Criminal Law
March-April 2008

“The witness is not competent to testify.”

Terri Tipton Holder

Special Prosecution Unit in Walker County

Floyd L. Jennings, J.D., Ph.D.

Special Prosecution Unit in Walker County

How prosecutors from Angelton’s SPU overcame this clever defense during the agg assault trial of two prison guards who beat a mentally ill inmate.

A bright yellow “wet floor” sign will never look the same again. This piece of janitorial equipment became two guards’ weapon of choice to assault a mentally ill inmate in the Jester IV Unit of the Texas Department of Criminal Justice near Sugar Land. The inmate, whom we’ll call Charlie for the purposes of this article, often retrieved the signs at the behest of two correctional officers, who then used the plastic signs to beat him on the back and buttocks. At times, Charlie was struck with such force that the signs broke.

A nurse observed the activity and reported it. The inmate, however, gave a statement about the assaults only after being assured of his safety. The correctional officers, both veterans of the TDCJ system, denied any wrongdoing. As the investigation proceeded however, one other correctional officer admitted that she had also witnessed the officers engaging in the sport of beating Charlie with signs.

A Fort Bend County grand jury returned an indictment for injury to a disabled person (because of the victim’s mental illness). Separate trial dates were set for defendants Kevin Brown and Anthony Monroe.

In preparing for the first trial, the State dealt with the usual litany of pretrial form motions from the defense, but prosecutors also immersed themselves in the world of the mentally ill inmate incarcerated in TDCJ. Medical records, inmate transfers, and interviews with other mentally ill inmates who were potential witnesses made for interesting trial preparation. But the day before jury selection, an issue was raised that the prosecution had not previously encountered outside of dealing with child witnesses.

While reurging a motion to dismiss the indictment, the defense raised the issue of whether the mentally disabled victim was even competent to testify. The issue was not pertinent to the motion before the court, but it did catch the court’s attention as one that could potentially delay the proceedings. The State had witnesses regarding the victim’s mental status at the time of the incident, but no one who had done any recent testing of his mental state. After reviewing Rule 601 of the Texas Rules of Evidence, the judge said he would have a hearing on the issue the following day after jury selection. He further indicated that he wanted to hear from a doctor who had recently examined the victim. To avoid delay and to ensure a clear appellate record, the State managed to find an expert who could examine the victim and testify the following day: Floyd L. Jennings, a psychologist and attorney.

Charlie had a long psychiatric history, including much self-mutilation that had left severe scarring on his arms. He had been admitted many times to psychiatric units and was more than a bit wary of talking with anyone about the matter. He nonetheless was quite cooperative with Dr. Jennings.

The examination consisted of a one-hour clinical interview, plus a review of the offense report and Charlie’s medical record. (Medical staff of UTMB Correctional Managed Care readily made the complainant’s medical record available on presentation of the court’s order.) In addition, a portion of the complainant’s disciplinary history within TDCJ was made available.

Psycho-legal issues

The court ordered the complaining witness to be examined “to determine his sanity and competency to testify” in the trial of guard Kevin Brown. No definition of sanity was provided in the court order, but regarding competency to testify, the court indicated that “a person is incompetent to testify if he does not have sufficient present ability to understand the difference between telling the truth and telling a lie and the consequences of telling a lie under oath.”

The issue to be determined was inherently confusing for several reasons, one of which was that the term “competency” was most commonly utilized in Code of Criminal Procedure Chapter 46B regarding a defendant’s competency to stand trial. In few other locations was there reference to witness competency. Moreover, the defense’s use of “sanity” in this context was confusing because sanity as a legal term appears only in Rule 601 (discussing “insane persons”) and in Penal Code §8.01 with regard to an affirmative defense. In this case, the subject of the examination (Charlie) was not charged with a crime so the meaning of “sane” had to be addressed with regard to whether he could testify.

As to “competency,” our difficulty was to differentiate the various ways in which the term was used and what it meant regarding witness testimony.

Examination of the complainant

Charlie is a 36-year-old Hispanic man who was then confined in the Texas Department of Criminal Justice, Darrington Unit. He had served some 16 years flat time on a 20-year sentence (15 years for burglary of a habitation and five years for an inmate assault). He was of average build and had short, unkempt hair and a goatee.

His father and grandmother were reported to have had a serious mental illness, possibly schizophrenia. Though he lived mostly on the streets of El Paso, he attended school until the sixth grade but had many behavioral problems; he also began use of many street drugs: marijuana, methamphetamine, cocaine, opiates, peyote, and inhalants. By 13 he was hospitalized psychiatrically and had begun cutting himself, for which he has been hospitalized 30 to 40 times in subsequent years.

As a youth, he was placed in six different TYC units or programs. According to his report and his records, behaviors included truancy, suspension, fighting, cruelty to animals, and self-mutilation. He has had four formal psychiatric hospitalizations. While in TDCJ he picked up well over 100 separate disciplinary cases, most involving self-mutilation but also assaults (generally throwing feces or urine).

The witness had been diagnosed as exhibiting a schizoaffective disorder, as well as an impulse control disorder and/or borderline personality disorder. Though he had received many psychiatric preparations, he was receiving haloperidol decanoate (an injectable antipsychotic) every two weeks as well as carbamazepine (Tegretol) at the time of the interview. The Tegretol was used as an antispasmodic (Charlie had a history of seizures) and mood stabilizer and to control rage outbursts.

Although his reading level is at the third-grade level, his estimated I.Q. was tested at 114, which, if correct, would place him ahead of most TDCJ offenders. He had the ability to learn but due to his behavioral and emotional problems, he did not learn well and consequently, did not read for pleasure.

The mental status examination was essentially benign and without evidence of gross disorganization or disturbed thinking. However, Charlie reported that in the past he had experienced hallucinations of the command type, i.e., telling him to cut on himself. He could experience these feelings abruptly and with no obvious precipitating events, though in retrospect one can discern at least one potential cause for his anxiety. At various times he had been suicidal and paranoid, but more residual elements were present in this examination.

Incidentally, when Charlie was tried for the crimes that landed him in prison, his competency was not questioned. His self-destructiveness did not reach the level, at that time, as it had after his years in TDCJ.

Witness competency

The rule concerning witness testimony is Tex.R.Evid. 601, which states in part that every person is competent to be a witness; exceptions (that is, those who are incompetent to be a witness) include “insane persons,” who are defined as “in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify.”

While most of the caselaw applying this rule deals with the competency of a child witness, it sets the parameters within which the rule has been applied. The courts have ruled that Rule 601 creates a presumption that a person is competent to testify.1 Courts have further held that the party objecting to a witness’s competency has the burden of proving incompetency.2

However, the meaning of the term “insane person” is not self-evident. It is an arcane term, not used in the Probate Code or the Mental Health Code. Nor is the term commonly used in psychiatry or psychology, as it is not part of common diagnostic vernacular. Its meaning is more discernible in caselaw: Freeman v. Am. Motorists Ins. Co.3 states, “Generally, persons of unsound mind and insane persons are synonymous.  4The term “unsound mind” refers to a legal disability, although it is not limited to persons who are adjudicated incompetent.”5

It is reasonable to argue, then, given the presumption of competency, that all witnesses are of sound mind, i.e. not “insane” unless found so by a court, and even then, the incapacity is narrowly related to the issue before the court. Dr. Jennings took this position with Charlie in the case against guard Kevin Brown.

The standard for witness competency is discussed more specifically in Watson v. State,6 where the court stated that witness competency has three components, plus an additional one that is presumed: perception, recollection, communication/narration, and truthfulness.

Perception refers to whether the witness had the ability to intelligently observe the events in question at the time of their occurrence. Recollection refers to whether the witness has sufficient present capacity to recall those events accurately. Communication/narration refers to whether the witness has the capacity to communicate, either through narration or other means, his recollections, and truthfulness means whether the witness understands the meaning of the oath and truth-telling. Note, however, that the “truthfulness” component goes to credibility if it goes beyond the mere awareness of a moral obligation to give truthful testimony.

The standard for review of competency decisions is abuse of discretion.7 Consequently, the court has great latitude as well as a significant burden in deciding whether a witness may testify.

Mental illness

The presumption of witness competence is not defeated by mental illness.8 Even the Mental Health Code presumes that persons subject to court-ordered mental health services (civil commitment) are not incapacitated, that such civilly committed patients may contract, marry, or vote, even if they have been found to require court-ordered mental health services because of 1) mental illness, 2) posing a likely danger to himself or others as a result of that illness, or 3) inability to provide for basic needs.9 Persons subject to mental health proceedings have the right to give testimony in their own defense.

Similarly, a determination of incapacity (i.e., guardianship established by a probate court) does not by itself defeat a witness’s competency to testify.10 Rather, the fact that a guardianship has been established shifts the burden on the person proposing that the witness testify to establish his/her competency.11

Pretrial hearing

At the pretrial hearing, Dr. Jennings testified as to his legal research regarding the determination of sanity as it reflected the witness’ competency to testify. The State further asked the doctor to apply the factors of witness competency (perception, recollection, communication/narration, and truthfulness) to Charlie.

Perception. Charlie told of several occasions when he had been subject to physical abuse by the defendant, Kevin Brown. He stated that he was fearful of registering any complaint because the assailants were correctional officers. The State contended that it was not relevant whether his mental illness made him reluctant to object to the attacks. It is clear that he knew that officers should not treat him as they reportedly did, i.e., that the act(s) were wrongful.

Recollection. The victim provided an account of events that corresponds well to the offense report. He named each officer and described the circumstances of their acts as well as his location (at Jester IV).

Communication/narration. Charlie spoke directly and cogently to Dr. Jennings during the examination, well representing his history.

Truthfulness. Here, the defense attempted to elicit testimony regarding Charlie’s credibility rather than his awareness of the necessity to tell the truth. The questioning was cut off after a State’s objection and once Dr. Jennings drew a distinction between the two for the court.

General factors such as understanding the nature of a trial and the necessity to monitor his own behavior were also addressed. Charlie specifically stated that he knew he could speak “only when I am spoken to.” And when asked what he would do if he thought other witnesses were lying, he said, “I would whisper to Ms. Holder, the prosecutor.”

Further illustrative of his cogency was his awareness of the necessity to remain on prescribed medication and his realization that staff were some three days late in providing the prescribed injection described earlier. (Medication was obtained for him.)


At the conclusion of the testimony, the court ruled that Charlie was competent to testify. The jury heard from him, the nurse who reported the assaults, and the other correctional officer who had also observed the abuse. After the defense brought several correctional officers to say they had never seen any such behavior, the State called a second inmate in rebuttal. This inmate was housed in the same unit as Charlie and had also been diagnosed with a mental illness. When the defense raised the issue of HIS competency to testify, the State pointed out that the witness was presumed competent and that the party raising the issue had the burden to prove it. With the issue clearly briefed and researched, the court quickly agreed. When the defense was asked what evidence they had to show the witness incompetent, counsel was forced to admit that he had none. The second inmate was allowed to testify to the actions of the defendants against the victim.

After some 15-plus hours of deliberation, the jury convicted the defendant of injury to a disabled individual, and the State and defense agreed to a probated sentence. The crime may have been only a third-degree felony, but the case set the tone for how society expects mentally ill inmates to be treated. Russian novelist Fyodor Dostoevsky once said, “The degree of civilization in a society can be judged by entering its prisons.” By convicting the defendant, the jury dictated that our mentally ill inmates be treated with a higher degree of civility than exhibited by the defendants. They have assured that the law will be enforced no matter who the victim is.

The technical issue, however, has wide implications for both victims/complainants and witnesses. As in this case, the presumption of witness competency is not defeated by mental illness; the mere presence of mental illness is not probative of being an “insane person” as defined in T.R.E. §601 without more—such as a defect in perception, recollection, recall, or ability to understand the necessity for truthfulness.

As two last notes, Charlie is still confined at TDCJ, and the second guard pled guilty to the crime, receiving four years’ probation and a $750 fine. His 10 years with TDCJ and spotless record contributed to his receiving probation.


1 Reyna v. State, 797 S.W.2d 189 191 (Tex. App—Corpus Christi 1990, no writ).
2 Foster v. State, 155 S.W.2d 938, 940 (Tex. Crim. App. 1941), compare Tex.. Code Crim. Proc. Ch. 46B.
3 53 S.W.3d 710, 713 (Tex. App.—Houston [1st Dist.] 2001, no writ).
4 Hargraves v. Armco Foods, Inc., 894 S.W.2d 546, 548 (Tex. App.—Austin 1995, no writ). The Hargraves case (cited in Freeman) was an appeal from a summary judgment wherein the single issue had to do with allegations that the plaintiff was of “unsound mind”, and the court devoted some effort to articulating how this term is used in the law.
5 Casu v. CBI Na-Con, Inc., 881 S.W.2d 32, 34 (Tex. App.—Houston [14th Dist.] 1994, no writ).
6 596 S.W.2d 867, 870-871, (Tex. Crim. App. 1980).
7 Garcia v. State, 573 S.W.2d 12 (Tex. Crim. App. 1978).
8 Watson at 871.
9  Tex. Health & Safety Code §§574.034, 574.035.
10 Mobil Oil Cor. v. The Honorable Donald R. Floyd, 810 S.W.2d 321(Tex. App—Beaumont 1992, no writ).
11 Mobil at 324 (“the fact of the guardianship does not automatically render Mr. Brindza incompetent to testify or incapable of giving his deposition. It does create a presumption that he is incompetent”).