Texas Prosecutor, January-February 2019

The nuts and bolts of competency

All prosecutors have encountered an obstacle to a legal goal, looked at that obstacle, scratched their heads (maybe even cried), and thought, “What am I going to do?” In the world of prosecution there are countless hearings, motions, and legal rules that could prove useful at a moment’s notice. It is our job to be ready for those moments.
    One morning in the fall of 2015, I was on my way to a motion to suppress when I received a text message from my division chief: “Call me ASAP.” As any other level-headed prosecutor would do, I immediately ran through a long list of possible errors, omissions, and other minor acts of malfeasance that I had committed to warrant such a message. I called my division chief, and before I could even ask how he was, I heard on the other end in an abrupt tone: “Report to the magistrate court and be prepared to try a competency hearing on the capital murder case. This afternoon if need be.”
    This was an important case that involved a defendant accused of brutally gunning down a San Antonio police sergeant, who had stopped in his patrol car at a red light. It had already been over four years since the crime, and the defendant had been tried and convicted of capital murder. However, the day after his conviction, the defense filed a motion alleging the defendant was no longer competent. Following a provision in the law that permits the judge to continue with proceedings, the trial judge went on with the punishment phase.1 Within a week, the jury handed down a death sentence. Now, the only thing that stood between the accused and sentencing was settling the competency issue.
    This article isn’t going to focus on details of the capital murder case. Rather, I hope to use that case as an example of the importance of understanding the law on competency and knowing how to navigate a hearing.

The law on competency
Under Texas law, a person is incompetent and thus unable to stand trial if that person doesn’t have “1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or 2) a rational as well as factual understanding of the proceedings against the person.”2 The law’s goal is to ensure that a criminal defendant is able to confer with and assist his attorney and also have an understanding of what is going on around him in the courtroom. An easy way to remember the distinction between competency and sanity is to think of sanity as pertaining to the accused’s mental state at the time of the offense, whereas competency deals with the accused’s mental state at the present time. The law has also included a presumption of competency for all criminal defendants.3 Any party attempting to challenge this presumption must prove incompetency by a preponderance of the evidence.4 A basic understanding of our legal system and fundamental fairness should make it abundantly clear why we want to ensure that an individual accused of a crime should be competent. What may be less clear, however, is how to handle defense claims of incompetency and the possibility for a subsequent competency hearing.
     The prosecutor, court, or defense attorney may raise the issue of competency.5 The motion should allege that the accused does not have the present ability to confer with counsel or understand the proceedings that are taking place and the specific facts that support the criminal allegation.6 Although both sides have a right to raise the issue, in my experience, the defense is the side that contests competency in the overwhelming number of cases. This is logical seeing as defense counsel will have almost exclusive exposure to the accused and his family and the opportunity to see behavior that leads to a legitimate concern regarding competency. Considering this, presume for purposes of this article that the defense is suggesting incompetency.
    Typically, a motion suggesting incompetency leads to a hearing known as an informal inquiry.7 Although the court is not required to hold this hearing (and thus can order a competency evaluation without it), the hearing can be a useful tool to flesh out legitimate claims from those that are without merit.8 The objective of an informal inquiry is to determine if there is some evidence that the accused may not be competent to stand trial.9 These hearings are designed to give the benefit of the doubt to an accused who is potentially incompetent. As such, the trial court is required to consider only evidence that demon- strates incompetency and is not required to look at contrasting evidence that may demonstrate competency.10 It is also important to note that that the rules of evidence do not apply at informal inquiries.11
    When exactly can the competency matter be brought up in a criminal proceeding? The law is generous in allowing the movant plenty of opportunities to bring up the issue. If it is raised prior to trial, all proceedings must be stayed until competency is determined.12 However, if the issue is raised during trial, the trial court judge does not have to stay the proceedings (as in the capital case mentioned at the beginning of this article). In this situation, the judge has the option of continuing the trial proceedings up until sentencing. While the trial can continue, the defendant cannot be sentenced until he has been deemed competent.

Competency as a delay tactic
Let’s not be naïve: Competency could be used by defense counsel as a delay tactic. In my experience the overwhelming number of defense attorneys would shudder at the thought of employing such a tactic; however, there are always a few individuals out there who may invoke competency in their efforts to zealously represent a client. If a prosecutor believes competency has been raised merely for purposes of delay, make sure to read and re-read the defense’s motion and confirm counsel is actually alleging facts that would entitle the accused to an evaluation. Although competency is a very low threshold, the presence of a certain mental illness, prescribed medication, or injury does not automatically translate into incompetency. Although the standard for the movant at an informal inquiry is not high, the movant still needs to demonstrate some facts that suggest the defendant is not competent.

Competency hearing
If a trial court judge determines that there is some evidence suggesting incompetency, the court must order a competency examination.13 Under Texas law, there are very specific requirements for who can perform these evaluations, and in counties where these proceedings are rare, it is wise to make sure that the appointed psychologist or psychiatrist meets those criteria.14
    If an unmeritorious claim happens to get past the informal inquiry and to a competency hearing, the State must explore the evidence to determine the weakest spots of the defense case. Is its assertion based on a smoke-and-mirrors-type argument where it focuses on conditions that do not necessarily mean one is incompetent? If so, take advantage of the doctor’s examination and emphasize that the alleged affliction is not an automatic indicator of incompetency. Perhaps the accused is a pernicious malingerer and is feigning symptoms? It is more difficult to successfully feign incompetence than the average individual may think. Competency evaluations often include a mental status exam that looks at the accused’s mood, thought process, thought content, and cognition. Additionally, the expert will have access to the accused’s developmental, educational, and medical history. This information is useful to the expert in coming to an accurate conclusion and gives a deeper insight into one’s competency than if the doctor merely inquired about the criminal proceedings. When examining the expert, make sure to discuss any inconsistencies in the accused’s responses to questions. Explore and emphasize any responses that indicate he may be withholding information or exaggerating various symptoms. No matter how good an actor he may be, the expert is trained to identify inconsistent answers and feigned symptoms.

The expert’s report
After receiving the much-anticipated competency evaluation, many of us will immediately flip to the last page to see what the doctor concluded. Just make sure that in your haste to find the expert’s conclusion that you do not skip over some of the valuable information in the report, such as the accused’s developmental history, details on his mental status, and any diagnostic impressions the expert has. Finally, pick up the phone and call the expert with specific questions.

Making a decision
A suggestion of incompetency does not guarantee that the matter will be resolved with a hearing. There will be instances where, after reviewing the competency evaluation, a prosecutor will agree that a defendant is not competent to stand trial. Perhaps an expert’s evaluation reveals previously unknown information, thus making it clearer to the State that the defendant is incompetent.  Furthermore, in hearings where the evidence is limited, a surprise conclusion by an expert that a defendant is not competent can cause any prosecutor to reconsider whether to proceed with a hearing. In most cases the expert will be the most important witness. As such, it is important to keep an open mind and discuss with the expert his or her reasons for reaching the conclusion.   

Voir dire
Take some time to introduce the panel to the concept of competency and how it relates to criminal proceedings. Educate the panel on the presumption of competency and who has the burden to prove incompetency (that is, whichever party raised the issue, usually the defense). Assuming that you are arguing in favor of competency, you want to instill in the panel how strong a force a legal presumption is. Examples can prove invaluable in ensuring the panel, and thus the jury, has a solid understanding of the law. In the past, I have explained a legal presumption as being similar to a ball thrown in the air. We know that, absent an interfering action, a tossed ball will fall to the ground. Much like the natural trajectory of the ball, we must presume that a defendant is competent unless evidence causes us to believe otherwise.
    Temper the panelists’ expectations early and tell them what information they will not have access to due to the limited nature of the proceedings: the offense charged, the offense report, and a copy of the expert’s evaluation, to name a few. Additionally, start training the panel to think of competency as it is defined under the law and not to perceive it as one may in common everyday usage. Distinguishing between competency and sanity can also be useful to emphasize the limited scope of the proceedings. If it’s applicable, introduce the panel to malingering. I have used the scene from Ferris Bueller’s Day Off where the eponymous character feigns symptoms of an illness to demonstrate why someone might seek to exaggerate symptoms.  

The hearing
The side with the burden of proof will be the first to deliver opening statements as well as present its case-in-chief. A compelling opening statement should always refer back to basic concepts that were discussed during jury selection and also discuss what the evidence will show. If you are arguing in favor of competency, use the law to your advantage. I have found it helpful to remind the jury of the limited scope of the hearing. The ability to confer with counsel and understand the pending charges doesn’t require special intellectual abilities. This seems rather intuitive especially when recalling that every defendant is presumed to be competent unless proved otherwise by a preponderance of the evidence.15 
    A practical effect of the burden (usually) lying with the defense is that in simpler hearings, where only one expert is appointed, the defense will call the expert during its case-in-chief. This results in the defense’s direct examination of that expert looking and sounding a lot more like a cross-examination because the defense disagrees with the expert’s conclusion. When it is the State’s chance to question the expert, focus on the expert’s observations and interactions with the accused. The expert’s knowledge of the accused’s past developmental and psycho-social history can be helpful in supporting his conclusion. This information can be a very efficient and basic way for the jury to understand on what the expert, in part, based his decision.
    The prosecution’s case-in-chief offers an opportunity to present any additional evidence that demonstrates competency. Because the defense is likely to call the expert first (and the State isn’t required to), the prosecution can put on other evidence, perhaps showing that the accused is malingering or possesses mental faculties that suggest he is competent. Jail calls can be a great resource to demonstrate to the jury that the accused is exaggerating or even fabricating his illness. I have seen situations where jail calls recorded the accused stating that he is going to pretend to be crazy. Don’t overlook State-friendly witnesses who have been in recent and close contact with the accused, people such as jail guards and treatment providers. These people can be excellent at demonstrating how the accused behaves when the evaluating expert is not around. Furthermore, try to think outside of the box and see if there are coworkers, family members, or friends of the defendant who can testify about his or her normal cognitive abilities, capacity to hold a job, or even ability to function independently. These considerations can help the jury obtain a fuller picture of how the defendant thinks and interacts with others, which can directly relate to one’s competency.
    A successful closing argument should consider three points: the hearing’s limited scope, the presumption of competency, and the evidence. Use this argument as a platform to remind the jury that all it should be concerned with is whether the accused knows what is going on in the courtroom and can assist his attorney—if the jury believes that he can, then he is competent. Similarly, the presumption of competency should play an important role in closing. It is not every day that prosecutors get the benefit of such a weighty legal presumption. Why not remind every juror in that room of that fact and the tremendous weight that it carries?
    Finally, remind the jury that the side contesting competency (usually the defense) needs to bring evidence to prove otherwise. Look back at all the evidence and present it to the jury as part of a greater narrative on why the presumption of competency is right in this case. As in any closing argument, avoid the common pitfalls of regurgitated facts and conclusory statements by piecing the evidence together and using reason to demonstrate why the State’s position is superior. Just because the defense brings a whole laundry list of facts, details, and stories doesn’t make its position correct.
    And in case you are interested in the outcome of the capital case I mentioned above: After four days of testimony, the jury determined that the accused was competent. The competency certification was sent back to the district court where the defendant was formally sentenced to be executed. I believe that the jury reached the right conclusion in the trial on the merits as well as in the competency hearing. Regardless of what the stakes are in your case, it is important to know the law on competency and be confident in your ability to handle a hearing on the matter.


1  See Tex. Code Crim. Proc. Art. 46B.005 (establishing procedures for determining incompetency to stand trial).

2   Tex. Code Crim. Proc. Art. 46B.003.

3   Id.

4  Id.

5   Tex. Code Crim. Proc. Art. 46B.004.

6   Id.

7   Id.

8   Tex. Code Crim. Proc. Art. 46B.021.

9   Tex. Code Crim. Proc. Art. 46B.004.

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

11  See McDaniel v. State, 98 S.W.3d 704, 710-13 (Tex. Crim. App. 2003) (holding that no formal competency hearing is required when the defendant never raises any bona fide doubt as to his competency).

12   Tex. Code Crim. Proc. Art. 46B.005.

13   Tex. Code Crim. Proc. Art. 46B.021.

14   Id.

15  Tex. Code Crim. Proc. Art. 46B.003.