### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-05-00093- CR

K e nt K r ue ge r , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF COM AL COUNTY , 22ND JUDICIAL DISTRI CT NO. CR 2004 -26 8, HO NORAB LE DONALD LEONARD, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N
Kent Kr ueg er w as indicted for t he off ense of reta liation, specifica lly

for wr iting threatening letters to the di strict attorney
. The trial court held a jury trial on Krue g er’ s competenc y to stand trial. The jury

found him competent. After the jury trial on compete ncy , appellant plea ded g uilty and also pleade d true to t wo enha nceme nt para g raphs. The trial court se ntence d him to a term of 40 y ear s’ imprisonment. Appellant appe als the fa ctual suff iciency of the evidenc e to support the jury ’s finding of competenc y to sta nd trial and further contends that the State bre ache d a ter m of a plea ba rg ain. B eca

use we find that the evide nce is factually sufficie nt to support the jury ’s finding and that t h er e wa s n o brea ch of a plea a g ree ment, we ove rrule his points of er ror a nd aff irm the jud g me nt o f t

he tr ia l c ourt
.2

Factual S ufficiency

I n his factua l sufficienc y

challeng e, appe llant urg es in two p o i n t s of er ror that the jury ’s finding that appellant wa s co m p et en t t o stand trial was so a g ainst the g reat weig ht and preponde ranc e of the evidence that it is both manifestly and c le ar ly un jus t. I n a fo ur -d a y tr ia l, b oth sid e s p re se nte d nume ro us wi tne sse s a nd e xhibi ts r e ve a lin g a

pp ell ant’s e xten siv e me nta l he a lth his tor y a nd le tte rs wr itt e n by

a pp e lla nt t o v a ri ou s in div idu a ls, inc lud inglaw e nf or c e me nt a

uth or iti e s. Th e pa rt ies agree tha

t a pp e lla nt h a s a me nta l il lne ss. Th e qu e sti on is w he the r h e is c ur

re ntl y
co mp et en tan d

ab l e to co n s u l t wi t h h i s l aw y er wi t h a re as o n ab l e de gre e of ra t i o n al u n d er s t an d i n g. Ap pe lla nt s ou g ht t o s ho w that he ha d a hi st ory of se ve re me nta l il lne ss a nd wa s in c omp e te nt t o understand the proce eding s and assist his attorney . He prese nted the testimony of psy chiatrist Dr. Geor g e Woods, family

members, a

corr ectional office r, and other witnesses to show that he wa s not
c omp e te nt t o sta

nd tr ia l. Th e Sta te so ug ht to d e mon str ate tha t a pp e lla nt w a s c omp e te nt t o c on su lt with h i s at t o rney , had a r ational and f actua l understanding of the proc eeding , and over stated any mental illness he might have.

I n a fa ctual suff

iciency revie w, the evide n ce is view ed in a ne utral lig ht, favoring neither pa rty
. S e e C l e w i s v . S t a te , 9 2 2 S.W .2d 126, 134 (Tex. Crim. App. 1996). I n this neutral l i g h t , w e d e t e r

m i n e w h e t h e r t h e p r o o f s u p p o rt i n g t h e j u r

y ’ s f i n d i n g i s “ s o o b v i o u s l y w e a k a s to
un de rm ine c on fi de nc e in t he jur y ’s de te rm inatio n, ” or “ a lth ou g h a de qu a te if take n a lon e , is g re a tly outweig hed by

contra ry proof.” J

oh ns on v . S

tat e , 23 S.W .3d 1, 11 (Tex. Crim. Ap p . 2000). A
c le a rl y wr on g a nd un

jus t ve rd ic t oc c ur s wh e re the jur y ’s fi nd ing “ sh oc ks the c on sc ie nc e ” or “ c le a rl y demonstrates bia s.” Sa nte lla n v . S tat e , 939 S.W .2d 155, 164-65 (Tex. Crim. App. 1997). Thus, we3

are authorized to disag ree with the jury ’s finding even if probative e vidence exis ts that supports the finding
. Id . at 16 4; see also Johnson , 23 S.W .3d at 7.

Article 46B .003(a) provides that, “A person is incompetent to stand trial if the pe rson do e s n ot h a ve : ( 1) su ff

ic ie nt p re se nt a

bil ity to c on su lt w iththe pe rs on ’s l awy er wi th a re a so na ble deg ree of rational understanding ; or (2) a rational a s well as fa ctual under standing of the proce eding s.” Tex. Code Crim. P roc. A nn. art. 46B .003(a) (1), (2) (W est Supp. 2005). A def endant is presumed c ompetent but this presumption may be re butted with a showing by a preponde ranc e of the evidenc e that the de fenda nt is incompetent. Id. a rt
. 46B.003( b). Appellant’s f

ather , J ack K

rueg er, te stified as appe llant’s first witness. He testified that he adopte d ap pellant in 1962 shortly afte r he w as born. He beg an noticing that appellant’ s be havio r w a s e rr a tic wh e n a pp e lla nt w a s in the se c on d g ra de
. Whe n a pp e lla nt w a s a pp ro xima te ly ten or eleve n y ear s of age , Mr. Krueg er first consulted wit h a psy chiatrist about his behavior. Soon there afte r, the Krue g ers divorce d and eng ag ed in a custody fig ht. Appellant lived with his mother in H ou sto n, bu t r a n a

wa y to N e w B ra

un fe ls to liv e wi th h is f

a the r. Ap pe lla

nt b e c a me inv olv e d w ith dr ug s and a lc oh ol a nd wa s “ in a nd ou t” of re ha

bil itatio n. He wa s in vo lve d in a mot or c y c le a c c ide nt, dropped out of sc hool, and was a rre sted for theft. After he dropped out of school, he wa s committed to the San Antonio State Hospital where he wa s diag nosed with bipolar disorder . Krue g er de scribed appellant’ s numerous ar

rests and hospitaliz ations and testi fied that his son has bee n harshly treated by the cou rt s y stem. Krueg er te stified that he believe s that appellant is “totally incompetent of understanding the cause and eff ect of this sit uation.” On c ross-examination, Krueg er a cknowledg ed that appellant ha s been a

rre sted numerous times a

nd that the police we re “ afte r him,” but also that appellant is manipulative.At the c los e of

the of fi c e r’ s te sti mony , th e c ourt ob se rv e d: 1 L et the re cord r efle ct we hav e n o w h ad about six hours of testimony , and throug hout that time, the Defe ndant has rocked in his chair , wave d his arms, and despite t h e fact that we have instruc ted the jury to ignor e it . . . he has continuously

interject ed unsworn evide nce into the r ecor d. . . . [A] ny time the te sti mony be c omes cri tica l or

un fa vo ra ble to t he De fe nd a nt, he su dd e nly be c ome s lo ud

a nd c re a te s a pr ob le m. 4 Wit nes s Ka t h y W hite testified that she ha s known appe llant since he w as ninetee n y ear s of ag e and that they have a n eig hteen- y ear -old son. She testified that appellant has “bipolar dis or de r w ithps y c ho tic te nd e nc ie s. ” On c ro ss- e xami natio n, sh e a c kn ow le dg e d th a t a pp e lla nt i s manipulative. Off

icer Christopher Kocur ek , a co rrectional offic er e mploy ed by the Texas Depa rtment of C riminal J ustice, testified that he had neve r obser ved appe llant act in a violent manner, that appellant’s be havior at trial was his usual behavior, and that he did not seem to be fakinghis unusual mannerisms. He testified that, “Sometimes y ou can ta lk to him; sometimes y ou 1 can’ t. I t just depends what day it is and what mood he is in.” He a cknowledg ed that appe llant does not alway s eng ag e in appr opriate be havior or make “r easone d choice s.”

Ap pe lla nt’ s b ro the r, Mark

Kr ue g e r, te sti fi e d th a t a

pp e lla nt h a s h a d p ro ble ms throug hout his li fe a

nd that he beg an using drug s when he was twe lve y ear s of ag e:
Ke nt w a s e xtre me ly

se lf -d e str uc tiv e a s a

c hil d. I f h e did

no t ha ve his wa y , h e wo uld throw ang er fits, but not towar d other pe ople. He w ould throw the fit towar d himself, a c tua lly c lawi nghis fa c e , atte mpt ingto d a ma g e him se lf
. . . . He ha d a

dif fi c ult tim e expressing himself a s a rational person.5

He de scribed a

ppellant as “ consisten t l y i n co n s istent.” I n response to questions as to whether ap p el l an t wa s fa k i n g h i s s y mp t o m s o r i l l n es s , M ar k

Kr u ege r t es t i fi edt h at h i s b ro t h er i s n o tfa k i n g, that “he ha s been doingthat since he was a very small infant.” Dr. Georg e W
. Woods, a practicing clinical psy chiatrist, testified that he pe rfor med
a neur opsy chiatric evaluation of appellant for the purpose of

deter mining his compete ncy

to stand trial. Dr. Woods testifi ed that, in his opini on, appellant wa s not competent to stand trial and w as
me nta lly un a ble to a ssi st h is atto rn e y

duri ngthe tr ia l: [I ]t’ s my be lie f t hat Mr
. Kr

ue g e r, nu mbe r o ne , s uf

fe rs fr om a

bip ola r d iso rd e r. I t is a lso my be lie f that Mr
. Kr

ue g e r s uf fe rs fr om c he mic a l de pe nd e nc y , s e ve re , c ur re ntl y wh a t th e y c a ll ins ti tu tiona l r e mis sio n. Wha t th a t me a ns is c a n’ t g e t to it b e c a us e y ou’re in jail or in the hospital or what h av e y ou, so it’s an institut ional remission, a nd wh a t w e c a ll a

ru le -o ut d ia g no sis
. I believe that Mr. Krueg er has what we call a c og nitive disorder, a nd what that mea

ns i s t h a tt h e r e a r e p r o b l e m s w i t h h i s b r a i n t h a ta r e e i t h e r
— t h a t a r e n e u r o l o g i c a l
. It could be head injury
. I t could be sec ondary to the fac t that he is HI V positive, and pe op le that ha

ve HIV o ft e n d e ve lop pr ob le ms w ithho w the ir br a in wo rk s. I t c ou ld be bec ause he has other ty pes of tra umatic bra in problems. . . . Dr. Woods ag ree d that appellant ha s a fa ctual u n d er standing of the leg al proc eeding s but that he
c ou ld not dis c los e to his a tto rn e y pe rt ine nt f

a c ts a nd e ng a g e in r e a so ne d c ho ic e s o f l e g a l strate g ie s. I n his r eport to the court, Dr. Woods conc luded that in his opinion a ppellant mee t s t h e s t atutory
c ri te ri a fo r h a vin g a

me nta l di se a se or

de fe c t and

is n ot c omp e te nt t o s tand tr ia l:
Ke nt c ur re ntl y un de rs tand s, in t

he mos t c on c re te fa sh ion , th e c ha rg e s a g a ins t hi m. He a l s o u n d e r s t a n d s t h e r o l e s o f t h e o f f i c e r s o f t h e c o u rt
. K e n t is n ot, in m y pr of e ssi on a l op ini on

a nd to a re aso nab le deg re e of

me dic a l c e rt a int

y , a ble to rationally assist his attorney

in the prepa

ration of his def

ense.6 I n its case, the State p re sented the te stimony of two doctors w ho had eva luated
a p p e l l a n t a s w e l l a s o t h e r w i t n e s s e s w h o h a d o b s e r v e d a p p e l l a n t
. P s yc h o l o g i s t M a r y A l i c e C o n r o y, a prof essor a nd clinical psy cholog ist for twenty -seve n y ear s who had been with the Fe dera l Bure au of Prisons for twenty

y ear s, testified that she believ ed ap p ellant is competent to stand trial. She te sti fi e d that sh e ha d e va luate d him tw ic e , fi rs t in De c e mbe r 20 03 a nd the n jus t be fore tr ial in No ve mbe r 2 00 4. She ha d a lso re vie we d h is e xten siv e me dic a l r e c or ds
.

Dr. Conroy

testified first about the 2003 interview. At the beg inning of the interview , appellant wa s speaking rapidly , g esturing and wa lking around t he room. He r ambled and w as not responsive to he r questions. She then testified, “He beca me much more calm as the evaluation went on. His demea

nor cha ng ed. He made much more ey e contac t w ith me. He beg an to talk much more rationally . He be g an to talk about ele ments of hi s case , answe ring questions that Ihad as oppose d to his orig inal rampa

nt demea nor.” By the end of t he conversation, “he was c onversing with me very
we ll. ” Whe n the pr os e c uto r a sk e d he r wh e the r a pp e lla nt m ig ht b e ma lin g e ri ngor fa kin g his ill ne ss, Dr. Conroy

testified,
As we w ere ending the interview , he under stood that this was a competenc e interview, and it was quit e cle ar at the end of the evaluation that he knew e x actly why Iwa s th e re , a nd he sa id— he a sk e d me wh a t I tho ug ht, a nd I sa id t hat my job wa s to g ive a r eport to the Court, and he said, “Well, I just need to tell y ou,” and this is not an exact quote, but it’s close, “ that Ican make my s el f m anic. I can a lway s make my self incompetent, and I do it in two way s. I do it by not taking my medication, by loading up on sug ar.”
Dr
. Conro y te sti fi e d that sh e wa s un a ble to fi nd in the me dic a l re c or ds that a pp e lla nt had act ual ly suffe red a

head injury , b ut only

that he say s that he has a nd that his statement appea red in the7

re c or ds . D r. Conro y

re po rt e d th a t a

pp e lla nt h a d ta ke n a pe rs on a lity

a sse ssm e nt i nv e ntor

y te st i n Marc h 2002, which wa s determined to be inval i d b ec ause of “neg ative impression mana g ement,”
a nd that a pp e lla nt w a s o ve re mph a sizi nghis pr ob le ms o r “ fa kin g ba d. ” A s e c ond tes t w a s a lso deeme d invalid beca

use appe llant “over

repor ted” a ny problems he may

have ha d. Dr. Conro y

c o n c lu d e d

th a t a p p e llant has exag g erated his sy mptoms. S he testified that “he ha s indicated that he wa nts to appear

to be a pe rson with a seve re me ntal illness.” She said he will tell y ou “I

want y ou to know that I ’m mentally ill,” and he will list th e s y m p t oms and then demonstrate the m. She te stified that appellant told her , “Whatever Ihave done wrong , it’s been beca use of my mental i llness. My bipolar disorder is to blame for whatever

it is I have done wrong .” She later te stified, “In fac t, he flag s his mental illness for any body who wants to be a

war e of it.” Dr . Co nr oy

a lso c on c lud e d th a t a

pp e lla nt s e e med to hav e “ g re a t c on tr ol” ov e r h is manic beha

vior and that he “broug ht it dow n wh en h e neede d to bring it down.” I n her w ritten
re po rt , s he c on c lud e d th a t a pp e lla nt “ de mon str a te d h is a

bil ity to co ntr ol h is b e havio r a nd c on su lt
w i t h c o u n s e l w h e n h e c h o s e t o d o s o , ” b u t s h e r e c o g n i z e d t h a t “ g i v e n h i s p a rt i c u l a r p s yc h o p a t h o l o g y, this could chang e” and he c ould “esc alate into a ma nic episode,” experiencingconfusion, ag itation, and flig ht of ideas. She conclude d, “In my profe ssional opinion, at the time of the evaluation, Kent Krue g er had sufficie nt pr esent ability to consult with an attorney with a re asonable deg ree of rational understandingand a r ational as we ll as fac tual understandingof the proc eeding s ag ainst him.”

I n th e No ve mbe r 2 00 4 in te rv ie w, Dr . Conr oy int e rv ie we d ap pe lla nt i n th e ja il w ith
corr ectional officer s near

by
. Appellant aske d whether she had br oug ht a video ca mera . When she told him t hat she ha d not broug ht one, he told her the jail could provide one. Dr . Conroy testified8

that a pp e lla nt w a s “ ve ry

a wa re that the re wa s g oin g to be a c ourt he a ri ng a nd that hi s me nta l il lne ss
was g oing to be an issue, and so if he wanted to have his sy mptoms recorde d, that would be a g ood ti me to d o it
. ” Sh e th e n te s ti f ie d to th e ir d is c u s s io n o f th e le g a l pr o c e e d in g s to ta k e p la c e th e n e xt day : “Ther e we re ma

ny issues around these proce eding s that he seemed to rathe r cle arly understand and talked to me a

bout.” The State also prese nted the testimony of psy chiatrist Richard Coons who testified that appellant was competent to sta nd trial and able to c onsult with his la wy er . He i n t er v iewed appellant a

nd observe d him at tr ial. He pointed out that duringthe trial appe llant had “pa id attention to t he pr oc e e din g s and

c or re c te d wi tne sse s a nd ma de c omm e nts a bo ut t e sti mony

duri ngthe c ours e of it, so he has been following what is g oing on.” The S tate also prese nted the testimony of seve ral
c or re c tio na l of

fi c e rs wh o te sti fi e d to the ir int e ra c tio ns wi th a

pp e lla nt. At the compete ncy

jury trial, then, Drs. Conroy

and C oons testified that appe llant had the pre sent ability to c onsult with hi s attorney to a re asonable deg ree of rational understanding and that he had a rational and fa ctual under standing of the proc eedingag ainst him. Dr. Woods di sag ree d.

Appellant conte nds that the fore g oing evidence was factually insufficient to support
a finding of compe tency

beca use the e vidence that he wa s incompetent wa s overwhe lming and w as not rebutted by

the State. Althoug h t h er e i s s o m e evide nce that appellant wa s incompetent, upon
re vie w o f t

he e nti re re c or d, we c a nn ot c on c lud e that th e pr oo f s up port ingthe jur y ’s fi nd ingis s o obviously wea

k as to unde rmine confide nce in its deter mination or that the proof support i n g the jury ’s finding , althoug h adequate if tak en al o ne, is g reatly outweig hed by

contra ry proof. See Johnson , 23 S.W .3d at 11. We overr ule appe llant’s first and sec ond points of error
.9

Pl e a Ba rg ain I n h is thir d p oin t of

e rr or , a pp e lla nt c on te nd s th a t th e Sta te br e a c he d it s p le a ba rg a in wh e n th e pr osecut or

a sk e d th e c ourt

to a sse ss a

lif e se nte nc e ins te a d o f r e ma ini ngsil e nt a s to punishment. The re was no plea barg ain. As defe nse counse l stated, “I t’s not a plea ba rg ain. I t’s an open plea , Your Honor .” We over rule a ppellant’s third point of er ror.
CO NC LU SION Having overr

uled appe llant’s three points of error , we a ffirm the judg ment of conviction.

_____________ _____________________________ J an P. Patterson, J ustice Be fore J ustices B . A. Smith, P atterson a nd Pury ear Affir med Filed: F ebrua

ry 9, 2006 Do No t Pu

bli sh