Zyshon Gerrod Murphy v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 17, 2025
• Docket: 02-24-00156-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-24-00156-CR ___________________________

ZYSHON GERROD MURPHY, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 3 Tarrant County, Texas Trial Court No. 1778963

Before Kerr, Wallach, and Walker, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

In a single issue, Appellant Zyshon Murphy argues that the trial court abused

its discretion by not on its own motion conducting an informal inquiry into his

competency to stand trial. Although Murphy presented evidence about his mental

health, he presented no evidence that his mental-health issues prevented him from

having (1) a sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding, or (2) a rational as well as factual understanding of

the proceedings against him. See Tex. Code Crim. Proc. Ann. art. 46B.003(a).

Accordingly, we hold that the trial court did not abuse its discretion by not

conducting an informal competency hearing, and we affirm.

I. Factual Background and Procedural History

Murphy has significant anger-management issues that he has tried to control

for most of his life through counseling and medication. Unfortunately, Murphy’s

outbursts have increased when he does not see his doctors and does not take his

medication.

Murphy briefly worked part time with children in the City of Fort Worth’s

recreation department. When the City terminated Murphy for drug use, Murphy sent a

profanity-laced email to the City, stating among other things, “DA CAN DIE FOR

ALL I FUCKING CARE.” In response, various City offices went into a “lockdown”

protocol.

2 Just over a year later, on May 5, 2023, Murphy posted a chilling video on

Snapchat. Showing a shotgun with ghost-ring sights, Murphy threatened to go to

downtown Fort Worth the afternoon of Sunday, May 7—which was during the City’s

annual Mayfest event—to indiscriminately “kill innocent people for the fun of it” and

to kill any police officers who tried to stop him. Murphy had around 5,000 followers,

and the video metastasized online; more than 60 people from around the country

called 911.

On the day Murphy posted the video, Fort Worth police officers arrested him.

The interviewing officers Mirandized1 Murphy, and Murphy agreed to answer their

questions. Murphy knew why he had been arrested and admitted to making the video,

but he claimed that he was just “venting” and “joking” and did not intend to act on

his words. Murphy said, “I know it’s wrong,” and “I went too far.” He also

acknowledged, “I made the mistake, so whatever punishment I’ve got to do, I’ve got

to do it.”

Murphy was charged with terroristic threat, intentionally threatening to commit

murder with the intent to place the public in fear of substantial bodily injury. See Tex.

Penal Code Ann. § 22.07(a)(5). Murphy waived his right to a jury trial and pleaded

guilty. In considering Murphy’s guilty plea, the trial court inquired into whether

Murphy understood his charge and had discussed it with his attorney. Murphy

1 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

3 answered affirmatively to both questions. The trial court also asked Murphy’s attorney

whether Murphy was competent to enter a plea, and she said, “Yes, he is.”

The punishment phase began immediately, and the State published Murphy’s

threatening Snapchat video and his police interview video and called several witnesses

to testify about Murphy’s employment, the Snapchat video, and the police

investigation. After the State rested, Murphy called several witnesses, including

himself, his mother, and a psychologist. Among other things, they offered testimony

about his mental-health issues (including Murphy’s diagnosed ADHD, autism

spectrum disorder, and dysregulation mood disorder), his prior mental-health

hospitalizations, and how Murphy had been dealing with anger outbursts since he was

four years old.

No one suggested that Murphy was incompetent to stand trial or connected his

various mental-health issues with his competency to stand trial. In fact, Murphy took

the stand in his own defense, answered questions from his own lawyer and the State’s,

and testified that he understood the severity of his charge; he apologized to the court,

his family, the City, and others he had scared.

On the second day of the sentencing trial, Murphy’s counsel filed a motion to

withdraw his guilty plea, hoping to have Murphy accepted into a mental-health

diversion program. But at the close of the evidence, Murphy withdrew his motion.

Murphy, who had no criminal record, recounted his mental-health struggles and asked

for probation. The State responded that the case was not about Murphy’s mental

4 health or autism spectrum disorder but about his violent tendencies and

uncontrollable anger outbursts. The trial court accepted Murphy’s guilty plea and

assessed punishment at five years’ confinement, within the range for a third-degree

felony. See Tex. Penal Code Ann. §§ 12.34, 22.07(e).

II. Discussion

In his sole appellate issue, Murphy argues that the trial court erred by not

conducting an informal inquiry into Murphy’s competency. As a matter of

constitutional due process, an incompetent criminal defendant may not stand trial.

Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018); see Cooper v. Oklahoma,

517 U.S. 348, 354, 116 S. Ct. 1373, 1376 (1996) (“We have repeatedly and consistently

recognized that ‘the criminal trial of an incompetent defendant violates due process.’”

(quoting Medina v. California, 505 U.S. 437, 453, 112 S. Ct. 2572, 2581 (1992))). “Due

process also mandates state procedures that are adequate to assure that incompetent

defendants are not put to trial.” Turner v. State, 422 S.W.3d 676, 689 (Tex. Crim. App.

2013). Chapter 46B effectuates those procedures. See Tex. Code Crim. Proc. Ann. arts.

46B.001–.171.

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

competent to stand trial unless proved incompetent by a preponderance of the

evidence.” See id. art. 46B.003(b). As the Court of Criminal Appeals has stated,

Substantively, incompetency to stand trial is shown if the defendant does not have: “(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a

5 rational as well as factual understanding of the proceedings against the person.” Id. art. 46B.003(a). Procedurally, a trial court employs two steps for making competency determinations before it may ultimately conclude that a defendant is incompetent to stand trial. The first step is an informal inquiry; the second step is a formal competency trial.

Boyett, 545 S.W.3d at 563 (selected citation omitted). Murphy challenges the lack of the

first step.

A. Preservation of Error

Before turning to the merits, we address the State’s argument that Murphy

failed to preserve error by not objecting to the trial court’s having not sua sponte

conducted an informal competency inquiry. Generally, to preserve a complaint for our

review, a party must have presented to the trial court a timely request, objection, or

motion sufficiently stating the specific grounds, if not apparent from the context, for

the desired ruling. Tex. R. App. P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d 819,

822 (Tex. Crim. App. 2021). Further, the party must obtain an express or implicit

adverse trial-court ruling or object to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020).

Most complaints, “whether constitutional, statutory, or otherwise, are forfeited

by failure to comply with Rule 33.1(a).” Mendez v. State, 138 S.W.3d 334, 342 (Tex.

Crim. App. 2004). But Rule 33.1 “does not apply to rights which are waivable only or

to absolute systemic requirements, the violation of which may still be raised for the

first time on appeal.” State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009).

6 Article 46B.004(c) requires a trial court, on suggestion that a criminal defendant

may be incompetent to stand trial, to determine by informal competency inquiry

whether “there is some evidence from any source that would support a finding that

the defendant may be incompetent to stand trial.” See Tex. Code Crim. Proc. Ann. art.

46B.004(c). As the Court of Criminal Appeals has said: “A law that puts a duty on the

trial court to act sua sponte, creates a right that is waivable only. It cannot be a law

that is forfeitable by a party’s inaction.” Proenza v. State, 541 S.W.3d 786, 797 (Tex.

Crim. App. 2017) (quoting Mendez, 138 S.W.3d at 342); see Marin v. State, 851 S.W.2d

275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d

262, 264 (Tex. Crim. App. 1997).

Accordingly, a complaint that the trial court did not comply with Article

46B.004(c) is a waivable right, which Murphy did not waive. See Proenza, 541 S.W.3d at

797; Guerra v. State, No. 11-19-00359-CR, 2022 WL 599241, at *5–6 (Tex. App.—

Eastland Feb. 28, 2022, no pet.) (mem. op., not designated for publication) (allowing

criminal defendant to raise appellate challenge that the trial court should have

conducted an informal competency inquiry); Johnson v. State, Nos. 2-05-205-CR, 2-05-

206-CR, 2006 WL 2578033, at *4 & n.37 (Tex. App.—Fort Worth June 22, 2006, no

pet.) (abatement order, not designated for publication) (holding that criminal

defendant did not forfeit complaint about trial court’s not having conducted a

competency determination). We therefore reach the merits of Murphy’s issue.

7 B. Standard of Review and Applicable Law

We review a trial court’s failure to conduct an informal inquiry into a criminal

defendant’s competency to stand trial for an abuse of discretion. Montoya v. State,

291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds as stated

in Turner, 422 S.W.3d at 692 & n.31; Dusenbery v. State, No. 02-16-00125-CR,

2018 WL 4025078, at *7 (Tex. App.—Fort Worth Aug. 23, 2018, pet. ref’d) (mem.

op., not designated for publication). A trial court does not abuse its discretion absent

a showing that its decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426.

“An informal inquiry is called for upon a ‘suggestion’ from any credible source

that the defendant may be incompetent.” Boyett, 545 S.W.3d at 563 (citing Tex. Code

Crim. Proc. Ann. art. 46B.004(a), (c), (c-1)). When “evidence suggesting” that a

defendant in a criminal case “may be incompetent to stand trial comes to the attention

of the [trial] court, the court on its own motion shall suggest that the defendant may

be incompetent to stand trial.” Tex. Code Crim. Proc. Ann. art. 46B.004(b); Dusenbery,

2018 WL 4025078, at *8. “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 is incompetent.” Tex.

Code Crim. Proc. Ann. art. 46B.004(c-1); Dusenbery, 2018 WL 4025078, at *8. The

article 46B.024 factors are:

(1) the capacity of the defendant during criminal proceedings to:

8 (A) rationally understand the charges against the defendant 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;

(2) as supported by current indications and the defendant’s personal history, whether the defendant:

(A) is a person with mental illness; or

(B) is a person with an intellectual disability;

(3) whether the identified condition has lasted or is expected to last continuously for at least one year;

(4) the degree of impairment resulting from the mental illness or intellectual disability, if existent, and the specific impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and

(5) if the defendant is taking psychoactive or other medication:

(A) whether the medication is necessary to maintain the defendant’s competency; and

(B) the effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.

Tex. Code Crim. Proc. Ann. art. 46B.024.

9 C. Analysis

Murphy argues that the following evidence raised the suggestion that he might

have been incompetent to stand trial:

• Since he was five years old, several psychiatrists had cared for Murphy and had diagnosed him with autism spectrum disorder, disruptive mood dysregulation disorder, ADHD, and bipolar disorder.

• Murphy had suffered from mental illnesses for an extended period of time, starting at age five.

• While in school, Murphy needed and received special-education services from elementary school through graduation.

• Murphy had received in-patient care at two Tarrant County mental-healthcare facilities.

• His MHMR group-home placement, recommended after one of his hospitalizations, lasted six months and ended because of COVID- 19 restrictions and not because Murphy was well.

• When Murphy turned 19, his mother was concerned about his being able to care for himself and wanted to get a guardianship over Murphy.

• When Murphy inherited some money, his mother testified that “[she] put it in a special needs trust is how [she] was trying to set it up.”

• While Murphy awaited trial in the Tarrant County Jail, MHMR provided continuous mental-health treatment, including daily doses of mental-health medications.

10 Murphy argues that this evidence about his mental illness should have caused the trial

court to conduct an informal inquiry.2 But as the Court of Criminal Appeals stated in

Turner:

The fact that a defendant is mentally ill does not by itself mean he is incompetent. Nor does the simple fact that he obstinately refuses to cooperate with his trial counsel. Indeed, even a mentally ill defendant who resists cooperating with his counsel may nevertheless be found competent if the manifestations of his particular mental illness are not shown to be the engine of his obstinacy. But when 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, he cannot be made to stand trial consistent with due process. Evidence that raises this possibility necessitates an informal inquiry, and if that inquiry reveals that the possibility is substantial, a formal competency trial is required.

422 S.W.3d at 691; see Boyett, 545 S.W.3d at 564 (“[T]here must be some evidence

indicating that the defendant’s refusal to rationally engage with counsel is caused by

his mental illness.”).

Murphy specifically argues that the evidence should have “triggered a bona 2

fide doubt as to competency[,]” and he cites Gray v. State—a 2008 decision—in support. 257 S.W.3d 825, 829 (Tex. App.—Texarkana 2008, pet. ref’d). But as the State points out, the Legislature changed the law in 2011 to eliminate the bona-fide- doubt requirement, so we do not apply that standard. See Turner, 422 S.W.3d at 692 n.32 (citing Acts 2011, 82nd Leg., ch. 822, §§ 2 & 21(b), p. 1895 & 1901, eff. Sept. 1, 2011 (adding Subsection (c–1) to Article 46B.004 to provide in pertinent part that: “A suggestion of incompetency is the threshold requirement for an informal inquiry under Subsection (c) and may consist solely of a representation from any credible source that the defendant may be incompetent. A further evidentiary showing is not required to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency of the defendant.”)).

11 Simply put, a defendant’s mental illness, past or present—absent credible

evidence that because of it, he lacks “(1) sufficient present ability to consult with [his]

lawyer with a reasonable degree of rational understanding; or (2) a rational as well as

factual understanding of the proceedings against [him,]” Tex. Code Crim. Proc. Ann.

art. 46B.003(a)—“does not [by itself] equate to a suggestion of incompetency.”

Dusenbery, 2018 WL 4025078, at *9 (cleaned up) (citing Graves v. State, No. 02-15-

00141-CR, 2015 WL 9244767, at *3–4 (Tex. App.—Fort Worth Dec. 17, 2015, pet.

ref’d) (mem. op., not designated for publication) (concluding that a defendant’s

suicide attempt absent “evidence of severe mental illness” was “not a suggestion of”

incompetency)); see also Pleasant v. State, No. 01-23-00144-CR, 2024 WL 3350254, at

*8–9 (Tex. App.—Houston [1st Dist.] July 9, 2024, pet. ref’d) (mem. op., not

designated for publication) (holding no abuse of discretion in trial court’s not

conducting an informal competency inquiry based on evidence of a defendant’s

mental-health concerns and ongoing psychoactive medication at the time of trial);

Clark v. State, 592 S.W.3d 919, 928 (Tex. App.—Texarkana 2019, pet. ref’d)

(concluding that trial court did not abuse its discretion by finding defendant

competent even though defendant had mental illness and failed to cooperate with

counsel because defendant’s mental illness “does not by itself mean he is

incompetent”) (quoting Turner, 422 S.W.3d at 691).

Although the record contains evidence that Murphy had mental-health issues

for which he had received treatment and medications, including while he awaited trial,

12 nothing suggested that Murphy could not cooperate or consult with his lawyer or

understand or participate in the proceedings, and the trial court was able to observe

Murphy’s interactions with his counsel and with the State’s counsel when Murphy

testified on his own behalf. See Tex. Code Crim. Proc. Ann. art. 46B.003(a); Turner,

422 S.W.3d at 691. We therefore hold that the trial court, which was in the position to

view Murphy’s demeanor during trial—and which did generally inquire about

Murphy’s competency immediately before the punishment trial began—did not abuse

its discretion by not sua sponte further conducting an informal competency inquiry.

See McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003) (concluding that trial

court did not err by not holding a formal competency inquiry and stating that it

“cannot ignore the trial court’s first-hand factual assessment of [the defendant’s]

mental competency” and that trial court’s factual findings “are entitled to great

deference”).

We overrule Murphy’s sole issue.

III. Conclusion

Having overruled Murphy’s sole issue, we affirm the trial court’s judgment.

13 /s/ Elizabeth Kerr Elizabeth Kerr Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: April 17, 2025