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Court of Appeals of Texas, Beaumont.


No. 09-15-00196-CR

Decided: May 31, 2017

Before McKeithen, C.J., Kreger and Horton, JJ.


Appellant, Crystal Lummas Boyett, appeals her conviction for manslaughter and asks this Court to dismiss the case against her, or in the alternative, remand for a new trial. Boyett presents three issues for review. First, Boyett argues that the trial court erred by denying Boyett's request for a continuance to review medical records that the State produced before trial. Second, Boyett argues the trial court erred by failing to appoint an expert to evaluate her competency before it determined that she was competent to stand trial. Finally, Boyett argues that her constitutional right to testify in her defense was violated when her trial attorney refused to allow her to testify at trial. We overrule Boyett's issues and affirm the judgment.

I. Background

The grand jury indicted Boyett for manslaughter for causing the death of a backseat passenger by recklessly crashing her Camaro into the vehicle occupied by the victim. Trial was set for April 20, 2015.

On March 19, 2015, thirty-two days before trial, the State received over 4,300 pages of medical documents, which the State represented pertained to the victim's mother, another passenger involved in the accident. On April 9, 2015, during a pre-trial hearing, Boyett made an oral request for a continuance on the matter, which the trial court denied. On April 14, 2015, Boyett filed a written motion for continuance, and the following day, the trial court held a hearing on the motion. During the hearing, Boyett argued that she required additional time to review the medical records in order to determine whether they contained information that she could use in her defense. At the hearing, the State admitted that it had not thoroughly reviewed the records and could not guarantee that the medical records did not contain potentially exculpatory material. After the hearing, the trial court denied the motion, and jury selection began as scheduled on April 20, 2015.

On April 23, 2015, during the final day of the guilt-innocence phase of trial, Boyett's counsel filed a motion suggesting incompetency and requested an examination. The trial court conducted an informal inquiry into Boyett's competency and, without appointing an expert to examine the defendant, found insufficient evidence to justify a formal competency determination.

Following the informal inquiry, the State called its final witness and then rested. Boyett's trial counsel then informed the trial court, outside of the presence of the jury, that he could not put his client on the stand to testify on her own behalf due to his belief that she was incompetent. The defense then rested without calling any witnesses. After closing arguments, the jury found Boyett guilty of manslaughter.

II. Motion for Continuance and Brady Material

In her first issue, Boyett argues that the trial court committed reversible error in denying her motion for continuance to review the medical documents because the lack of additional time effectively denied her the use of possibly exculpatory Brady material. We review the trial court's grant or denial of a motion for continuance for an abuse of discretion. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006).

Under Brady v. Maryland, the State has an affirmative duty to turn over favorable evidence to the defense. 373 U.S. 83, 87 (1963); Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006) (“[T]he suppression by the prosecution of evidence favorable to a defendant violates due process if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution.”). However, a defendant has no general right to non-exculpatory material. See id. To establish a claim under Brady, the defendant must demonstrate: “(1) [the State] failed to disclose evidence (2) favorable to the accused[,] and (3) the evidence is material ․” Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). Under the first element, the State's disclosure of such evidence must be in time for the defendant to use it in her defense. Id. As long as the defendant received the material in time to use it effectively at trial, a disclosure does not violate due process simply because “it was not disclosed as early as it might have and should have been.” Id.

Even assuming, without deciding, that the State's production of the medical documents was not in time for Boyett to use the documents effectively at trial, Boyett's Brady claim must fail under the second and third parts of the test. The second part of the test requires the defendant to establish that the evidence was favorable to the accused. Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011). “Favorable evidence is any evidence that ‘if disclosed and used effectively, it may make the difference between conviction and acquittal.’ Favorable evidence includes both exculpatory and impeachment evidence.” Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992) (quoting United States v. Bagley, 473 U.S. 667, 676 (1985)). Boyett fails to identify any exculpatory material within the documents and complains only that she had insufficient time to determine whether or not they contained any exculpatory evidence. Boyett asserts that the State was unable to certify that the documents did not contain exculpatory material, but “[t]he State has no duty to seek out exculpatory information independently on defendant's behalf.” Palmer v. State, 902 S.W.2d 561, 563 (Tex. App.—Houston [1st Dist.] 1995, no pet.). Therefore, Boyett's claim must fail under the second part of the test.

Under the third part of the test, documents are material if “there is a reasonable probability that, had the [documents] been disclosed to the defense, the result of the proceeding would have been different.” Little, 991 S.W.2d at 866. To prove materiality, the defendant must do more than show a mere possibility that the documents might have helped in her defense or that the documents might have affected the outcome of the trial. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Here, Boyett failed to elaborate on how her defensive strategy would have differed or what the probable impact of having additional time to review the documents would have been. Therefore, Boyett's claim must also fail under the third part of the test.

We hold that the trial court acted within its discretion in denying Boyett's motion. We overrule Boyett's first issue.

III. Competency Examination

In her second issue, Boyett argues the trial court abused its discretion in failing to grant her request for a court-appointed licensed physician to make a medical determination of her competency.

A. Standard of Review

We review challenges to the adequacy of a trial court's informal competency inquiry for an abuse of discretion. George v. State, 446 S.W.3d 490, 499 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). Under this standard, we do not substitute our judgment for that of the trial court, but we determine whether the trial court's decision was arbitrary or unreasonable. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds, Tex. Code Crim. Proc. Ann. art. 46B.004(c-1) (West Supp. 2016), as stated in Turner v. State, 422 S.W.3d 676, 692 (Tex. Crim. App. 2013).

B. Competency

The prosecution and conviction of a defendant while she is legally incompetent violates due process. Morris v. State, 301 S.W.3d 281, 299 (Tex. Crim. App. 2009). “ ‘[A] person whose mental condition is such that [she] lacks the capacity to understand the nature and object of the proceedings against [her], to consult with counsel, and to assist in preparing [her] defense may not be subjected to trial.’ ” Turner, 422 S.W.3d at 688–89 (quoting Drope v. Missouri, 420 U.S. 162, 171 (1975)). The constitutional standard for competency to stand trial, which the Texas Legislature has adopted, “asks whether the defendant has a sufficient present ability to consult with [her] lawyer with a reasonable degree of rational understanding and whether [she] has a rational as well as factual understanding of the proceedings against [her].” Id. at 689; see also Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West 2006). A person is presumed to be competent to stand trial, and the burden is on a criminal defendant to prove incompetency by a preponderance of the evidence. Tex. Code Crim. Proc. art. 46B.003(b); Ex parte LaHood, 401 S.W.3d 45, 54 (Tex. Crim. App. 2013).

To support a finding of incompetency, a defendant must do more than show that she suffers from a mental illness, or that she obstinately refuses to cooperate with her trial counsel, or even both of these situations together. Turner, 422 S.W.3d at 691. “Indeed, even a mentally ill defendant who resists cooperating with [her] counsel may nevertheless be found competent if the manifestations of [her] particular mental illness are not shown to be the engine of [her] obstinacy.” Id. A defendant must show that her mental illness “prevent[s] [her] from rationally understanding the proceedings against [her] or engaging rationally with counsel” to support a finding of incompetency. Id. “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.” Id. (emphasis added).

Under the Texas Code of Criminal Procedure, any suggestion that the defendant may be incompetent to stand trial requires the trial court to first make an “informal inquiry” into the defendant's competency to decide whether a formal competency determination is warranted. See Tex. Code Crim. Proc. Ann. art. 46B.004(c), 46B.005(a). During the initial informal inquiry, the trial court is tasked with “determin[ing] ․ whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.” Id. “[S]ome evidence” means “ ‘a quantity more than none or a scintilla[.]’ ” Ex parte LaHood, 401 S.W.3d at 52–53 (quoting Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. [Panel Op.] 1980)). During the informal inquiry, the trial court must consider only the evidence tending to show incompetency. Turner, 422 S.W.3d at 692. 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).

If, after the informal inquiry, the trial court determines that sufficient evidence exists to support a finding of incompetency, the proceedings are propelled to a formal competency determination. See Tex. Code Crim. Proc. Ann. art. 46B.005 (West 2006). While the trial court has discretion to appoint an expert to examine the defendant during the informal inquiry, the appointment of an expert is mandatory during the formal competency determination. Id. art. 46B.021(a), (b) (West Supp. 2016); see Sosa v. State, 201 S.W.3d 831, 832 (Tex. App.—Fort Worth 2006, pet. ref'd).

The question therefore becomes whether, in light of what became known to the trial court by the conclusion of the informal inquiry, it should have conducted a formal competency hearing and appointed an expert to evaluate Boyett.

C. Present Facts

Boyett's counsel raised the issue of competency for the first time on the third and final day of the guilt-innocence phase of trial, simultaneously filing a motion to suggest incompetency. Boyett's counsel argued that Boyett had previously been diagnosed with “bipolar schizophrenia” and that it was trial counsel's belief that she was “episodic, as we speak.” Boyett's trial counsel explained that he raised the issue “as soon as [he] was aware of it.” Trial counsel further stated that he first suspected Boyett might not be competent the night before, while he was meeting with Boyett, Boyett's mother and sister, the defense's expert witness, and his volunteer assistant. It was not Boyett's behavior during this meeting that raised the issue of competency; instead, trial counsel stated that while Boyett was out of the room, he looked through the notebook in which she had been writing for the past three days and found “aimless doodling” and “very bizarre writings.” Trial counsel then inquired with the other members of the defense team, as well as Boyett's sister and mother, and decided to file a motion suggesting incompetency.

The defense counsel's suggestion of incompetency propelled the trial court into the informal inquiry stage. While Boyett's counsel made various representations to the trial court to convince the judge to conduct an informal inquiry into Boyett's competency, Boyett's counsel did not testify during the inquiry, nor did he execute and introduce an affidavit with his observations into evidence. Boyett herself did not testify. The only evidence that Boyett's trial counsel offered consisted of testimony from four witnesses.

The first witness, Jennifer Doornbos, had been assisting the defense team as a volunteer for the preceding three days. Doornbos testified that she had concerns regarding Boyett's competency and that Boyett exhibited “extremely extraneous” behavior. Doornbos testified that Boyett had a prior diagnosis of schizophrenia and bipolar disorder. While Doornbos understood that Boyett was being treated through medications, Doornbos had no knowledge if Boyett was compliant with her prescribed medications. Doornbos agreed with Boyett's trial counsel's suggestion that it was possible that Boyett was currently suffering from a mental disorder: “I would say, yes. The fact that she disassociates and has no insight is a huge concern.” Doornbos testified that she believed that Boyett was divorced from reality, potentially due to her mental illness. Specifically, Doornbos testified that Boyett's counsel provided Boyett a notebook to take notes and write down questions during trial, but Boyett had used the notebook to doodle and write seemingly nonsensical sentences, and that Boyett would make small noises, or “tics,” in the courtroom. Doornbos also testified that the evening before, while Boyett was meeting with her defense team to prepare for trial, Boyett seemed more interested in taking a break to smoke than discussing her case. Doornbos testified that, in her opinion, Boyett “does not have the sufficient present ability to consult with [her attorney]” and that she “witnessed that.”

Next, Boyett's trial counsel elicited testimony from the defense's accident reconstruction expert, James Evans. Evans testified that while preparing for trial the previous evening, he attempted to explain the State's expert testimony to Boyett, but he did not believe she was processing the information, and he had difficulty interacting with her.

The third witness the defense put on the stand was Charlotte Bush, Boyett's sister. Bush testified that Boyett had a history of mental illness—bipolar disorder, schizophrenia, and depression—and received medication for these diagnoses, but Bush did not know whether Boyett was medically compliant. Bush testified that Boyett was exhibiting unusual behavior, such as “[f]requent cussing,” that she was “fidgety and aggravated[,]” and that she did not want to talk about the events for which she was on trial. Bush testified that Boyett did not seem to have a grasp of the legal points her attorney explained to her and that Boyett did not seem to have the present ability to talk with her attorney with a reasonable degree of rational understanding.

The final witness from whom the defense sought testimony was Gary Butler, a local attorney who was unaffiliated with the case. Butler testified that that very morning, he witnessed Boyett in the court's cafeteria, fixing her coffee while loudly talking to herself. Butler testified that because Boyett's behavior struck him as bizarre, he mentioned it to her trial counsel, who was also in the cafeteria at the time.

D. Analysis

The record supports the trial court's determination that there was insufficient evidence to justify a formal competency determination.

On appeal, Boyett argues that the evidence showed Boyett's prior mental illness was “an indicator of the reasons behind her current actions” and that Boyett's “prior history taken with her bizarre statements and actions” were sufficient to justify a court-ordered expert examination. Although Doornbos and Bush testified that Boyett had previously been diagnosed with a mental illness, Boyett failed to establish a substantial possibility that any such condition operated in a way as to prevent her from engaging with counsel in a reasonable and rational manner or from rationally and factually understanding the proceedings against her. See Turner, 422 S.W.3d at 691. A past diagnosis of a mental disorder, or even a current mental disorder, would not, without more, require the trial court to hold a formal competency trial. See id. at 691, 696 (stating that in a case in which there is some evidence of mental illness but no evidence from which it may reasonably be inferred that the defendant's mental illness renders her incapable of consulting rationally with counsel, the evidence would not be sufficient to compel a formal competency hearing).

Moreover, although Doornbos testified that, in her opinion, Boyett was not able to consult with her attorney, Doornbos was not shown to be a qualified expert and thus, provided only her lay opinion. Further, Boyett's trial counsel, who had worked with Boyett over the course of the several preceding months, stated that he was not aware that there could be an issue concerning competency until the night before the final day of trial. Trial counsel's ability to represent Boyett throughout the charges against her, without doubting her competency, detracts from any claim that she was not able to rationally assist her lawyer in her defense or did not have a rational and factual understanding of the proceedings. See McDaniel v. State, 98 S.W.3d 704, 709–10, 713 n.19 (Tex. Crim. App. 2003) (noting that reliable evidence of incompetency could include the defendant's conduct or statements in court, as well as the defendant's attorney orally reciting “the specific problems he has had in communicating with his client”). The record is void of any evidence of any specific problems with the behavior of Boyett during the trial or of any specific problems that Boyett's counsel had attempting to communicate with his client about trial strategy.

The trial court was not required to agree that Boyett's behavior indicated that Boyett lacked the capacity to engage with her trial counsel rationally or to make rational choices with respect to her legal strategies and options. The trial court could have reasonably decided that Boyett's behavior in doodling and talking to herself did not show she was unable to comprehend the proceedings or communicate rationally with counsel. Nor does her heightened agitation with her sister indicate that she was incompetent to stand trial.

The trial court was also not required to view the accident-reconstruction expert's testimony that he had difficulty communicating with Boyett as evidence that Boyett was not competent. See Turner, 422 S.W.3d at 691 (stating that a defendant's refusal to cooperate with trial counsel does not by itself mean that the defendant is incompetent). And, although Boyett's sister testified that she did not believe Boyett had a grasp of the legal points or the present ability to talk with her attorney with a reasonable degree of rational understanding, she based her opinion on Boyett's refusal to answer her attorney's questions while both Boyett and her sister were present. There is no evidence from Boyett's sister that she was familiar with the statutory standard for incompetency.

The trial court had observed Boyett interact with the Court and her counsel in several hearings over a period of several months. The trial court's first-hand factual assessment of a defendant's competency is entitled to great deference. Ross, 133 S.W.3d at 627 (citing McDaniel, 98 S.W.3d at 710–11 n.19). The record reflects that Boyett exhibited appropriate behavior throughout the proceedings. See Tex. Code Crim. Proc. Ann. art. 46B.024(1)(E) (West Supp. 2016) (stating one factor to consider in evaluating incompetence is whether the defendant has capacity to exhibit appropriate courtroom behavior). We must give great deference to the trial court's inferences based on its observations of the defendant throughout the course of the trial, as well as its evaluation of the credibility of the witnesses who testified during the informal inquiry. See Ross, 133 S.W.3d at 627. As Judge Keller expressed in her dissent in Turner, the trial court, though compelled to consider only the evidence that tends to show the defendant's incompetency, may properly exercise its discretion to disregard unreliable testimony. 422 S.W.3d at 700 (dissenting opinion). We hold that the trial court did not abuse its discretion by concluding that Boyett failed to show that her case presented one of the “relatively rare instances” where the defendant's mental illness prevented her from rationally understanding the proceedings against her or engaging rationally with counsel. See id. at 691, 696.

Therefore, we conclude that the trial court did not act unreasonably or arbitrarily in finding, based upon the evidence presented at the hearing, that no formal competency hearing or expert evaluation was required. We overrule Boyett's second issue.

IV. Right to Testify

In her third and final issue, Boyett complains that her trial counsel denied her the right to testify.

Strickland v. Washington provides the appropriate framework for addressing a defendant's allegation that her trial counsel denied her the right to testify. 466 U.S. 668, 687 (1984); Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005). Under Strickland, to show ineffective assistance of counsel, a defendant must establish that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that the result of the proceeding would have been different but for the attorney's deficient performance. Strickland 466 U.S. at 687-88, 694; Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009); see also Johnson, 169 S.W.3d at 239 (holding “that a complete denial of the right to testify at trial is not a structural defect but is the type of violation that can be subjected to a harm/prejudice inquiry” and, therefore, “the usual Strickland prejudice analysis applies”).

Near the conclusion of trial, after the court had found insufficient evidence to support a finding that Boyett was incompetent, Boyett's trial counsel made the decision not to put her on the stand, stating:

[DEFENSE COUNSEL]: ․ [I]n light of the filing of the suggestion of incompetency motion for mental exam, I anticipated calling my client to testify on her behalf. I feel that she is not competent to testify. Therefore, I cannot put her on the stand to testify. So, therefore, we cannot produce any witnesses at this point in time. So, we will rest, as well.

Boyett argues that her trial counsel “technically committed the offense of ineffective assistance of counsel, in that he made the decision for his client not to let her testify after she had made a decision to testify.” On appeal, Boyett fails to present any evidence of her desire to testify. Even assuming that Boyett's trial counsel's performance fell below professional norms, we conclude that the record does not establish that she can satisfy the prejudice prong of Strickland.

Boyett argues that:

[t]here was an actual need for [Boyett] to testify in that[:] (1) [Boyett] was a survivor of the crash[;] (2) she can testify about her medical/mental state on the day of the crash[;] and (3) she is the ONLY person that can explain her actions on the day of the crash.

However, Boyett fails to give any indication of the substance of what her testimony would have been. The record is insufficient to permit us to draw any conclusions regarding how her purported testimony would affect the outcome of her trial. We therefore overrule Boyett's third issue.

Having overruled all of Boyett's issues on appeal, we affirm the judgment of the trial court.



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