GEER v. STATE (2025)

OPINION

A jury convicted appellant Teddy Geer (“Geer”) of the first-degree felony offense of murder, and the trial court sentenced him to forty years’ imprisonment. In two issues, Geer appeals that (1) the trial court erred in failing to sua sponte conduct a competency inquiry and (2) his Sixth Amendment rights were violated when his defense counsel conceded his guilt during closing argument. We affirm.

I. Background

Geer, a homeless schizophrenic man, beat, kicked, and stomped another homeless man, Randy Thompson (“Thompson”), whom he encountered in the early morning hours of April 11, 2018. Thompson died from his injuries. The attack was captured by a surveillance camera belonging to the apartment building next to the crime scene. On April 13, 2018, Geer was arrested and charged for Thompson's murder. During a videotaped interview with police, Geer admitted that he “crushed his face. I fucking stomped it in. I hit him and when he fell I kept pushing my shoe in his face. I crushed his face and I stomped the fuck out of him.” The clothing and shoes Geer wore during the interview still had Thompson's blood on them.

Geer was then indicted for murder on June 28, 2018. On November 14, 2018, his counsel petitioned the court to appoint licensed psychologist Darrel B. Turner (“Dr. Turner”) to evaluate Geer, and the trial court granted the request. On May 22, 2019, the trial court received Dr. Turner's competency evaluation declaring that Geer was currently incompetent to stand trial. In his evaluation of Geer, Dr. Turner recommended in-patient forensic psychiatric treatment with close monitoring to ensure consistency with his medication so that he may be restored to competency. Consequently, on July 24, 2019, Judge Belinda Hill signed an order of initial commitment for 120 days pursuant to article 46B.073 of the Texas Code of Criminal Procedure.

On July 1, 2021, Judge Mark Ellis signed an order declaring that Geer remained incompetent to stand trial and ordered that Geer continue to receive inpatient mental health services for at least sixty days. Rusk State Hospital ultimately returned Geer to the Harris County Jail on December 21, 2021, with a medication plan for continuity of care after doctors at Rusk State Hospital found him competent to stand trial in April and May of 2021. Soon after, the case was set for trial on February 21, 2023.

In the days leading up to the trial setting, various visiting judges held pre-trial hearings on the record. On February 8, 2023, visiting Judge Denise Collins held a hearing on the state's motion for a trial continuance due to a Brady Notice regarding a DNA analyst in Geer's case. On February 13, 2023, visiting Judge Mark Ellis held a hearing on the state's motion in limine and heard testimony from a DNA analyst. On February 15, 2023, sitting Judge Lori Gray signed an order finding Geer had regained competency to stand trial.

On February 21, 2023, Geer proceeded to a jury trial in front of visiting Judge Vanessa Velasquez, and the jury found him guilty of murder. The trial court then heard the punishment phase of trial and assessed punishment at forty years’ imprisonment. This appeal ensued.

II. Competency

In his first issue, Geer contends the trial court abused its discretion by failing to sua sponte conduct an informal inquiry into Geer's competency to stand trial “after he continuously demonstrated an inability to participate with any rationality in the proceedings.”

A. Legal Standard

As a matter of due process, a criminal defendant who is incompetent may not stand trial. Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). In Texas, an accused is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003(b); see Laflash v. State, 614 S.W.3d 427, 431 (Tex. App.—Houston [1st Dist.] 2020, no pet.). A person is incompetent to stand trial if he lacks 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 the person. Tex. Code Crim. Proc. Ann. art. 46B.003(a); see Laflash, 614 S.W.3d at 431–32. Texas “allow[s] competency to be raised, by either party or the judge, at any time before sentence is pronounced.” Morris v. State, 301 S.W.3d 281, 290 (Tex. Crim. App. 2009). Although a defendant is presumed competent and ultimately bears the burden of proving incompetence to stand trial, article 46B does not allow a trial court to wait for a defendant to raise the issue. Instead, article 46B “places certain responsibilities on the trial court to inquire into the matter independently and force the parties to litigate the issue, if necessary.” Clark v. State, 592 S.W.3d 919, 924 (Tex. App.—Texarkana 2019, pet. ref'd).

1. Triggering an Informal Inquiry

A trial court's duty to conduct an informal inquiry is triggered upon a suggestion from any credible source that a defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004(a), (c), (c-1); Boyett, 545 S.W.3d at 563. Upon receipt of such information, “the court on its own motion shall suggest the defendant may be incompetent to stand trial,” and 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. Proc. Ann. art 46B.004(b)–(c). The trial court may also appoint one or more disinterested experts to examine the defendant and report to the court on the defendant's competency or incompetency. See id. art. 46B.021(a)(1).

“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 within the meaning of Article 46B.003.” Id. art. 46B.004(c–1); see Laflash, 614 S.W.3d at 432. The article 46B.024 factors include the capacity of the defendant during criminal proceedings to (1) understand rationally the charges against him and the potential consequences of those pending charges; (2) disclose to his defense counsel pertinent facts, events, and states of mind; (3) engage in a reasoned choice of legal strategies and options; (4) understand the adversarial nature of the criminal proceedings; (5) exhibit appropriate courtroom behavior; and (6) testify. Tex. Code Crim. Proc. Ann. art. 46B.024(1)(A)–(F); see Laflash, 614 S.W.3d at 432. Additional considerations include information regarding whether the defendant has a mental illness or an intellectual disability, “whether the identified condition has lasted or is expected to last continuously for at least one year,” whether medication is necessary to maintain the defendant's competency, and “the degree of impairment resulting from the mental illness or intellectual disability ․ and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner.” Tex. Code Crim. Proc. Ann. art. 46B.024(2)–(5); see Laflash, 614 S.W.3d at 432.

2. The Informal Inquiry

During the informal inquiry stage, the trial court must focus on three matters. Boyett, 545 S.W.3d at 563. First, the trial court considers whether there is “some evidence” of incompetency to stand trial. Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.004(c)). This “some evidence” standard requires only that there be “more than none or a scintilla [of evidence] that rationally may lead to a conclusion of incompetency.” Turner v. State, 422 S.W.3d 676, 692 (Tex. Crim. App. 2013). Second, a trial court considers only evidence of incompetency and cannot weigh evidence of competency against evidence of incompetency. Boyett, 545 S.W.3d at 564. And third, the evidence must be such that “it may rationally be inferred not only 1) that the defendant suffers some degree of debilitating mental illness, and that 2) he obstinately refuses to cooperate with his counsel to his own apparent detriment, but also that 3) his mental illness is what fuels his obstinacy.” Turner, 422 S.W.3d at 692 (emphasis in original). These do not create a particularly onerous standard to require a formal competency trial. See id. at 696. “In short, while the evidence must be specific—meaning that it demonstrates more than mere mental illness and more than a mere failure to cooperate with defense counsel—there does not need to be much of it to require the trial court to take further action.” Clark, 592 S.W.3d at 926.

3. Next Steps

If, during the informal inquiry stage, the trial court finds more than a scintilla of evidence supporting a rational finding of fact that the defendant is incompetent to stand trial, Boyett, 545 S.W.3d at 564, then the trial court is required to do three things: (1) “stay all other proceedings in the case,” Tex. Code Crim. Proc. Ann. art. 46B.004(d); (2) appoint an expert to conduct a competency examination (if it has not already done so), id. art.46B021(b); and (3) move forward with a formal competency trial. Id. art. 46B.005(a)–(b). The third step is mandatory unless, “(1) neither party's counsel requests a trial on the issue of incompetency, (2) neither party's counsel opposes a finding of incompetency, and (3) the court does not, on its own motion, determine that a trial is necessary to determine incompetency.” Id. art. 46B.005(c). Notably, the statute's plain language indicates that the exception in article 46B.005(c) only applies when the parties and the trial court agree that the defendant is incompetent, not when they agree that he is competent.

4. Foregoing a Competency Trial

Still, “this does not mean that a formal competency trial is required every time an expert evaluation determines that the defendant is competent. Far from it.” Clark, 592 S.W.3d at 927. As the Texas Court of Criminal Appeals noted in Boyett, “it is not enough to present evidence of either a defendant's mental illness alone or his refusal to cooperate with counsel.” 545 S.W.3d at 563 (citing Turner, 422 S.W.3d at 696). Rather, “there must be some evidence [at the informal inquiry] indicating that the defendant's refusal to rationally engage with counsel is caused by his mental illness” before the trial court is required to hold a competency trial. Id. Accordingly, competency trials will only occur in those instances where the trial court finds “some evidence to support a finding” that the defendant's “mental illness is what fuels his obstina[te]” “refusal to cooperate with his counsel to his own apparent detriment.” Id. at 564; Clark, 592 S.W.3d at 927.

Moreover, one of the factors considered in an expert evaluation is “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.” Tex. Code Crim. Proc. Ann. art. 46B.024(4). Where the only evidence before the trial court at the informal inquiry is the expert evaluation and the expert determines that the defendant's impairment does not “impact the defendant's capacity to engage with counsel” then the exception in article 46B.005(c) does not come into play because the standard for holding a formal competency trial will not have been met in the first place. “Consequently, in many cases, a competency trial will not be required where the expert evaluation determines that the defendant is competent, notwithstanding Article 46B.005(c)’s one-way application.” Clark, 592 S.W.3d at 927.

We review a trial court's decision whether to conduct an informal inquiry on competency for abuse of discretion. See Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009); Laflash, 614 S.W.3d at 432. Under this standard, we do not substitute our judgment for that of the trial court but determine whether the trial court's decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426.

B. Competency History

After Geer was charged with murder, a series of competency evaluations, psychiatric commitments, and medical interventions were conducted. Geer, who relies on prescribed medication to manage his schizophrenia, including an antipsychotic with sedative effects, could not maintain competency to stand trial without consistent medication. From July 2019 to May 2022, Geer cycled through incompetency, treatment at Rusk State Hospital or at the Harris County jail, competency, and then non-compliance with his medication schedule. A psychiatrist with the Harris County Center for Mental Health and IDD notified the trial court on May 3, 2022, that Geer was once again refusing to take his medications, and his failure to take them “may result in a rapid decompensation.”

Even when adherent to his medication schedule, Geer was not behaviorally compliant or psychosis-free. For instance, Geer's March 30, 2021 evaluation at Rusk State Hospital shows that, although then-competent to stand trial, he was exhibiting “minor symptoms of mood instability and verbal aggression with staff and peers, though it is unclear whether this stems from his mental illness or is volitional in nature.” A medical doctor at Rusk State Hospital who examined Geer on May 20, 2021, certified that Geer no longer met the criteria for court-ordered mental health services and that Geer was competent to stand trial. Still, this doctor noted that Geer had stated during the evaluation, “I know my charge”; “[t]he judge gives your sentence”; “[a]m I competent now?”; and also, “I hear Asians.” The doctor concluded that “[h]e has some psychosis but [this] did not prevent him from gaining competency.” In another example of Geer's behavior, shortly after he returned to the Harris County Jail from Rusk State Hospital, Geer started a fight on January 31, 2022, with another inmate and caused a deep gash on the inmate's forehead.

Although the record is silent about Geer's competency and adherence to his medication schedule for the eight months between May 3, 2022, and February 8, 2023, the record does show that Geer was declared competent to stand trial on April 6, 2021, and May 20, 2021.

During the February 8, 2023, hearing held by visiting Judge Denise Collins, she denied the State's motion for continuance. Throughout the hearing, the trial court engaged in conversation with Geer. For example, the trial court first asked Geer, “I wanted to see what your status is and how you're feeling, et cetera, and what kind of medication you're taking. Can you tell me that?” Geer answered, “Seroquel,” and the state confirmed that Geer was in fact taking this medication. The State added that Geer “is not under a forced medication order at this time. He is willingly taking his medications.” The State further explained that “[o]n a competency case, if they do have concerns about that, there is a process in which they will notify the parties and we can seek enforcement. We have not had to do that on this case” because “[h]e actively takes his medication.” The trial court confirmed Geer's diagnosis and inferred that the medication he was currently taking was for that diagnosis.

Further in their conversation, Geer correctly mentions his concern that two prior judges had presided on his case, and he did not understand why visiting Judge Collins was the “third judge he was sitting in the courtroom with.” Geer also added he understood the State's offer on the case was forty years in prison, which he could not accept. The defense counsel objected to the trial court granting the State's motion for continuance because in her opinion Geer was competent at the time of the hearing. The trial court then held that it was in the best interest of the defendant to proceed with trial as scheduled for February 21, 2023.

The next pre-trial hearing, addressing the State's motion in limine regarding certain DNA evidence, took place on February 13, 2023, with visiting Judge Mark Ellis presiding. Geer began “making noises” shortly after the hearing started and was told to “be quiet during the testimony.” Geer then interjected that those in the courtroom were trying to “sabotage the evidence.”¹ His interjections were largely topical, and included attempting to correct the name of the victim, complaining about his previous and current attorneys, correctly noting there was a different judge, and announcing he would refuse to attend trial. However, Geer also made the following disjointed response about feeling sabotaged:

I mean, I won't hint, hint, hint; but flames are up in the building. I mean, not—that's not a terroristic attack. It's just for the people who may want to equip themselves of a check and go find another residency or—excuse me—another place to work. But I—I won't be attending a trial. That's due to—look, that wasn't of my saying. It was a star point trying to push that off on an audio point and then hint, hint, hint—hint, hint, hint, turns underneath the jail or something far, far, far in the south—southeast section and then I have to use it as support. I have to use it as support because something is quietly watching and then, you know, feeling like the — the — the—run the Jew — I processes in their favor.

After Judge Ellis assured Geer that the hearing and trial would be conducted fairly, and asked him to be quiet so he could listen to the testimony, Geer remained silent for the remainder of the hearing.

On February 15, 2023, the trial court, with sitting Judge Lori Gray presiding, signed an order that Geer had been restored to competency.

On February 21, 2023, voir dire commenced with visiting Judge Vanessa Velasquez, who would preside for the remainder of Geer's trial. Initially, the trial court noted on the record that she had encountered Geer the previous Thursday while presiding in court. The trial court explained that Geer was initially polite, but when the trial court mentioned trial, “he became irate and started yelling that he didn't want a trial, he wasn't going to trial, and that I was the fourth or fifth judge [on his case].” The trial court stated that she was aware of Geer's past incompetency and “the doctors have determined that he has regained his competency.”

Thereafter, Geer's behaviors and remarks in the courtroom throughout trial were consistent with Judge Velasquez's observations. Geer did not want to attend trial; did not want to change out of jail-issued clothing; felt that he was being framed; was argumentative and at times insulting to the trial court; and interjected periodically when he felt the evidence or testimony was incorrect. His personal defensive theories were that (1) the man depicted in the videotaped police interview and in the crime scene surveillance video was his unknown twin or triplet, not him; (2) he had struck but not murdered a man on the night in question after being attacked and robbed by a group of homeless persons and drug dealers; and (3) the photograph of the victim at trial was a photograph of a different person, not the man he had struck. The statements made by Geer, although made at inappropriate times during the trial, indicate that he understood the proceedings and was attempting to advance defensive theories.

At one point, Geer's attorney approached the bench and asked for a break “so we can calm him back down.” During the break, Geer insisted that he was not being rude to his lawyers, the courtroom, or “the family of the supposed victim.” He explained that he was trying to tell his attorney that his tattoos varied from his “brother's” as depicted in the videotaped police interview.

C. Did the trial court err in failing to conduct an informal competency inquiry?

Geer argues the trial court erred in failing to conduct an informal competency inquiry, based on Geer's “bizarre ‘identical brother’ with matching tattoos explanation, combativeness and general inability to grasp the proceedings before him, long history of mental illness, and active schizophrenia medication regimen.” We address the factors under article 46B.024(1) to determine whether the trial court abused its discretion. See Tex. Code Crim. Proc. art. 46B.024(1).

1. Capacity to understand rationally the charges against him and the potential consequences of those pending charges

The first of these factors is whether Geer could “rationally understand the charges against [him] and the potential consequences of the pending criminal proceedings.” See id. The record shows that Geer understood the charges against him and the possible consequences. For instance, he discussed with the trial court the possibility of receiving a lesser sentence; gave attention to the trial court's explanation of the jury's role in determining whether he might be guilty of murder, manslaughter, or aggravated assault, responding “hmm” at appropriate intervals; and asked for a lesser sentence.

2. Capacity to understand the adversarial nature of the criminal proceedings

Geer showed he understood the adversarial nature of the criminal proceedings, voicing his concern at different times that he was being framed. See id. art. 46B.024(1)(D). He asked for confirmation that if he testified, “both sides will ask me questions?” Geer also voiced his concern that he might lose his composure and be removed from the courtroom:

I mean, I do know what I'm talking about to the least of it, and then you're only trying to get me in a[n] argument to get someone frustrated to make it seem like I'm the disrupt—disruptive one in the courtroom, so you can just have a moment to all to haul me back in shackles and want me to view it on TV to try to get me to be out of the courtroom.

He was worried that he was “using the wrong words” and was “not up to par with my vocabulary.” Geer's rational dialogue with the trial judge, including his relevant questions, reflects that he had both a rational and factual understanding of the proceedings against him and the adversarial nature of trial. See id. art. 46B.003 (defining incompetency). His continuous refusal to participate in the trial admittedly shows he understood the nature of the criminal proceedings against him. Repeatedly, Geer refused to dress out for trial or participate in the trial until he was forced to attend.

3. Capacity to disclose to his defense counsel pertinent facts, events, and states of mind

Similarly, the record supports the factor that Geer was able to disclose to his counsel pertinent facts, events, and state of mind. See id. art. 46B.024(1)(B). At times, the record shows that Geer was speaking “sotto voce” to his assistant counsel when he wanted to contest the evidence. He was aware that he should not discuss what he and his lawyer “discussed in—in the back in privacy.” He also followed advice from his lawyer while in the courtroom not to discuss with the trial court what his lawyer told him. Geer further mentioned to the trial court that he had discussed “what happened in the case” with his previously-appointed lawyer, and Geer sought verification that the assistant lawyer on his case could “handle” what he wished to tell her. The trial court confirmed, “Right. Your assistant lawyer can pass notes” or “whisper into [his primary lawyer's] ear while you testify to bring up those things that are of concern to you.” His primary attorney also felt that Geer was competent. Geer was also able to relay his trial defenses to his lawyer. The record shows that throughout the pre-trial proceedings, Geer claimed the State's surveillance and the evidence was framed against him. He also claimed that the mugshot of the victim was not in fact the victim. Throughout the guilt and innocence phase Geer interjected during his lawyer's cross examination of various witnesses. For example, he claimed that the suspect that was shown in the footage did not have the same body tattoos as Geer had, essentially claiming Geer had been misidentified.

4. Capacity to engage in a reasoned choice of legal strategies and options

As to the factor of engaging in reasoned choice of legal strategies and options, an example of this occurred at length on the record between Geer and the trial court about his right to testify. See id. art. 46B.024(1)(C). The trial court told Geer that if he didn't want to testify, he did not have to and that “[i]t's your call.” When his attorney asked him to trust her and to not testify, Geer's response showed that he was weighing whether to take her advice in light of what he called “a life-threatening punishment.” Ultimately, he decided to testify and stated, “My best legal advice right now, is to do so.” Geer also exhibited reasoning as to strategy, asking the trial court to allow him to take a polygraph test to show that his testimony would be honest and asking for additional time to study the notes he had taken during trial. He stated, “I'm steady to prove my innocence. It's four different brothers from this, two or three of them on the screen” Geer also repeatedly asked for the jury to view the footage while he was testifying because that “can be used in my defense.”

5. Capacity to exhibit appropriate courtroom behavior

As to his capacity to exhibit appropriate courtroom behavior, see id. art. 46B.024(E), Geer had outbursts that included cursing at the judge and making noises. Inappropriate outbursts and comments during trial are not necessarily evidence of one's incompetency to stand trial. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999). The record supports a conclusion that Geer could volitionally stop making such outbursts and noises in front of the factfinder. For example, at one point he argued with the trial court at length until the moment the venire entered the courtroom, behaved and responded appropriately in front of the venire, and started his outbursts again immediately after the newly-empaneled jury exited the courtroom. At other times, Geer apologized, including an instance in which he first waited for the jury to exit the courtroom: “What is this about? Not being rude to the lawyer or the assistant lawyer or the courtroom or ․ or to the ․ to the family of the supposed victim.” These examples tend to indicate Geer's awareness of and degree of control over his outbursts. Further, Geer's comments were generally coincident with his concerns that he was being framed, insulted, or ignored about points of evidence. See id. (finding that the defendant's outbursts did not show incompetence when they were “timely, topical, and logically related” to trial events); see also Kapperman v. State, No. 01-20-00127-CR, 2022 WL 3970081, at *31–32 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022, no pet.) (mem. op., not designated for publication) (finding appellant's outbursts evidencing complaints about the fairness of the trial proceedings were timely, topical, and logically related to the ongoing proceedings). If unruly and disruptive courtroom demeanor “were probative of incompetence, one could effectively avoid criminal justice through immature behavior.” Burks v. State, 792 S.W.2d 835, 840 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd).

6. Capacity to Testify

Geer's testimony during the guilt-innocence phase of trial included numerous rational responses to the questions asked of him. See Tex. Code Crim. Proc. Ann. art. 46B.024(F), He described his history, his move to Houston, living as a homeless person, his elementary education in special education classes for emotionally-handicapped children, his junior high education in an alternative school for troubled kids, dropping out of high school in the tenth grade, and developing a drug habit at age fourteen. His testimony painted a descriptive and lucid picture of his life.

The trial court was able to observe Geer's demeanor during trial and during his testimony, and we do not find persuasive appellant's argument that the trial court abused its discretion by not conducting an informal inquiry into Geer's competence due to his theory that a twin was depicted in the video evidence. See Lindsey v. State, 544 S.W.3d 14, 26 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd) (holding trial court did not abuse its discretion in failing to conduct informal inquiry into defendant's competency “[c]onsidering the cumulative effect of [the defendant's] statements and actions and the context in which they were made”).

Geer nonetheless argues that he did not rationally understand the charges against him and the potential consequences of those pending charges, as shown through (1) his theory that a twin or triplet was depicted in the surveillance video and videotaped police interview and (2) his need for an assistant counsel to maintain constant communication with him while his primary attorney tried the case. He argues that “clear and lucid testimony on the part of a defendant” is deemed of high importance, even in cases where a defendant with “articulate [and] logical” testimony was claiming incompetency. See McDaniel v. State, 98 S.W.3d 704, 712-13 (Tex. Crim. App. 2003). “[W]hen 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.” Turner, 422 S.W.3d at 691.

The Court of Criminal Appeals has recognized that a defendant's statements “which suggest some irrationality” do not necessarily show that the defendant is unable to rationally consult with counsel or understand the proceedings against him. See Ross v. State, 133 S.W.3d 618, 627 (Tex. Crim. App. 2004) (evaluating, under prior statutory scheme for competency, whether the defendant presented evidence that raised bona fide doubt regarding his competency to stand trial); Johnson v. State, 429 S.W.3d 13, 18 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“Bizarre, obscene, or disruptive comments by a defendant during court proceedings do not necessarily constitute evidence supporting a finding of incompetency.”); see also Lewis v. State, 532 S.W.3d 423, 427–29 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (concluding there was no error in failing to conduct an informal competency inquiry for defendant who was found competent to stand trial, but who had been diagnosed with mental illnesses, asked to be called “Paramount Security Interest Holder,” and disrupted trial with screaming).²

Moreover, as to Geer's mental health history, a defendant's history of mental illness, without evidence from a credible source that he cannot rationally understand the proceedings against him or that he cannot engage rationally with counsel in the pursuit of his own best interest, does not amount to a suggestion of incompetency. See Turner, 422 S.W.3d at 691 (addressing mental illness); see also Thompson v. Johnson, 7 F. Supp. 2d 848, 860 (S.D. Tex. 1998) (mem. op. & order) (“[A] history of mental illness and/or attempts at suicide do not per se establish a defendant's incompetency to stand trial.”).

We conclude that although Geer suffers from a mental health illness that requires medication to maintain competency to stand trial, the record reflects that Geer had (1) a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and (2) a rational as well as factual understanding of the proceedings against him throughout trial. See Tex. Code Crim. Proc. art. 46B.003(a).³ Thus, we cannot conclude the trial court abused its discretion by not conducting an informal competency inquiry. See McDaniel, 98 S.W.3d at 713. We overrule issue one.

III. McCoy v. Louisiana Complaint

In his second issue, Geer contends that his defense counsel violated the strictures of McCoy v. Louisiana when, during closing arguments, she made arguments conceding his guilt in violation of the Sixth Amendment. See McCoy v. Louisiana, 584 U.S. 414, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018). In closing argument, Geer's attorney told the jury that “very little of the actual evidence in this case was going to be disputed,” referring to the video evidence, Geer's statement to the police, and DNA evidence. Instead, Geer's attorney argued that Geer's guilt came down to whether he had the requisite intent. With his long-time mental health issues, life experience, and “fairly tortured mind,” Geer's attorney argued that “[h]e simply couldn't face what he had done.” Geer's attorney argued that because he lacked intent, Geer was not guilty of murder; he was guilty of the lesser-included offense of aggravated assault.

A. Preservation of a McCoy Complaint

In McCoy, the United States Supreme Court held that some decisions belong to the defendant, including whether to maintain his innocence during the guilt-innocence phase of a criminal trial, even if his lawyer thinks there may be a strategic advantage to be gained from a concession of guilt. Id. at 422–23, 138 S.Ct. 1500. When a defense lawyer oversteps by conceding guilt against the defendant's wishes, the defendant is entitled to a new trial without the need to show that his lawyer's usurpation of his Sixth Amendment rights resulted in prejudice. Id. at 426–28, 138 S.Ct. 1500.

Our Court of Criminal Appeals has addressed the preservation of error necessary for a McCoy complaint. See Turner v. State, 570 S.W.3d 250, 275 (Tex. Crim. App. 2018). In Turner, the court held that “a defendant cannot simply remain silent before and during trial and raise a McCoy complaint for the first time after trial.” Id. Rather, a defendant faced with a McCoy issue must present “express statements” of his will to maintain his innocence before or during trial, though he need not object with the precision of an attorney. Id. at 276. The question is whether the record shows that the appellant, in a timely fashion, made express statements of his will to maintain his innocence. Id. If the defendant does not do so, then he has not preserved the issue for appellate review. Id. at 276–77.

Here, the record does not show that Geer preserved his McCoy complaint. The issue of his possible guilt for a lesser-included offense, but not for murder, was first raised in the February 8, 2023, hearing on the State's motion for continuance. In the hearing, the trial court discussed with Geer that if a jury found him guilty of murder, the range of punishment was between five years to life in prison. Geer's counsel then told the trial court that “there are potential lessers in this case,” to which the trial court responded, “I am sure you discussed that with him.” Geer's counsel confirmed to the trial court, “Absolutely, yes, ma'am.”

Lesser-included offenses were next raised by the State in its voir dire. When discussing the mental state required for murder, the State advised the venire that “there are other charges out there. They're called lesser-included offenses. And the reason they're called lessers is because they require a lesser mental state and they result in a lesser punishment range.” In opening statements, Geer's attorney followed up on this theme, telling the jury:

You're going to find in this trial that a lot of the evidence is not really going to be in dispute. You're going to find that the questions I ask, the evidence that we want you to focus on in our case has a lot to do with that mens rea or that mental state.

The question you're ultimately going to be asked to decide is what were Teddy Geer's intentions that day. And I believe that you'll find after you hear all the evidence that he did not intend to cause the death, to kill the complainant here, and you'll render a verdict not of murder but of something else.

Finally, during trial, Geer was considering whether to testify. At that time, he asked the trial court, outside of the presence of the jury: “So, everything goes well, in the end do you think it's a possibility that I can receive a lesser sentence? Please? ․ That's what I'm begging for.” Geer also asked the trial court if it could ask the jury “to grant me a ․ a lesser sentence, right?” In response, the trial court explained to Geer that it would read the law to the jury about murder, manslaughter, and aggravated assault and added that, “So those are two lessers of murder.” The trial court told Geer the range of punishment for manslaughter and aggravated assault and said, “So your lawyers have asked for those, for the lessers, and so I have agreed to that.” The trial court also explained that the prosecutor was going to ask the jury to find Geer guilty of murder, but that Geer's lawyers were “going to ask the jury to find [him] guilty of a lesser.” To each of the trial court's explanations about the lesser-included offenses, Geer responded, “Hmm.” He did not argue, protest, or proclaim his innocence for the lesser offenses. Finally, Geer testified in front of the jury that “I did not kill anyone. I — I — I struck a dude with a fist, with a fist, once, and yes, I repeatedly foot to the face of him” and insisted that the man he struck was not the man identified as the victim by the photographs admitted during trial.

To preserve a McCoy complaint, a defendant must present “express statements of [his] will to maintain innocence.” Id. at 276. As reflected above, Geer himself sought the jury's verdict for “a lesser” and admitted his guilt to aggravated assault in his testimony. At various points in the proceedings in which the lesser-included offenses were raised, Geer did not express statements of his will to maintain his innocence about them. His position was that he did not commit murder. He did not raise an objection in any manner to his counsel's closing argument. The record also shows that his attorneys were aware there were certain decisions that only Geer could make, and they acceded, for example, to his decision to testify at trial contrary to their legal advice. Cf. id. (discussing defense attorneys who knew their concessions of guilt were against their client's wishes and believed they were not required to follow his wishes). Nor did Geer raise a McCoy complaint about his attorney's closing argument immediately following the argument or in a motion for new trial. See Harrison v. State, 595 S.W.3d 879, 885 (Tex. App.—Houston [14th Dist.] 2020, pet. ref'd) (concluding that the defendant preserved error on her McCoy complaint by filing a motion for new trial at the first opportunity after issue arose). Geer has waived this issue on appeal. We thus overrule his second issue.

IV. Conclusion

Having overruled Geer's two issues, we affirm the trial court's judgment.

FOOTNOTES

1.   The hearing addressed a lab analyst, Adam Vinson, who had given false testimony about the condition of evidence containers in another case and had been fired from the Houston Forensic Science Center. This lab analyst had been involved in the last step of processing DNA in Geer's case.After hearing testimony about the lab analyst, Geer began interjecting, “They tried to sabotage the evidence. They're trying to place an Adam Vinson ․ and a Randy Thompson with a Rodney Thompson and post it as a capital murder. If you will tell the truth, speak of the truth before you sound bubble waves off of your skull as being promoted of a mind reader ․ right? Keep up a mind reservation with a mental list, right, when people who might have caught you in the act not, not might have, but did it, right?”

2.   See also Pleasant v. State, No. 01-23-00144-CR, 2024 WL 3350254, at *9 (Tex. App.—Houston [1st Dist.] July 9, 2024, pet. ref'd) (mem. op., not designated for publication) (discussing certain of defendant's “rambling, tangential, and delusional” answers during testimony, intermixed with other responses that were appropriate to the questions asked); Jackson v. State, No. 01-21,00360-CR, 2023 WL 17493, at *5 (Tex. App.—Houston [1st Dist.] Jan. 3, 2023, pet. ref'd) (mem. op., not designated for publication) (concluding no duty to sua sponte conduct informal inquiry about competence where schizophrenic defendant testified that it was someone else, not himself, was depicted on surveillance video attacking the victim); Demarsh v. State, No. 02-15-00210-CR, 2016 WL 1267702 (Tex. App.—Fort Worth Mar. 31, 2016, no pet.) (mem. op., not designated for publication) (discussing duty to conduct informal competency inquiry where “the record contains several written and oral statements made by appellant that were rambling, grandiose, irrelevant to the proceedings in the trial court, and perhaps delusional” but also many statements showing defendant's understanding of the proceedings against him).

3.   See Pleasant, 2024 WL 3350254, at *10 (concluding there was no abuse of discretion in not sua sponte conducting an informal inquiry into competency, despite defendant's history of mental illness, medicine regime, and delusional thoughts).

Maritza Antú, Justice