By Erin Lands
Assistant District Attorney in Hutchinson County
“It shall be the primary duty of all prosecuting attorneys … not to convict, but to see that justice is done.” I was reminded of this obligation during an unusual situation I was recently in: arguing to a jury that a defendant was incompetent … while defense counsel maintained that her client was competent—pursuant to the defendant’s wishes. Every other contested competency issue I’ve ever been a part of, heard of, or read caselaw about was a defendant arguing incompetency and the State maintaining the defendant is competent.
Raising the issue of competency
The State, the court, or counsel for the defendant can suggest a defendant may be incompetent to stand trial. This motion can be supported by affidavits, and the judge will typically conduct an informal inquiry to determine whether there is evidence of incompetency. The inquiry is a low bar, and it does not allow for rebuttal with evidence of competency.
In my jurisdiction, the court allows the moving party to announce its own supporting facts and to call a witness to explain where the incompetency concerns are stemming from. (I have been in a situation, for instance, where the defendant was lying about being incompetent, and calling a witness is a great way to commit a defense witness to his or her reasons for believing the defendant to be incompetent. But that’s another story.)
In this particular case, the defendant was charged with aggravated assault with a deadly weapon after threatening grocery store shoppers with a knife. Both the State and defense counsel agreed to an order of examination of the mental condition of the defendant. The order did not state who initially raised the issue of incompetency, and we did not put any supporting facts on the record, both of which I would later regret. These omissions came back to haunt me in the jury trial.
The expert’s opinion
The Texas Code of Criminal Procedure outlines the qualifications for both the examiner and the examiner’s report. Included in the report should be the expert’s clinical observations and specific criteria supporting the observations.
We use the same expert for all of our examinations, so I know what to expect. Fortunately, he records the examination and essentially transcribes verbatim a defendant’s responses to his questions. This transcription comes in handy during a jury trial, but if your evaluator does not transcribe his examinations, look for expert notations about a defendant’s appearance and demeanor and any responses not appropriate to the questions.
In our case, the transcription served me well. The defendant spoke of his longtime drug use, medical history, previous stays in mental health facilities, recent time-travel trips to and from the year 2035, and his dealings with Lucifer. Ultimately, the expert concluded that this defendant was incompetent. While the defendant did have some understanding about the charges against him, his understanding of reality and the facts surrounding the charges made him unable to effectively communicate with his attorney.
So, both the State and defense should be able to agree the defendant was incompetent, right? Wrong.
A backward jury trial
It may be tempting, when defense counsel approaches and suggests, “Hey, I think my guy is incompetent, but he won’t let me agree to an incompetency finding,” to say “Cool! Tee up the criminal charge and let’s try it on the merits!”
Don’t do it.
Our defense attorney believed she had to honor the defendant’s wishes that he proceed as a competent person even though she did not believe he was competent to stand trial. I’m not here as the guru in all things ethical, but there is some guidance on this subject in the Texas Disciplinary Rules of Professional Conduct. I will concede defense counsel is obligated to zealously represent a client, but Rule 1.02 states a lawyer must seek “other protective orders” with respect to a client whom the lawyer reasonably believes lacks legal competence.
Even more compelling, a defendant has a right to stand trial as a competent person. This right cannot be waived. The United States Supreme Court has stated, “It is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently waive his right to have the trial court determine his capacity to stand trial.” The criminal trial of an incompetent defendant violates due process. Therefore, under our obligation to see that justice is done, prosecutors cannot and should not proceed to trial or with a guilty plea in a situation where we believe a defendant to be incompetent.
Cue the backwards jury trial. That’s where I the prosecutor argued, on the defendant’s behalf, that he is incompetent, and that a fair trial mandates he be restored to competency before proceeding on his criminal charges.
The burden of proof—to prove the defendant incompetent—again fell on me. A defendant is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence. The relevant time-frame for determining a person’s competency is at the time of the proceedings rather than the time of the offense. In voir dire, I went over and over with the panelists regarding the lower burden of proof and the competency standard so my jurors knew that a competent defendant would have: 1) the present ability to consult with his lawyer with a reasonable degree of understanding, plus 2) a rational as well as factual understanding of the proceedings against him.
In the hearing, I called two witnesses. The first, of course, was the expert who performed the evaluation. That’s the easy witness, given he had found the defendant to be incompetent. My second witness was the defendant’s attorney. I anticipated calling her as a witness prior to trial, and an attorney was appointed to the defendant (or to the defense attorney?) for the period of time defense counsel was on the stand.
Can a prosecutor call defense counsel to testify like this? I don’t know—but I did, and I based my argument on the fact that competency trials are civil in nature. I limited my questioning of defense counsel to personal observations and opinions. Generally, personal observations are not privileged. Plus, the limited caselaw on this matter supports the conclusion that an attorney may testify at a competency hearing without violating the attorney-client privilege. The purpose of the attorney-client privilege is to promote unrestrained communication between an attorney and client in all matters in which the attorney’s professional advice is sought, and an attorney’s testimony does not violate privilege where no communications between counsel and defendant have been revealed.
With that in mind, I questioned defense counsel on her opinion of whether her client was competent to stand trial. I asked her if she disagreed with the examiner’s assessment and opinion. She didn’t. I questioned her about unusual behaviors she had witnessed in her client, who wore a ski bib to his trial, and she stated she had seen none. She would not—and said she could not—give an opinion one way or the other regarding his competency.
Because the defense attorney was noncommittal on the stand regarding her opinion about her client’s competency, I regretted not putting in the record at the initial inquiry where she stood on her client’s competency. Had I committed to the order for a competency examination that she raised the issue of his incompetency, I could have confronted her on that. In hindsight, I should have insisted on putting something on the record during a docket call, something about her basis for requesting the examination, her personal observations, and other factual information. It is easy for a witness to forget side comments such as, “He’s not right,” made in passing six months prior, but that statement could have been key evidence for a juror who was on the fence.
The verdict: incompetent
I am thankful that jurors found the defendant incompetent. Had they not, a likely incompetent man would have proceeded to his criminal trial and may not have allowed his attorney to raise the insanity defense, which I believe would be his strongest argument. As he was taken into custody to await transport to the state hospital, his comment to the judge was, “I may be incompetent, but I’m not crazy.”
The defense attorney filed notice of appeal, but neither party is entitled to make an interlocutory appeal after a verdict on competency. If the jury’s verdict had been that the defendant was competent, I believe my obligation would have been to raise a variety of issues on appeal after a finding of guilt at his criminal trial. Fortunately, the defendant was gifted 12 jurors who agreed with the fundamental fairness in the right to stand trial as a competent person.
A prosecutor’s obligation is to see that justice is done. I understood what this duty meant better than ever before on the day I argued a defendant’s incompetency against his counsel’s wishes.
 Tex. Code Crim. Proc. Art. 2.01.
 Tex. Code Crim. Proc. Art. 46B.004(a).
 Tex. Code Crim. Proc. Art. 46B.004(c), (c-1).
 Tex. Code Crim. Proc. Art. 46B.021-46B.026. My good friend, Ashley Davis from the Lubbock County Criminal District Attorney’s Office, outlined the requirements of the competency report in her article “How to evaluate a competency report,” TheTexas Prosecutor, Vol. 48, No. 4 (July–August 2018). She was also a sounding board for this jury trial.
 Tex. Code Crim. Proc. Art. 46B.025.
 Tex. Disc. R. Prof. Cond. 1.01 Comment 6.
 Tex. Disc. R. Prof. Cond. 1.02.
 Pate v. Robinson, 383 U.S. 375, 378 (1966).
 Pate, 383 U.S. at 384.
 Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (citing Medina v. California, 505 U.S. 437, 453 (1992)).
 Tex. Code Crim. Proc. Art. 46B.003(b).
 Lasiter v. State, 283 S.W.3d 909, 925 (Tex. App.—Beaumont 2009, pet. ref’d).
 Tex. Code Crim. Proc. Art. 46B.003(a).
 Morales v. State, 830 S.W.2d 139, 140 (Tex. Crim. App. 1992); Our belief is that all the rules apply, for example 6 peremptory strikes, but the verdict must be unanimous.
 See Kay v. State, 340 S.W.3d 470, 474-75 (Tex. App.—Texarkana 2011, no pet.); Manning v. State, 766 S.W.2d 551, 556 (Tex. App.—Dallas 1989, no pet.).
 Manning, 766 S.W.2d at 556.
 Cruz v. State, 586 S.W.2d 861, 865 (Tex. Crim. App. 1979).
 Church v. State, 552 S.W.2d 138, 142 (Tex. Crim. App. 1977).
 Tex. Code Crim. Proc. Art. 46B.011.