### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00333- CR

F rancisco Javier Iniq uez, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 299 TH JUDICI AL DISTRICT NO. D-1 -DC- 10- 3016 46, H ONO RAB LE K AREN SAGE, JUDGE P RESIDING

O P I N I O N

A jury c o n v ic te d a

p pellant Fr ancisc o I niquez of ag g rava ted assault. See Tex. Penal Code
Ann. § 22.02(a) (2) (West 2011). The trial court sentenc ed I niquez to fiftee n y ear s’ imprisonment. On
appea l, I niquez arg ues that the trial court err ed by (1) failing to deter mine sua sponte whether I niquez

was competent to stand trial and (2) excluding expert psy cholog ical testimony that would have neg ated the applica

ble mens re a for

assault. We aff

irm the judg ment of the trial c ourt.

BACK GR OUND On Aug ust 2, 2010, Ril ey Davis was walking home from his job as a bus driver when
he observe d I niquez on the sidewalk, talking to himself and y elling at passing vehicles. Davis crosse d 1
the street in an attempt to avoid I niquez, but I niquez followed Davis and beg an y elling at him. I niquez

The fa cts rec ited here in are taken f rom the testimony

and exhibits admitted at trial. 1acc used Davis of ca lling law enfor ceme nt on I niquez on some previous occa sion. Davis told I niquez

that he did not know him, but I niquez continued to approa ch Da vis.

As I niquez approa ched, he took out a small folding knife and beg an to threa ten Davis
b y s wi ng ing the knife back and forth. Davis used his backpa ck to shield himself from the kni fe , b u t
I niquez manag ed to cut Davis on his ring -fing er. Davis attempted to retre at b ut eventua lly beca me

corne red near a construction site. Davis picked up a rock from the g round and threw it at I niquez, striking him in the hea d. I niquez fell to the ground and beg an to convulse. At that moment, office rs with the Austin Police Depa rtment arr ived on the scene
. I niquez, who suffe red a fra cture d skull during
the attack, was taken to the hospital for surg ery
. I niquez wa s subsequently arr ested and char g ed with
ag g rava ted assault. See id.

Prior to trial, I niquez filed two “motions for psy cholog ical examination” to deter mine

w h e th e r h e w a s c o mp e te n t to s ta n d tr ia l. T h e c o u

r t g r a n te d b o th mo ti o n s , w h ic h r e s u lt e d in tw o s e p a r a te order s for two separ ate examinations, one perf ormed by Dr. Richard Coons, a psy chiatrist, and the other
conducte d by Dr. Dusty Humes, a clinical psy cholog ist. Both Dr. Coons and Dr. Humes conclude d that
I niquez was compete nt. Dr. Coons, who examined I niquez in September of 2010, noted that I niquez
had a “slig ht memory defic iency ” as a result of a traumatic brain injury from the alterc ation. Howeve r, Dr. Coons conclude d that I niquez could understand the leg al proce eding s ag ainst him and could assist
in his defe nse. Simi larly , Dr. Humes, who ex amined I niquez in November, noted that I niquez could

not reme mber cer

tain events surrounding the alterc ation but that he had “no other cog nitive defic its that
would cause him to be unable to participa te fully in his own defe nse.” There was no subsequent motion
or hea ring to determine I niquez’s competenc y to stand trial.

2A t tr ia l, th e St a te p r e s e n te d th

r e e w it n e s s e s , in c lu d in g a

n e y e - w it n e s s w h o c o r

r o b o r a te d
Davis’s narr ation of the assault. After the State rested, the trial court asked I niquez’s counsel if they

wo u ld be prese nting any witnesses. His counsel stated that they intended to call Dr. Humes, t h e
psy cholog ist wh o p erf

ormed I niquez’s competenc y examination, to testify that I niquez’s mental

co n d i t i o n preve nted him from forming the nece ssary mens rea to commit an assault. I niquez ’s
counsel stated that Dr. Humes would testify about I niquez’s memory loss and his alleg ed posttraumatic stress disorder. The trial court excluded the expert testimony as irrele vant and misleading

. See Tex. R. Evid. 402, 403. After the close of evidence, the jury convicted I niquez of agg rava ted
assault. The tria l court sentenc ed I niquez to fifteen y ear s’ imprisonment. This appeal f ollowed.

DISCUSSIO N

Failu re to conduct a com petency hearing
I n his first point of err or, I n i q u ez as serts that the trial court err ed in failing to

sua sponte deter

mine whether he was competent to s tand trial. The conviction of an acc used
p er s o n while he is leg ally incompetent to stand trial violates due process. See McDanie l v. S t a t e , 98 S.W .3d 704, 709 (Tex. Crim. App. 2009). A defe ndant is deeme d incompetent to stand trial if
he does not have “(1) a sufficie nt prese nt ability to consult with [hi s] lawy er with a rea sonable deg ree of rational understanding ; or (2) a rational as well as fac tual understanding of the proce eding s ag ainst [hi m] .” Tex. Code Crim. Proc

. Ann. art. 46B.003( a) (West 2007). A defe ndant is pr esumed to be competent to stand trial, and incompetenc e must be established by a preponde ranc e of the evidenc e. Id. art. 46B .003(b).

3The proce dure by which a trial court deter min es competenc y is set out in article
46B of t h e T ex as Code of Criminal Procedur e. See id. arts. 46B.001–46B .171 (West 2007), art. 46B.004( c-1) (West Supp. 2011). This deter mination involves a two-step proce ss: first, an informal “compe tency inquiry ”; and second, if appl ic a b le , a ma n d a to r y “ c o mp e te n c y examination” and formal “compe tency hear ing.” I n the first s t ep , the trial court conducts an informal inquiry , known as a “compe tency inquiry ,” t o deter mine “whe ther there is some evidenc e from any source that would support a finding that the defe ndant may be incompetent to sta nd trial.” See Act of May 14, 2003,
78th L eg ., R.S., ch. 35, § 1, 2003 Tex. Gen. L aws 35 (ame nded 2011) (cur rent version at Tex. Code
Crim. Proc. Ann. art. 46B.004 (West Supp. 2011)). I f the trial court deter mines that such evidenc e 2
exis ts, the court proce eds to the second step, at which time the court must o rder a psy cholog ical
examination to determine whethe r the de fenda nt is competent to stand trial. See Tex. Code Crim.
Proc. Ann. arts. 46B.005( a), 46B.021. I n addition, the court g ener ally must conduct a formal trial,
k n o wn as a “compe tency hear ing,” in which a fac tfinder deter mines “whe ther the defe ndant is
incom p et ent to stand trial on the merits.” See id. arts. 46B.005( b), 46B.051; see also Montoya v. State , 291 S.W .3d 420, 425 (Tex. C ri m. App. 2009) (desc ribing differ ence betwee n informal competenc y inquiry and formal competenc y hear ing) , supersede d by statute , Tex. Code Crim. Proc.
Ann. ar t. 46B.004(c -1).

Article 46B.004 of the Texas Code of Criminal Procedur e was amende d in 2011 to include 2 subsection (c- 1). Howeve r, this a mendment only applies to case s in which “a motion sug g esting a defe ndant’s incompetenc y ” was made on or afte r September 1, 2011. See Act of Aug

. 31, 2011, 82d L eg ., R.S., ch. 822, § 21(b), 2011 Tex. Gen. L aws 822

. Gi ven that these procee dings occurr ed in 2010, the previous, unamende d version of article 46B.004 applies. See Act of May 14, 2003, 78th L eg ., R.S., ch. 35, § 1, 2003 Tex. Gen. L aws 35 (ame nded 2011) (cur rent version at Tex. Code Crim. Proc. Ann. a

rt. 46B.004 ( West S upp. 2011)).
4At the time of these proce eding s, the trial court was require d to conduct a competenc y

inquiry if the evidenc e was sufficie nt to raise a bona fide doubt in the court’s mind about the
defe ndant’s competenc y to stand trial. See Montoya , 291 S.W .3d at 425 (conc luding that bona fide
doubt standard applies to competenc y inquiry). Simi larly , the trial cour t was required to conduct 3 a competency hear ing if, afte r t he co m p et en cy inquiry , the t rial court had a bona fide doubt about
the defe ndant’s competenc y
. See id. at 424–25; s ee a l s o Moore v. State , 999 S.W .2d 385, 393 (Tex. Crim. Ap p
. 1 9 9 9). I n his brief, I niquez mistakenly uses the terms competenc y inquiry and

co m p etency hear ing intercha ng eably , making it unclea r whether I niquez is challeng ing the t ri al
court’s failure to conduct a competenc y inquiry or a competenc y hear i n g. Howeve r, t o the ex tent that I n iquez separ ately arg ues t hat t he court should have conducted either an inquiry or a hear ing,
the ultimate issue is the same—was t he evidenc e sufficie nt to raise a bona fide doubt in the
trial court’s mind about I niquez’s competenc y to stand trial? See Montoya , 291 S.W .3d at 424–25.
There fore , for simpli city ’s sake, we take I niquez’s arg ument to m ean that the trial court err ed in failing to conduct a c ompetency hear ing.
A bona fide doubt exis ts if there is more than a scintilla of evidenc e to support a finding that the defe ndant is incompetent. See Moore , 999 S.W .2d at 393. I n deter mining whether
there is more than a scintilla of evid en ce , t h e court “should consider only the evidenc e tending

to show incompetenc y , and not evidenc e showing competenc y .” Id. We revie w the trial court’s

The L eg islature’s amendment to article 46B.004, see supra note 2, eff ectively superc edes 3 Mon t o ya v. State and makes a “sug g estion of incompetenc y ”—not a trial court’s bona fide doubt—the threshold require ment for conducting a competenc y inquiry

. Howeve r, at t h e time of t h es e p roceeding s, this amendment had not taken eff ect, and thus the court of criminal appea ls’s ruling in Montoya is stil l controlling in this case

. See 291 S.W .3d at 425.
5d e te r

mi n a ti o n a b o u t w h e th e r a b o n a fi d

e d o u b t e xis ts f o r a n a b u s e o f d is c r e ti o n
. M

o n to y a , 2 9 1 S. W. 3 d
at 425. Be cause the t rial court is able to observ e t h e b eh av i o r o f a defe ndant i n person, it is “in a
better position to deter

mine whether [t he defe ndant is] prese ntly competent.” Id. There fore , we do

not substitut e our judgme nt for t h at o f t h e t ri al court, and will only reve rse the trial court if its
decision wa s arbitra

ry or unre asonable

. Id.
I niquez asser

ts that the results of his examinations, coupled with his err atic behavior during the assault, should have led the court to conduct a competenc y hear ing sua sponte

. I niquez 4 emphasizes that both Dr. Coons and Dr. Humes diag nos ed h i m wi t h memory loss which makes
h i m u nable to rec all the events surrounding the assault. I niquez claims that his amnesia preve nts
him from effec tively consulting with his attorney beca use he cannot reca ll the events surrounding
his attack on Davis or h i s s t at e o f mind during the assault. See Tex. Code Crim. Proc. Ann. art. 46B.003( a)( 1). We disag ree that evidenc e of amnesia automatically raises a bona fide doubt about
I niquez’s competenc y

to stand trial. “[A] defe ndant’s [i nability to rec all the event char g ed] is akin to ‘missing’ evidenc e,”
which does not g ive rise to a finding of incompetenc e. Morris v. State , 301 S.W .3d 281, 292–9 3 (Tex. Crim. App. 2009) (citing Morrow v. State , 443 A.2d 108, 112–13 (Md. 1982)). Acc ording ly , the court of criminal appea ls has held that amnesia does not per se rende r a defe ndant incompetent

The fa ct t h at t he trial court order ed two competenc y examinations is not evidenc e that 4 there is a bona fide doubt about I niquez’s competenc y
. See Johnson v. State , 564 S.W .2d 707, 711 (T ex
. Crim. App. 1977) (op. on reh’ g ) (“[T] he fact t hat ps y cholog ical ex aminations wer e orde re d does not constitute a deter mination that an issue as to the defe ndant’s competenc y exis ts.”). A trial court may , i n i t s discretion, order a competenc y examination based solely “on a sug g estion that a defe ndant m ay b e incompetent” without making a separ ate deter mination that the examination is mandatory under article 46B.005( a). See Tex. Code Crim. Proc. Ann. arts. 46B.005( a), 46B.021( a). 6to stand trial. See id. 292–94. I n fac t, the Morris court noted that there is no case on rec ord, in this

or any other j u risdiction, in which a court has held that a defe ndant’s amnesia rende rs him incompetent to stand trial. Id. (quoting Jack son v. Stat e , 548 S.W .2d 685, 691 (Tex. Crim. App. 1977)). Rathe r, as the court of criminal appea ls ha s theorized, the only instance in which amnesia

c o u ld p o te n ti a ll y c o n s ti tu

te in c o mp e te n c e w o u ld b e th e “ e xtr a o r d in a r y s it u a ti o n
. . . w h e r e th e a mn e s ia compromises the de fenda nt’s ability

to think rationally .” Gonzales v. State , 313 S.W .3d 840, 842 ( T e x. Cr im

. A

p p
. 2 0 1 0 )

. G iv e n th a

t a mn e s ia r a r e ly , if e v e r , r e n d e r s a d e f

e n d a n t in c o mp e te n t, e v id e n c e of a defe ndant’s amnesia will not raise a bona fide doubt about competenc y unless it indica tes that
the amnesia

compromises the de fenda nt’s ability

to think rationally

at the time of trial. See id.
Her e, I niquez’s competenc y exa mi n a ti o n s ma k e it clea r that, despite his memory loss,
he wa s able to think rationally at the time of trial. Dr . Coons stated in his report that:

[I niquez] rationally understands the char g es and potential conseque n ces of the pending proce eding s; can disclose to counsel pertinent fa cts, eve nts, and states of mind; can e ng ag e in a r easone d choice of leg al strateg ies; can understand the adver sarial nature of the proce eding s; can exhibi t appropr iate courtroom behavior ; can testify ; and has the capa city

to eng ag e with counse l.

L ikewise, Dr . Humes stated in his repor t that:

[I niquez] clea

rly suffe red a

closed he ad injury that likely resulted in the amnesia, but curr entl y there are no other cog nitive defic its that would cause him to be unable to participa te fully in his own defe nse. T h e r e f o r e , it is my o p in io n a s a c li n ic a l p s y c h o lo g is t th a

t M r
. F r a n c is c o I niquez is currently

competent to stand trial.

7Conversely , there is n o evidenc e that I niquez’s amnesia preve nted him from thinking rationally

.

There fore , we find that I niquez’s amnesia did not raise a bona fide doubt about his competenc y to stand trial. See id. 5

We next turn to I niquez’s claim that his behavior during the initial assault and his alleg ed diagnosis of post-traumatic stress disorder raised a b o n a f i de doubt about hi s competenc y
to stand trial. I niquez asser ts that his behavior on the day of the assault, including his y elling at car s and attackin g a s t range r, is evidenc e that he is incompetent beca use it indicates an underlying
mental i llness. We rec og nize that “[a] bona fide doubt may exis t if the defe ndant . . . has a rec ent history of sever e mental illness.” See Montoya , 291 S.W .3d at 424. Howeve r, such evidenc e of past mental impairment is only sufficie nt to raise a bona fide doubt about competenc y if the evidenc e indicates that the defe ndant is prese ntly “inca pable of consulting with counsel or understanding the
proce eding s ag ainst him.” See Moore , 999 S.W .2d at 395–96 (holding that evidenc e of mental impairment alone doe s not mandate c ompetency hear ing)

. I n this case , there is no evidenc e that I niquez’s alleg ed mental illness preve nted him
from eff ectively communicating wi t h counsel or understanding the proce eding s ag ainst him.
I niquez did not exhibi t bizarre behavior at any time during these proce eding s, other than on the day
of the a ssault. Mere unusual behavior during the commission of a cr ime, standing alone, doe s not
g eneral l y cr ea t e a bona fide doubt as to a defe ndant’s competenc y
. See Montoya , 291 S.W .3d at

I niquez a sserts that his amnesia should be evalua ted differ ently beca use it wa s cause d by 5 brain injury rathe r than by intox ication. Howeve r, this distinction is irrele vant, as the court of criminal appea ls has trea ted amnesia ca u s ed b y b rain injury under the same standard as g ener al memory loss. See M

orris , 301 S.W .3d at 287 (noting amnesia c aused by traumatic br ain injury

). 8425–26 (noting that competenc y conce rns present ability to participa te); s ee a l so W right v. State , No. 05-02-01354- CR, 2003 Tex. App. L EXI S 5600, at *3 (Tex. App.—Dallas J uly 2, 2003, no pet.) (mem. op., not desig nated for publication) (“[I ]f the ‘nature of the offe nse’ war rante d a competenc y hear ing, then ever

y defe ndant acc used of a g g rava ted sexual a ssault of a child would automatically
be entitled to a competenc y hear ing.” ). Simi larly , there is no evidenc e to sug g est that I niquez’s selfrepor ted post-traumatic stress disorder interfe red with his ability to commun icate with counsel or understand the proce eding s ag ainst him. See M oore , 999 S.W .2d at 395–96. 6
I niquez did not reque st a competenc y hear ing, nor did he prese nt the trial court with
any evidenc e of incompetenc y , such as the opinion of another mental-he alth prof es s i o n al or an

a f f id a v it f r o m c o u n s e l th a t I n iq u e z c o u ld n o t e f

f e c ti v e ly c o mm

u n ic a te

. G iv e n th e e v id e n c e p r e s e n te d , the trial court could rea sonably have conclude d that it did not have a bona fide doubt about I niquez’s competenc y to stand trial. See Montoya , 291 S.W .3d at 425–26. There fore , we conclude that the trial

court did not abuse its discretion in failing to sua sponte cond u ct a co m petenc y hear ing. See id.
I niquez’s first point of error is overrule d.

Exclusion of expe rt testim ony

I n h i s s econd point of err or, I niquez asser ts that the trial court err ed in excluding

e xp e r t p s y c h o lo g ic a l te s ti mo n

y
. A f te r th e St a te r e s te d , I n iq u e z in f o r me d th e tr ia l c o u

r t th a t h e in te n d e d

to call Dr. Humes, the psy cholog ist who perf ormed I niquez’s second competenc y exa m i n at i o n
.

Dr

. Humes noted that “it is not clea r whether [I niquez] has a serious mental disorder 6 other than substance abuse,” and conclude d that any potential mental disorder d i d n o t impair I niquez’s competenc y
. 9I niqu ez s t at ed that Dr. Humes would testify that, as a result of his mental defe cts, I niquez was

incapa ble of forming the nece ssary mens rea to commit an assault, thus neg ating one of the elements
of the crime. See Tex. Penal Code Ann

. § 22.01(a) (1) (West 2011) (stating that defe ndant must

“ in te n ti o n a ll y , k n o w in g ly , o r r e c k le s s ly

” c a u s e b o d il y in

ju r y to c o mm it a s s a

u lt )

. T h e tr ia l c o u

r t r e f u s e d to admit Dr. Humes’s testimony , finding that the testimony was irrele vant to the issue of mens rea and that it could mislead the jury

. See Tex. R. Evi d. 402, 403.

Evidence is rele vant i f i t h as any tendenc y to make the exis tence of any fac t of
conseque nce more likely than it would be without the evidenc e. Tex. R. Evid. 401. Evidence that
i s re l ev an t is g ener ally admissible unless “its probative value is substantially outweig hed by the
d a n g e r o f u n f a ir p r e ju d ic e , c o n f

u s io n o f th e is s u e s , o r mi s le a d in g th e ju r y
. ” S e e T e x. R. E v id

. 4 0 2 , 4 0 3

. “I t is important, when deter mining whether evidenc e is rele van t , t h at courts examine the purpose for which the evidenc e is being introduced.” Layton v. State , 280 S.W .3d 235, 240 (Tex. Crim. App. 2009) (c i t ing Moreno v. State , 858 S.W .2d 453 (Tex. Crim. App. 1993)). We revie w a trial
court’s deter

mination on the admissibili ty of evidenc e for an abuse of discretion. Carrasco v. State , 1 5 4 S .W.3d 127, 129 (Tex. Crim. App. 2005). There fore , in order to deter mine whether the trial

court abused its d i s cr etion in excluding Dr. Humes’s testimony , we must consider the logic al

connec tion betwee n his proposed testimony about I niquez’s mental state and the ultimate question
of mens re a. As the court of criminal appea ls explained in Ruffin v. S t ate , “both phy sical and
mental diseases or defe cts may aff ect a person’ s perc eption of the world” i n a m an n er t hat could
neg ate mens r ea. 270 S.W.3d 586, 593–94 (Tex. Crim. App. 2008). I n Ruffin , the def endant shot

10at approa ching police office rs beca use, due to his delusional state, he b el i eved the office rs wer e Muslims who were “waiting to kil l [ h i m ] wi t h a k n ife.” Id. at 590. The court conclude d that the
defe ndant’s mista k en p er ce p t i on, cause d by a mental defe ct, was rele vant to mens rea beca use it proved that he did not intend to shoot at police officers

. Id. at 594; see also Tex. Penal Code Ann. § 22.02(b)( 2)(B ) (enha

ncing punishment for ag g rava ted assault i f as s ail ant intentionally attacke d public serva

nt in discharg e of duties). Howeve r, the court emphasized that the def endant wa s still
g uilty of ag g rava ted assault beca use he intended to shoot at a person, but simply did not appre ciate that the per son he wa s shooting at wa s a police of fice r. Ruffin , 270 S.W .3d at 594. 7
I niquez fails to make a logic al co n n ec t i o n betwee n the fac ts in his competenc y
repor t, which would have formed the basis for Dr. Humes’s testimony , and the issue of his ability

to f o r m th e a p p r o p r ia te me n s r e a a

t th e ti me o f th e a s s a

u lt

. A s th e tr

ia l c o u r t c o r r e c tl y s ta te d , I n iq u e z’ s amnesia was cause d by his head injury , which occur red afte r the assault had alre ady taken place , and
thus could not be rel ev an t t o I n i quez’s intent at the time of the assault. Fur thermore , g iven that
I niquez could not rela

y any of the events surrounding the assault to Dr. Humes, Dr. Humes could not provide a ny insight into I niquez’s state of mind at the time of the a ssault.
I niquez arg ues that the competenc y rep o rt mentions his post-traumatic stress disorder, which could b e re l ev an t t o his mens rea at t he ti me of the assault. Howeve r, as the t rial

court corr ectly stated, the repor t only noted that I niquez told Dr

. Humes that he had post-traumatic

The court in Ruffin also thoroug hly explained the distinction betwee n a mental defe ct that 7 neg ates mens r ea a

nd the s epar ate and distinct aff irmative defense of insanity

. See 270 S.W .3d at 592–94. I n this case , there is no asser tion by either party that I niquez wa s insane at the time of the assault. There fore , the testimony of his examining psy cholog ist could only be rele vant to I niquez’s ability to form the nec essar

y mens rea for a ssault. See Tex. P enal Code § 22.01( a)( 1).
11stress disorder. There is nothing to sug g est that Dr. Humes himself confirme d this diag nosis or that

it was rele vant to I

niquez’s intent at the time of the assault. There fore , all Dr. Humes could testify

to w a s th a t I n iq u e z to ld h im th a

t h e h a d p o s t- tr a

u ma ti c s tr e s s d is o r d e r
. T h is e v id e n c e , s ta n d in g a lo n e , is irreleva nt to I niquez’s ability

to form the nec essar

y mens rea , or alterna

tively , is of

such limited probative value that its rele vance is substantially outweig hed by its potential to mislead the jury

. See
Tex. R. Evid. 403. Thus, we conc lude that the trial c ourt did not abuse it s discretion in excluding
Dr. Hume s’s testimony

as irre levant and misleading . I niquez’s second point of er ror is over

ruled.

CONCLUSION
We affir m the judgme nt of conviction.

__________________________________________ Diane M. H enson, Jus tice
Be fore J ustices Pury ear , Henson a nd Goodwin
Affir med
Filed: Jul y

6, 2012
Publis h

12