56<M5 510-15 51HS S1&I8T

No<

COURT OF CRIMINAL APPEALS OF TEXAS

Victor White . APPELLANT

V.

STATE OF TEXAS. APPELEE

ORIGINAL

APPEAL From The Court oP APPEALS For The ELEVENTH DISTR

ICT. At EASTLAND * TEXAS . In* Ihl3-000<&L IM3-0004S1 U-I3-

OOOQ61 11-13-0OOV7S T,Co#'S D3Q. T \03% D38-/01} 038JOG:

D38-/06. In The. 356* DISTRICT COUfiT OF ZCTOR CDUhXJY.

TEXAS*

APPELLANT'S PETITION For DISCRETIONARY FtES/IEW.

FILED IN

COURT OF CRIMINAL APPEALS

JUL 2 12^5

Abel Acosta, Cierk

Prepared Qu

Victor D, Uhite. Pro S&

TOGS*- 01835070

Michael Unit , .2.66^ F/A IDS!

TEHU^ COLOHY.TX 7S8&6

RECEIVED IN

^OUBT OFCRIMINAL APPEALS

JUL 17 2015

Ateftesla.Gferk
TABLB of CONTENTS

Author t'HeS . h

STATEmENt REGARDING OftAL AK&UEm£NT_ .2*

STATEmzNT OF The. Case. . .§♦ PROCEDURAL Hhtoru ..->

AEaSOn For REYTELO .£

STATEJYIBnT aP Facts ~f° AR&umEnT and AuTh&rittejs %'

PRAYER— -—— £

CERTIFICATE, of SERVICE &

APPENDIX .—^ „^^,, ~ n OPlNlon of The IIth Court of APPEALS 19,

»1

If
Index oP Authorities

Cases

ALaotf v. State.* SI S.V. 3o[396o£99CTx. Cr. /)pp 1D61) (o

Barlot \f. States 731 £,U £W 313»fT5o Crv App /7<?7')_ ,6

nhl^V. SI***.. h>3 S.u)44*M*2Wr*.ar. kpp 100%) G Gonzales V, £-fa,+e,3l3 S>tx},3d 8ffl.(lX. Crv App 0.0/0 J L montaucK V.SMe* 2.9/ S.U)4o\ H0& <pykrx,&,AppJL0O<i) .£

Moore? V. State.. 999 S.U).2A 385.CT)C.Cr.App* WW) 4 mom* V.State. 301 S,aJ*3d m*CTX<Ct>>App> XOOl) L

Statutes

Tx.CC. P. Ant. MBo 003 Ca) . 6

TyC.CC.P. Art* H4 6* 00+ Ca) •£

tx. c»CiP. Art. W>&, OOt Lb) * &

TKcC* C.P* Arte &C&* 00± CO &

tx. C*£<P*Art* *+£>&< 006 Ca) : «6

7X.C.C. A Art. ¥*B. OVj Cl\ 2 £
Statement Regarding

Oral Argument

Oral argument fs not requested* This is a simple,

and clear Issue*

H*
Sta te. m ent ofthe, ease, and

Procedural Hfetori/

On December '7. OlDIQ ouppeAlart loos aharqed tolfh Ati-empted Capthxf murder (Four daunts)' AfhzjnphzdL mut*de.r and QQgrz Vate-d assault on /Oecj?m£>e.r l£(l£>i±. AppeJlcxnt loosl Cund

Ciuiltu ku a jury and SBn'h.naed t£> dan Currant life se-nl&ndes

tlhA k(*A &n iK* JSarne. datu* M&p'cJS. of /Qppeal LOOS ttled on

DeAe.mLer 2D/1 • II da^* npjDe.\\ate, dourt afetrsnedl t'n a unpub

lished eptnf&n martih 16«MI5*
Reason for Rev feu*

The. court oP Appeals hoc£ dee/ed an Important tyuestton'on

of LaajB ;V» a ujatf ujhlen aer\P\\ats u&ifh the. AppltcTale. ruMngS

of The Court of criminal appeals.

0.
Statement of Facts

Throuah The. course of Preliminary hearings and

trial. TheTteSue of appellants Competency ojos ratsed h^

motion and saoqested lay observed behavior. Set e.g.-

1RP lOi CHll-lXi 3M 3-6; 6Rr?6>7i 6RR76i 6 SIR 90-91'.

7tftf 118: 8fW7S~B9: Bfttf 797/ SftR 1011 8ftR Z39'. 8RRZ53*

O aO tft .1 KLL-rtKK a Q 0 O 1 <Q~ 0 C I » 8RI9 'Xm-SLSS*. 8«R "XS9- 16li

5,
Arauir\ejr\l' av\d Authorities

The trial Court toas preSent&A u>lth rhul+fple. S!ouraaS £>f some ev/cJ~

ZncLt. Zuaqesti'/ia ihat appellant macf ZiawL be-esi mCteMp&tanitosieitid trial. The motion &f trial Ooun^e.1. Trial Courts oaseLrvaHoAS and

Multiple bofrnesses provideA the. trial (Lvurt ix>\th ample avtdence, tn raise a kona fide d&ukt and trial Court had an oloh'qaTio* to

Conduat an ilnq,tiiru* The. a&urt &P appeals ought to have reversed and remanded

based an th* Court of criminal appeals prior ruling in'.

Aleatt v. State., £i£.L>, 3d Ete.594. tTx.Cr. App.JLffO\ 3

Barber v. S>t»fe.» 737S,uJt U 813 Cfx, cr. ApP. mi} Collier V, State, qsi S.U, M Ul. 6ZS* Clx, cr. App. IW\ fuller V. Stat*. 1*3 S<U)* 3d IZO'218, Cr*. cr, App. 100SJ

Zonules V. State* 2teS<U)t3d 2H6. LT2. dr. App* 1OI0J rn£>*toua v. stnti, 2Ql£sid. 3d mo< fibers. ar,Ap>pXQ&cC> morri? Vc Statu* 30I S.LJ. 3d 7&\,CTx. Cr. ApP* Z.OOQ)

find TX, C.C.P. Art, U£> fb. DQ3 Ca)

Tic, CL.tL,P. Art* WB*.oc>H Coj

Tk, a,C,P* Art H&>6.0oH Lb)

TV. C.CP.Art m**0OH- CCJ

Tyc. (L,t,P* Art. UL ih *60S COJ

TX, CCP, Art, ¥t>&<DlM cn

TV. a,C.P.A*h 4*6v01»f , ftp . , ,/3 j.«>i«„ Uhfch toaeftxer maKe it plain that the appelant Court Rulma

FlieS in the faze of established ana* sttft^d LaaJ,

G.
Prater

LJhtrefore, Premises considered. Petitioner Victor P*L)hite>

Pro Se. Arays The. Court of Criminal Appeals ujill reverse the Judqemesrt oF The Court of Appeals cxnd remand uJfth instr

uctions to remand appellant for ex Ateu> Trial* Appellant Furthi

er reauests al\ other reltef this Court can afford him.

Respectfully

Submitt&d

7,

Unite*

Pro vSe Petfhbn LT
Certificate, of Serviae

L hereby CatfFqlhata true an<Jl Correal dopcf ofthis

Petition LUaS Scrve.ck &r, the State Sl/ mailing Same, m

US* malU Postage, paid 7© f

OnThe I2> Day ofJu)qlOI6

Victor A. Ldhi-tz

Pro £e9,
APPENDIX

9.
Opinion filed March 26, 2015

In The

eicDcntb Court of Steals

Nos. 11-13-00094-CR, 11-13-00095-CR,

11-13-00096-CR, & 11-13-00097-CR

VICTOR WHITE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 358th District Court

Ector County, Texas

Trial Court Cause Nos. D-38,103, D-38,104, D-38,105, & D-38,106

MEMORANDUM OPINION

These four appeals arise from four trial court proceedings tried together in a

single trial. Victor White appeals his multiple convictions for attempted capital

murder, attempted murder, and aggravated assault. In Trial Court Cause No. D38,103 (our Cause No. 11-13-00094-CR), the jury convicted Appellant of the

attempted capital murder of Richard Tijerina, a peace officer acting in the lawful

discharge of an official duty. In Trial Court Cause No. D-38,104 (our Cause No.

11-13-00095-CR), the jury convicted Appellant ofthe attempted capital murder of
Steven McNeill, a peace officer acting in the lawful discharge of an official duty.

In Trial Court Cause No. D-38,105 (our Cause No. 11-13-00096-CR), the jury

convicted Appellant of three offenses: attempted capital murder of more than one

person during the same criminal transaction, namely, Lucas Bedrick and Billy

Stevens; attempted murder of Lucas Bedrick; and aggravated assault of Lucas

Bedrick. In Trial Court Cause No. D-38,106 (our Cause No. 11-13-00097-CR), the

jury convicted Appellant of the attempted capital murder of Don Billingsley, a

peace officer acting in the lawful discharge of an official duty. The jury assessed

Appellant's punishment at confinement in the Institutional Division of the Texas

Department of Criminal Justice for life for each of the four attempted capital

murder convictions, for twenty years for the attempted murder conviction, and for

twenty years for the aggravated assault conviction, with all of the sentences to be

served concurrently. The jury also assessed a $10,000 fine for each of the six

convictions.

In his sole issue in all four appeals, Appellant argues that the trial court erred

when it failed to sua sponte conduct an informal inquiry into Appellant's

competency. He contends that the evidence before the trial court raised a bona fide

doubt as to his competency to stand trial. We affirm.

Background Facts

Appellant does not challenge the sufficiency of the evidence to support his

conviction. Accordingly, we will limit our discussion ofthe evidence presented at

trial.

The underlying proceedings arise from an armed standoff between Appellant

and several law enforcement agencies that resulted in Appellant shooting several

peace officers. Lucas Bedrick and Billy Stevens, landmen for Whiting Oil and Gas

Corporation, testified that Appellant left notes on the well alleging that his water

was being contaminated by the oil and gas production on his property. Bedrick

2
and Stevens testified that Appellant also left a sign stating, "to all involved with

well company rep won't drink my water" and "s[t]ay out." Upon seeing this sign,

Bedrick and Stevens left Appellant's property to consult with the company's

lawyer.

The next day, Bedrick and Stevens returned to Appellant's property. Deputy

Richard Tijerina of the Ector County Sheriffs Department met them there.

Deputy Tijerina drove onto Appellant's property, and Bedrick and Stevens

followed. Deputy Tijerina parked his patrol vehicle and walked toward

Appellant's residence. After engaging in conversation with Appellant, Deputy

Tijerina turned to Bedrick and Stevens to talk to them. Appellant then fired at

Deputy Tijerina. Deputy Tijerina was shot in his shoulder and then in the ankle

while running away from Appellant's residence. Deputy Tijerina was also shot in

the hamstring. Appellant continued to fire shots at Deputy Tijerina, Bedrick, and

Stevens as they ran away. Stevens was picked up on the highway by a passing

truck. He had blood running down his arm from when he fell several times while

running away. Bedrick and Deputy Tijerina took cover behind a storage shed.

Bedrick was shot in the leg while he was standing there.

Deputy Steven McNeill ofthe Ector County Sheriffs Department responded

to Appellant's property after he learned that Deputy Tijerina had been shot.

Deputy McNeill entered Appellant's property and heard gunfire from what he

believed to be a rifle. Deputy McNeill then lay flat on the ground to avoid the

gunfire. He heard a gunshot fired toward him. The bullet hit the ground in front of

Deputy McNeill and then hit him in the head. Deputy McNeill was picked up by

armored car and transported to the hospital.

Corporal Don Billingsley of the Lubbock Police Department was deployed

to the scene in an armored personnel carrier. His team drove to the back of the

compound where he exited the back of the vehicle in an attempt to ready his

3
weapon. Billingsley heard "the rounds coming." He reentered the carrier and

looked out the bullet-resistant glass to determine where the bullets were coming

from. One bullet penetrated the carrier and struck Billingsley on his head after

ricocheting off the armored personnel carrier. Billingsley's fellow officers were

able to stop the bleeding.

The standoff between Appellant and authorities lasted almost twenty-four

hours. Eventually, one of the armored personnel carriers was able to fire

nonflammable tear gas canisters into Appellant's residence. Appellant attempted

to deploy an incendiary device toward the officers in front of his residence. When

Appellant ignited the device, it caused his house to catch on fire. Appellant then

exited the residence and surrendered.

On March 30, 2011, Appellant's first trial counsel, David Zavoda, filed a

motion to have Appellant examined by a psychiatrist. The motion alleged that

"[information has come to the attention of said attorney, which raises the question

of whether the Defendant is mentally competent to stand trial at this time." The

trial court held a hearing on the motion on April 1, 2011. Zavoda argued that he

"would just feel comfortable if we have a psychiatric examination as to

competency only at this point in time." Zavoda expected "it to come back that

[Appellant] is competent, but just for the record, I would feel more comfortable if

we have an examination done at this time well prior to trial." The following

exchange then took place:

THE COURT: And your opinion is your client is requesting

this?

[APPELLANT]: No, I am not.

THE COURT: Okay.

[PROSECUTOR]: Your Honor, the State does not formally

agree to the motion. I understand Mr. Zavoda's reasons. We will just

leave it up to the Court's discretion under Article [46B.004].
[APPELLANT]: Judge, may I ask a question?

THE COURT: You may.

[APPELLANT]: Who wanted this competency hearing?

MR. ZAVODA: I moved for it.

[APPELLANT]: Mr. Zavoda, with our conversation, I don't

think I want you as an attorney anymore and I ask —

THE COURT: [Appellant], Mr. Zavoda is your attorney. You

can say whatever you want to about it in the record but he is your

attorney and that's that. Anything else?

[APPELLANT]: SirMR. ZAVODA: We have nothing further ~ I have nothing

further.

[APPELLANT]: I don't think he is in my best favor.

THE COURT: Anything else?

MR. ZAVODA: Not from defense counsel, Your Honor.

THE COURT: For the time being, I am going to deny the

motion.

Throughout the underlying proceedings, Appellant had disagreements with

his appointed attorneys. During a hearing on pretrial motions, Appellant

announced to the trial court, "I would like to file as a defense case Otis McDonald

versus Chicago in my defense."1 He also informed the trial court that he "would

also like to file the Supreme Court rules in the Federal police powers." Appellant

undertook both these acts against the advice of Zavoda. In response, the trial court

reminded Appellant that Zavoda was his attorney, and it asked Zavoda to continue

inthat capacity.2

'SeeMcDonald v. City ofChicago, 561 U.S. 742 (2010).

2At some point in the proceedings, Zavoda wasreplaced by other appointed counsel. The record

does not reflect the reasons for the substitution of counsel.
At trial, Appellant made sidebar comments during other witnesses'

testimony. Appellant indicated that he wanted to represent himself and said, "I am

not getting the Sixth Amendment right of protected legal counsel." The trial court

responded that Appellant's counsel "has a very difficult situation there oftrying to

listen to the witness, trying to get ready to cross examine the witness, because you

won't be quiet. You talk and talk and talk. I hear you. You know, you are

interrupting everything. But once again, I strongly advise you not to do this."

Appellant responded by saying, "I would rather hang myself than a lawyer that is

not going to do the job." After discussions between Appellant and the trial court,

Appellant signed a waiver of counsel, but signed it "all rights reserved." The trial

court said this was not acceptable and refused to accept it, and Appellant

responded: "Well, I think I am being violated and I think I have to be forced to

follow Federal Rules of Civil Procedure and charge you with collusion of

obstruction of justice and accessory after the facts and that is all I need to say to

you." The trial court rejected the waiver, and the trial continued with counsel.

Appellant also testified on his behalf after being admonished by his counsel.

Analysis

The conviction of an accused person while he is legally incompetent to stand

trial violates due process. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim.

App. 2003); Iniquez v. State, 374 S.W.3d 611, 614 (Tex. App.—Austin 2012, no

pet.). "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." Tex. Code Crim. Proc. Ann. art. 46B.003(b) (West 2006). A person

can be considered incompetent if (1) they do not have sufficient present ability to

consult with their lawyer with a reasonable degree of understanding or (2) they do

not have a rational and factual understanding of the proceedings. Id.

art. 46B.003(a).

6
The procedure by which a trial court determines competency is set out in

Chapter 46B ofthe Texas Code of Criminal Procedure. Id. ch. 46B (West 2006 &

Supp. 2014). "This determination involves a two-step process: first, an informal

'competency inquiry'; and second, if applicable, a mandatory 'competency

examination' and formal 'competency hearing.'" Iniquez, 374 S.W.3d at 615. In

the first step, the trial court conducts an informal inquiry, known as a competency

inquiry, to determine whether there is some evidence from any source that would

support a finding that the defendant may be incompetent to stand trial. Id. If the

trial court determines that such evidence exists, the court proceeds to the second

step, at which time the court must order a psychological examination to determine

whether the defendant is competent to stand trial. Id. In addition, the court

generally must conduct a formal trial, known as a "competency hearing," in which

a factfinder determines "whether the defendant is incompetent to stand trial on the

merits." Id.

These appeals concern the initial competency inquiry by the trial court. A

competency inquiry is required if evidence raising a bona fide doubt as to the

defendant's competence to stand trial comes to the trial court's attention.3 See

Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008); Kostura v. State, 292

S.W.3d 744, 746-47 (Tex. App.—Houston [14th Dist] 2009, no pet.). A bona fide

doubt is a real doubt in the judge's mind as to the competency of the defendant.

Alcott v. State, 51 S.W.3d 596, 599 n.10 (Tex. Crim. App. 2001). Evidence that

raises a bona fide doubt need not be sufficient to support a finding of incompetence

3In Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009), the Court of Criminal

Appeals held that evidence that a "suggestion" of incompetency sufficient to trigger an informal inquiry

was the same as the bona fide doubt standard from the previous statutory regime. As subsequently noted

by the court in Turner v. State, 422 S.W.3d 676, 691-92 (Tex. Crim, App. 2013), the legislature

subsequently rejected the bona fide doubt standard for purposes of Article 46B.004. However, that

amendment did not become effective until September 1, 2011, several months after Appellant's pretrial

motion for examination. See Act of May 24, 2011, 82d Leg., ch. 822, §§ 2, 21(b), 2011 Tex. Gen. Laws

1894, 1895, 1901 (effective Sept. 1, 2011) (adding subsection (c-1) to Article 46B.004).
and is qualitatively different from such evidence. Id. Evidence is usually sufficient

to create a bona fide doubt if it shows "recent severe mental illness, at least

moderate retardation, or truly bizarre acts by the defendant." McDaniel, 98

S.W.3dat710.

We review the trial court's determination about whether a bona fide doubt

exists for an abuse of discretion. Montoya, 291 S.W.3d at 425. Because the trial

court is able to observe the behavior of a defendant in person, it is "in a better

position to determine whether [the defendant is] presently competent." Id. at 426.

Therefore, we do not substitute our judgment for that ofthe trial court, and we will

only reverse the trial court ifits decision was arbitrary or unreasonable. Id.

Appellant contends that the following matters raised a bona fide doubt about

his competency: Zavoda's motion to have him examined by a psychiatrist, his

inability to consult with trial counsel, the testimony from State's witnesses, and his

own testimony. We disagree. As noted previously, the trial court conducted a

pretrial hearing on Zavoda's motion to determine whether Appellant should be

examined by a psychiatrist. Zavoda gave no basis for the examination beyond

merely stating that he "would just feel comfortable if we have a psychiatric

examination as to competency only at this point in time." The motion itself merely

states that "[information has come to the attention of said attorney, which raises

the question of whether the Defendant is mentally competent to stand trial at this

time." Furthermore, Zavoda informed the court at the hearing that he "would

expect it to come back that [Appellant] is competent." "The appellant's assertion

of incompetency, unsupported by facts or evidence, is not sufficient, by itself, to

show the trial court erred in failing to sua sponte order him evaluated to determine

his mental[] competency." Fuller, 253 S.W.3d at 229.

We conclude that the trial court essentially conducted an informal

competency inquiry by considering Zavoda's motion to have Appellant examined

8
by a psychiatrist. In conducting the hearing, the trial court observed Appellant's

behavior and interaction with both the court and Zavoda. Appellant interjected that

he did not want a competency examination. Appellant further expressed his

displeasure with Zavoda for filing the motion and asked for a different attorney.

Based on our review ofthe record, the trial court could have reasonably found that

there was no evidence raising a bona fide doubt regarding Appellant's ability to

consult with his attorneys with a reasonable degree of rational understanding or as

to his rational, as well as factual, understanding of the proceedings against him.

See id. at 228.

Appellant additionally contends that his difficulties with appointed counsel

also served as a basis for the trial court to inquire into his competency to stand

trial. However, the isolated fact that Appellant refused to cooperate with his trial

counsel is not evidence of incompetency to stand trial. See Turner, 422 S.W.3d at

691; Reed v. State, 112 S.W.3d 706, 710 (Tex. App.—Houston [14th Dist] 2003,

pet. refd) ("It is not enough for counsel to allege unspecified difficulties in

communicating with the defendant."). Further, the testimony of other witnesses

and his own testimony regarding the events surrounding the standoff and the

history leading up to it concerned events occurring more than two years prior to

trial. They did not address Appellant's present ability as measured at the time of

trial. See Montoya, 291 S.W.3d at 425 (noting that the statutory definition of

incompetency specifies the defendant's present ability).

We find nothing in the record suggesting the trial court abused its discretion

in not ordering a competency hearing. As set out above, the record does not

contain any evidence creating a bona fide doubt in the form ofrecent severe mental

illness, at least moderate retardation, or truly bizarre acts by Appellant at the time

of trial. See McDaniel, 98 S.W.3d at 710; Kostura, 292 S.W.3d at 746-47.

Furthermore, Appellant expressly stated that he did not want to be evaluated for

9
competency when Zavoda filed a motion requesting an evaluation. Additionally,

Appellant's statements and testimony showed that he had sufficient present ability

to consult with his attorney with a reasonable degree of rational understanding and

that he had a rational as well as factual understanding of the proceedings against

him. See Crim. Proc. art. 46B.003(a). In this regard, the record reflects that

Appellant had the capacity during the proceedings to disclose to counsel and the

trial court pertinent facts, events, and states of mind and that he understood the

adversarial nature of the proceedings. We overrule Appellant's sole issue in each

appeal.

This Court's Ruling

We affirm the judgments ofthe trial court.

JOHN M. BAILEY

JUSTICE

March 26, 2015

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

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