No. 07-14-00345-CR

IN THE 

COURT OF APPEALS 

FOR THE 

SEVENTH JUDICIAL DISTRICT OF TEXAS 

AMARILLO, TEXAS

MARC ALLEN MASON, 

 APPELLANT 

V.

THE STATE OF TEXAS 

ON APPEAL IN CAUSE NO. 23,957-C 

FROM THE 251st DISTRICT COURT 

OF RANDALL COUNTY, TEXAS 

HONORABLE ANA ESTEVEZ, JUDGE PRESIDING 

BRIEF FOR THE STATE OF TEXAS 

JAMES A. FARREN 

CRIMINAL DISTRICT ATTORNEY 

RANDALL COUNTY, TEXAS 

KRISTY WRIGHT 

SBN 00798601 

kwright@randallcounty.org 

ASST. CRIMINAL DISTRICT ATTORNEY 

2309 Russell Long Blvd., Suite 120 

Canyon, Texas 79015 

(806) 468-5570

FAX (806) 468-5566

ATTORNEYS FOR THE STATE 

STATE REQUESTS ORAL ARGUMENT IF REQUESTED BY THE APPELLANT 

ACCEPTED

07-14-00345-CR

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

4/9/2015 4:01:22 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 4/9/2015 4:01:22 PM VIVIAN LONG CLERK
2

TABLE OF CONTENTS

INDEX OF AUTHORITIES 3-6

THE CASE IN BRIEF 7

STATE’S COUNTERPOINTS

COUNTERPOINT NO. 1

THE APPELLANT’S RIGHT TO A SPEEDY TRIAL WAS NOT VIOLATED IN THIS 

CASE. 

COUNTERPOINT NO. 2

THE TRIAL JUDGE DID NOT ABUSE HER DISCRETION BY FAILING TO STAY 

THE PROCEEDINGS IN THIS CASE UNTIL SHE CONDUCTED AN INFORMAL INQUIRY 

INTO THE APPELLANT’S COMPENTENCY TO STAND TRIAL.

STATEMENT OF FACTS 8-10

COUNTERPOINT NO. 1

RESTATED 11

STATEMENT OF FACTS 11-13

SUMMARY OF THE ARGUMENT 14

ARGUMENT 14-32

COUNTERPOINT NO. 2

RESTATED 33

STATEMENT OF FACTS 33

SUMMARY OF THE ARGUMENT 33

ARGUMENT 33-42

PRAYER 43

CERTIFICATE OF COMPLIANCE 43

CERTIFICATE OF SERVICE 44
3

INDEX OF AUTHORITIES

TEXAS CASES

Boitnott v. State, 48 S.W.3d 289 35

 (Tex.App.—Texarkana 2001, pet. ref’d)

Brunson v. State, 2009 WL 3858018 26

 (Tex.App.—Waco, 2009) (not reported)

Christmas v. State, 2009 WL 579278 26

 (Tex.App.—Fort Worth 2009) (not reported)

Douglass v. State, 2010 WL 2196082 39, 41

 (Tex.App.—El Paso 2010) (not reported)

Dragoo v. State, 96 S.W.3d 308 16, 22

 (Tex.Crim.App. 2003)

Ex parte LaHood, 401 S.W.3d 45 34

 (Tex.Crim.App. 2013)

Ex parte McKenzie, 491 S.W.2d 122 25, 31

 (Tex.Crim.App. 1973)

Flores v. State, 625 S.W.2d 44 29

 (Tex.App.—San Antonio 1981, pet. ref’d)

Garza v. State, 2014 WL 4289004 34

 (Tex.App.—Amarillo 2014) (not reported) 

Harris v. State, 827 S.W.2d 949 14, 15

(Tex.Crim.App. 1992)

Heard v. State, 2004 WL 3135234 37

 (Tex.App.—Houston [1st Dist.] 2004) (not reported)
4

Johnson v. State, 2006 WL 2578033 20

 (Tex.App.—Fort Worth 2006) (not reported) 

Lahood v. State, 171 S.W.3d 613 34, 38, 41

 (Tex.App.—Houston [14th Dist.] 2005, pet. ref’d) 

Means v. State, 955 S.W.2d 686 35

 (Tex.App.—Amarillo 1997, pet. ref’d)

Meyer v. State, 27 S.W.3d 644 28, 29

 (Tex.App.—Waco 2000, pet. ref’d)

Moore v. State, 999 S.W.2d 385 34, 38, 41

 (Tex.Crim.App. 1999)

Nelson v. State, 2013 WL 5526229 38, 41

 (Tex.App.—Waco 2013) (not reported)

Parkerson v. State, 942 S.W.2d 789 23

 (Tex.App.—Fort Worth 1997, no pet.)

Phipps v. State, 630 S.W.2d 942 22, 28, 29

 (Tex.Crim.App. 1982) 

Rice v. State, 991 S.W.2d 953 38, 41

 (Tex.App.—Fort Worth 1999, pet. ref’d) 

Salahud-din v. State, 206 S.W.3d 203 35

 (Tex.App.—Corpus Christi 2006, pet ref’d) 

Shaw v. State, 117 S.W.3d 883 15, 22, 24

 (Tex.Crim.App. 2003)

Starks v. State, 266 S.W.3d 605 26

 (Tex.App.—El Paso, 2008, no pet)
5

State v. Guerrero, 110 S.W.3d 155 29

 (Tex.App.—San Antonio 2003, no pet)

State v. McCoy, 94 S.W.3d 296 27, 28

 (Tex.App.—Corpus Christi 2002, no pet.)

State v. Munoz, 991 S.W.2d 818 15, 16, 25, 29, 30

 (Tex.Crim.App. 1999)

Townsend v. State, 949 S.W.2d 24 38, 41

(Tex.App.—San Antonio 1997, no pet.)

Turner v. State, 422 S.W.3d 676 34

 (Tex.Crim.App. 2013)

Zamorano v. State, 84 S.W.3d 643 23

 (Tex.Crim.App. 2002)

FEDERAL AND SUPREME COURT CASES

Barker v. Wingo, 407 U.S. 514, 14, 15, 16, 22, 25

 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)

Doggett v. United States, 505 U.S. 647, 15, 25, 31

 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)

United States v. Avalos, 541 F.2d 1100 29

 (5th Cir. 1976)

United States v. Marion, 404 U.S. 307, 15

 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)
6

TEXAS STATUTES

Texas Code of Criminal Procedure, Article 46B.003 34, 37

Texas Code of Criminal Procedure, Article 46B.003(a)(1) 39

Texas Code of Criminal Procedure, Article 46B.003(a)(2) 40, 41

Texas Code of Criminal Procedure, Article 46B.004(c) 34
7

No. 07-14-00345-CR

IN THE

COURT OF APPEALS

FOR THE

SEVENTH JUDICIAL DISTRICT OF TEXAS

AMARILLO, TEXAS

MARC ALLEN MASON,

 APPELLANT

V.

THE STATE OF TEXAS

TO THE HONORABLE COURT OF APPEALS:

Comes now, the State of Texas in the above styled and numbered cause 

and files this brief in response to the brief of the Appellant, Marc Allen Mason. 

The appellant was convicted of the felony offense of burglary of a building, 

enhanced, in 251st District Court of Randall County, the Honorable Ana Estevez, 

Judge presiding.

THE CASE IN BRIEF

THE CHARGE BURGLARY OF A BUILDING, ENHANCED

THE PLEA NOT GUILTY 

THE VERDICT (JURY) GUILTY 

THE PUNISHMENT (JURY) SEVENTEEN (17) YEARS IN PRISON & $5000 FINE 
8

STATEMENT OF FACTS

On November 20, 2012, the appellant broke into the Eskimo Hut (a 

business located in Randall County). (RR.IV-24-26; 112-115); (RR.VI-State’s 

Exhibits 15 & 16). The surveillance footage from the Eskimo Hut shows a person 

breaking into this building through the “drive thru” window and stealing a carton 

of Kool cigarettes. (RR.IV-25-26; 112-115). Later that day, the appellant broke 

into a motor home. (RR.IV-42-43; 52-54; 86-90; 93-99; 106; 110; 112-115); (RR.VIState’s Exhibits 15 &16). Law enforcement officers found the appellant about 

three-quarters of a mile from the motor home and questioned him about the 

incident. (RR.IV-39; 52; 86-90; 93-99; 106). The appellant admitted to burglarizing 

the motor home and the Eskimo Hut. (RR.IV-110; 112-115); (RR.VI-State’s Exhibits 

15 & 16). A pack of Kool cigarettes were even discovered on the appellant’s 

person. (RR.IV-56). At some point in time, the appellant was arrested for 

burglarizing the Eskimo Hut. (RR.II-26-27); (RR.IV-56; 115). After listening to the 

above evidence, the jury found the appellant guilty of the felony offense of 

burglary of a building. (CR.I-158-160); (RR.IV-159). 

At the punishment stage of trial, the appellant pled “not true” to the 

enhancement paragraphs contained in the indictment. (RR.V-13). The State then 

presented the following evidence (regarding the appellant’s criminal history and 
9

bad acts) to the jury: 1) a judgment showing the appellant was convicted on 

February 3, 1997 for the offense of burglary of a vehicle (RR.V-103-104); (RR.VIState’s Exhibit 22); 2) a judgment showing the appellant was convicted on January 

26, 1996 for the offense of theft of property ($50 or more but less than $500) 

(RR.V-104-105); (RR.VI-State’s Exhibit 23); 3) a judgment showing the appellant 

was convicted on May 9, 1996 for the offense of failure to identify to a peace 

officer (RR.V-105-106); (RR.VI-State’s Exhibit 24); 4) a judgment showing the 

appellant was convicted on February 20, 1997 for the offense of criminal mischief 

(RR.V-106-107); (RR.VI-State’s Exhibit 25); 5) a judgment showing the appellant 

was convicted on April 15, 1999 for the offense of cruelty to an animal (RR.V-109-

110); (State’s Exhibit 27); 6) a judgment showing the appellant was convicted on 

May 17, 2004 for the offense of unlawful possession of a firearm (RR.V-110-111); 

(State’s Exhibit 28); 7) a judgment showing the appellant was convicted on July 

18, 2006 for the offense of unlawful possession of a firearm by a felon (RR.V-111-

112); (State’s Exhibit 29); 8) evidence the appellant stole a car from the Love’s 

convenience store on October 11, 2012 (RR.V-19-20; 40-41; 85); and 9) evidence 

the appellant totaled Elaine Bailey’s car with a sledgehammer on July 31, 2002. 

(RR.V-45-49).
10

After listening to the above evidence, the jury found the enhancement 

paragraphs contained in the indictment of Cause No. 23,957-C to be true and 

sentenced the appellant to seventeen (17) years in prison. (CR.I-6-7; 158-160); 

(RR.V-174). The jury also assessed a $5,000.00 fine. (CR.I-158-160); (RR.V-174).

On September 16, 2014, the trial judge signed a certification of the appellant’s 

right of appeal. (CR.I-147). This certification authorized the present appeal. On 

September 18, 2014, the appellant filed a timely notice of appeal and a motion for 

new trial. (CR.I-148-150). The motion for new trial was overruled by operation of 

law.
11

COUNTERPOINT NO. 1, RESTATED

THE APPELLANT’S RIGHT TO A SPEEDY TRIAL WAS NOT VIOLATED IN THIS 

CASE. 

STATEMENT OF FACTS:

Since the reason the trial judge denied the appellant’s motion to dismiss for 

lack of a speedy trial was based on pending sanity and/or competency to stand 

trial examinations, the State will hereafter discuss the facts pertaining to any 

sanity and/or competency requests or examinations. (CR.I-120); (RR.II-57). For the 

sake of clarity, the State will present the facts pertaining to these issues in 

chronological order through the use of the following timeline.

November 20, 2012 Appellant was arrested in this case and held in the

Randall County jail. (RR.II-26-27)

November 29, 2012 A complaint was filed against the appellant for the 

felony offense of burglary of a building. (CR.I-100)

March 20, 2013 An indictment was filed against the appellant for 

the felony offense of burglary of a building, 

enhanced. (CR.I-6-7)

March 21, 2013 Greg Phifer was appointed as trial counsel. (CR.I-9)

April 19, 2013 Trial judge signed an “Order Appointing 

Psychologist To Examine the Defendant Regarding 

the Defendant’s Sanity and Competency To Stand 

Trial.” (CR.I-10-14) Mr. Phifer specifically sought 

and secured this order. (RR-II-45-46; 54) The trial 

judge ordered Dr. Steve C. Schneider to conduct 

the examination. (CR.I-11)
12

June 6, 2013 Dr. Schneider was scheduled to examine the 

appellant regarding sanity and competency to 

stand trial. (CR.I-10-14) However, the Randall 

County Sheriff’s office failed to transport the 

appellant to the scheduled examination. (RR.II-12-

13)

February 19, 2014 Trial judge signed another “Order Appointing 

Psychologist To Examine The Defendant Regarding 

The Defendant’s Sanity and Competency to Stand 

Trial.” (CR.I-15-19) Dr. Schneider was again 

ordered to examine the appellant. (CR.I-16)

March 21, 2014 The appellant refused to participate in Dr. 

Schneider’s examination. (CR.I-18; 36-37); (RR.II47) The appellant informed Dr. Schneider that 

“he had not been involved in decision to seek an 

evaluation” and “was unwilling to submit to legal 

strategy with which he did not assist in 

developing.” (CR.I-36). Since the appellant would 

not participate in the examination, Dr. Schneider 

was unable to form an opinion about whether the 

appellant was competent to stand trial. (CR.I-36-

37)

May 13, 2014 The trial judge allowed Greg Phifer to withdraw as 

trial counsel and appointed Don Schofield to 

represent the appellant. (CR.I-29; 30)

June 2, 2014 Mr. Schofield filed the “Defendant’s Motion for 

Psychiatric Examination on Competency to Stand 

Trial.” (CR.I-66-68)

June 2, 2014 Trial judge signed an “Order Appointing 

Psychiatrist to Examine the Defendant Regarding 

the Defendant’s Sanity and Competency to Stand 

Trial.” (CR.I-74-78) Dr. Mustafa Hussain was 

ordered to examine the appellant. (CR.I-75)
13

August 14, 2014 The appellant was scheduled to be examined by 

Dr. Hussain on this date. (CR.I-77) Prior to the 

examination, the appellant informed Dr. Hussain 

that he no longer wanted Mr. Schofield to 

represent him. (CR.I-92) Without representation, 

Dr. Hussain would not evaluate the appellant. 

(CR.I-92) 

September 2, 2014 Mr. Schofield filed a motion to dismiss for lack of 

speedy trial. (CR.I-98-99)

September 11, 2014 Mr. Schofield filed the “Defendant’s Motion for 

Re-Instatement of Psychiatric Examination on 

Competency to Stand Trial.” (CR.I-116)

September 15, 2014 A pre-trial hearing was held in this case. (RR.II-9-

131) At the pre-trial hearing, the trial judge denied 

the re-instatement of the psychiatric examination 

on competency to stand trial. (CR.I-119); (RR.II12-13). The trial judge also denied the motion to 

dismiss for lack of speedy trial after conducting a 

pre-trial hearing. (CR.I-120); (RR.II-26-52; 57) The 

trial judge’s decision to deny the motion to 

dismiss for lack of speedy trial was “...based on 

the pending psychiatric exams, because the 

record reflects that that was something that was 

pending at all times.” (CR.I-120); (RR.II-57)

September 15-17, 2014 A jury trial was held in this case. (CR.I-161-164)

Throughout this proceeding, the appellant claimed that he has a wireless 

audio implant in his sinus cavity that is a constant source of distraction and causes 

him mental anguish. (CR.I-24; 80); (RR.II-13; 75-77). The appellant also claimed 

that he has previously been diagnosed with bipolar disorder. (RR.II-107). 
14

SUMMARY OF THE ARGUMENT

The appellant’s right to a speedy trial was not violated in this case. After 

balancing all of the Barker factors, it is clear that the factors weigh more heavily 

against finding a violation of the appellant’s right to a speedy trial. Accordingly, no 

speedy trial violation has been shown and Issue One should be denied.

ARGUMENT

BARKER ANALYSIS

The right to a speedy trial is guaranteed by the Sixth Amendment of the 

United States Constitution and is applicable to the States through the Fourteenth 

Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 

(1972). The Texas courts apply the Barker test for a speedy trial analysis. Harris v. 

State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992). The Barker test requires that 

the following factors be balanced against each other to determine whether a 

defendant’s constitutional right to a speedy trial has been violated: 1) the length 

of delay, 2) the reason for the delay, 3) the defendant’s assertion of his speedytrial right, and 4) the prejudice to the defendant from the delay. Barker v. Wingo,

supra, 407 U.S. at 530. When balancing these factors, no single factor is 

necessary or sufficient to establish a violation of the defendant’s right to a speedy 
15

trial. Barker v. Wingo, supra, 407 U.S. at 531; Shaw v. State, 117 S.W.3d 883, 

889 (Tex.Crim.App. 2003). The factors must be considered together with other 

relevant circumstances. Id. Moreover, the conduct of both the prosecutor and 

the defendant should be weighed when determining speedy-trial claims. Barker 

v. Wingo, supra, 407 U.S. at 530; State v. Munoz, 991 S.W.2d 818, 821 

(Tex.Crim.App. 1999).

1. Length of Delay

The first factor weighed in the balancing test is the length of delay. Barker 

v. Wingo, supra, 407 U.S. at 530. A speedy-trial claim will be heard only when 

a prima facie unreasonable period of time has passed after accusation. Harris 

v. State, supra, at 956. The delay is measured from the time the defendant is 

formally accused or arrested until the time of trial. United States v. Marion, 

404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In general, a delay 

approaching one year is deemed “...unreasonable enough to trigger the Barker 

enquiry.” Doggett v. United States, 505 U.S. 647, 652 fn. 1, 112 S.Ct. 2686 

(1992). In the instant case, the appellant was arrested on November 20, 2012 

and the trial began on September 15, 2014. (CR.I-161-164); (RR.II-26-27). The 

State admits that this delay was sufficient to trigger the Barker enquiry. 
16

Consequently, the twenty-two month delay weighs in favor of finding a 

violation of the appellant’s right to a speedy trial. Dragoo v. State, 96 S.W.3d 

308, 314 (Tex.Crim.App. 2003).

2. Reason for Delay

The second factor weighed in the balancing test is the reason for the delay. 

Barker v. Wingo, supra, 407 U.S. at 530. When assessing this second factor, the 

Supreme Court stated that “different weights should be assigned to different 

reasons....” Id. at 531. A deliberate attempt to delay a trial in order to hamper the 

defense should weigh heavily against the State. Barker v. Wingo, supra, 407 U.S. 

at 531. A neutral reason (i.e., overcrowded courts) for the delay is weighed less 

heavily against the State and a valid reason (i.e., an absent witness) for the delay 

is not weighed against the State at all. State v. Munoz, 991 S.W.2d at 822. 

Moreover, a delay attributable to the defendant may constitute a waiver of the 

speedy-trial claim. Id. 

In the instant case, the prosecutor informed the trial judge that the case 

was delayed due to pending motions/orders for a competency examination. 

(RR.II-54-55). The prosecutor specifically stated that “...the State has been ready 

and willing to try this case for a year and a half, and I have been unable to do so 
17

because of these pending motions filed by the Defense.”1(RR.II-55). The original 

competency order was signed by the trial judge on April 19, 2013. (CR.I-10-14). 

The appellant acknowledged (at the September 15, 2014 pre-trial hearing on the

motion to dismiss for lack of speedy trial) that Mr. Phifer (the appellant’s trial 

counsel) sought and secured the original order for a competency examination

from the trial judge. (RR.II-45-46). Since the trial judge signed the “Order 

Appointing Psychologist to Examine the Defendant Regarding the Defendant’s 

Sanity and Competency to Stand Trial” on April 19, 2013, Mr. Phifer obviously

requested the competency examination less than a month after being appointed 

as counsel in this case (i.e., March 21, 2013) and within five months of the 

appellant being arrested in this case (i.e., November 20, 2012). (CR.I-9; 10-14); 

(RR.II-26-27).

Even though the appellant was scheduled to be examined by Dr. Steve 

Schneider on June 6, 2013, personnel from the Randall County Sheriff’s office 

failed to transport the appellant the examination. (CR.I-13); (RR.II-12-13). On 

February 19, 2014, the trial judge signed another “Order Appointing Psychologist 

 

1

 Although the record does not contain Mr. Phifer’s motion for a competency 

examination, it is important to note that the appellant acknowledged (during the pre-trial 

hearing on the motion to dismiss for lack of speedy trial) that Mr. Phifer secured the original 

order for a competency examination from the trial judge. (RR.II-45-46). Moreover, the defense 

never objected when the prosecutor repeatedly stated during the pre-trial hearing that Mr. 

Phifer secured this original order. (RR.II-54-55). 
18

to Examine the Defendant Regarding the Defendant’s Sanity and Competency to 

Stand Trial.” (CR.I-15-19). Aside from the fact that the Randall County Sheriff’s 

office failed to transport the appellant to the original examination, the record is 

unclear as to the reasons for the eight month delay (i.e., from the June 6, 2013 

date of the original competency examination to the February 19, 2014 order for 

another competency examination) in ordering another competency examination. 

(CR.I-12-13; 15-19). Nevertheless, the prosecutor emphasized prior to trial that 

the State was not at fault for this unfortunate delay. (RR.II-54-55).

On March 21, 2014, the appellant was transported to his competency 

examination. (CR.I-18; 36-37); (RR.II-47). The appellant, however, refused to 

participate in Dr. Schneider’s examination. (CR.I-18; 36-37); (RR.II-47). The 

appellant informed Dr. Schneider that “he had not been involved in decision to 

seek an evaluation” and “was unwilling to submit to legal strategy with which he 

did not assist in developing.” (CR.I-36). The appellant also informed Dr. Schneider 

that, “I’ve defended myself before. Against felonies. I’m familiar with it. I’ve 

dealt with the law enough...the best thing to do I think would be just to wait until 

I can establish my legal position....” (CR.I-37). Since the appellant would not 
19

participate in the examination, Dr. Schneider was unable to form an opinion 

about whether the appellant was competent to stand trial.2 (CR.I-36-37). 

On June 2, 2014, Mr. Schofield (who replaced Mr. Phifer as trial counsel) 

filed the “Defendant’s Motion for Psychiatric Examination on Competency to 

Stand Trial.” (CR.I-29-30; 66-68). The trial judge granted this motion and ordered 

Dr. Mustafa Hussain to examine the appellant on August 14, 2014. (CR.I-74-78). 

As soon as the appellant was transported to the examination, the appellant 

informed Dr. Hussain that he no longer wanted Mr. Schofield to represent him. 

(CR.I-92). Without representation, Dr. Hussain would not evaluate the appellant. 

(CR.I-92). Immediately thereafter this case was set for trial and the jury trial was 

held a month later (on September 15-17, 2014). (RR.II-55); (CR.I-161-164). 

Approximately thirteen days prior to trial (on September 2, 2014), Mr. 

Schofield filed a motion to dismiss for lack of speedy trial. (CR.I-98-99). A mere 

four days prior to trial (on September 11, 2014), Mr. Schofield filed the 

“Defendant’s Motion for Re-Instatement of Psychiatric Examination on 

 

2

 In his brief, the appellant repeatedly states that the trial judge failed to notify newly 

appointed counsel on April 1, 2014 that the appellant would not cooperate at the March 21, 

2014 competency evaluation. (Appellant’s Brief at pages 17 and 18); (CR.I-39-41). Although 

the State assumes the appellant is asserting that Mr. Don Schofield (who replaced Mr. Phifer as 

counsel) should have been notified on April 1, 2014 of the appellant’s failure to cooperate at 

the March 21, 2014 competency examination, Mr. Schofield was not even appointed to 

represent the appellant until May 13, 2014. (CR.I-29; 30). Hence, the authorized counsel (Mr. 

Phifer) was notified on April 1, 2014 about the March 21, 2014 examination. (CR.I-41).
20

Competency to Stand Trial.” (CR.I-116). At a pre-trial hearing held on the day of 

trial, Mr. Schofield asked the court to consider granting his motion for the reinstatement of the competency examination based on the appellant’s pro se

motions asserting he has a wireless audio implant in his sinus cavity. (CR.I-24; 80); 

(RR.II-13). The trial judge denied the motion for the re-instatement of the 

competency examination. (CR.I-119); (RR.II-13). At this same pre-trial hearing, the 

trial judge held a hearing on the motion to dismiss for lack of speedy trial. (RR.II24-57). After listening to the evidence presented at this hearing, the trial judge 

denied the motion to dismiss for lack of speedy trial “...based on the pending 

psychiatric exams, because the record reflects that that was something that was 

pending at all times.” (emphasis added by this writer); (CR.I-120); (RR.II-57).

 A delay due to a defendant’s claim of incompetency or who is temporarily 

incompetent to stand trial is valid and justified. See Johnson v. State, 2006 WL 

2578033 (Tex.App.—Fort Worth 2006) (not reported). As stated previously, the 

appellant’s attorney secured the original order from the trial judge for a 

competency examination within five months of being arrested in this case. (CR.I10-14); (RR.II-26-27; 45-46). Although there was an eight month delay between 

the first scheduled competency examination (June 6, 2013) and the February 19, 

2014 order for another competency examination, the State was not at fault for 
21

the unfortunate delay. (CR.I-15-19); (RR.II-12-13; 55). The appellant could not be 

evaluated during the second scheduled examination (held on March 21, 2014) 

and the third scheduled examination (held on August 14, 2014) because he 

refused to participate in the second scheduled examination and he requested the 

removal of defense counsel during the third scheduled examination. (CR.I-18; 36-

37; 77; 92); (RR.II-47). Finally, four days prior to trial, defense counsel requested 

another competency examination which the trial judge denied. (CR.I-116; 119); 

(RR.II-12-13). Since a competency motion/order was pending throughout most of 

this criminal proceeding and since the original competency examination was 

requested by defense counsel, the State’s reason for the delay was valid and 

should not be weighed against the State at all. 

Moreover, it is reasonable to infer that the trial judge actually attributed 

the reason for the delay in this case against the appellant. As stated above, the

appellant refused to cooperate in the March 21, 2014 examination and impeded 

the August 14, 2014 examination by requesting the removal of Mr. Schofield as 

trial counsel. (CR.I-18; 36-37; 77; 92); (RR.II-47). Based on the appellant’s actions 

during these examinations, the trial judge could have reasonably believed he was 

trying to avoid trial by delaying the proceedings. Accordingly, the second Barker

factor weighs against finding a violation of the appellant’s right to a speedy trial.
22

3. Assertion of Speedy Trial Right

The third factor weighed in the balancing test is the defendant’s assertion 

of his right to a speedy trial. Barker v. Wingo, supra, 407 U.S. at 530. Although a 

defendant’s failure to assert his speedy trial right does not amount to a waiver of 

such right, the “...failure to assert the right will make it difficult for a defendant to 

prove that he was denied a speedy trial.” Barker v. Wingo, supra, 407 U.S. at 

532. In other words, a defendant’s failure to make a timely demand for a speedy 

trial strongly indicates that he “...did not really want one and that he was not 

prejudiced by not having one.” Shaw v. State, supra, at 890. Moreover, a 

defendant’s inaction weighs more heavily against a violation the longer the delay 

occurs. If a defendant really wanted a speedy trial, then he would have taken 

some action to obtain one. See Shaw v. State, supra, at 890; Dragoo v. State, 

supra, at 314-315 (right to speedy trial is not violated when defendant 

demonstrates no serious prejudice during more than a three year delay between 

arrest and trial and defendant waited just before trial to assert his speedy trial

right); Phipps v. State, 630 S.W.2d 942, 946 (Tex.Crim.App. 1982) (right to speedy 

trial is not violated when defendant demonstrated no prejudice by four year delay

between arrest and trial and the defendant waited until one month before trial to 

assert his speedy trial right).
23

In the instant case, the appellant never requested a speedy trial. Instead, 

the appellant filed a motion to dismiss for lack of a speedy trial approximately 

twenty-two months after he was arrested. The record shows that the appellant 

was arrested on November 20, 2012 and did not file the motion to dismiss for lack 

of a speedy trial until September 2, 2014. (CR.I-98-99); (RR.II-26-27). In addition, 

the appellant’s dismissal request was filed a mere thirteen days prior to trial. 

(CR.I-98-99; 161-164). The appellant’s “...request for a dismissal instead of a 

speedy trial weakens his claim because it shows a desire to have no trial instead 

of a speedy trial.” Parkerson v. State, 942 S.W.2d 789, 791 (Tex.App.—Fort Worth 

1997, no pet.); Zamorano v. State, 84 S.W.3d 643, 651 n.40 (Tex.Crim.App. 2002).

Additionally, the appellant claims that he wrote “...a letter to counsel for 

the State in which he requested a speedy trial. State’s counsel remembered 

receiving such a letter, but did not specifically affirm or deny its contents.” 

(Appellant’s Brief at pages 9 at fn 3, 20). A careful review of the record, however, 

shows that the appellant never requested a speedy trial in a letter to the 

prosecutor. (RR.II-22-23). The appellant merely informed the prosecutor that he

was housed in a jail cell with no lights for fourteen months. (RR.II-22). For the 

sake of clarity, the State hereafter provides an excerpt from the record of the 

conversation between the appellant and the prosecutor pertaining to this letter:
24

Defendant: Well, I sent—I didn’t file the cover letters. But I addressed an 

issue to Mr. Blount [the prosecutor] concerning the cell I was 

in in the jail. There was no lights in it for fourteen months. 

Prosecutor: I remember that.

Court: Okay.

Prosecutor: What is it that you want? 

Defendant: Well, it has to do with speedy trial. I just wanted to be sure 

you had that in your file and were aware of it.

(RR.II-22-23).

Immediately after this conversation, the trial judge held a pre-trial hearing 

on the motion to dismiss for lack of speedy trial. (RR.II-23-24). It is reasonable to 

assume, based on the above excerpt, that the appellant was going to rely on his 

living conditions at the jail to show he was prejudiced by the lack of a speedy trial. 

Moreover, the appellant claimed that he informed Mr. Phifer (the 

appellant’s original trial counsel) that he wanted a speedy trial. (RR.II-49). Again, 

the trial judge received no request from Mr. Phifer or from the appellant for a 

speedy trial in this criminal proceeding. If the appellant actually wanted a speedy 

trial, he could have easily requested one in his pro se motions. (CR.I-20-23; 24-26; 

31-32; 69-70; 79-82; 83-91). For all of these reasons, the appellant’s failure to 

actually request a speedy trial from the trial judge and his longtime acquiescence 

in the delay weighs very heavily against finding a violation of the appellant’s right 

to a speedy trial. Shaw v. State, at 890.
25

4. Prejudice to Appellant

The fourth factor weighed in the balancing test is the prejudice to the 

defendant as a result of the delay. Barker v. Wingo, supra, 407 U.S. at 530. In 

the Barker case, three interests are considered when determining prejudice: 1) 

the prevention of oppressive pre-trial incarceration; 2) the minimization of 

anxiety and concern of the defendant; and 3) the impairment of the defendant’s 

ability to present a defense. Barker v. Wingo, supra, 407 U.S. at 532. The Court of 

Criminal Appeals considers the most serious of these factors to be the impairment 

of the defendant’s defense. State v. Munoz, supra, at 828. The defendant must 

make a prima facie showing of prejudice. If the defendant makes such a prima 

facie showing of prejudice, then the State must prove that the accused suffered 

no serious prejudice beyond that which ensued from the ordinary and inevitable 

delay. Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973). Moreover, 

the presumption of prejudice is extenuated by the defendant’s acquiescence in 

the delay. Doggett v. United States, supra, 505 U.S. at 658.

a. Pre-Trial Incarceration

As stated above, the appellant was incarcerated for approximately twentytwo months prior to trial (the appellant was arrested on November 20, 2012 and 
26

the trial began on September 15, 2014). (CR.I-161-164); (RR.II-26-27). The “Nunc 

Pro Tunc Judgment of Conviction By Jury” reflects that the trial judge gave the 

appellant credit for the entire time he was in the Randall County jail prior to trial. 

(CR.I-158). Since the appellant was given time credit from November 20, 2012 

until September 17, 2014, his pre-trial incarceration was not oppressive and did 

not violate his right to a speedy trial. Starks v. State, 266 S.W.3d 605, 612 

(Tex.App.—El Paso, 2008, no pet.) (holding that defendant’s twenty-five month 

pre-trial incarceration was not oppressive when the defendant received credit on 

his sentence for time served and the defendant pled guilty to the charges);

Christmas v. State, 2009 WL 579278 (Tex.App.—Fort worth 2009) (not reported);

Brunson v. State, 2009 WL 3858018 (Tex.App.—Waco, 2009) (not reported).

Moreover, the appellant alleges that he suffered oppressive pre-trial 

incarceration based on his living conditions (i.e., the lights had been removed

from his cell and he was living in the dark from approximately March of 2013 until 

March 22, 2014). (Appellant’s Brief at pages 21-23); (RR.II-28-29). However, the 

appellant admitted that he was accused of damaging jail property during his pretrial incarceration. (RR.II-38; 41-42; 44). The appellant also admitted that he was 

housed in administrative segregation (for approximately twenty-one months of 

his pre-trial incarceration) for getting involved in an altercation between two 
27

inmates. (RR.II-27; 40-42). The trial judge could have reasonably inferred that the 

lights were removed from the appellant’s jail cell because he damaged jail 

property. (RR.II-38; 41-42; 44). The State was not responsible for the placement 

of the appellant in administrative segregation or for the dark jail cell. See State v. 

McCoy, 94 S.W.3d 296 n. 7 (Tex.App.—Corpus Christi 2002, no pet.). Since the 

appellant was given time credit for his pre-trial incarceration and since the

appellant’s own actions resulted in his housing conditions at the jail, the appellant 

suffered minimal oppressive pre-trial incarceration. 

b. Anxiety

In his brief, the appellant claims that he suffered anxiety from living in a 

dark cell during his pre-trial incarceration. (Appellant’s Brief at pages 21-23). 

However, the appellant and/or his attorney never requested a speedy trial from 

the trial judge during his entire twenty-two month pre-trial incarceration. The 

failure to request a speedy trial from the trial judge is evidence that any anxiety 

the appellant suffered from his pre-trial confinement was not as detrimental to 

the appellant as he claimed in his brief. 

Moreover, as stated above, the appellant admitted that he was accused of 

damaging jail property and that he was housed in administrative segregation for 
28

getting involved in an altercation between two inmates. (RR.II-27; 38; 40-42; 44).

The trial judge could have reasonably inferred that the lights were removed from 

the appellant’s cell for damaging jail property. (RR.II-38; 41-42; 44). The State was 

not at all responsible for the fact that the appellant was housed in administrative 

segregation or the fact that the lights were removed from the appellant’s jail cell. 

See State v. McCoy, supra. Hence, the appellant suffered minimal anxiety due to 

his pre-trial incarceration. 

c. Ability to Present a Defense

The appellant alleges that his ability to present a defense was impaired in 

this case because of the unavailability of a witness, the memory loss of a witness, 

and his housing conditions at the jail. (Appellant’s Brief at pages 21-23). 

1. Unavailable Witness

A claim of prejudice based on the unavailability of a witness requires the 

defendant to show: 1) the witness was unavailable at the time of trial; 2) the 

testimony that would have been offered was relevant and material to the 

defense; and 3) due diligence was exercised in an attempt to locate the witness

for trial. Phipps v. State, supra, at 947; Meyer v. State, 27 S.W.3d 644, 650 

(Tex.App.—Waco 2000, pet. ref’d). In the instant case, the appellant claimed that 
29

witness Rose Grubbs “...moved more than 500 miles from Amarillo....” (RR.II-35). 

When the prosecutor questioned the appellant as to why Ms. Grubbs could not 

attend the trial, the appellant responded, “That is all the information I have. I 

have been living in a dark cell in jail. I don’t –I haven’t had phone access. I don’t 

know. I only know what has been told to me.” (RR.II-50-51). Since the appellant 

was able to locate the witness and since the appellant failed to explain why the 

witness was unavailable at the time of trial, his ability to present a defense was 

not impaired by the alleged unavailable witness. Phipps v. State, supra, at 947; 

Meyer v. State, supra, at 650.

2. Witness’s Memory Loss

As for the complaint regarding witness Danielle Sandoval’s memory loss, 

general allegations of failure of memory are insufficient to establish prejudice. 

United States v. Avalos, 541 F.2d 1100,115 (5th Cir. 1976); State v. Guerrero, 110 

S.W.3d 155, 162 (Tex.App.—San Antonio 2003, no pet); Flores v. State, 625 

S.W.2d 44, 47 (Tex.App.—San Antonio 1981, pet. ref’d). To show impairment of a 

defense based on a witness’ memory loss, a defendant must show that the lapse 

of memory was in some way significant to the outcome of the case. State v. 

Munoz, supra, at 829. Bare assertions of dimming memories do not constitute 
30

such a showing. Id. In the instant case, the appellant claimed that witness 

Sandoval’s “...memory has failed on this—on issues of this case.” (RR.II-36). This 

bare assertion of memory loss does not constitute a showing of impairment of a 

defense. See State v. Munoz, supra. Moreover, the appellant did not even bring 

witness Sandoval’s statement (in which she claimed memory loss) to trial in order 

for the State to ascertain whether the allegations contained in her statement 

were significant to the outcome of the instant case. (RR.II-51). For all of these 

reasons, the appellant’s ability to present a defense was not impaired by witness 

Sandoval’s alleged memory loss.

3. Appellant’s Housing Conditions at Jail

As for the housing complaint, the appellant suggests that his housing 

conditions (i.e., living in a dark cell for approximately a year) hindered his ability 

to present a defense because he was not able to read or write in the dark cell. 

(Appellant’s Brief at pages 21-23); (RR.II-22; 29-30, 50). However, the appellant 

admitted that his cell was equipped with lights by March of 2014. (RR.II-29). The 

approximate six month time period between the date the appellant was housed 

in a lighted cell (March of 2014) and the commencement of trial (September 15, 

2014) was adequate time to enable the appellant to prepare a defense in this 
31

case, especially since the appellant admitted that he was well versed in criminal 

proceedings. (CR.I-37). At the scheduled March 21, 2014 competency 

examination, the appellant informed Dr. Schneider that, “I’ve defended myself 

before. Against felonies. I’m familiar with it. I’ve dealt with the law enough.” 

(CR.I-37). Accordingly, the appellant’s ability to present a defense was not 

impaired by his pre-incarceration living conditions.

Upon review of all three of the prejudice concerns (i.e., oppressive pre-trial 

incarceration, anxiety, and impairment of a defense), the appellant has failed to 

show that he suffered prejudice as a result of the twenty-two month delay. In 

fact, the presumption of prejudice was extenuated by the appellant’s 

acquiescence in the delay (i.e., his failure to request a speedy trial). See Doggett 

v. United States, 505 U.S. at 658. Assuming arguendo that the appellant made a 

prima facie showing of prejudice, it is clear that the appellant suffered no 

prejudice beyond that which ensued from the ordinary and inevitable delay of 

trial. Ex parte McKenzie, supra, at 123. Therefore, the fourth factor of the Barker

balancing test weighs against finding a violation of the appellant’s right to a 

speedy trial.
32

5. Balancing the Barker Factors

After balancing all the Barker factors, it is clear the State did not violate the 

appellant’s right to a speedy trial. Weighing in favor of finding a violation of the 

appellant’s speedy trial rights is the twenty-two month delay. Weighing neutral or 

against finding a violation of the appellant’s speedy trial right are the following 

facts: 1) the State offered a valid reason for the delay (i.e., the continuous 

requests/orders for a competency examination), 2) the appellant failed to request 

a speedy trial, 3) the appellant acquiesced in the delay by failing to request a 

speedy trial, 4) the inference that the appellant hindered the competency 

examinations in order to avoid trial (the appellant refused to cooperate during

the March 21, 2014 examination and the appellant refused Mr. Schofield’s 

representation during the August 14, 2014 examination), 5) the appellant filed his 

motion to dismiss for lack of speedy trial a mere thirteen days prior to trial, 6) the 

presumption of prejudice was extenuated by the appellant’s acquiescence in the 

delay, and 7) the appellant suffered no prejudice beyond the ordinary and 

inevitable delay of trial. When all of these factors are balanced together, the 

appellant’s speedy trial right was not violated. Accordingly, no error has been 

shown and Issue One should be denied.
33

COUNTERPOINT NO. 2, RESTATED

THE TRIAL JUDGE DID NOT ABUSE HER DISCRETION BY FAILING TO STAY 

THE PROCEEDINGS IN THIS CASE UNTIL SHE CONDUCTED AN INFORMAL INQUIRY 

INTO THE APPELLANT’S COMPENTENCY TO STAND TRIAL.

STATEMENT OF FACTS:

The State adopts and incorporates herein by reference for all purposes the 

facts set forth in the “Statement of Facts” section of this brief at pages 11-13.

SUMMARY OF THE ARGUMENT

The trial judge did not abuse her discretion by failing to stay the 

proceedings in this case until she conducted an informal inquiry into the 

appellant’s competency to stand trial. Prior to trial and during trial, the defense

never claimed that the appellant was incompetent to stand trial. Although the 

appellant’s belief that he has a wireless audio implant in his sinus cavity or bipolar 

disorder may reflect a mental illness, it does not demonstrate that he was 

incompetent to stand trial. Thus, no abuse of discretion has been shown and Issue 

Two should be denied. 

 ARGUMENT

a. Applicable Law

A defendant is incompetent to stand trial if he does not have “...sufficient 
34

present ability to consult with the person’s *a defendant’s+ lawyer with a 

reasonable degree of rational understanding” or “a rational as well as factual 

understanding of the proceedings against” him. Article 46B.003 of the Texas Code 

of Criminal Procedure. 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. Id. Once the issue of the defendant’s competency 

to stand trial has been sufficiently raised, the trial judge should 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.” Article 

46B.004(c) of the Texas Code of Criminal Procedure. At the informal inquiry stage, 

the trial judge is to only consider evidence tending to show incompetency and 

should not consider any evidence showing competency. Ex parte LaHood, 401 

S.W.3d 45, 52-53 (Tex.Crim.App. 2013); Turner v. State, 422 S.W.3d 676, 692

(Tex.Crim.App. 2013); Garza v. State, 2014 WL 4289004 (Tex.App.—Amarillo 

2014) (not reported). Moreover, the trial judge’s decision not to conduct an 

“informal hearing” is reviewed under an abuse of discretion standard. Lahood v. 

State, 171 S.W.3d 613, 617-618 (Tex.App.—Houston [14th Dist.+ 2005, pet. ref’d); 

Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999). 
35

b. Analysis

1. Appellant Failed to Preserve Error for Review

Although the defense repeatedly requested a competency examination,

defense counsel and/or the appellant never asserted the appellant was 

incompetent to stand trial or objected to the trial judge’s failure to hold an 

“informal hearing” to determine competency. (CR.I-66-68; 116-118); (RR.II-12-13; 

45-46; 54). Consequently, any alleged error arising from the trial judge’s failure to 

hold the “informal hearing” was waived. See Salahud-din v. State, 206 S.W.3d 

203, 208 (Tex.App.—Corpus Christi 2006, pet. ref’d) (holding defendant forfeited 

any purported error with regard to three pre-trial psychological evaluations by 

failing to object when the trial judge proceeded to trial); Boitnott v. State, 48 

S.W.3d 289, 293 (Tex.App.—Texarkana 2001, pet. ref’d) (holding no preservation 

of alleged error when defendant did not object to the trial court’s failure to hold a 

competency hearing); Means v. State, 955 S.W.2d 686, 689 (Tex.App.—Amarillo 

1997, pet. ref’d) (holding no preservation of alleged error when defendant did not 

file a motion urging he was incompetent, did not request a hearing to determine 

whether evidence of incompetency existed (although two experts examined 

defendant at the judge’s bequest and found that defendant suffered from 

psychological shortcomings), and did not request that the trial judge conduct a 
36

formal competency hearing). Issue Two was, therefore, not preserved for 

appellate review and should be denied.

2. No Abuse of Discretion For Failing to Conduct an “Informal Hearing”

In Issue Two, the appellant alleges that the trial judge had a duty to stay all 

proceedings in this case until the issue of competency was addressed. 

(Appellant’s Brief at pages 6; 23-28). A review of the record shows that the trial 

judge ordered three competency examinations throughout the proceedings in 

Cause No. 23,957-C. (CR.I-10-14; 15-19; 74-78). None of these competency 

examinations were completed for the following reasons: 1) the Randall County 

Sheriff’s office failed to transport the appellant to the first competency 

examination (RR.II-12-13), 2) the appellant refused to participate in the second 

examination (CR.I-36), and 3) the appellant informed the examiner during the 

third examination that he no longer wanted his trial attorney to represent him in 

this case (CR.I-92). 

A failure to cooperate is not probative of incompetence to stand trial. In 

other words, the fact that the appellant refused to cooperate during the 

competency examinations and the fact that the examinations were never

completed does not help the appellant rebut the presumption of competency.
37

See Heard v. State, 2004 WL 3135234 (Tex.App.—Houston [1st Dist.] 2004) (not 

reported). The trial judge could have reasonably concluded that the appellant was 

uncooperative during two of the competency examinations in order to avoid trial 

by delaying the proceedings. 

As stated previously, the defense never informed the trial judge that the 

appellant was incompetent to stand trial (i.e., that he was unable to consult with 

his lawyer with a reasonable degree of rational understanding or that he was 

unable to understand the proceedings against him). Article 46B.003 of the Texas 

Code of Criminal Procedure. At the September 15, 2014 pre-trial hearing, Mr. 

Schofield (trial counsel) did not argue that the appellant was incompetent to 

stand trial. (RR.II-12-13). Instead, Mr. Schofield argued that the trial judge should 

re-instate the competency examination based on the appellant’s pro se motions 

indicating that he has a wireless audio implant in his body. (CR.I-116); (RR.II-12-

13). In this regard, six pro se motions were filed in this case. (CR.II-20-23; 24-26; 

31-32; 69-70; 79-82; 83-91). In two of these pro se motions, the appellant 

specifically discussed the implant and stated that he has “...a wireless audio 

implant within his right maxillary sinus cavity, which is active on PI20-electric 

power supply” and that the audio implant “is a constant source of distraction and 

mental anguish....” (CR.I-24; 80). The appellant also asserted during the 
38

September 15, 2014 pre-trial hearing that he has previously (at least two years 

ago) been diagnosed as bipolar. (RR.II-107). 

The fact that the appellant may have a mental or psychological impairment 

does not raise the issue of competency. The trial judge, therefore, did not abuse 

her discretion by failing to conduct an informal inquiry into the appellant’s 

competency to stand trial based on the two pro se motions (alleging the appellant 

has a wireless audio implant within his sinus cavity) and the appellant’s bipolar 

assertion. See Moore v. State, supra, at 395 (the defendant’s propensity toward 

depression is not proof of his inability to communicate with counsel or 

understand proceedings); Lahood v. State, supra, at 619 (no abuse of discretion in 

failing to sua sponte inquire into defendant’s competency despite outbursts 

during trial, requests for medicine, comments concerning “psych meds”, history 

of mental problems, and claim of difficulty understanding proceedings); Rice v. 

State, 991 S.W.2d 953, 957 (Tex.App.—Fort Worth 1999, pet. ref’d) (a 

competency test is not whether a defendant labored under a mental, behavior, or 

psychological impairment); Townsend v. State, 949 S.W.2d 24, 27 (Tex.App.—San 

Antonio 1997, no pet.) (a determination that a defendant is mentally ill does not 

constitute a finding that the defendant is incompetent to stand trial); Nelson v. 

State, 2013 WL 5526229 (Tex.App.—Waco 2013) (not reported) (no abuse of 
39

discretion in failing to sua sponte inquire into defendant’s competency despite 

testimony that defendant had delusional thinking based on his belief that the 

government was out to get him and that the government prevented him from 

solving all of the world’s problems with his nano-mind technology); Douglass v. 

State, 2010 WL 2196082, at page 2 (Tex.App.—El Paso 2010) (not reported) (no 

abuse of discretion in failing to hold an informal inquiry despite evidence that the 

court knew the defendant was recently diagnosed with schizoaffective disorder 

and bipolar disorder, who suffered from hallucinations, and was taking 

medications to quiet voices in her head and to control her racing thoughts). 

Although the appellant’s belief that he has an implant in his sinus cavity or 

bipolar disorder may reflect a mental illness, it does not demonstrate that he 

lacked the ability to consult with his lawyer or lacked an understanding of the 

proceedings against him. In determining whether the appellant had sufficient 

present ability to consult with his lawyer with a reasonable degree of rational 

understanding, the record shows that the appellant was “comfortable with Mr. 

Schofield’s representation” and that the appellant understood he could

communicate with Mr. Schofield at any time during the trial through whispers or 

by written communication. (RR.II-10-12); Article 46B.003(a)(1) of the Texas Code 

of Criminal Procedure. In fact, Mr. Schofield presented several of the appellant’s 
40

requests to the trial judge throughout the proceeding. (RR.II-13-14); (RR.IV-75). 

The record contains absolutely no evidence that the appellant’s alleged 

impairments prevented him from consulting with his attorney. 

In determining whether the appellant had a rational as well as factual 

understanding of the proceeding against him, it is important to note that the trial 

judge actually allowed the appellant to argue his own pro se motions at the 

September 15, 2014 pre-trial hearing. (RR.II-14-23); Article 46B.003(a)(2) of the 

Texas Code of Criminal Procedure. During the presentation of his pro se motions, 

the appellant was lucid and able to easily articulate his specific complaints to the 

trial judge. (RR.II-14-23). The appellant was also very responsive to any questions 

posed by the trial judge. (RR.II-14-23). On several occasions, the appellant 

coherently explained to the trial judge why he felt certain evidence was important 

to his case. (RR.II-15-16; 17; 19-22). The appellant’s presentation of the pro se

motions reflects that he had a rational as well as factual understanding of the 

proceeding against him. (RR.II-14-23); Article 46B.003(a)(2) of the Texas Code of 

Criminal Procedure. 

Likewise, a review of Dr. Schneider’s report from the March 21, 2014 

examination (which the appellant refused to participate in) reflects that the 

appellant had a good understanding of his case and the criminal justice system. 
41

At the March 21, 2014 examination, the appellant informed Dr. Schneider that he 

would not participate in the examination because “he had not been involved in 

decision to seek an evaluation” and “was unwilling to submit to legal strategy 

with which he did not assist in developing.” (CR.I-36). The appellant further 

informed Dr. Schneider that, “I’ve defended myself before. Against felonies. I’m 

familiar with it. I’ve dealt with the law enough...the best thing to do I think would 

be just to wait until I can establish my legal position....” (CR.I-37). Upon reviewing

the pre-trial hearing and Dr. Schneider’s report, it is clear that the appellant had a 

rational as well as factual understanding of the proceedings against him. (CR.I-36-

37); Article 46B.003(a)(2) of the Texas Code of Criminal Procedure. 

For all of these reasons, the trial judge did not abuse her discretion by 

failing to stay the proceedings in this case and by failing to initiate an informal 

inquiry into the appellant’s competency to stand trial. While the appellant’s belief 

that he has a wireless audio implant in his sinus cavity or bipolar disorder may 

reflect a mental illness, it does not demonstrate that the appellant lacked the 

ability to consult with his lawyer or lacked a rational as well as factual 

understanding of the proceedings against him. See Moore v. State, supra, at 395; 

Lahood v. State, supra, at 619; Rice v. State, supra, at 957; Townsend v. State, 

supra, at 27; Nelson v. State, supra; Douglass v. State, supra, at page 2.
42

Accordingly, the competency to stand trial issue was never sufficiently raised and 

the trial judge did not abuse her discretion by failing to conduct an informal 

competency hearing. Issue Two is, therefore, without merit and should be denied.
43

PRAYER

WHEREFORE, Premises Considered, the State prays that the relief 

requested by the appellant be denied and that this Honorable Court affirm the 

judgment of the trial judge.

Respectfully submitted,

JAMES A. FARREN

CRIMINAL DISTRICT ATTORNEY

RANDALL COUNTY, TEXAS

s/ Kristy Wright

KRISTY WRIGHT

SBN: 00798601

kwright@randallcounty.org

Assistant Criminal District Attorney

Randall County Justice Center

2309 Russell Long Blvd., Suite 120

Canyon, Texas 79015

(806) 468-5570

FAX (806) 468-5566

CERTIFICATE OF COMPLIANCE

I hereby certify that the word count of this entire brief is 8408 words.

s/ Kristy Wright

KRISTY WRIGHT
44

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing State’s Brief has been 

served on Eric Coats, Attorney for Appellant (Marc Allen Mason), 1716 S. Polk, 

Amarillo, Texas 79102, by depositing same in the United States mail, postage 

prepaid on this 9

th day of April, 2015.

s/ Kristy Wright

KRISTY WRIGHT