establish prejudice fi^om the ineffective act of failing to convey a
plea offer, the Appellant must show a:
"reasonable probability that (1) he wouldhave accepted the offer if it had been communicated; (2) the prosecutionwould not have withdrawn the offer; and (3) the trial court would have accepted the plea agreement."^^
In order to successfully meet that probability on direct appeal, the Appellant
must demonstrate this through evidence or statements fi-om counsel, the client and
the trial court." Appellant fails to demonstrate any such evidence. The Appellant
fails to meet his burden on the second prong of prejudice. Appellant's second claim
also fails.
3. Appellant has failed to establish how trial counsel's mention of Appellant's possible testimony in trial was an egregious error thatfell below the standard of reasonable assistance. If error at all, no prejudice is shown as multiple curative instructions were provided to thejury.
Strickland at 686. at 700. See Ex Parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). " Pilandv. State, 453 S.W.3d 473,476 (Tex. App. —^Texarkana 2014, pet. struck).
Page 8 Appellant's third assertion of deficient performance fails. The Appellant
claims trial counsel's commenting to the jury that the defendant would testify at the
punishment phase was ineffective error since the defendant did not testify.^'^
This innocuous mention that the defendant would testify must be placed in
context. At the end of the State's punishment case and at the end of the business day
the following transpired:
State: No further witnesses. The State rests.
Court: Is the Defense going to call any witnesses during punishment?
Defense: I am, Your Honor.
Court: Are they here, ready?
Defense: It's going to be Mr. Barton, Your Honor. So we — I know we talked about the —we didn't have a jury charge ready or a jury pattern ready and we weren't going to give it to the jury today. I didn't know if you want to break for the day and start again with my one witness in the morning before we got it to them.
Court: Okay. Ladies and Gentlemen, I am going to go ahead and break for the day.^^
When the discussion is placed in context, it is reasonable to believe that this
minor mention of the defendant testifying was simply in response to the courts
^'^App. Brf., pg. 18. 4 RR 113. In the record, the State is "Ms. Garcia" and the Defense is "Mr. Hernandez".
Page 9 questioning. The questioning was for scheduling purposes. The answering of the
court's questions, which happened to be in front of thejury, demonstrates a prepared,
forthcoming, and reasonable counsel showing respect for the court and knowledge of
his case. When taking the comment in context as a whole one cannot say it is "so
outrageous that no competent attorney" would have responded to questioning as trial
counsel did.^^ At the time trial counsel stated the Appellant was going to testify he had no reason to believe he wasn't. Now with the luxury of hindsight, we know the
next day the Appellant decided not to testify.^' However, an error viewed in hindsight
is not the standard.^® Appellant cites no fact-specific authority supporting his claims that this act rendered his trial counsel so outside the wide range of reasonable
assistance to deem him ineffective. Appellant fails to meet his burden for the first
Stricklandprong. As the first prong of error was not met, the court need not discuss
the second prejudice prong.^^
In the event the court finds error that falls below the objective standard of
reasonableness, the Appellant still fails to satisfy the second prong of prejudice. The
record clearly reflects multiple cures to the error. The next trial day, when the
defendant decided not to testify, the state, trial counsel, and the court discussed the
Menefield at 592. ^^5RR4. Zopez at 142-143. Strickland at 700.
Page 10 need to give an instruction to the jury since thejury was told the defendant would be
testifying/" As the jury was brought in that morning, the defense rested without
calling anypunishment witnesses and thejudge gavethis instruction:
Okay. Ladies and gentlemen, you heard yesterday that the defendant was considering testifying. I'm going to remind you he has a Fifth Amendment right not to testify. The fact that he may have changed his mind or changed strategy is not to be held against the defendant.
That language will be in my charge, but I will tell you it's a constitutional right. It's a Fifth Amendment right to remain silent. The fact that he's chosen to remain silent cannot and should not be held against him in your deliberations regarding punishment.''^
Additionally in the written punishment charge an instruction was given to the
jury discussing the Appellant's Fifth Amendment Right and that the jury is not to
consider the fact that the defendant did not testify.'*^ This instruction was also read to
the jury.'^^ So the jury was admonished three times not to consider the trial counsel
comment vis-a-vis Appellant's right not to testify.
There is no evidence the Appellant was prejudiced by counsel's comment.
Appellant has failed to demonstrate prejudice to the defense sufficient to suggest a
reasonable probability that the outcome of the trial was affected by trial counsel's
failure. In fact, there is quite the opposite; the great weight of the evidence and
'^°5RR4. 5RR9. 1 CR 98. 5 RR 12.
Page 11 testimony against him proves an appropriately just sentence for this heinous crime.
Appellant's third claim fails.
CONCLUSION
Appellant's sole Point of Error is meritless and should be overruled. Appellant
has failed to demonstrate deficient performance on the part of his trial counsel or that
he suffered prejudice because of the alleged errors. No error was supported by the
record. Appellant has thus failed to meet his burden. The overwhelming evidence
was sufficient to support the Appellant's judgment and sentence in the case.
PRAYER
The State prays that this honorable court affirm the jury's judgment and
sentence.
Respectfully submitted,
Laura Asst. Criminal District Attorney 712 S. Stagecoach Trail, Suite 2057 San Marcos, Texas 78666 State Bar No. 24074249 laura.garcia@co.hays.tx.us Attorney for the State of Texas
Page 12 CERTIFICATE OF COMPLIANCE WITH TEX. R. APR P.. RULE 9.4
I certify that this brief contains 1,978 words, exclusive of the caption, identity
of parties and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statei^ent of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix.
By: Laura G^ofa Asst. Cnminal District Attorney 712 S. Stagecoach Trail, Suite 2057 San Marcos, Texas 78666 State Bar No. 24074249 laura.garcia@co.hays.tx.us Attorney for the State of Texas
Page 13 CERTIFICATE OF SERVICE
I certifythat a true copy of the foregoing brief has been e-dehvered to:
Amanda Erwin amanda@theerwinlawfirm.com The Erwin Law Firm, L.L.P. 109 East Hopkins Street, Suite 200 San Marcos, Texas 78666
on this the 2nd day of July, 2015.
Laur^(3arcia Asst. Criminal District Attorney
Page 14 EXHIBIT A 2 of /26/2013 3:19 PM From- Matthew L Ferrara, PhD / ph: 512-708-0502 To: 15123937713
Matthew L. Ferrara, Ph.D. Clinic^ and Forensic Psychology 2500W. William Gannon Drive •Suite 703 • Austin, TK •78745 Tele: 512-708-0502 • Fax: 512-708-0557 m fBTTaraphd@att.net
October 26, 2013
Martin Clauder P.O. Box 171 Gonzales, TX 78629
Re: State ofTexas vs. Zane Barton GR-13-0614; 22"'' District Court of Hays County Dear Mr. Clauder, Per your request, on 10-25-13 I conducted a forensic evaluation of Zane Barton (DOB: 08-11-84). Mr. Barton w:as informed that there would be no confidentiality between him and the examiner and that anything he said, did, or wrote could be included in a report that would be sent to his attorney, the district attorney, and the judge presiding over his case. The evaluation consisted of psychological testing^ review of records, and face to face contact with Mr. Barton. Based upon the data collected during the assessment process, I completed a competency evaluation and an insanity evaluation for Mr. Barton. The following summarizes my current opinions regarding Mr. Barton.
1. Competency Evaluation: The competency evaluation was conducted to determine if Mr. Barton (1) has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding; (2) has a rational understanding of the proceedings against him; and, (3) has a factual understanding of the proceedings against him. Based upon the results of this evaluation, Mr. Barton Is competent to stand trial. 2. Insanity Evaluation: The insanity evaluation was conducted to determine if at the time of the charged conduct, Mr. Barton as a result of severe mental disease or defect, did not know that his conduct was wrong. For the purpose of this evaluation, the term "mental disease or defect does not include abnormality manifested only by repeated criminal or otherwise antisocial conduct. Based upon the results of this evaluation, Mr. Barton was not insane at the time of the alleged charged conduct. 3. Overall Opinion: Mr. Barton has a mental illness but this mental illness does not interfere with his competency, nor did it impair his legal sanity at the time ofhis charged conduct. Mr. Barton does not require any special considerations to undergo a trial. Dr. Ferrara is licensed as a psychologist (Texas License Number: 22795) and Licensed Sex Offender Treatment Provider (Texas License Number: 9469). Dr. Ferrara has worked full time with forensic clients since February 1985. He has conducted competency evaluations in the past, As a condition of continuing licensure, Dr. Ferrara complies with all requirements for continuing education.
Page 1 of 6 /26/2013 3:19 PM From: Matthew L Ferrara, PhD / ph: 512-708-0502 To: 15123937713 3 of
This is a forensic evaluation and report and it will be utilized in a legal proceeding. This examiner has been conducting forensic evaluations oh a regular basis since 1990. This examiner's forensic evaluations have been used In a variety of legal proceedings including criminal, civil, and administrative courts. Based upon this examiner's decades of experience and ongoing training on an annual basis, this examiner has the appropriate knowledge of and competence in all underlying areas of psychology in the matters related to this case. This examiner has based all forensic opinions offered in this report based upon the methodology listed in this report. The methodology used by this examiner is sufficient to provide appropriate substantiation for each finding. This examiner has not offered an opinion in any area or matter about which the examiner does not have the appropriate knowledge or competency to render a professional opinion. In the opinion ofthis examiner, there is sufficient information to render a professional opinion in this matter. This examiner is only offering an opinion about Mr. Barton's psychological characteristics. This examiner is not offering an opinion about the psychological characteristics of any individual that this examiner did not examine. If there are comments about the psychological characteristics in this report about anyone this examiner did not have contact with, those comments were offered by Mr. Barton and this examiner is merely reporting Mr. Barton comments without endorsing them.
Sincerely,
Signed Electronically: MattfiewL. ^Ferrara,
Page 2 of 6 /26/2013 3:19 PM From: Matthew L Ferrarai PhD / ph; 512-708-0502 To: 15123937713 4 of
Methodology
Contact with Mr. Barton: > Clinical Interview > Social History > Mental Status Exam Psychological Testi na • > Minnesota Multiphasic Personality Inventory - 2 Materials Reviewed > San Marcos Police Department Incident ReportIncident #: 13-28369 > Hays Count Sheriffs Department Offense Report CL13-12784
Page 3 of 6 5 of /26/2013 3:19 PM From: Matthew LFerrara. PhD /ph; 512-708-0502 To; 1512393771^^
Competency Evaluation Clinical Observations u a ^ Mr. Barton had no difficulty on tasks that require abstract reasoning. He appeared to have at least average intelligence. His thinking was logical and rational. Mr. Barton repotted a history of auditory and visual hallucinations but he did not appear to be responding to auditory or visual hallucinations during this evaluation. He did not appear to have difficulty wth reahty testing during this evaluation. He knew where he was, who was, and what he was doing. Mr. Barton is capable of distinguishing right from wrong. Mr. Barton appeared to have a dysphonc mood. The emotions that he showed tended to be blunted. He claimed that he experienced chronic paranoia and he gave convindng historical examples of being paranoid, e.g., If he leaves an open drink In a room, when he returns to the room, he must pour out the drink because he fears that his drink has been tampered with. Mr. Barton showed no difficulty recalling recent or remote events, except when it came to the matter of his charged conduct. Mr. Barton said that he was amnestic for the period of time In which his charged conduct is alleged to have occurred. Mr. Barton said that he has never experienced amnesia before or after the time of his charged conduct, which makes his claim of amnesia suspect. Mr. Barton's attention span was sufficient for the purposes of this Interview. Mr. Barton related to this examiner In a submissive manner, which is somewhat odd for a paranoid person. Overall, Mr. Barton gave the appearance of having intellectual functioning in the average range. Mr, Barton probably does suffer from a bona fide mental illness. Current Medications , • j Mr. Barton stated that he currently takes Risperdal, Depakote, Elavll, Cogentin, and Prozac. He said that in the past, this medication regime helped him control his psychological symptoms. He said that the medication no longer has the same effect and he Is hopeful that he gets a change In medication. Mr. Barton said that since being In jail, he has tried to get his medication changed and the psychiatrist responds by increasing his Risperdal, which only makes him sleep more.
Diaanoisis . , j- j Mr. Barton said that he has been diagnosed with chronic depression, bipolar disorder and schizophrenia. Mr. Barton doesn't appear to be schizophrenic. Mr. Barton said that he began feeling depressed during his youth, even before he started using drugs and alcohol. Mr. Barton has a history that would be consistent with a bipolar disorder. Competency Analysis , . r- j- Based upon the available information, the following is a summary of the findings regarding Mr. Barton's psycholegal capacities: 1. Rational understanding current charges and potential consequences — Yes • Understands that he was arrested Yes • Rational understanding of why he was arrested Yes • Knows the crime(s) he Is charged with committlncj Yes • Knows the countsfs) he Is charged with Yes • Has a rational understanding of what It means to be charged with the crimefs) Yes • Knows the range of punishment for the crime(s)
Page 4 of 6 /26/2013 3:19 PM From: Matthew L Ferrara, PhD / ph: 512-708-0502 To: 15123937713 6 of
• Understands what will happen to him if he is put on Yes probation • Able to explain how probation works Yes • Understands how his life would be different if he was put on Yes probation • Able to explain prison Yes • Understands how his life would be different if he was sent to Yes prison 2. Ability to disclose pertinent facts, events and states of mind to counsel • Able to describe facts that could prove him innocent Yes • Able to describes facts that could prove him guilty Yes • Understands mitigation Yes • Able to describe mitigatinq factors in this case Yes • Able to describe his psychological state at the time of his Yes charged conduct • Able to accurately describe the psychological states of others Yes around the time of his charged conduct 3. Ability to engage in a reasoned choice of legal striategies and options • Has a rational goal No • Able to articulate a rational defense against his charges Yes • Has thought of more than one defense strategy or has a Yes multifaceted defense strategy • Has a rational understanding of what it means to plead Yes guilty • Has a rational understanding of what it means to plead Yes innocent • Knows if he has entered a plea in this case Yes • Has a rational understanding of a plea bargain Yes • Has a rational understanding of competency Yes • Personally believes he is competent to stand trial Yes • Has a rational understanding of his relationship with his Yes attorney 4. Understands the adversarial nature of the proceedings • Knows his attorney's name Yes • Knows how he obtained his attorney Yes • Has a rational understanding of his attorne/s job Yes • Has a rational understanding of the district attorney's job Yes • Shows an understanding that the district attorney is Yes adversarial • Has a rational understanding of the role of a judge in a Yes criminal trial • Rational understanding of the role of a jury in a criminal trial Yes • Rational understanding of the role of a witness Yes • Rational and effective response to a witness who lies Yes • Shows some ability to protect himself/herself in dealing with Yes
Page 5 of 6 /••OT ps /26/2013 3:19 PM From: Matthew L. Ferrara, PhD /ph: 512-708-0^02 to; 15123937713
the district attorney — 5 Ability to exhibit appropriate courtroom behavior Yes • Has been to court in the past and wasn't reprimanded for behavior inappropriate ww Yes Shows anuwa an ell I understanding ullu«^iaLaiiw...v, of W. proper courtroom behavior V Yes Shows ah understanding of proper courtroom clothing and grooming 6. Ability to testify Unsure Willing to testifi/ in this case No Has n o j successfully testified in the past . Yes Understands what it takes to offer good testimony No Believes he would make a good witness Yes Has na& a rational understanding of d Idumiai — periuty r — j — i Yes Understands that there are the penalties for penur/
nSSrSSI.crss Based upon the results of this evaluation, Mr. Barton was not insane at the time of the allege charged conduct.
TnMnitv Evaluation ———— j— True • In general, understands the wrongful nature of his charged rnnHiJCt ^ False • Was NOT experiencing mental health symptoms at the time of his charged conduct True • In the twenty-four hours prior to charged conduct, consumed alcohol True • Inthe twenty-four hours prior to charged conduct, consumed drugs True • At the time of charged conduct, knew that the charged conduct was wrong ^ True • At the time of his charged conduct, he knew that he could hp arracf-pri fnr fnqaqino in the charged conduct True • At the time of the charged conduct, he knew that people could get punished for this type of charged conduct
Page 6 of 6
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