DEFENDANTS WITH MENTAL ILLNESS INCOMPETENCY TO STAND TRIAL AND THE INSANITY DEFENSE

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1 DEFENDANTS WITH MENTAL ILLNESS & INCOMPETENCY TO STAND TRIAL AND THE INSANITY DEFENSE ANDREW W. CARRUTHERS Criminal Law Magistrate of Bexar County Cadena-Reeves Justice Center 300 Dolorosa, Suite San Antonio, Texas State Bar of Texas 41 ST ANNUAL ADVANCED CRIMINAL LAW COURSE July 27-30, 2015 San Antonio CHAPTER 4

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3 Andrew W. Carruthers Criminal Law Magistrate of Bexar County Cadena-Reeves Justice Center 300 Dolorosa, Suite San Antonio, Texas TEL: (210) FAX: (210) CURRICULUM VITAE EDUCATION B.A. Political Science, University of Texas at Austin, 1969 J.D. St. Mary s University School of Law, 1973 PROFESSIONAL ACTIVITIES Assistant District Attorney, Bexar County Texas Chief, Juvenile Section, Assistant Attorney General of Texas 1974 Associate Professor of Law, Texas Southern University Private Practice Carruthers and Cunningham Attorneys at Law Board Certified, Criminal Law 1983-present Bexar County Criminal Law Magistrate 1989-present LAW RELATED PUBLICATIONS AND HONORS Frequent presenter at State Judicial Conferences, Bar Association Seminars and State Hospital Training Seminars including Annual Mental Health Seminars at North Texas State Hospital-Vernon Campus and Kerrville State Hospital and other mental health seminars.

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5 DEFENDANTS WITH MENTAL ILLNESS TABLE OF CONTENTS INTRODUCTION... 1 A. Incompetency: The Definition, The Presumption of Competency, The Burden of Proof... 1 B. Constitutional Considerations... 1 C. Scope of the Competency Issue... 1 I. RAISING THE ISSUE OF INCOMPETENCY (ARTICLE 46B.004)... 1 A. Suggestion of Incompetency to Stand Trial... 2 B. The Right to Counsel... 2 C. Motion Suggesting Incompetency to Stand Trial... 2 D. Raising the Issue During Trial (Article 46B.005(d))... 2 E. The Court s Own Motion Suggesting Incompetency to Stand Trial... 2 F. The Old Bona Fide Doubt Standard and Article 46B.004(c-1)... 2 II. INFORMAL INQUIRY... 3 A. What Is An Informal Inquiry?... 3 B. The Burden of Proof at an Informal Inquiry... 3 C. Second and Subsequent Informal Inquiries... 3 III. COURT ORDERED EXAMINATION OF DEFENDANT-SUBCHAPTER B A. Basis for Evaluation for Competency to Stand Trial... 3 B. Psychiatrists Qualifications As Experts Under 46B.022(a) and (b)... 3 C. Psychologists Qualifications As Experts Under 46B.022(a) and (b)... 3 D. Defendant s Treating Physician Not Qualified for Appointment... 3 E. Experts Access to Information Related to Defendant 46.B021(d)... 4 F. Appointment of Experts Who Lack 46B.022 Qualifications... 4 G. Payment of Experts Art. 46B H. Factors Experts Must Consider in Evaluating Defendants Art. 46B I. THE EXPERT S REPORT ART. 46B.025 C.C.P IV. INCOMPETENCY TRIALS AND HEARINGS-SUBCHAPTER C... 5 A. Introduction to Subchapter C... 5 B. Methods of Disposition of the Issue of Incompetency... 5 C. Applicability of the Rules of Evidence... 5 D. Limitations on the Scope of Inquiry at a Competency Trial Before a Jury... 5 E. Burden of Proof at Competency Trials... 5 F. The New Ball Game Under 46b.071(B)... 6 G. Persons with Mental Illness... 6 H. Persons with Intellectual disability... 6 V. DISPOSITION PHASE-PROCEDURESAFTER DETERMINATION OF INCOMPETENCY... 7 A. Disposition Options... 7 B. 60 Day Extension of the Initial Commitment... 7 C. Medical or Psychiatric Testimony Requirement... 8 D. Time Credits... 8 E. Limitations on Periods of Restoration... 8 F. Documents Which Should Accompany Defendant to Facility... 8 VI. RETURNING THE DEFENDANT TO COURT... 8 A. Notice and Report to Court Art. 46B.079 C.C.P B. Deadline for Defendant s Return to Court... 9 C. Transportation of the Defendant Art. 46B.082 C.C.P D. Supporting Commitment Information Provided By Facility Head or Outpatient Treatment Program Provider Art. 46B.083 C.C.P... 9 i

6 E. Procedures Upon Defendant s Return to Court... 9 VII. 46B. SUBCHAPTER E. C.C.P.-CIVIL COMMITMENT: CHARGES PENDING A. Civil Commitment Proceedings B. Place of Commitment Under 46B. Subchapter E. C.C.P.: C. Redetermination of Competency D. Presumptions Upon Return to Court E. Discovery VIII. COURT-ORDERED MEDICATIONS A. Forced Medication Hearings Under Health and Safety Code B. Forced Medication Hearings Under Art. 46B.086 Code of Criminal Procedure C. Constitutionality of Forced Medication IX. ELECTRONIC BROADCAST SYSTEM IN CERTAIN PROCEEDINGS X. APPEAL A. No Direct Appeal from the Initial Incompetency Hearing B. Appeal from Extended Commitment Proceedings C. Standards of Review on Appeal D. Retrospective Determination of the Issue of Incompetency XI. OTHER THINGS YOU JUST MIGHT NEED TO KNOW A. The Message from McDaniel v. State B. Suggestions About Motions Practice C. Statements Made by Defendant During the Competency Process INCOMPETENCY TO STAND TRIAL AND THE INSANITY DEFENSE INTRODUCTION I. PRETRIAL AND TRIAL A. The Burden of Proof B. Determining Whether Defendant Knew His Conduct Was Wrong C. Notice of Intent to Raise the Insanity Defense (Art. 46C.051 and 46C.052 C.C.P.) D. Obtaining a Court Appointed Expert to Evaluate Defendant E. Statements Made by the Defendant During Sanity Evaluations F. Order Compelling Defendant to Submit to Evaluation Art. 46C G. Ake and the Appointment of a Psychiatrist to Assist the Defense H. Presenting the Insanity Defense I. The Standard of Review When the Court Excludes Evidence of Insanity J. The Standard of Review When the Court Denies a Jury Instruction K. Lay Opinion Testimony vs. Expert Opinion Testimony L. Standard of review when the trier of fact rejects the insanity defense M. Burden of Proof Shifts Upon Proof of a Prior Unvacated Adjudication of Insanity N. Informing the Jury of Consequences of NGRI Finding O. Determination of the Issue of Not Guilty by Reason of Insanity II. DISPOSITION PHASE A. Hearing on Disposition B. Clear and Convincing Evidence C. The Four Disposition Options D. Dangerousness Review Board III. RENEWAL HEARINGS ART. 46C A. Requests for Renewal B. The Certificate of Medical Examination for Mental Illness ii

7 C. The State s Burden of Proof at a Renewal Hearing D. The Defense s Burden of Proof for Outpatient/Community Based Treatment E. Duration of Renewal Order F. Scope of the Evidence in Disposition and Renewal Hearings G. Commitment Hearings Held After the Court s Commitment Order Expires IV. MODIFICATION HEARINGS A. Modification to Outpatient or Community Based Treatment & Supervision B. Modification or Revocation of Outpatient/Community Based Treatment and Supervision V. OTHER IMPORTANT DETAILS A. The Effect of Stabilization on Inpatient/Residential Care Commitments B. Duration of the Court s Jurisdiction C. Automatic Termination of the Court s Jurisdiction D. Advance Discharge and Termination of Jurisdiction E. The Role of Juries Under Chapter 46C. Subchapter F F. The Insanity Defense and Motions to Revoke Probation G. Renewal Orders for Pre-2005 Cases Under C.C.P iii

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9 DEFENDANTS WITH MENTAL ILLNESS INTRODUCTION Effective September 1, 2004, Chapter 46B. C.C.P. replaced Article C.C.P. as the statute governing competency to stand trial and related proceedings in Texas state courts. Chapter 46B. is a combination of the previous statute and many significant new provisions. As was the case with Article C.C.P., Chapter 46B. incorporates by reference, provisions of the Texas Health and Safety Code, the Texas Code of Criminal Procedure and the Texas Rules of Evidence. A. Incompetency: The Definition, The Presumption of Competency, The Burden of Proof Art. 46B.003 retains Texas traditional definition and burden of proof regarding the issue of competency to stand trial. 1 In the initial competency proceeding, the defendant is presumed competent to stand trial. The party contending that the defendant is incompetent has the burden of proving the defendant is incompetent to stand trial by a preponderance of the evidence. B. Constitutional Considerations Pate v. Robinson, 383 U.S. 375, 385, 5 L. Ed. 2d 815, 86 S. Ct. 386 (1966) held that a trial court must make inquiry into a criminal defendant s mental competence once the issue is sufficiently raised. In Drope v. Missouri, 420 U.S. 162, 171, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975) the Supreme Court held the due process right to a fair trial prevents the government from subjecting a person to trial whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with his counsel and to assist in preparing his defense. C. Scope of the Competency Issue The issue of incompetency applies not only to the trial on the merits but to all phases of criminal proceedings. Chapter 46B. applies to all felony offenses and Class A & B misdemeanors. Article 46B.002 C.C.P. Unless competent, a defendant cannot knowingly waive his right to trial and enter a plea of guilty. Hall v. State, 808 S.W. 2d 282 (Tex. App.- 1 Art. 46B.003(a) C.C.P. A person is incompetent to stand trial if the person does not 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 factual understanding of the proceedings against the person. (b) 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. 1 Houston [1 st. Dist] 1991, no writ). Pipken v. State, 671 S. W. 2d 626 (Tex. App.-Houston [1 st Dist.] 1984 pet. ref d) held that the issue of incompetency must be resolved before hearing a motion to revoke probation. In Bradford v. State, 172 S.W. 3d 1 (Tex. App.-Ft. Worth 2005, no pet.) the court held that it was reversible error to hear a motion to adjudicate guilt when the record did not reflect that the defendant had been restored to competency. Article C.C.P. states that no plea of guilty or nolo contendere shall be accepted unless it appears that the defendant is mentally competent to stand trial. I. RAISING THE ISSUE OF INCOMPETENCY (ARTICLE 46B ) 2 Art. 46B.004 (a) C.C.P. Either party may suggest by motion or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial. A motion suggesting that the defendant may be incompetent to stand trial may be supported by affidavit setting out the facts on which the suggestion is made. (b) If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial. (c) On suggestion that the defendant may be incompetent to stand trial, the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial. (c-1)a suggestion of incompetency is the threshold requirement for an informal inquiry under Subsection (c) and may consist solely of a representation from any credible source that the defendant may be incompetent. A further evidentiary showing is not required to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency of the defendant. Evidence suggesting the need for an informal inquiry may be based on observations made in relation to one of the factors described by Article 46B.024 or on any other indication that the defendant is incompetent within the meaning of Article 46B.003. (d) If the court determines there is evidence to support a finding of incompetency, the court, except as provided by Subsection (e) and Article 46B.005(d), shall stay all other proceedings. (e) At any time during the proceedings under this chapter after the issue of the defendant s incompetency is first raised, the court on the motion of the attorney representing the state may dismiss all charges pending against the defendant, regardless of whether there is any evidence to support the defendant s incompetency under Subsection (d) or whether the court has made a finding of incompetency under this chapter. If the court dismisses the charges against the defendant,

10 A. Suggestion of Incompetency to Stand Trial The issue of a defendant s competency to stand trial should ordinarily be raised by a written motion suggesting that the defendant is incompetent to stand trial. The issue can be raised orally or by circumstances and occurrences made known to the court. A motion suggesting incompetency may be made by either party. The court can also suggest that a defendant is incompetent to stand trial. B. The Right to Counsel Art. 46B.006(a) grants a defendant the right to counsel before any court-ordered evaluation and during any proceeding at which it is suggested that the defendant may be incompetent to stand trial. Art. 46B.006(b) requires appointment of counsel for indigent defendants. C. Motion Suggesting Incompetency to Stand Trial 1. Content of a Motion Suggesting Incompetency A motion suggesting incompetency to stand trial should assert that the defendant appears to be incompetent to stand trial and that he is unable to consult with counsel with a reasonable degree of rational understanding and/or lacks a rational and factual understanding of the proceedings against him and/or cannot assist counsel in preparing his defense. The motion may be supported by affidavit setting out the facts upon which the suggestion of incompetency is based. Art. 46B.004(a). The motion should pray for an informal inquiry and a competency evaluation by a qualified expert. 2. Stay of Criminal Proceedings If the issue of incompetency is raised prior to trial and the court finds there is evidence to support a finding of incompetency to stand trial, the court shall stay all other proceedings in the case. Art. 46B.004(d) D. Raising the Issue During Trial (Article 46B.005(d) 3 ) If the issue of the defendant s incompetency is raised during trial, the court is not required to stay proceedings but can determine the issue at any time before sentencing. Art. 46B.005(d). The court cannot sentence a defendant who has been found guilty if evidence is presented to the court which would support a finding that the defendant is incompetent to stand trial. Art , Sec. 2 C.C.P. If the informal inquiry is delayed until after a verdict is reached in the trial on the merits, the court shall determine the issue as soon as reasonably possible after the verdict is returned. Art. 46B.004(d) and Art. 46B.005(d). E. The Court s Own Motion Suggesting Incompetency to Stand Trial If evidence suggesting incompetency comes to the attention of the court, the court is required to suggest on its own motion, or sua sponte, that the defendant may be incompetent to stand trial. Art. 46B.004 (a) and (b) and Moore v. State, 999 S.W. 2d 385 (Tex. Crim. App. 1999). In such instances, the court can conduct an informal inquiry or order a competency evaluation. F. The Old Bona Fide Doubt Standard and Article 46B.004(c-1) Under the bona fide doubt standard, when the issue of incompetency was raised, the court was required to hold an informal inquiry only if evidence was brought to the court s attention creating a bona fide doubt in the judge s mind as to the defendant s competency to stand trial. Collier v. State, 959 S.W. 2d 621, 625 (Tex. Crim. App. 1997). Effective September 1, 2011, subsection (c-1) was added to Article 46B.004 C.C.P. eliminating the bona fide doubt standard. Under (c-1) the court must grant an informal inquiry when there is a representation from any credible source that the defendant may be incompetent. the court may not continue the proceedings under this chapter, except that, if there is evidence to support a finding of defendant s incompetency under Subsection (d), the court may proceed under Subchapter F. If the court does not elect to proceed under Subchapter F, the court shall discharge the defendant. 2 3 Art. 46B.005(d) C.C.P. If the issue of the defendant s incompetency to stand trial is raised after the trial begins, the court may determine the issue at any time before sentencing. If the determination is delayed until after the return of a verdict, the court shall make the determination as soon as reasonably possible after the return. If a verdict of not guilty is returned, the court may not determine the issue of incompetency.

11 II. INFORMAL INQUIRY A. What Is An Informal Inquiry? An informal inquiry is a hearing at which the moving party tries to convince the court that there is enough evidence of the defendant s incompetence to require a competency evaluation. Upon suggestion that the defendant may be incompetent to stand trial, the court has discretion to order an examination without an informal inquiry under Article 46B.021(a) C.C.P. Alternatively, the court can hold an informal inquiry under 46B.004(c) to determine whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial. Generally, the Rules of evidence do not apply at an informal inquiry. McDaniel v. State, 98 S.W. 3d 704 (Tex. Crim. App. 2003) holds that the evidence need not be in admissible form. Reliable information that meets the standards of Tex. R. Evid. 104(a) suffices. Rule 104(a) states: In making its determination, the court is not bound by the rules of evidence except those with respect to privilege. B. The Burden of Proof at an Informal Inquiry At an informal inquiry, the court is required to determine whether there is some evidence, a quantity more than none or a scintilla, that may rationally lead to a conclusion of incompetence. Alcott v. State, 51 S.W. 3d 596, 600 (Tex. Crim. App. 2001). In determining whether there is some evidence to support a finding of incompetency, the court is required to consider only evidence tending to show incompetency, putting aside all competing indications of competency. Sisco v. State, 599 S.W.2d 607 (Tex. Crim. App. 1980), Moore v. State, 999 S.W. 2d 385, 393 (Tex. Crim. App. 1999) cert. denied, 530 U.S. 1216, 147 L. Ed. 2d 252, 120 S. Ct (2000), Reed v. State, 112 S.W. 3d 706 (Tex. App. Houston 14 th Dist pet. ref d.). Merely showing that the defendant is mentally ill, absent evidence that would support a finding of incompetence does not meet the some evidence standard. Mata v. State, 632 S.W. 2d 355 (Tex. Crim. App. 1982). C. Second and Subsequent Informal Inquiries The court is not required to conduct a second or subsequent informal inquiry unless the defense offers evidence of a change in defendant s mental condition since the last informal inquiry. Clark v. State, 47 S.W. 3d 211 (Tex. App. Beaumont 2001, no pet.). III. COURT ORDERED EXAMINATION OF DEFENDANT 4 -SUBCHAPTER B. A. Basis for Evaluation for Competency to Stand Trial Upon finding that there is some evidence to indicate that the defendant is incompetent to stand trial, the court is required to order an examination of the defendant by one or more qualified experts to determine whether the defendant is incompetent to stand trial. Art. 46B.021(b). B. Psychiatrists Qualifications As Experts Under 46B.022(a) and (b) To qualify as an expert under Chapter 46B., a psychiatrist must be licensed as a physician in the State of Texas and: 1. Be certified by the American Board of Psychiatry and Neurology with added or special qualifications in forensic psychiatry or have at least 24 hours of specialized training relating to incompetency or insanity evaluations and 2. At least eight hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment. C. Psychologists Qualifications As Experts Under 46B.022(a) and (b) To qualify as an expert under Chapter 46B., a psychologist must have a doctoral degree in psychology, be a psychologist licensed in the State of Texas and: 1. Be certified by the American Board of Professional Psychology in forensic psychology or have at least 24 hours of specialized training relating to incompetency or insanity evaluations and 2. At least eight hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment. D. Defendant s Treating Physician Not Qualified for Appointment An expert involved in the treatment of the defendant may not be appointed to perform a competency evaluation. 46B.021(c). This does not prevent a treating physician, psychiatrist or psychologist from evaluating the defendant and testifying for either side. 3 4 Art. 46B.005(a) C.C.P. If after an informal inquiry the court determines that evidence exists to support a finding of incompetency, the court shall order an examination under Subchapter B. to determine whether the defendant is incompetent to stand trial.

12 E. Experts Access to Information Related to Defendant 46.B021(d) An appointed expert can obtain access to information relevant to the determination of competency through order of the court including: 1. the indictment or information charging the defendant 2. documents used to establish probable cause (like police reports, witness s statements, defendant s statement/s) and 3. previous mental health evaluation and treatment records. F. Appointment of Experts Who Lack 46B.022 Qualifications Article 46B.022(c) provides that if exigent circumstances so require, the court can appoint a psychiatrist or psychologist not otherwise qualified under Art. 46B.022(a) and (b), basing the appointment on the professional training or experience of that individual which gives him or her specialized expertise to examine the defendant that would not ordinarily be possessed by a psychiatrist or psychologist who meets the requirements of Subsections (a) and (b) of Article 46B.022. G. Payment of Experts Art. 46B.027 The county in which the indictment was returned or the information was filed against the defendant shall pay for experts services. A facility incurring expenses in accepting the defendant for examination shall be reimbursed by the county of indictment or information upon determination by TDMHMR that such expenses are reasonably necessary and incidental to the proper examination of the defendant. H. Factors Experts Must Consider in Evaluating Defendants Art. 46B Defendant s capacity during a criminal proceeding to: a. rationally understand the charges against him/her and the potential consequences of the pending criminal proceedings b. disclose to counsel pertinent facts, events and states of mind c. engage in a reasoned choice of legal strategies and options d. understand the adversarial nature of the criminal proceedings e. exhibit appropriate courtroom behavior; and f. testify 2. as supported by current indications and the defendant s personal history, whether the 4 defendant has a diagnosable mental illness or is a person with intellectual disability 3. whether the identified condition has lasted or is expected to last continuously for at least one year 4. the degree of impairment resulting from the mental illness or intellectual disability if existent, and the specific impact on the defendant s capacity to engage with counsel in a reasonable and rational manner; and 5. if the defendant is taking psychoactive or other medication: (a) whether the medication is necessary to maintain the defendant s competency; and (b) the effect, if any, of the medication on the defendant s appearance, demeanor, or ability to participate in the proceedings. I. THE EXPERT S REPORT ART. 46B.025 C.C.P. 1. Required Contents: a. the expert s opinion on defendant s competency or incompetency to stand trial or an explanation as to why the expert was unable to state such an opinion b the expert s opinion on the defendant s competency or incompetency may not be based solely on the defendant s refusal to communicate during the examination c. if in the expert s opinion the defendant is incompetent to stand trial, the report must state: 1. the symptoms, exact nature, severity and expected duration of the deficits resulting from defendant s mental illness or intellectual disability, if any, and the impact of the identified condition on the factors listed under Art. 46B.024 C.C.P. (Factors Considered in Examination) 2. an estimate of the period needed to restore the defendant s competency, including whether the defendant is likely to be restored to competency in the foreseeable future 3. prospective treatment options appropriate for defendant (if any) d. the expert must identify and address specific issues referred to the expert for evaluation and state the expert s clinical observations, findings and opinions on each specific issue referred to the expert by the court e. state the specific criteria supporting the expert s diagnosis

13 f. state specifically any issue on which the expert could not provide an opinion g. in specific terms, describe the procedures, techniques and tests used in the examination h. state the purpose of each procedure, technique or test and the conclusions reached i. document that the expert explained to the defendant: 1. the purpose of the evaluation (i.e. to determine competency and any other special issues referred to the expert pursuant to the court s order) 2. that the report will be provided to the prosecution, defense counsel and the court 46B.026(a) 3. that no physician-patient privilege exists between the expert and the defendant 2. What the Expert s Report Should Not Contain The expert s report should not contain the expert s opinion on the defendant s sanity at the time of the offense if it is the expert s opinion that the defendant is incompetent. Art.46B.025(c) C.C.P. Generally, the issue of sanity should be addressed in a separate report. a. Report Deadline Art. 46B.026 C.C.P. The expert s report shall be provided to the court, the prosecuting attorney and the defense attorney within 30 days after the date on which the expert was ordered to examine the defendant. The court can grant an extension for good cause shown. IV. INCOMPETENCY TRIALS AND HEARINGS-SUBCHAPTER C A. Introduction to Subchapter C After the expert s report is completed and filed with the court, copies should be given to the parties. The issue of the defendant s incompetency must then be decided in a manner prescribed by Subchapter C. Art. 46B.005(b) C.C.P. B. Methods of Disposition of the Issue of Incompetency 1. Agreed Incompetency Hearing-If the expert s report finds the defendant is incompetent and neither party s counsel requests a trial on the issue of competency; neither party s counsel opposes a finding of incompetency; and the court does not on its own motion determine that a trial is necessary to determine competency, the court is not required to hold an adversarial hearing to find the defendant incompetent. Art.46B.005(c) C.C.P. The agreement of the parties and the concurrence of the court finding the defendant 5 incompetent should be reflected in the record. 2. Trial Before the Court-In absence of an agreed incompetency, if neither party nor the court requests a jury, the issue shall be decided by trial before the court. Art. 46B.051(b) C.C.P. 3. Trial Before a Jury-Upon the request of either party or on motion of the court, the issue of incompetency shall be tried before a jury. Art. 46B.051(a) C.C.P. The jury impaneled to decide the issue of competency cannot be the jury selected to determine guilt or innocence. Art. 46B.051(c) C.C.P. a. Peremptory Challenges White v. State, 591 S.W.2d 851 (Tex. Crim. App. 1979), rev d on other grounds and Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990) hold that a competency hearing is civil in nature. Rule 233 T.R.C.P. applies to peremptory challenges, allowing six per side in district court and three per side in county court. b. Unanimous Verdict Requirement The jury s verdict must be unanimous. Art.46B.052(b) C.C.P. C. Applicability of the Rules of Evidence The Rules of Evidence apply at a hearing under Subchapter C. Art. 46B.008 C.C.P. Perry v. State, 703 S.W. 2d 668, 672 (Tex. Crim. App.1986) held that although a competency hearing is not a trial in the true meaning of the word, it is nevertheless subject to the same evidentiary rules that govern a trial on the merits. D. Limitations on the Scope of Inquiry at a Competency Trial Before a Jury In Callaway v. State, 594 S. W. 2d 440, 443 (Tex. Crim. App. 1980) the Court of Criminal Appeals held that the guilt or innocence of a defendant is not an issue in a competency hearing and it is improper to introduce evidence of the offense itself. It is likewise improper for the prosecutor to argue that a defendant should be found competent because of the seriousness of the offense charged. In Callaway, reference to prior convictions and extraneous offenses by psychiatric witnesses was found to be inflammatory and misleading. The court held that it deprived the defendant of a fair determination of the issue of competency. E. Burden of Proof at Competency Trials The party contending that the defendant is incompetent to stand trial has the burden of proving the defendant s incompetence by a preponderance of the evidence. Art. 46B.003(b) C.C.P. When the issue of

14 competency is tried to a jury, Art. 46B.052 C.C.P. requires the jury to state in its verdict whether the defendant is incompetent to stand trial. F. The New Ball Game Under 46b.071(B) The 87 th Legislature amended Art. 46B.071 by adding subsection (b). Art. 46B.071(b), provides on determining that a defendant is incompetent to stand trial and is unlikely to be restored to competency in the foreseeable future, the court shall: Proceed under Subchapter E or F; or Release the defendant on bail as permitted under Chapter Defendant s Likely to Be Restored Within the Foreseeable Future If it is found that an incompetent defendant is likely to be restored to competency within the foreseeable future, the court determines duration and place of commitment pursuant to Arts. 46B.072 or 46B.073 C.C.P. 2. What Proceeding Under Subchapter E. of 46B. C.C.P. Really Means a. If the trier of fact finds the defendant is incompetent to stand trial, it must then decide whether the defendant is unlikely to be restored to competency within the foreseeable future. b. If the trier of fact finds that the defendant is unlikely to be restored to competency within the foreseeable future and charges are not dismissed, Art. 46B.071(b) requires the court to proceed under Subchapter E of 46B. C.C.P. G. Persons with Mental Illness If the defendant appears to be a person with mental illness, Subchapter E., Art. 46B.102 C.C.P. requires the court to hold a hearing to determine whether the defendant should be court-ordered to mental health services under Subtitle C, Title 7, Health and Safety Code. Suggested Special Issues Under : 1. Do you find from a preponderance of the evidence that the defendant is incompetent to stand trial at this time? You will answer, incompetent to stand trial or competent to stand trial, as you may find the facts to be. If you have answered the foregoing question, the defendant is incompetent to stand trial and only in that event will you answer the following question. 2. Do you find that the defendant is likely to be restored to competency within the foreseeable future? You will answer, the defendant is likely to be restored to competency within the foreseeable future or the defendant is not likely to be restored to competency within the foreseeable future, as you may find the facts to be. If you have answered the foregoing question, the defendant is unlikely to be restored to competency within the foreseeable future and only in that event will you answer the following question. 3. Do you find from clear and convincing evidence that the defendant is a person with mental illness? You will answer, the defendant is a person with mental illness or the defendant is not a person with mental illness, as you may find the facts to be. If you have answered, the defendant is a person with mental illness and only in that event will you answer the following question. 4. Do you find from clear and convincing evidence that the defendant meets the criteria for court ordered inpatient mental health services? You will answer, does not meet the criteria for court ordered inpatient mental health services, or meets the criteria for court ordered inpatient mental health services because he: a. is likely to cause serious harm to himself; and /or b. is likely to cause serious harm to others; and/or c. is suffering severe and abnormal mental, emotional or physical deterioration of his ability to function independently, which is exhibited by his inability, except for reasons of indigence, to provide for his basic needs, including food, clothing, health or safety; and, is unable to make a rational and informed decision as to whether or not to submit to treatment, as you may find the facts to be. H. Persons with Intellectual disability Under Subchapter E. 46B.103 C.C. P., if it appears to the court that the defendant may be a person with intellectual disability, the court is required to hold a hearing to determine whether the defendant meets the criteria for commitment to a residential care facility or community based services. The proceedings for commitment of a person with intellectual disability are governed by Subtitle D, Title 7, Health and Safety Code, Section (See footnote 7, page 14 of this paper). Suggested Special Issues: 6

15 1. Do you find from a preponderance of the evidence that the defendant is incompetent to stand trial at this time? You will answer, incompetent to stand trial or competent to stand trial, as you may find the facts to be. If you have answered the foregoing question, the defendant is incompetent to stand trial and only in that event will you answer the following question. 2. Do you find that the defendant is likely to be restored to competency within the foreseeable future? You will answer, the defendant is likely to be restored to competency within the foreseeable future or the defendant is not likely to be restored to competency within the foreseeable future, as you may find the facts to be. If you have answered the foregoing question, the defendant is unlikely to be restored to competency within the foreseeable future and only in that event will you answer the following question. 3. Do you find beyond a reasonable doubt that the defendant is a person with intellectual disability? You will answer, the defendant is a person with intellectual disability, or the defendant is not a person with intellectual disability, as you may find the facts to be. If you have answered the foregoing question, the defendant is a person with intellectual disability, and only in that event will you answer the following question. 4. Do you find beyond a reasonable doubt that the defendant meets the criteria for commitment to a residential care facility? V. DISPOSITION PHASE- PROCEDURESAFTER DETERMINATION OF INCOMPETENCY A. Disposition Options Once the defendant is found incompetent to stand trial, his disposition and placement are determined by the trial court. The court s options range from outpatient to maximum security. All initial commitments are for a period not to exceed 120 days except misdemeanor inpatient commitments which are for a period not to exceed 60 days. See Articles 46B.072(b); 46B.073(b)(1) and (2) C.C.P. Public safety and the perceived dangerousness of a defendant steer the court s decision as to whether a defendant is committed to an inpatient or an outpatient setting. 46B.072(a-1) 7 1. Misdemeanors 46B.072(a-1)(2) a. If the court determines that an incompetent defendant charged with a misdemeanor is not a danger to others, that there is an appropriate outpatient program available to him and that he may be safely treated on an outpatient basis, the court shall continue him on bail or release him on bail and require his participation in an outpatient competency/community based restoration program. Inpatient commitments for misdemeanor defendants are for a period not to exceed 60 days. 46B.073(b) (1) Outpatient commitments are for a period not to exceed 120 days. 46B.072(b) 2. Felonies 46B.072(a-1)(1) If the defendant is charged with a felony and the court determines that he is not a danger to others, that there is an appropriate outpatient program available to him and that he may be safely treated on an outpatient basis, the court may commit the defendant to an outpatient competency restoration program. If the defendant is charged with one or more of the violent felonies listed in Article C.C.P. (murder, capital murder, kidnapping, aggravated kidnapping, indecency with a child, sexual assault, aggravated assault, aggravated sexual assault, injury to a child, elderly individual or disabled individual, aggravated robbery or continuous sexual abuse of a young child) or if the indictment seeks an affirmative finding on the use of a deadly weapon, the court is required to commit the defendant to the maximum security unit of a facility operated by the Texas Depart of State Health Services, to an agency of the United States operating a mental hospital, or to a Department of Veterans Affairs. Art. 46B.073(c). Simple assault is not among the offenses requiring commitment to maximum security. Art. 46B.073(c). Incompetent defendants charged with non C.C.P. felonies who are not committed to an outpatient /community based program are committed to TDSHS if mentally ill. Persons with intellectual disability are committed to a residential care facility. All initial felony commitments, whether to inpatient, residential care or outpatient are for a period not to exceed 120 days. 46B.072(b) & 46B.073(b)(2) B. 60 Day Extension of the Initial Commitment When the defendant s initial commitment is approaching its expiration date and not later than 15 days before expiration, the facility head or outpatient provider can request a 60 day extension of the defendant s commitment in the notice of impending expiration. Article 46B.079(d) C.C.P. The court can grant only one extension not to exceed 60 days. The

16 court has discretion to grant an extension upon determining that the defendant has not attained competency and that an extension will likely enable the defendant to be restored to competency within the period of the extension. The court s determination can be made from the information provided by the facility head or outpatient provider. Article 46B.080 C.C.P. The request for extension can be included in the facility director s or outpatient provider s notice of the impending expiration of the defendant s commitment under 46B.080(d) C.C.P. There is no statutory requirement of a hearing on the request for extension. Article 46B.085(b) C.C.P. provides that after an initial commitment and one extension are ordered under 46B.085(a) C.C.P., any subsequent court orders for treatment must be issued under Subchapter E or F (subchapters pertaining to civil commitments). C. Medical or Psychiatric Testimony Requirement Art. 46B.074(a) C.C.P. requires that the initial commitment be based on competent medical or psychiatric testimony. Art. 46B.074(b) C.C.P. gives the court discretion to allow substitution of the expert s report for any testimony required under Art. 46B.074(a) C.C.P. D. Time Credits A court sentencing a person convicted of a criminal offense shall credit to the term of the person s sentence the time the person is confined in a mental health facility, residential care facility or jail pending trial as a result of being found incompetent to stand trial. Art. 46B.009 C.C.P. E. Limitations on Periods of Restoration 1. Article 46B.0095(a) C.C.P. establishes a maximum period of restoration. Incompetent defendants cannot be committed to an inpatient facility, a residential care facility, an outpatient competency restoration program or a combination of any of the aforesaid commitments for a cumulative period in excess of the maximum term provided by law for the offense with which the defendant is charged. 2. Art. 46B.0095(b) C.C.P. provides that upon expiration of the maximum restoration period, any additional commitment to an inpatient facility, residential care facility, mental hospital and/or outpatient treatment facility shall be pursuant to civil commitment proceedings. 3. Art. 46B.0095 (c) and (d). In calculating the maximum period of restoration, time the defendant spends confined in jail following arrest for the offense charged, before the 8 initial order of commitment, may be credited toward the maximum period of restoration. 4. Misdemeanor Outpatients and Mandatory Dismissal Under Art. 46B.010 The maximum period of restoration for a defendant charged with a Class A or B misdemeanor and committed to an outpatient competency restoration program is two years beginning on the date of the initial 120 day order for outpatient commitment. Art. 46B.095(a) C.C.P. If an incompetent defendant charged with a class A or B misdemeanor is committed to an outpatient treatment program and is not tried within two years of the initial order of outpatient commitment, the court, on motion of the state, shall dismiss the charge. Art. 46B.010 C.C.P. F. Documents Which Should Accompany Defendant to Facility Art. 46B.076 C.C.P. lists items which should be sent to the facility or outpatient program not later than the date the order of commitment or release to bail is signed. The list includes a transcript of medical testimony, the indictment or information, criminal history and each expert s report. VI. RETURNING THE DEFENDANT TO COURT A. Notice and Report to Court Art. 46B.079 C.C.P. (a) Requires the facility head or outpatient provider to notify the committing court of the impending expiration of a commitment order not later than 15 days before a defendant s commitment is due to expire. (b) Requires facility heads or outpatient providers to notify the court when they believe that the defendant has attained competency or will not attain competency within the foreseeable future. (c) When the facility head or outpatient provider notifies the court of a proposed discharge of a defendant, they shall also file a final report with the court stating the reason for the proposed discharge. The report shall include a list of the types and dosages of medications with which the defendant was treated. The court shall provide copies to the state and the defense to allow for the timely filing of any objections to the report. (d) The notice of impending expiration of the initial period of restoration may contain a request for a 60 day extension of the initial

17 commitment and an explanation of the basis for the request. B. Deadline for Defendant s Return to Court Art. 46B.081 C.C.P. provides that the defendant shall be returned to the committing court as soon as practicable after the court is notified under Art. 46B.079 C.C.P., but not later than the date of the expiration of the period of restoration. C. Transportation of the Defendant Art. 46B.082 C.C.P. 1. If charges against a defendant committed for restoration are dismissed, and the sheriff in the committing county is so notified by the court, the sheriff or his designee shall transport the defendant to the committing court. 2. Provides that if the court has not had a defendant transported to the committing court before the 15 th day after the court was notified under Art. 46B.079 C.C.P. (that the defendant s restoration period is expiring, or that the defendant is not likely to attain competency within the foreseeable future, or that the defendant has attained competency) the facility head or outpatient treatment provider shall cause defendant to be promptly transported to the committing court and placed in the custody of the sheriff of that county. The committing county shall reimburse the department for mileage and per diem expenses. D. Supporting Commitment Information Provided By Facility Head or Outpatient Treatment Program Provider Art. 46B.083 C.C.P. 1. If facility head or outpatient treatment program provider believes that the defendant is a person with mental illness and meets the criteria for court ordered mental health services, such facility head or outpatient provider shall submit a certificate of medical examination for mental illness to the court (in support of subsequent civil commitment). 2. If the facility head or outpatient treatment program provider believes that the defendant is a person with intellectual disability, such facility head or outpatient provider shall submit an affidavit to the court stating that conclusion. The trial court should then order a Determination of Intellectual disability. 9 E. Procedures Upon Defendant s Return to Court 1. Determination of the Issue of Competency a. When the defendant is returned to court following the treating facility s report indicating that the defendant has attained competency, is not likely to attain competency within the foreseeable future or because the commitment is expiring under Art. 46B.079(a) or (b) C.C.P., the court is required to make a determination with regard to defendant s competency to stand trial not later than the 20 th day after the court is notified under Art. 46B.079(c) C.C.P. That determination can be made by the court from the report alone unless any party objects to the report in writing or in open court within 15 days after the court is notified. Art. 46B.084(a) C.C.P. If a party objects to the report, the issue of competency shall be set for hearing. Art. 46B.084(b)C.C.P. 2. The Right to a Jury The defendant, defense attorney, the prosecutor or the court can move for jury determination of the issue of the defendant s competency. Otherwise, the hearing on the defendant s competency is held before the court. Article 46B.084(b) C.C.P. 3. Restoration to Competency If the judge or jury finds the defendant is competent to stand trial, criminal proceedings against the defendant may be resumed. Art. 46B.084(d) C.C.P. Before resuming criminal proceedings, the record must reflect that the court has made a judicial determination that the defendant has regained competency. This determination must be reflected in a judgment, order, docket sheet entry or other statement or evidence which is part of the record. Schaffer v. State, 583 S.W. 2d 627, 630 (Tex. Crim. App. [Panel Op.] 1979), Bradford v. State, 172 S.W. 3d 1 (Tex. App. Ft.Worth 2005, no pet.). 4. Found Incompetent to Stand Trial/Charges Pending Defendants with Mental Illness If the defendant is found incompetent to stand trial, the state does not dismiss the defendant s charges and it appears to the court that the defendant is a person with mental illness, the court is required to conduct Civil Commitment Proceedings under Subtitle C, Title 7, Health and Safety Code. Art. 46B.084(e) C.C.P. & Art. 46B.102(a) and (b) C.C.P. 5. Found Incompetent to Stand Trial/Charges Pending Defendants with Intellectual Disability If the defendant is found incompetent to stand trial, the state does not dismiss the defendant s charges

18 and it appears to the court that the defendant is a person with intellectual disability, the court is required to conduct Civil Commitment Proceedings under Subtitle D, Title 7, Health and Safety Code. Art. 46B.084(e) C.C.P. & Art. 46B.103(a) and (b) C.C.P. 6. Found Incompetent to Stand Trial and Charges Are Dismissed Art. 46B.084(f) C.C.P. states that when a defendant is again found incompetent upon returning to court following a 120 day commitment (and a 60 day extension if one was granted) and the charges are then dismissed, the court is required to proceed under Art. 46B.151 C.C.P. (Subchapter F). Under Art. 46B.151 C.C.P., upon dismissal of the charges, the court is required to determine whether there is evidence to support a finding that the defendant is a person with mental illness or intellectual disability. If it appears to the court that there is evidence to support either finding, the court is required to transfer the defendant to the appropriate court for civil commitment proceedings. The civil court shall then determine whether the defendant should be committed to a mental health facility, a residential care facility or an outpatient program. If the criminal court finds no evidence to support a finding of mental illness or intellectual disability, Art. 46B.151(d) C.C.P. requires the criminal court to release the defendant. VII. 46B. SUBCHAPTER E. C.C.P.-CIVIL COMMITMENT: CHARGES PENDING A. Civil Commitment Proceedings Subchapter E. controls Civil Commitment proceedings of defendants returning to court after an initial 60 day or 120 day commitment as well as defendants who had a 60 day extension added to their initial commitment. It also governs Renewal of Civil Commitment proceedings. Separate Articles under Chapter 46B. and separate Subtitles of the Health and Safety Code apply to Civil Commitment proceedings for defendants with mental illness and defendants with intellectual disability. The statutes governing Civil Commitment proceedings actually create a bifurcated proceeding. The two phases can be and usually are combined. Phase one is the determination of the issue of competency. Phase two requires the judge or jury to decide whether the defendant meets the criteria for court ordered extended inpatient mental health services under Section (a) Health and Safety Code or whether the defendant meets the criteria for long term commitment to a residential care facility under Section Health and Safety Code Defendants With Mental Illness Art. 46B.102 C.C.P. a. Health and Safety Code Subtitle C. (Title 7) This Subtitle governs commitment proceedings for defendants who appear to the court to be persons with mental illness to the extent that Subtitle C. applies and does not conflict with Chapter 46B. Art. 46B.102(b) C.C.P. b. Hearing Requirement Art. 46B.102(a) C.C.P. requires the court to hold a hearing to determine whether the defendant should be committed to court ordered mental health services. c. Right to Jury Under Title 7, Subtitle C. Health and Safety Code Section (b) Health and Safety Code provides that a hearing for extended mental health services must be held before a jury unless the defendant and the defense attorney waive the right to a jury. Section (c) Health and Safety Code requires the jury waiver to be in writing, under oath, signed and sworn to by both the defendant and the defense attorney unless the defendant or defense attorney orally waives the right to a jury in the court s presence (on record). d. Special Issues and Jury Charges Suggested wording of special issues under Section (a) 5 Health and Safety Code: 5 Health and Safety Code Section Order for Extended Mental Health Services (a) The judge may order a proposed patient to receive courtordered extended inpatient mental health services only if the jury, or the judge if the right to a jury is waived, finds, from clear and convincing evidence, that: (1) the proposed patient is mentally ill; (2) as a result of that mental illness the proposed patient: (A) is likely to cause serious harm to himself; (B) is likely to cause serious harm to others; or (C) is: (i) suffering severe and abnormal mental, emotional, or physical distress; (ii) experiencing substantial mental or physical deterioration of the proposed patient's ability to function independently, which is exhibited by the proposed patient's inability, except for reasons of indigence, to provide for the proposed patient's basic needs, including food, clothing, health, or safety; and (iii) unable to make a rational and informed decision as to whether or not to submit to treatment; (3) the proposed patient's condition is expected to continue for more than 90 days; and (4) the proposed patient has received court-ordered inpatient mental health services under this subtitle or under Chapter 46B, Code of Criminal Procedure, for at least 60 consecutive days during the preceding 12 months.