DEFENDANTS WITH MENTAL ILLNESS INCOMPETENCY TO … · Andrew W. Carruthers Criminal Law Magistrate of Bexar County Cadena-Reeves Justice Center 300 Dolorosa, Suite 2.121 San Antonio,

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 2.121 San Antonio, Texas 78205

State Bar of Texas 41ST ANNUAL

ADVANCED CRIMINAL LAW COURSE July 27-30, 2015

San Antonio

CHAPTER 4

Andrew W. Carruthers Criminal Law Magistrate of Bexar County

Cadena-Reeves Justice Center 300 Dolorosa, Suite 2.121 San Antonio, Texas 78205

TEL: (210) 335-2901 FAX: (210) 335-2790

E-mail: [email protected]

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 1972-1974 Chief, Juvenile Section, 1973-1974 Assistant Attorney General of Texas 1974 Associate Professor of Law, Texas Southern University 1974-1982 Private Practice Carruthers and Cunningham Attorneys at Law 1982-1989 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.

Defendants with Mental Illness & Incompetency to Stand Trial and the Insanity Defense Chapter 4

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TABLE OF CONTENTS DEFENDANTS WITH MENTAL ILLNESS

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. .............................................. 3 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.027 .............................................................................................................. 4 H. Factors Experts Must Consider in Evaluating Defendants Art. 46B.024 ................................................... 4 I. THE EXPERT’S REPORT ART. 46B.025 C.C.P. .................................................................................... 4

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. ....................................................................................... 8 B. Deadline for Defendant’s Return to Court ................................................................................................. 9 C. Transportation of the Defendant Art. 46B.082 C.C.P. ............................................................................... 9 D. Supporting Commitment Information Provided By Facility Head or Outpatient Treatment Program

Provider Art. 46B.083 C.C.P...................................................................................................................... 9


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E. Procedures Upon Defendant’s Return to Court .......................................................................................... 9

VII. 46B. SUBCHAPTER E. C.C.P.-CIVIL COMMITMENT: CHARGES PENDING ....................................... 10 A. Civil Commitment Proceedings ............................................................................................................... 10 B. Place of Commitment Under 46B. Subchapter E. C.C.P.: ....................................................................... 13 C. Redetermination of Competency .............................................................................................................. 14 D. Presumptions Upon Return to Court ........................................................................................................ 15 E. Discovery ................................................................................................................................................. 15

VIII. COURT-ORDERED MEDICATIONS ........................................................................................................... 15 A. Forced Medication Hearings Under 574.106 Health and Safety Code .................................................... 15 B. Forced Medication Hearings Under Art. 46B.086 Code of Criminal Procedure ..................................... 16 C. Constitutionality of Forced Medication ................................................................................................... 17

IX. ELECTRONIC BROADCAST SYSTEM IN CERTAIN PROCEEDINGS ................................................... 17

X. APPEAL .......................................................................................................................................................... 17 A. No Direct Appeal from the Initial Incompetency Hearing ....................................................................... 17 B. Appeal from Extended Commitment Proceedings ................................................................................... 17 C. Standards of Review on Appeal ............................................................................................................... 18 D. Retrospective Determination of the Issue of Incompetency.................................................................... 18

XI. OTHER THINGS YOU JUST MIGHT NEED TO KNOW............................................................................ 18 A. The Message from McDaniel v. State ...................................................................................................... 18 B. Suggestions About Motions Practice ....................................................................................................... 18 C. Statements Made by Defendant During the Competency Process ........................................................... 19

INCOMPETENCY TO STAND TRIAL AND THE INSANITY DEFENSE

INTRODUCTION ........................................................................................................................................................ 21

I. PRETRIAL AND TRIAL ................................................................................................................................ 21 A. The Burden of Proof ................................................................................................................................. 21 B. Determining Whether Defendant Knew His Conduct Was Wrong .......................................................... 21 C. Notice of Intent to Raise the Insanity Defense (Art. 46C.051 and 46C.052 C.C.P.) ............................... 21 D. Obtaining a Court Appointed Expert to Evaluate Defendant ................................................................... 22 E. Statements Made by the Defendant During Sanity Evaluations .............................................................. 22 F. Order Compelling Defendant to Submit to Evaluation Art. 46C.104. .................................................... 22 G. Ake and the Appointment of a Psychiatrist to Assist the Defense ........................................................... 22 H. Presenting the Insanity Defense ............................................................................................................... 23 I. The Standard of Review When the Court Excludes Evidence of Insanity ............................................... 23 J. The Standard of Review When the Court Denies a Jury Instruction ....................................................... 23 K. Lay Opinion Testimony vs. Expert Opinion Testimony .......................................................................... 24 L. Standard of review when the trier of fact rejects the insanity defense ..................................................... 24 M. Burden of Proof Shifts Upon Proof of a Prior Unvacated Adjudication of Insanity ................................ 24 N. Informing the Jury of Consequences of NGRI Finding ........................................................................... 24 O. Determination of the Issue of Not Guilty by Reason of Insanity ............................................................. 24

II. DISPOSITION PHASE ................................................................................................................................... 25 A. Hearing on Disposition ............................................................................................................................ 25 B. Clear and Convincing Evidence ............................................................................................................... 25 C. The Four Disposition Options .................................................................................................................. 25 D. Dangerousness Review Board .................................................................................................................. 25

III. RENEWAL HEARINGS ART. 46C.261 ........................................................................................................ 26 A. Requests for Renewal ............................................................................................................................... 26 B. The Certificate of Medical Examination for Mental Illness ..................................................................... 26


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C. The State’s Burden of Proof at a Renewal Hearing ................................................................................. 26 D. The Defense’s Burden of Proof for Outpatient/Community Based Treatment ........................................ 26 E. Duration of Renewal Order ...................................................................................................................... 26 F. Scope of the Evidence in Disposition and Renewal Hearings ................................................................. 26 G. Commitment Hearings Held After the Court’s Commitment Order Expires ........................................... 26

IV. MODIFICATION HEARINGS ....................................................................................................................... 26 A. Modification to Outpatient or Community Based Treatment & Supervision .......................................... 27 B. Modification or Revocation of Outpatient/Community Based Treatment and Supervision .................... 27

V. OTHER IMPORTANT DETAILS .................................................................................................................. 27 A. The Effect of Stabilization on Inpatient/Residential Care Commitments ................................................ 27 B. Duration of the Court’s Jurisdiction ......................................................................................................... 27 C. Automatic Termination of the Court’s Jurisdiction ................................................................................. 27 D. Advance Discharge and Termination of Jurisdiction ............................................................................... 27 E. The Role of Juries Under Chapter 46C. Subchapter F ............................................................................. 27 F. The Insanity Defense and Motions to Revoke Probation ......................................................................... 28 G. Renewal Orders for Pre-2005 Cases Under 46.03 C.C.P. ........................................................................ 28


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DEFENDANTS WITH MENTAL ILLNESS INTRODUCTION

Effective September 1, 2004, Chapter 46B. C.C.P. replaced Article 46.02 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 46.02 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.

Houston [1st. Dist] 1991, no writ). Pipken v. State, 671 S. W. 2d 626 (Tex. App.-Houston [1st 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 26.03 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.0042) 2Art. 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,


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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)

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.

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. 42.07, 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.

3Art. 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.


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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. 2220 (2000), Reed v. State, 112 S.W. 3d 706 (Tex. App.—Houston 14th Dist. 2003 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 DEFENDANT4-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.

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.


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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.024 1. 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

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


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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

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


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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 87th 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 17.

1. 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 574.035: 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 593.052. (See footnote 7, page 14 of this paper).

Suggested Special Issues:


7

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)

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 17.032 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-17.032 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


8

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

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


9

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 15th 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.

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 20th 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


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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 574.035(a) Health and Safety Code or whether the defendant meets the criteria for long term commitment to a residential care facility under Section 593.052 Health and Safety Code.

1. 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 574.032(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 574.032(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 574.035(a)5 Health and Safety Code:

5Health and Safety Code Section 574.035 Order for Extended Mental Health Services (a) The judge may order a proposed patient to receive court-ordered 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.


11

1. Do you find from a preponderance of the evidence that the defendant is incompetent to stand trial?

2 Do you find from clear and convincing evidence that the defendant is a person with mental illness?

3. Do you find from clear and convincing evidence that as a result of that mental illness, the defendant meets the criteria for court ordered extended in-patient mental health services?

4. Do you find from clear and convincing evidence that the defendant’s condition is expected to continue for more than 90 days?

5. Do you find from clear and convincing evidence that the defendant has received court-ordered inpatient mental health services under Chapter 46B. C.C.P. for 60 consecutive days during the preceding 12 months?

(c) If the jury or judge finds that the proposed patient meets the commitment criteria prescribed by Subsection (a), the jury or judge must specify which criterion listed in Subsection (a)(2) forms the basis for the decision. (d) The jury or judge is not required to make the finding under Subsection (a)(4) or (b)(2)(F) if the proposed patient has already been subject to an order for extended mental health services. (e) To be clear and convincing under Subsection (a), the evidence must include expert testimony and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm: (1) the likelihood of serious harm to the proposed patient or others; or (2) the proposed patient's distress and the deterioration of the proposed patient's ability to function. (f) To be clear and convincing under Subdivision (b)(2), the evidence must include expert testimony and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm: (1) the proposed patient's distress; (2) the deterioration of ability to function independently to the extent that the proposed patient will be unable to live safely in the community; and (3) the proposed patient's inability to participate in outpatient treatment services effectively and voluntarily. (g) The court may not make its findings solely from the certificates of medical examination for mental illness but shall hear testimony. The court may not enter an order for extended mental health services unless appropriate findings are made and are supported by testimony taken at the hearing. The testimony must include competent medical or psychiatric testimony. (h) An order for extended inpatient or outpatient mental health services shall state that treatment is authorized for not longer than 12 months. The order may not specify a shorter period. .

If the judge or jury finds that the defendant meets the criteria for court ordered extended inpatient mental health services, the judge or jury must specify which of the three criterion set out in Section 574.035(a)(2) forms the basis for the decision. Section 574.035(c) Health and Safety Code. State ex rel. A.K., 2005 Tex. App. Lexis 7414 (Tex. App.-Tyler 2005) no pet. held: as the court's order fails to specify which criterion listed in subsection (a)(2) forms the basis of the court's decision, the order does not comply with the mandate set forth in Section 574.035(c). Therefore, we hold that due to its failure to include appropriately specific findings in its order, the trial court improperly entered the order renewing a prior order for inpatient extended mental health services.

Issue 5 is not required on the second and subsequent commitment proceedings (which are referred to as Renewal Proceedings under Section 574.066 Health and Safety Code). Section 574.035(d) Health and Safety Code.

Section 574.036(a) Health and Safety Code provides that the court shall dismiss the jury, if any, after the jury decides whether the defendant meets commitment criteria. Section 574.036(b) Health and Safety Code permits the court to hear additional evidence pertaining to the most appropriate setting for mental health services. Section 574.036(d) Health and Safety Code requires the court to order that mental health services be provided in the least restrictive appropriate setting available. Section 574.036(e)(1) Health and Safety Code allows the court to commit a defendant to inpatient care if the trier of fact finds that the defendant meets the criteria for inpatient mental health services prescribed by Section 574.035(a) Health and Safety Code. Burden to prove by clear and convincing evidence

Special issues 2, 3, 4, and 5 require proof by clear and convincing evidence. Clear and convincing evidence must include expert testimony and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm: the likelihood of serious harm to the defendant or others or the defendant’s distress and the deterioration of his ability to function. In House v. State, 261 S.W. 3d 244 (Tex. App.-Houston, 14th Dist. 2008) no pet., the court of appeals held that the State’s expert improperly relied solely on evidence of the defendant’s mental illness and did not identify a recent overt act or pattern of behavior that tended to confirm the likelihood of serious harm to the defendant or others. e. Certificates of Medical Examination for Mental

Illness Civil Commitment proceeding for defendants with

mental illness may not be held unless there are on file with the court at least two certificates of medical


12

examination for mental illness according to Section 574.009(a) Health and Safety Code and Marroquin v. State, 112 S.W. 3d 295 (Court of Appeals, El Paso 2003) no pet. However Art. 46B.083(a) only requires a facility or outpatient treatment provider to submit one certificate in support of its request for recommitment. In practice, some TDSHS hospitals only require one certificate to accompany a defendant who is being recommitted.

Section 574.009(c) Health and Safety Code empowers the court to order the defendant to submit to evaluation and may issue a warrant to allow the defendant to be taken into custody for the examination.

Each certificate must be prepared by a physician who has examined the defendant within the past 30 days. Section 574.009(a) Health and Safety Code.

Requisites for a Certificate of Medical Examination for Mental Illness are set out in Section 574.011 Health and Safety Code.6 The certificate must be sworn to and must include the detailed reasons for the physician’s opinion. f. Waiver of Live Testimony Permitted

Upon defendant’s return to court, the court shall make a determination with regard to defendant’s competency to stand trial. Article 46B.084(a-1)(1) provides that the court make the determination based on the report filed under Article 46B.079(c) and on other medical information or personal history information relating to the defendant.

6 Health and Safety Code Section 574.011. Certificate of Medical Examination for Mental Illness

(a) A certificate of medical examination for mental illness must be sworn to, dated, and signed by the examining physician. The certificate must include: (7) the examining physician’s opinion that:

(A) the examined person is mentally ill; (B) as a result of that mental illness the

examined person is likely to cause serious harm to himself or others or is: (i) suffering severe and abnormal

mental, emotional, or physical distress; (ii) experiencing substantial mental or physical deterioration of his 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) not able to make rational and informed decision as to whether to submit to treatment.

g. Waiver of Appearance Section 574.004(e) Health and Safety Code allows

a defendant to waive appearance at an extended commitment proceeding. If the defendant waives appearance, his attorney must advise the court as to why the defendant is absent from the hearing. h. Duration of Extended Mental Health Commitment

All extended mental health commitments are required to be for a period not to exceed 12 months. Section 574.035(h) Health and Safety Code. The provisions of Article 46B.0095 C.C.P. and 46B.010 C.C.P. do not permit commitment orders to exceed the maximum period of restoration. i. Renewal of Order for Extended Mental Health

Services Section 574.066 Health and Safety Code governs

the second and subsequent civil commitment proceedings for incompetent defendants. It requires the trier of fact to decide commitment issues under Section 574.035(a) Health and Safety Code.

Two certificates of medical examination for mental illness must be on file with the court as prerequisites to a hearing on renewal of a civil commitment according to Section 574.009(a) Health and Safety Code. In practice, some TDSHS hospitals are requiring only one certificate. See 46B.083(a).

In a renewal proceeding, the trier of fact is not required to make findings that defendant has received 60 consecutive days of inpatient mental health services within the preceding 12 months under Section 574.035(a)(4). Section 574.066(f) Health and Safety Code.

The period of commitment is not to exceed 12 months. Section 574.066(f) Health and Safety Code.

j. Time Saver

574.066(g) Health and Safety Code: If a hearing is not requested or set, the court may admit into evidence the certificates of medical examination for mental illness. The certificates constitute competent medical or psychiatric testimony and the court may make its commitment findings solely from the certificates and the detailed request for renewal.

2. Defendants With Intellectual Disability

Art. 46B.103 C.C.P.


13

a. Health and Safety Code Subtitle D (Title 7) Subtitle D, Title 7 Health and Safety Code

governs long-term commitment proceedings for defendants found incompetent who appear to the court to be persons with intellectual disability.

b. Right to a Jury

Section 593.049(a) Health and Safety Code provides for an extended commitment hearing before a jury upon the request of either party or on the court’s own motion. c. Special Issues and Jury Charges:

Persons with Intellectual disability under 594.052(a) Health and Safety Code:

(1) Do you find from a preponderance of the

evidence that the defendant is incompetent to stand trial?

(2) Do you find beyond a reasonable doubt that the defendant is a person with intellectual disability?

(3) Do you find beyond a reasonable doubt that the defendant meets the criteria for commitment to a residential care facility7?

• Section 593.050(e) Health and Safety Code

requires the party seeking to commit a defendant to a residential care facility to prove the criteria for commitment beyond a reasonable doubt. Pratt v. State, 907 S.W. 2d 38, (Tex. App.-Dallas 1995) writ denied.

7Health and Safety Code Section 593.052 Order of Commitment

(a) A proposed resident may not be committed to a residential care facility unless:

(1) the proposed resident is a person with mental intellectual disability;

(2) evidence is presented showing that because of intellectual disability, the proposed resident:

(A) represents a substantial risk of physical impairment or injury to himself or others; or

(B) is unable to provide for and is not providing for the proposed resident’s most basic physical needs;

(3) the proposed resident cannot be adequately and appropriately habilitated in an available, less restrictive setting; and

(4) the residential care facility provides habilitative services, care, training and treatment appropriate to the proposed resident’s needs.

d. Determination of Intellectual Disability • A person is not eligible to receive intellectual

disability services unless the person is formally declared to be a person with intellectual disability. Section 593.003 Health and Safety Code. A formal determination of intellectual disability is therefore a necessary prerequisite to long-term commitment to a residential care facility or an outpatient program for persons with intellectual disability.

• Additionally, Section 593.050(d) Health and Safety Code requires that the determination of intellectual disability be admitted into evidence at the Civil Commitment proceeding.

• Section 593.005(a) Health and Safety Code specifies the qualifications of persons who can perform determinations of intellectual disability. The person must be a physician or psychologist either licensed to practice in this state or certified by the Texas Department of Mental Health and Intellectual disability. Section 593.005(b) Health and Safety Code details the permissible methods of assessment.

e. Waiver of Live Testimony

Section 593.050(c) Health and Safety Code states that the proposed resident is entitled to and must be provided the opportunity to confront and cross-examine each witness.

Though interpretive case law is lacking, the language seems to imply that the right to live testimony can be waived. f. Waiver of Appearance

Section 593.050(b) Health and Safety Code states that the proposed resident is entitled to be present throughout the hearing but allows the court to waive the resident’s appearance in writing clearly stating the reason for the decision if the court determines that the resident would be harmed by attending. g. Duration of Commitment

No period of time is specified in the commitment order of persons with intellectual disability under the Health and Safety Code. The indefinite commitment period is referred to as long-term placement in residential care. However, the maximum period of restoration provisions of Article 46B.0095 C.C.P. limit total time of commitment. B. Place of Commitment Under 46B. Subchapter

E. C.C.P.: Extended Commitments: Charges Pending


14

1. Placement Provisions Similar placement options are available for

defendants with mental illness and defendants with intellectual disability upon being found incompetent and found to meet civil commitment criteria. Articles 46B.104 and 46B.106 C.C.P. 2. Violent Offenses & Allegations Seeking

Affirmative Findings Art. 46B.104 C.C.P. (a) Maximum Security

If the defendant is charged with an offense under 17.032(a) C.C.P., other than assault under 22.01(a)(1) Texas Penal Code or if the indictment seeks an affirmative finding under Article 42.12, Section 3g(a)(2) C.C.P., the defendant shall be committed to the maximum security unit. Presently, North Texas State Hospital-Vernon Campus is the designated maximum security unit. (b) Dangerousness Review

Within 60 days after arrival at the maximum security unit, the defendant shall be transferred to an inpatient mental health facility other than a maximum security unit or to a residential care facility or a program designated by the local mental health or intellectual disability authority unless the defendant is determined to be manifestly dangerous by a Dangerousness Review Board. Art.46B.105(a) C.C.P. The Dangerousness Review Board is appointed by the Commissioner of Mental Health and Intellectual disability. Art. 46B.105(b) C.C.P. If the superintendent of the maximum security unit disagrees with the review board’s determination, the commissioner of mental health and intellectual disability decides whether the defendant is manifestly dangerous. Art. 46B.105(e) C.C.P. 3. No Finding of Violence Art. 46B.106 C.C.P.

If the defendant is not charged with an offense listed under Art. 17.032(a) C.C.P. and the indictment does not seek an affirmative finding under Article 42.12 , Section 3g(a)(2) C.C.P., placement shall be in a facility determined to be appropriate by the local mental health or local intellectual disability authority serving the catchment area where the committing court is located. The defendant can be committed to an outpatient program if an appropriate outpatient program is available to the defendant and the program is determined to be appropriate by the court. Section 574.035(b)(1) Health and Safety Code.

4. Release, Discharge, Furlough and Transfer

Under 46B.107 C.C.P., the trial court has authority to disapprove the proposed release of a defendant over the facility head’s directive. This disapproval authority extends to outpatient programs.

If the court disapproves of a proposed release, the court or the attorney for the state is required to notify the facility head that criminal charges are pending. The statute requires the facility head or outpatient program to provide a written statement of his/her opinion regarding the defendant’s competency. The court is required to conduct a hearing to determine whether the defendant meets commitment criteria as a person with intellectual disability or mental illness.

Further, Section 571.011(b) Health and Safety Code says that the discharge, furlough and transfer provisions of the mental health code do not apply to defendants with mental illness committed under Chapter 46B. C.C.P. C. Redetermination of Competency 1. Motion/Request for Redetermination of

Competency A defendant may be returned to court at any time

during the course of a commitment to determine whether the defendant has been restored to competency. Art. 46B.108(a) C.C.P. Article 46B.108(b) C.C.P. states that an inquiry into restoration of competency may be made at the request of the head of the mental health or residential care facility or the outpatient treatment provider, the defendant, the attorney representing the state or the court. (a) Request by Head of Facility

Art. 46B.109(b) C.C.P. provides that the request of the facility head or outpatient treatment provider should include a written statement that in their opinion the defendant is competent to stand trial. (b) Motions by Parties

A motion for determination of competency by a party may be accompanied by affidavits supporting the moving party’s assertion that the defendant is competent. Art. 46B.110(b) C.C.P. (c) Subsequent Motions for Determination

Subsequent motions for determination filed before the 91st day after a redetermination hearing shall not be heard by the court unless the court first finds reason to believe that the defendant’s condition has materially changed since the prior determination of incompetency. Such motion must explain why the person making the request or motion believes another inquiry into restoration is appropriate and provide support for the belief. Art. 46B.115 C.C.P. 2. Examination of Defendant for Competency

When a request or motion for redetermination of competency is filed, the court can appoint an expert to examine the defendant to determine whether he/she is competent to stand trial. Art. 46B.111 C.C.P.


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3. Agreed Restoration If both parties agree that the defendant has been

restored to competency and the court concurs, the court shall find the defendant competent. Art. 46B.112 C.C.P. 4. When is a Hearing Required on a Redetermination

Request The court is required to hold a hearing to

determine whether the defendant has been restored to competency if requested to do so by a facility head or outpatient treatment provider. Article 46B.113(a) C.C.P. The court is not required to hold a hearing on its own motion or the motion of any other party unless the motion and any supporting material establish good reason to believe the defendant may have been restored to competency. Art. 46B.113(b) C.C.P. 5. Right to Jury 46B.113(c) C.C.P.

If the parties do not agree that the defendant has been restored to competency or if the court does not concur with the parties’ agreement that the defendant has been restored to competency, a hearing must be held. The hearing shall be before a jury upon the request of either party or the court. 6. Disposition on Determination of Competency or

Incompetency If competency is restored, the defendant’s

criminal charges may proceed. Art. 46B.116. C.C.P. If the defendant is found incompetent to stand trial, he or she is remanded pursuant to the unexpired order of commitment. Art. 46B.117 C.C.P. D. Presumptions Upon Return to Court 1. Presumed Competent Art. 46B.113(d) C.C.P.

When a defendant found incompetent returns to court for any reason under Subchapter E., he or she is presumed competent to stand trial if the head of the facility or outpatient treatment provider has provided a report to the court stating that the defendant is now competent. In such instance, incompetency must be proved by a preponderance of the evidence. 2. Presumed Incompetent Art. 46B.113(e) C.C.P.

When a defendant found incompetent returns to court for any reason under Subchapter E., he or she is presumed incompetent to stand trial if the head of the facility or outpatient treatment provider has not provided a report to the court stating that the defendant is now competent to stand trial. In such instance, competency must be proved by a preponderance of the evidence. E. Discovery

Article 46B.171(b) C.C.P. provides that upon request of the defendant or his attorney, a mental

health facility, residential care facility or outpatient treatment program shall provide to the defendant or defendant’s attorney copies of the facilities records regarding the defendant. VIII. COURT-ORDERED MEDICATIONS

Defendants adjudicated incompetent and committed to inpatient, outpatient or residential care can be forcibly medicated upon refusal to take prescribed psychoactive medications. Court ordered medication proceedings are initiated by the filing of an application for court ordered medication. Section 574.106 Health and Safety Code and Art. 46B.086 C.C.P. are the two applicable statutory provisions. A. Forced Medication Hearings Under 574.106

Health and Safety Code Defendants Under Commitment for Court Ordered Inpatient Mental Health Services

A defendant may be compelled to take psychoactive medications if the state proves by clear and convincing evidence that:

(1) The proposed medications are in the defendant’s best interest and

(2) The defendant lacks the capacity to make a decision regarding the administration of the proposed medications and/or

(3) The defendant presents a danger to himself or others in the facility where the defendant is being treated or housed as a result his mental disorder.

Defendants in Custody Awaiting Trial and Ordered to Receive Inpatient Mental Health Services in the Six Months Preceding a Hearing Under 574.106

A defendant may be compelled to take psychoactive medications if the state proves by clear and convincing evidence that:

(1) The proposed medications are in the defendant’s best interest and

(2) The defendant lacks the capacity to make a decision regarding the administration of the proposed medications and/or

(3) The defendant presents a danger to himself or others in the facility where the defendant is being treated or housed as a result of his mental disorder.

Defendants Who Have Remained Confined in a Correctional Facility for a Period Exceeding 72 Hours Awaiting Transfer for Competency Restoration

A defendant who has been found incompetent to stand trial and is held in jail awaiting transfer to


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an inpatient facility for competency restoration may be compelled to take psychoactive medications if the state proves by clear and convincing evidence that:

(1) The proposed medications are in the patient’s best interest and

(2) The defendant presents a danger to himself and/or others in the correctional facility. A hearing on an application for forced medication shall be conducted on record before a probate judge or a judge with probate jurisdiction. Section 574.106(c) Health and Safety Code. A probate judge or judge with probate jurisdiction may refer a forced medication hearing to a master or magistrate. No record of the hearing is required if the hearing is held before a magistrate or court appointed master. Section 574.106(d) Health and Safety Code. A party is entitled to a hearing de novo if there is an appeal of the master or magistrate’s ruling. Section 574.106(e) Health and Safety Code.

B. Forced Medication Hearings Under Art.

46B.086 Code of Criminal Procedure Statute’s Applicability

Art. 46B.086 C.C.P. applies to a defendant found to be incompetent to stand trial and:

(a) remains in a correctional facility in excess of 72 hours awaiting transfer to an inpatient mental facility, a residential care facility or an outpatient treatment program;

(b) is under commitment to an inpatient mental health facility or a residential care facility for the purpose of competency restoration;

(c) remains in a correctional facility following restoration to competency awaiting further criminal proceedings; or

(d) is under commitment to an outpatient competency restoration program under Art. 46B.072 C.C.P. Under Art. 46B.086 additional prerequisites to a compelled medication hearing are the preparation of a written continuity of care plan that requires the defendant to take psychoactive medication and the defendant’s refusal to take psychoactive medications as required by the continuity of care plan.

Defendants Committed for Inpatient Mental Health Services

If the State was unsuccessful in proving that the defendant poses a danger to himself/herself or others and/or that the proposed medications are in the

defendant’s best interest under 574.106(a) and (a-1) Health and Safety Code, Art. 46B.086 C.C.P. provides a second opportunity at forced medication for incompetent defendants ordered committed for inpatient mental health services. In that instance, Art. 46B.086(b) C.C.P. requires the filing of a motion to compel medication within 15 days after the date a judge issues an order finding that the defendant does not meet the criteria for court-ordered administration of psychoactive medications under Section 574.106 Health and Safety Code. Defendants Committed to Residential Care Facilities

Art. 46B.086 C.C.P. is the exclusive statutory provision setting forth procedures for incompetent defendants with intellectual disability committed to residential care facilities. Under Art. 46B.086 C.C.P., compelled medication hearings for persons with intellectual disability do not require a failed compelled medication hearing under Section 574.106 Health and Safety Code as a prerequisite to a 46B.086 C.C.P. compelled medication hearing.

Defendants Committed to Outpatient Programs

Under Art. 46B.086 C.C.P., defendants committed to outpatient competency restoration programs under Art. 46B.072 C.C.P. can be forcibly medicated. The motion to compel medication may be filed at any time by the attorney representing the State. Art. 46B.086(b). For defendants under an outpatient commitment, a failed hearing under 574.106 Health and Safety Code is not a prerequisite to a forced medication hearing under 46B.086 C.C.P. State’s Burden of Proof in a Court-Ordered Medication Hearing Under Art. 46B.086(e) C.C.P.

Under Art.46B.086 C.C.P., the court may issue an order of forced medication only upon a finding by clear and convincing evidence that:

(1) the prescribed medication is medically

appropriate, is in the best interest of the defendant, and does not present side effects that cause harm to the defendant that is greater than the medical benefit to the defendant;

(2) the state has a clear and compelling interest in the defendant obtaining and maintaining competency to stand trial;

(3) no other less invasive means of obtaining and maintaining competency exists; and

(4) the prescribed medication will not unduly prejudice the defendant’s rights or use of a defensive theory at trial.


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Two (2) Physicians’ Testimony Required Art. 46B.086(d) C.C.P.

The court may issue an order for forced medication only if the order is supported by the testimony of two physicians, one of whom is the prescribing physician at the correctional facility and another who is not involved in the proceedings against the defendant. Examination of the Defendant

The court may require either or both physicians expected to testify in the forced medication hearing to examine the defendant. Art.46B.086(d).C.C.P. Admissibility of Defendant’s Statements

Art. 46B.086(f) C.C.P. says that statements made by the defendant to an examining physician under 46B.086 C.C.P. are not admissible against the defendant at any criminal proceeding except a hearing on the defendant’s competency or where the defense opens the door by first introducing evidence of the contents of the defendant’s statement.

C. Constitutionality of Forced Medication

Sell v. United States, 539 U.S. 166; 123 S. Ct. 2174; 156L. Ed. 2d 197 (2003) holds that an individual has a constitutionally protected liberty interest in avoiding the involuntary administration of antipsychotic drugs. However, the Constitution permits the Government to involuntarily administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if: important governmental interests are at stake; the court concludes that involuntary medication will further those concomitant state interests; the treatment is medically appropriate; the treatment is substantially unlikely to have side effects that may undermine the fairness of the trial; and, taking account of less intrusive alternatives, the treatment is necessary to significantly further important governmental trial-related interests. The United States Supreme Court and the Texas Supreme Court have defined a serious offense as one for which a defendant may be sentenced to imprisonment for more than six months. Baldwin v. New York, 399 U.S. 66, 69, 90 S. Ct. 1886, 1888, 26 L. Ed. 2d 437 (1970) and Ex parte Werblud, 536 S.W. 2d 542, 547 (Tex. Sup. Ct. 1976). IX. ELECTRONIC BROADCAST SYSTEM IN

CERTAIN PROCEEDINGS Art. 46B.013 C.C.P. permits the court to conduct

certain hearings by electronic broadcast system. The defendant or the attorney representing the defendant and the attorney representing the state must consent to the use of electronic broadcast system in writing. The defendant and defense counsel must be able to

communicate privately upon request. A recording of the hearing must be preserved until appellate proceedings have been concluded. 46B.013(b) C.C.P. gives the court discretion to terminate the electronic broadcast and require the defendants appearance in court. Provisions under Chapter 46B. specifically authorize the court to conduct certain hearings by electronic broadcast system: Civil Commitment hearings held before the court . Art.46B.084(b-1) C.C.P; Restoration hearings held before the court Art. 46B.113(c)(2) C.C.P.; and Redetermination hearings held before the court. Art. 46B.115(c). C.C.P. This writer believes that any hearing under 46B. which does not involve a jury can be conducted by electronic broadcast if the provisions of Art. 46B.013 C.C.P. are complied with.

X. APPEAL A. No Direct Appeal from the Initial

Incompetency Hearing Art. 46B.011 C.C.P. provides that neither party is

entitled to make an interlocutory appeal of a determination of competency or incompetency under Art. 46B.005 C.C.P. Direct appeal is not available until after final conviction. A competency hearing is ancillary to the main criminal proceeding and can be included as a point of error in an appeal of the trial on the merits. Jackson v. State, 548 S.W. 2d 685, 690 (Tex. Crim. App. 1977). B. Appeal from Extended Commitment

Proceedings 1. Appeal from Order for Court Ordered Mental

Health Services Section 574.070 Health and Safety Code governs

the appeal from an order requiring court-ordered mental health services or from a renewal or modification order. Notice of Appeal must be filed in the court of appeals for the county in which the order was entered. Notice of appeal must be filed not later than the 10th day after the date on which the order was signed. Art. 46B.102(d)(3) C.C.P. states that appeal from the criminal court proceedings are to the court of appeals as in proceedings for court-ordered inpatient mental health services under Subtitle C, Title 7, Health and Safety Code. 2. Appeal from Order for Commitment to

Residential Care Section 593.056 Health and Safety Code governs

the appeal from an order requiring commitment to a residential care facility. Section 593.056(b) Health and Safety Code states that the Texas Rules of Civil Procedure apply to such appeals. Vernon’s Ann. Texas Rules App. Proc., Rule 26.1 states that Notice of Appeal must be filed within 30 days after the judgment is signed. Texas Rules App. Proc., rule 25.1 requires


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that notice of appeal be filed with the clerk of the trial court. Art. 46B.103(d)(3) C.C.P. states that appeal from criminal court proceedings are to the court of appeals as in the proceedings for court-ordered commitment to a residential care facility under Subtitle D, Title 7, Health and Safety Code. C. Standards of Review on Appeal 1. Standard of Review from Failure to Conduct An

Informal Inquiry An abuse of discretion standard is applied to the

trial court’s failure to conduct an informal inquiry. The appellate courts will not conduct de novo review. If the appellate court finds that the trial court abused it’s discretion by not conducting an inquiry hearing, it will remand the matter to the trial court with instructions to hold an inquiry hearing. Casey v. State, 924 S.W. 2d 946, 948-949 (Tex. Crim. App. 1996). 2. Standard of Review for Failure to Grant A

Competency Trial Under 46.02, Section 4 (a) C.C.P., the issue of

incompetency had to be tried before a jury if the court found some evidence to support a finding of incompetency to stand trial. The court’s failure to impanel a jury for the purpose of conducting a competency hearing was reviewed on an abuse of discretion standard. Moore v. State, 999 S.W. 2d 385, 393 (Tex. Crim. App. 1999). In its review, the .appellate court should ask, does the evidence raise the issue for submission to a jury when viewed in the light most favorable to the party with the burden of securing the finding, disregarding contrary evidence and inferences. Sisco v. State, 599 S.W. 2d 607 (Tex. Crim. App. [Panel Op.] 1980). Reed v. State, 112 S.W. 3d 706 (Tex. App.—Houston 14th Dist. 2003) pet. ref’d. Remember, under 46B.051(a) C.C.P., a party seeking a jury trial must request a jury trial on the issue of competency. 3. Standard of Review: Jury Findings

The standard of review applied to the jury’s determination of the issue of competency is whether, considering all the evidence relevant to the issue, the judgment is so against the greater weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W. 2d 146, 155 (Tex. Crim. App. 1990). D. Retrospective Determination of the Issue of

Incompetency A trial court’s failure to make proper inquiry into

the issue of competency can result in the appellate court ordering the trial court to make a retrospective determination of competency. The trial court is then required to conduct a hearing to determine whether the defendant was incompetent during proceedings before

the trial court. In Caballero v. State, 587 S.W. 2d 741 (Tex. Crim. App. 1979) after conviction, the court on initial consideration reversed and remanded because of error which occurred in the hearing on the defendant’s competency to stand trial. On rehearing, the court remanded the case to the trial court for a retrospective determination of the issue of competency.

XI. OTHER THINGS YOU JUST MIGHT NEED

TO KNOW A. The Message from McDaniel v. State

McDaniel v. State, 98 S.W. 3d 704 (Tex. Crim. App. 2003) should be considered when attempting to obtain a pretrial inquiry hearing and competency evaluation under 46B. In McDaniel, the defense filed a pretrial motion asserting: there is an issue regarding competency, requesting the appointment of a disinterested expert and requesting a competency hearing before a jury. The Court of Criminal Appeals noted that the motion did not specifically assert that the defendant was incompetent to stand trial and did not contain evidence that supported incompetency. The Court held that the trial court was not required to conduct an inquiry hearing where the defendant did not request an inquiry hearing. The lack of a defense objection to the trial court’s failure to provide such hearing before the court proceeded with a revocation hearing, waived any purported error. McDaniel, 98 S.W. 3d at 711.

Based on the Court of Criminal Appeals treatment of the defense pleadings and presentation in McDaniel, it is apparent that care should be taken in pleading, presenting and preserving error associated with the issue of incompetency. B. Suggestions About Motions Practice

File, present and obtain a ruling on a motion suggesting that the defendant is incompetent to stand trial. The motion should request an informal inquiry hearing under 46B.004 C.C.P. The motion should allege that the defendant is incompetent to stand trial; state why counsel believes the defendant is incompetent to stand trial, specifically using the definition of incompetency contained in 46B.003(a) C.C.P.: the defendant does not have sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and/or the defendant does not have a rational and factual understanding of the proceedings against him/her; attach supporting affidavits under Art. 46B.004(a) C.C.P. setting out the facts upon which the belief is based.

File, present and obtain a ruling on a motion under Art. 46B.021 requesting the appointment of one or more disinterested experts to examine the defendant under 46B.021 C.C.P. Request that each expert prepare a report to the court on the defendant’s


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competency to stand trial and request that such expert/s be available to testify on the issue of competency.

File, present and obtain a ruling on a motion requesting a stay of all other criminal proceedings pending determination of the issue of incompetency to stand trial under Art. 46B.004(d) C.C.P.

File, present and obtain a ruling on your request for pretrial determination of the issue of incompetency under Subchapter C. The motion should indicate whether you want a trial of the issue of competency before a jury or before the court. C. Statements Made by Defendant During the

Competency Process Article 46B.007 C.C.P. is an expansion of the

exclusionary rule as it existed under Article 46.02, Section 3(g) C.C.P. which provided that no statement made by the defendant during an examination or hearing on competency was admissible against the defendant on the issue of guilt in any criminal proceeding. Ballard v. State, 519 S.W. 2d 426 (Tex. Crim. App. 1975) held that the error in admitting defendant’s statement made during a competency evaluation at the guilt/innocence phase for impeachment purposes could not be waived. Such error could, however, be rendered harmless as when the accused admits the making of the statements. In Caballero v. State, 587 S.W. 2d 741 (Tex. Crim. App. 1979) at the guilt/innocence phase, the defense failed to object to statements made by the defendant to a psychiatrist during a competency evaluation. The court followed Ballard in holding that admission of defendant’s statements made during a competency evaluation was error, which could not be waived. The court again reiterated that the error could be rendered harmless. In this instance the error was ruled harmless because two other statements made by the defendant were admitted into evidence confessing to the same facts testified to by the psychiatrist.

Article 46B.007 C.C.P. provides that statements made by the defendant during competency evaluations and testimony of an expert based on that statement as well as evidence obtained as a result of that statement are inadmissible against the defendant at any criminal proceeding except at a trial on a defendant’s competency or any proceeding at which the defendant first introduces a statement, testimony or evidence made at a competency evaluation or hearing. Under Art. 46.02 C.C.P. the Court of Criminal Appeals held that a psychiatrist appointed to determine competency could properly testify at the punishment phase. Hamlett v. State, 578 S.W. 2d 699 (Tex. Crim. App.1979). Article 46B.007 C.C.P. enables the defense to exclude such testimony even at the punishment phase if proper and timely objections are made. See Mitten v. State, 145 S.W. 3d 225 (Tex. Crim. App. 2004).

Statements made during joint competency/sanity evaluations were held admissible at the guilt-innocence phase in Hawkins v. State, 660 S.W. 2d 65 (Tex. Crim. App. 1983). The Court held that in absence of evidence showing that the psychologist was appointed solely to determine competency, the record did not show a violation of Article 46.02, Sec. 3(g). The Court noted that no prohibition against the use of such statements is contained in the statutes related to insanity at the time of the offense.


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INCOMPETENCY TO STAND TRIAL AND THE INSANITY DEFENSE INTRODUCTION

Insanity is an affirmative defense under Section 8.01 of the Texas Penal Code. Affirmative Defense is defined in Section 2.04 of the Texas Penal Code. Chapter 46C. of the Texas Code of Criminal Procedure, titled The Insanity Defense, sets out procedural details of presenting the insanity defense and various procedures which follow a finding of not guilty by reason of insanity. All references in this paper to 46C. pertain to articles contained in the Texas Code of Criminal Procedure. I. PRETRIAL AND TRIAL A. The Burden of Proof

In theory, the insanity defense does not apply until and unless the state proves every element of the offense beyond a reasonable doubt. Once the state has fulfilled that burden, to prevail with the insanity defense, the defendant has to prove by a preponderance of the evidence that as a result of severe mental disease or defect, the defendant did not know that his conduct was wrong. Ruffin v. State, 270 S. W. 3d 586 (Tex. Crim. App.2008) and Lantrip v. State, 336 S.W. 3d 343 (Tex. App.-Texarkana 2011, no pet.). B. Determining Whether Defendant Knew His

Conduct Was Wrong For purposes of the insanity defense, knowing that

conduct was wrong means knowing that the conduct was illegal. In Bigby v. State, 892 S.W. 2d 864 (Tex. Crim. App. 1994) several expert witnesses testified that the defendant knew his conduct was illegal but that he did not know that his conduct was morally wrong. The defendant believed that regardless of society’s views about his illegal act and his understanding that his conduct was illegal, under his moral code his conduct was permissible. The Court noted that the focus on Defendant’s morality was misplaced. It held that the question of insanity should focus on the nature and quality of his action and whether he knew it was an act he ought not do. By accepting and acknowledging his conduct was illegal by societal standards, the defendant understood that his conduct was wrong.

In seeking to determine whether a defendant knew that his conduct was wrong, the trier of fact can look at a broad range of evidence covering periods of time before, during and after the alleged conduct. In Mendenhal v. State, 77 S.W. 3d 815 (Tex. Crim. App. 2002) the defendant stabbed a police officer. The Court of Criminal Appeals found that Appellant knew her conduct was wrong because after the stabbing, she waited to be arrested and on an audio recording made at the police department, she acknowledged that she

had done something wrong. Plough v. State, 725 S.W. 2d 494 (Tex. App.-Corpus Christi 1987, no writ) lists other factors which may be considered by the trier of fact in determining whether the Defendant knew that his conduct was wrong: the defendant’s attempts to conceal evidence by retrieving spent shells from the crime scene; the fact that he cleaned the gun and placed it in an attic with other guns; the fact that he used a ladder to climb into the attic and returned the ladder to the garage after he finished placing the gun in the attic; that the defendant behaved calmly and rationally after the shooting; and the fact that he expressed an awareness that his statements were bizarre and that other people may find them incredible. The Plough Court stated that the circumstances of the offense, the life experiences of the accused and his actions before and after the crime are relevant in determining sanity at the time of the offense. The Court described Appellant’s actions after the shooting as methodical and calculating. The Court affirmed the conviction and held that there was sufficient evidence to support the jury’s rejection of the appellant’s insanity defense. C. Notice of Intent to Raise the Insanity Defense

(Art. 46C.051 and 46C.052 C.C.P.) Article 46C.051 C.C.P. requires that a defendant

planning to raise the defense of insanity must file with the court a notice of intent to raise the insanity defense at least 20 days before trial or at any pretrial hearing held before that 20 day period. The statute requires that the notice contain a certification that a copy of the motion has been served on the attorney representing the state.

Article 46C.052 C.C.P. says failure to timely file Notice of Intent to Raise the Insanity defense results in a bar to presentation of evidence related to the insanity defense unless the trial court finds there is good cause for failing to timely file the notice. In Hill v. State, 320 S.W. 3d 901 (Tex. App.-Amarillo 2010 pet. ref’d) defense did not file notice of intent to raise the insanity defense. The doctor’s second sanity evaluation of the defendant was filed within 20 days of trial. The Court of Appeals noted that trial counsel did not seek a continuance or a ruling on good cause for late filing. In a point of error, Appellant claimed that the trial court should have, sua sponte, stopped the punishment hearing when it received evidence of Appellant’s mental health issues (i.e. when the doctor’s second examination was filed). The Court found the trial court had no duty to sua sponte stop the punishment hearing and that the process of filing timely notice of intent to raise the insanity defense must be followed or the defendant will not be allowed to introduce evidence on the issue of insanity, absent good cause for failure to give the required notice. Further, it found that any claimed error relating to the trial court’s failure to


22

consider evidence of Appellant’s insanity defense was not preserved for review.

The trial court has discretion to decide whether good cause exists for failure to file timely notice of intent to raise the insanity defense. Wagner v. State, 687 S.W. 2d 687 (Tex. Crim. App. 1984 reh. denied). Defense counsel in Newsome v. State, 235 S.W. 3d 341 (Tex. App.-Fort Worth 2007 no pet.) filed notice one day after the jury was sworn. The trial court found there had not been good cause shown that would justify the failure to timely file a notice of intent to raise the insanity defense and prohibited Appellant from raising the insanity defense at trial. The Court found the trial court had not abused its discretion in finding the lack of good cause for untimely filing. D. Obtaining a Court Appointed Expert to

Evaluate Defendant Article 46C.101 provides that upon the filing of a

notice of intent to raise the insanity defense, the court may appoint one or more disinterested experts, qualified under Art. 46C.102, to evaluate the defendant with regard to the insanity defense and testify at any trial or hearing involving the issue. The court may grant the evaluation on its own motion, or motion by the defendant, the defendant’s counsel or counsel representing the state. Diligent defense counsel contemplating an insanity defense should file notice of intent to raise the insanity defense and if the defendant is unable to hire his/her own expert, a motion for appointment of a qualified expert. If the defendant retains an expert of his own choosing, upon timely request, the court shall provide the examiner reasonable opportunity to examine the defendant. Art. 46C.107. E. Statements Made by the Defendant During

Sanity Evaluations In DeRusse v.State, 579 S.W.2d 224 (Tex. Crim.

App. 1979) the Court was presented with the question of whether statements made by the defendant during a sanity evaluation were admissible at trial. The Court noted that there was no prohibition against the use of such statements in Art. 46.03 C.C.P. It found psychiatric testimony with regard to the defendant's sanity at the time of the offense would hardly be possible if statements by the defendant during his examination were inadmissible, and the jury would be deprived of valuable evidence relative to the insanity defense. F. Order Compelling Defendant to Submit to

Evaluation Art. 46C.104.

(a) For the purposes described by this chapter, the court may order any defendant to submit to examination, including a defendant who is

free on bail. If the defendant fails or refuses to submit to examination, the court may order the defendant into custody for examination for a reasonable period not to exceed 21 days. Custody ordered by the court under this subsection may include custody at a facility operated by the Department of State Health Services.

(b) If a defendant who has been ordered to a facility operated by the department for examination remains in the facility for a period that exceeds 21 days, the head of that facility shall cause the defendant to be immediately transported to the committing court and placed in the custody of the sheriff of the county in which the committing court is located.

G. Ake and the Appointment of a Psychiatrist to

Assist the Defense In Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct.1087

(1984) the United States Supreme Court held that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, due process requires that a state provide access to a psychiatrist's assistance in presenting the insanity defense, if a defendant cannot otherwise afford one. The record showed that the trial court was on notice that insanity would be a substantial factor in Ake’s defense. The defense had requested and been denied the assistance of a court appointed psychiatrist in presenting his insanity defense. The factors suggesting that insanity would be a significant factor included: First, Ake's sole defense was that of insanity. Second, Ake's behavior at arraignment, just four months after the offense, was so bizarre as to prompt the trial judge, sua sponte, to have him examined for competency. Third, a state psychiatrist shortly thereafter found Ake to be incompetent to stand trial, and suggested that he be committed. Fourth, when he was found to be competent six weeks later, it was only on the condition that he be sedated with large doses of Thorazine three times a day during trial. Fifth, the psychiatrists who examined Ake for competency described to the trial court the severity of Ake's mental illness less than six months after the offense in question, and suggested that this mental illness might have begun many years earlier. Finally, Oklahoma recognized a defense of insanity, under which the initial burden of producing evidence fell on the defendant. Taken together, these factors made clear that the question of Ake's sanity was likely to be a significant factor in his defense. The Supreme Court concluded that Ake was entitled to the assistance of a psychiatrist on this issue and the denial of that assistance deprived him of due process.


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De Freece v. State, 848 S.W. 2d 150 (Tex.Crim. App. 1993, cert. den.) followed Ake, and elaborated as follows: In an adversarial system, due process requires at least a reasonably level playing field at trial. In the present context that means more than just an examination by a “neutral” psychiatrist. It also means the appointment of a psychiatrist to provide technical assistance to the accused, to help evaluate the strength of his defense, to offer his own expert diagnosis at trial if it is favorable to that defense, and to identify the weaknesses in the State's case, if any, by testifying himself and/or preparing counsel to cross-examine opposing experts. The Court of Criminal Appeals recognized that the accused is not entitled to a psychiatrist of his choice, or even to one who believes the accused was insane at the time of the offense. But even a psychiatrist who ultimately believes the accused was sane can prove invaluable by pointing out contrary indicators and exposing flaws in the diagnoses of State's expert witnesses. The Court reasoned that a preliminary examination by disinterested experts may show insanity is not to be a significant factor in the case. In that event the due process right articulated in Ake would not be triggered. Where that examination shows a viable insanity claim, however, due process does not end there. The accused must be given the means to advance that claim at trial. Thus, more than the appointment of “disinterested experts” is required. Once it is shown that insanity will be a significant factor at trial, the trial court abuses its discretion in failing to appoint or to give prior approval to reasonable expenses incurred by counsel for the accused to obtain a competent psychiatrist to assist in the evaluation, preparation and presentation of his insanity defense. H. Presenting the Insanity Defense

Articles 46C.151 and 46C.152 C.C.P. address the quality of evidence of insanity necessary to have a jury or a court determine the issue of insanity. Both provisions require the issue of insanity to be supported by competent evidence. In a trial before a jury, the issue of insanity shall only be submitted to the jury if supported by competent evidence. If evidence from any source raises the issue, the trial court must include an instruction in the jury charge. Nutter v. State, 93 S.W.3d 130 (Tex. App.-Houston [14th Dist.] 2001 no pet.). The only evidence Nutter offered was his testimony that he did not remember committing the offense. The Court found that he offered no opinion as to his insanity at the time of the offense. It found the testimony was not sufficient to require a jury instruction on the insanity defense.

Plough v. State, 725 S.W.2d 494 (Tex. App.-Corpus Christi 1987, no pet.) held that the existence of a mental disease, alone, is not sufficient to establish legal insanity; rather, the accused must have been

mentally ill at the time of the offense to the point that he did not know that his conduct was wrong. The Court in Love v. State, 909 S.W.2d 930 (Tex. App.-El Paso 1995 pet. ref’d) drew a distinction between insanity from a medical standpoint and insanity from a legal standpoint. That Court said medically, an individual may be insane from a mental disease or defect, yet legally, he is not relieved of criminal responsibility unless his mental condition reached the point where he was unable to distinguish right from wrong. In Jeffley v. State, 938 S.W. 2d 514 (Tex. App.-Texarkana 1996, no pet.) the defendant testified that he was upset and nervous, that he could not remember events surrounding the charge and a psychologist testified that hypothetically the loss of memory was the result of insanity. Another witness testified that he was upset at the time of the incident and acted strangely after the shooting. The trial court denied the requested jury instruction on the insanity defense. The Court of Appeals found the evidence was insufficient to show insanity. Cato v. State, 534 S.W.2d 135 (Tex. Crim. App. 1976, reh. den.) held that defendant’s testimony about having visions a few days prior to the offense and his alleged traumatic amnesia about the facts surrounding the offense did not entitle him to an instruction on insanity in the jury charge. Kelley v. State, 195 S.W. 3d 753 (Tex. App.-Waco 2006, pet. ref’d) holds that testimony indicating that the defendant was not himself during the commission of the offense, that he was acting in a significantly abnormal manner and that he experienced mental disease or defect afterward was not sufficient to entitle him to an instruction on insanity. In essence, to obtain a jury charge on the insanity defense, the evidence presented by experts and/or lay witnesses must virtually track the language of 8.01 of the Texas Penal Code: that, at the time of the alleged conduct, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong. I. The Standard of Review When the Court

Excludes Evidence of Insanity The standard of review for the trial court’s

decision to exclude (or admit) evidence is abuse of discretion. Weatherred v. State, 15 S.W. 3d 540 (Tex. Crim. App. 2000). J. The Standard of Review When the Court

Denies a Jury Instruction Appellate review of error in a jury charge involves

a two-step process: the Appellate Court initially determines whether error occurred. If so, the Court then evaluates whether sufficient harm resulted from the error to require reversal. Error in the charge, if timely objected to requires reversal if the error was calculated to injure the rights of the defendant. There must be a showing of some harm to the accused from


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the error. Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994, en banc). K. Lay Opinion Testimony vs. Expert Opinion

Testimony Testimony by lay witnesses can be sufficient to

raise the defense of insanity and require the trial court to grant a jury instruction on the issue of insanity. Pacheco v. State, 757 S.W.2d 729 (Tex. Crim. App. 1988, reh. den.). If evidence from any source raises a defensive issue, it must be included in the court’s charge. Gibson v. State, 726 S.W.2d 129 (Tex. Crim. App. 1987).

In Graham v. State, 566 S.W. 2d 941 (Tex. Crim. App. 1978, en banc, reh. den.) the defense offered expert testimony that the defendant was insane at the time of the offense. The state offered lay testimony in rebuttal. The issue of insanity was submitted in the jury charge. The jury rejected Graham’s insanity defense and found him guilty. The Court of Criminal Appeals held that expert opinion testimony does not establish material facts as a matter of law. The trier of fact can accept or reject opinion testimony of experts and accept lay opinion testimony over that of experts. L. Standard of review when the trier of fact

rejects the insanity defense The standard of review when the trier of fact

rejects the insanity defense is whether after considering all the evidence, the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990, en banc, reh. den.). M. Burden of Proof Shifts Upon Proof of a Prior

Unvacated Adjudication of Insanity Evidence of a prior unvacated adjudication of

insanity shifts the burden of proof to the State to prove beyond a reasonable doubt that the defendant was sane at the time of the offense. Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987, en banc). In Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App. 1993 en banc, cert. den.) Appellant contended the State failed to prove his sanity had been restored after a prior adjudication of insanity. The defense filed a motion styled, Motion of Intention to Show Defendant Was Under A Judgment of Insanity at the Time of Commission of this Offense. At the motion hearing, the State offered documents purporting to show that Appellant was adjudicated insane by a jury and was later found to be sane by a jury in the same cause. A letter from Vernon State Hospital indicated Appellant had been restored to sanity. The judge never made a ruling on the motion. The Court of Criminal Appeals found Appellant’s complaint regarding the shift of burden was not preserved for appeal. The Court assumed arguendo that the point had been preserved

for appeal. The Court noted Appellant’s trial counsel did not file notice of intent to raise the insanity defense, he did not pursue the defense of insanity before the jury and did not request a jury instruction on the insanity defense. The Court held that the burden does not shift unless and until Appellant raises the issue of insanity. N. Informing the Jury of Consequences of NGRI

Finding Article 46C.154 provides that neither party nor the

court shall inform the jury of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. Moore v. State, 999 S.W. 2d 385, 404-05 (Tex. Crim. App. 1999, cert. den.) held that the legislature did not violate the Constitution when it enacted Article 46.03, section 1(3) C.C.P. which prohibited the parties from informing the jury of the consequences of a finding of not guilty by reason of insanity. O. Determination of the Issue of Not Guilty by

Reason of Insanity The issue of insanity can be determined by a jury,

a trial before the court if a jury is waived or by a stipulated plea of not guilty by reason of insanity. In either instance, the prosecution must prove the elements of the offense beyond a reasonable doubt and a preponderance of the evidence must show that the defendant was insane at the time of the commission of the offense. Art. 46C.153(a)(1)-(2).

When the insanity defense is raised by the evidence, the judgment must reflect whether the trier of fact found the defendant guilty, not guilty or not guilty by reason of insanity. The judgment must also specify the offense of which the defendant was found not guilty. Art.46C.156(a) and (b). 1. Dangerous Conduct Finding

If the defendant is found not guilty by reason of insanity, the court must determine whether the offense of which the defendant was acquitted involved dangerous conduct. Specifically, the court must determine and the record and judgment must reflect whether the defendant’s conduct: (1) caused serious bodily injury to another; (2) placed another person in imminent danger of serious bodily injury; or (3) consisted of a threat of serious bodily injury to another person through the use of a deadly weapon. Art. 46C.157. 2. Retention of Jurisdiction Upon a Finding of

Dangerous Conduct If the court finds that the offense involved

dangerous conduct, the court shall retain jurisdiction of the defendant. Art. 46C.158.


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3. Commitment Following Retention of Jurisdiction After a person is acquitted by reason of insanity of

an offense involving dangerous conduct and the court retains jurisdiction, the court is required to commit the person to a maximum security unit of the Texas Department of State Health Services for no more than 30 days for an evaluation of his present mental condition and treatment. Art. 46C.251(a). 4. Disposition Following a Finding of Nondangerous

Conduct If the court finds that the offense did not involve

dangerous conduct, the court shall determine whether there is evidence to support a finding of mental illness or intellectual disability. If the court finds there is evidence to support a finding of mental illness or intellectual disability, the court shall transfer the defendant to the appropriate court for civil commitment proceedings. If the defendant is not referred for civil commitment proceedings, the court shall release the defendant. Art. 46C.201-46C.202. II. DISPOSITION PHASE A. Hearing on Disposition

A hearing to determine the proper disposition of the acquitted person must be held no more than 30 days after the date of acquittal. Art. 46C.251(d). The acquitted person shall be committed to a mental hospital or other appropriate facility for inpatient treatment or residential care if the State establishes by clear and convincing evidence that:

(1) the person has a severe mental illness

or intellectual and developmental disability; (2) the person, as a result of that mental illness

or intellectual and developmental disability, is likely to cause serious bodily injury to another if the person is not provided with treatment and supervision; and

(3) inpatient treatment or residential care is necessary to protect the safety of others. Art. 46C.256(a)(1)-(3).

In determining whether inpatient treatment has been proved necessary, the court shall consider whether the evidence shows both that (1) an adequate regimen of outpatient or community-based treatment will be available to the person and (2) the person will follow that regimen. Art. 46C.256(b)(1)-(2). -(2). B. Clear and Convincing Evidence

Clear and convincing evidence is that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction about the truth of the allegations sought to be established. State v. Addington, 588 S.W. 2d 569 (Tex. 1979).

C. The Four Disposition Options 1. Inpatient

The court shall order inpatient treatment and supervision or residential care if the state establishes by clear and convincing evidence: that the defendant has a severe mental illness or intellectual disability; the likelihood that defendant will cause serious bodily injury to another if the defendant is not provided with treatment and supervision; and inpatient treatment or residential care is necessary to protect the safety of others. Art. 46C.256(a)(1)-(3). The order of commitment to inpatient or residential care expires on the 181st day following the date the order is issued. The order is subject to renewal. Art. 46C.256(c). 2. Outpatient

The court shall order outpatient or community based treatment and supervision if the state establishes by clear and convincing evidence: that the defendant has a severe mental illness or intellectual disability; the likelihood that defendant will cause serious harm to another if the defendant is not provided with treatment and supervision; and the state fails to establish by clear and convincing evidence that inpatient treatment or residential care is necessary to protect the safety of others. Art.46C.257(a)(1)-(2). The order of commitment to outpatient or community based treatment expires 12 months after the date the order is issued. The order is subject to renewal. Art. 46C.257(b). 3. Transfer to an Appropriate Court for Civil

Commitment Proceedings If the state fails to establish grounds required for

inpatient or outpatient commitment but the evidence provides a reasonable basis for believing that the defendant is a proper subject for civil commitment under Title 7, Subtitle C or D of the Health and Safety Code, the court shall order the defendant transferred to the appropriate court for such proceedings. Art. 46C.253(f). 4. Discharge and Release

If the state fails to establish grounds for inpatient commitment, outpatient commitment or transfer for civil commitment proceedings, the court shall order the defendant’s discharge and immediate release. Art. 46C.253(f). D. Dangerousness Review Board

A defendant committed to a maximum security unit following a disposition hearing under Art. 46C.253 or following a renewal hearing under Art. 46C.261, shall be considered for transfer to a non-secure unit unless determined to be manifestly dangerous by a dangerousness review board. He shall be considered for transfer by the dangerousness review


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board within 60 days of his arrival at the maximum security unit. III. RENEWAL HEARINGS ART. 46C.261 A. Requests for Renewal

Not later than 30 days before expiration of the commitment order from the disposition hearing (under Art. 46C.256 or 46C.257), the institution to which a person is committed, the person responsible for providing outpatient/community based treatment and supervision, or the attorney representing the state may file a request for renewal of the order. Art. 46C.261(b). The court shall set the matter for a hearing and appoint counsel to represent the defendant. Art.46C.261(d). The request must explain in detail the reasons why the person requests renewal. Art. 46C.261(b). A request to renew an order committing the defendant to inpatient/residential care must also explain in detail why outpatient/community-based treatment and supervision are not appropriate. Art. 46C.261(b). B. The Certificate of Medical Examination for

Mental Illness The request for renewal must be accompanied by

a certificate of medical examination for mental illness signed by a physician who examined the person during the 30-day period preceding the date on which the request is filed. 46C.261(c). If no objection is made, the court may admit into evidence the certificate of medical examination for mental illness. Admitted certificates constitute competent medical or psychiatric testimony, and the court may make its findings solely from the certificate and the detailed request for renewal. Art. 46C.261(g). C. The State’s Burden of Proof at a Renewal

Hearing A court shall renew the order only if the court

finds that the party who requested the renewal has established by clear and convincing evidence that continued mandatory supervision and treatment are appropriate. Art. 46C.261(h). D. The Defense’s Burden of Proof for

Outpatient/Community Based Treatment The court may modify the order to provide for

outpatient or community-based treatment and supervision if the court finds the acquitted person has established by a preponderance of the evidence that treatment and supervision can be safely and effectively provided as outpatient or community-based treatment and supervision. 46C.261(i). E. Duration of Renewal Order

A renewed order authorizes continued inpatient commitment or outpatient or community-based

treatment and supervision for not more than 1 year. 46C.261(h). F. Scope of the Evidence in Disposition and

Renewal Hearings Texas courts have noted several relevant factors

that may be considered in determining whether a defendant who has been criminally violent while insane meets the criteria for court-ordered extended mental health services. A defendant's refusal to take medication is evidence that, as a whole, tends to confirm the likelihood of serious harm to the patient and others. Roland v. State, 989 S.W. 2d 797 (Tex. App.-Fort Worth 1999, no pet.). Niswanger v, State, 875 S.W. 2d 796 (Tex. App.-Waco 1994, no pet.) held that evidence that a patient who had a history of not taking medication and who murdered her husband during a period when she was off of her medication and delusional tends to confirm the likelihood of serious harm to patient or others. Campbell v. State, 118 S.W. 3d 788 (Tex. App.-Houston [14th Dist.] 2003, rev. den.) says details of the original crime may be considered as additional background information to assess whether the patient has improved or is merely repeating past behavior. It held that the original crime may also indicate the extent to which a patient can be a danger to others if he does not control his mental illness. The court held that evidence that a patient denies various details of the crime may also be relevant. G. Commitment Hearings Held After the Court’s

Commitment Order Expires State v. Roland, 973 S.W. 2d 665 (Tex. 1998 cert.

den.) considered the trial court’s authority to conduct an extended commitment hearing after the preceding commitment order had expired. The Court noted that there was a mandatory timeline which stated that if the court held a recommitment hearing, it must be held prior to expiration of the commitment order. Although Roland was decided under Art. 46.03 C.C.P., Art. 46C.261(e) also states that the court shall act on the request for renewal before the order expires. The Texas Supreme Court held nothing in art. 46.03, section 4(d)(5) justifies denying the State an opportunity to prove that Roland continues to be dangerous and mentally ill once the statutory time for hearing has passed. We should not invent a remedy that the Legislature itself could have, but did not. IV. MODIFICATION HEARINGS

Commitments to inpatient/residential care can be modified to outpatient/community based supervision and treatment. Outpatient/community based commitments can be modified or revoked to inpatient.


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A. Modification to Outpatient or Community Based Treatment & Supervision Generally speaking, orders committing or

modifying commitments to outpatient/community based treatment require proof by a preponderance of the evidence that treatment and supervision can be safely and effectively provided through outpatient or community based services. The head of the facility to which the defendant is committed, the attorney representing the state or the defense can request modification to outpatient/community based treatment. Art.46C.262(a). The court shall hold a hearing on the request of the facility head no later than the 14th day after the date of the request. Art. 46C.262(b). If the request is made by the state or the defense, the court has discretion to conduct or not conduct a hearing on the request. However, the court is required to act on the request not later than the 14th day after date of the request. Art. 46C.262(c). The court shall modify an order of commitment to inpatient/residential care to outpatient/community based treatment and supervision if the defendant establishes by a preponderance of the evidence that treatment and supervision can be safely and effectively provided as outpatient/community based treatment and supervision. Art. 46C.262(f). B. Modification or Revocation of

Outpatient/Community Based Treatment and Supervision Outpatient or community based treatment and

supervision can be modified by the court on its own motion or the motion of any interested person. Art. 46C.266(a). The court is required to conduct a hearing within seven days after the applicable motion is filed. The court may grant continuances on motion of a party or the court for good cause. Art. 46C.266(e). The defendant is entitled to counsel at the hearing. Art. 46C.266(d). To achieve revocation or modification of an outpatient/community based commitment, the state must prove by clear and convincing evidence that the defendant has failed to comply with the regimen in a manner or under circumstances indicating the defendant will or has become likely to cause serious harm to another if the defendant is continued on outpatient/community based treatment. Art. 46C.266(b)(1) and(2). V. OTHER IMPORTANT DETAILS A. The Effect of Stabilization on

Inpatient/Residential Care Commitments If a defendant under an inpatient/residential care

commitment is stable on a treatment regimen and is no longer likely to cause serious harm to others, the court cannot make a finding that inpatient/residential care is necessary to protect the safety of others unless the court finds: the defendant is likely to fail to comply with an available regimen of outpatient/community

based treatment and supervision or there is no outpatient/community based regimen available. Art.46C.254. B. Duration of the Court’s Jurisdiction

The court cannot retain jurisdiction and commit a defendant to inpatient care, residential care, or outpatient/community based treatment and supervision for a cumulative period exceeding the maximum term provided by law for the offense of which the defendant was acquitted. Art. 46C.002, Art. 46C.158(2). C. Automatic Termination of the Court’s

Jurisdiction The court’s jurisdiction automatically terminates

on the date when the cumulative total period of institutionalization and outpatient/community based treatment and supervision equals the maximum sentence for the offense of which the defendant was acquitted. Art. 46C.269. D. Advance Discharge and Termination of

Jurisdiction The inpatient or residential care facility head, the

outpatient or community based treatment provider, the defendant or the state may request that the court discharge the defendant from his commitment. The court is required to conduct a hearing within 14 days after the date of the request of a facility head or treatment provider. The court has discretion as to whether to conduct a hearing upon the request of the defendant but is required to conduct a hearing if the request and accompanying material indicate that modification of the order may be appropriate. If no hearing is conducted, the court must act on the defendant’s request within 14 days of the request. The court shall discharge the defendant and terminate jurisdiction if the court finds by a preponderance of the evidence that the defendant does not have a severe mental illness or intellectual disability or that the defendant is not likely to cause serious harm to another because of any severe mental illness or intellectual disability. Art. 46C.268. E. The Role of Juries Under Chapter 46C.

Subchapter F 1. What Juries Can Hear

The court is required to grant a jury trial if the state, the defense or the court requests a jury trial in 46C.253 disposition hearings, 46C.261 renewal hearings, 46C.266 modification hearings and Art. 46C.268 advance discharge hearings. See Art. 46C.255(b)(1)-(4). 2. What Juries Cannot Hear

Juries are specifically prohibited from hearing proceedings to modify or revoke outpatient/community


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based treatment under Art. 46C.266 and hearings to modify inpatient/residential care to outpatient/community based treatment and supervision under Art. 46C.262. See Art. 46C.255(a) and (b). 3. The Bottom Line

Although juries can determine the various issues required for commitment in disposition, renewal, modification and revocation of outpatient/community based treatment proceedings, the court in each instance makes the ultimate determination as to whether the defendant is placed in an inpatient/residential care setting or an outpatient/community based setting.

Art. 46C.255(c) states that the court shall determine whether inpatient or residential care is necessary to protect the public if a jury has determined that the defendant has mental illness or intellectual disability and is likely to cause serious harm to another (the commitment issues in an Art. 46C.253 disposition hearing). Art. 46C.261(i) states that (in a renewal hearing) the court shall modify the order to provide outpatient or community based treatment and supervision if the court finds the defendant has established by a preponderance of the evidence that treatment and supervision can be safely and effectively provided as outpatient or community based treatment and supervision. Art. 46C.266(b)(1) and (2) states that the court, without a jury shall determine whether there has been a failure to comply or the defendant has become likely to cause serious harm to another if outpatient or community based treatment and supervision is continued. Art. 46C.268(f) states that the court shall discharge the defendant from all court ordered commitment, treatment and supervision and terminate the court’s jurisdiction if the defendant establishes by a preponderance of the evidence that the defendant does not have a severe mental illness or is not likely to cause serious harm to another because of any severe mental illness or intellectual disability. F. The Insanity Defense and Motions to Revoke

Probation In Armstrong v. State, 134 S.W. 3d 860 (Tex.

App.-Texarkana, 2004 pet. ref’d) the Texarkana Court of Appeals addressed the issue of the applicability of the insanity defense to probation revocation proceedings. The defendant in Armstrong argued that he was entitled to mount an insanity defense at a revocation hearing citing Casey v. State, 519 S.W.2d 859 (Tex. Crim. App. 1975, reh. den.). In Armstrong, the Court of Appeals drew a distinction between counts in a motion to revoke probation alleging a technical violation rather than alleging of a new offense. In Casey, the Court of Criminal Appeals held the insanity defense applied to a motion to revoke alleging a new offense. The Armstrong Court held that the insanity defense did not apply to a motion to revoke allegation

of a technical violation. It reasoned that a revocation hearing on technical violations involves the question of whether the defendant broke the contract he made with the court rather than his culpability for a new offense. G. Renewal Orders for Pre-2005 Cases Under

46.03 C.C.P. Renewal proceedings for defendants found not

guilty by reason of insanity based on offenses which occurred before the 2005 enactment of Chapter 46C. are governed by the now repealed Art. 46.03 C.C.P. and Section 574.035 Tex. Health and Safety Code. Harrison v. State, 259 S.W.3d 314 (Tex. App- Beaumont 2008, no pet.). In such cases, the trier of fact must decide involuntary commitment issues set out in Section 574.035(a) which provides that a court may order extended inpatient mental health services if the trier of fact finds, by clear and convincing evidence that the defendant meets the following criteria: (1) the proposed patient is mentally ill; and (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.

The trial court must specify which of the criteria under subsection (a)(2) form or forms the basis for the recommitment. Section 574.035(c). (3) The proposed patient’s condition is expected to

continue for more than 90 days. Section 574.066(f) A court may not renew an order unless the court finds that the patient meets the criteria for extended mental health services prescribed by sections 574.035(a) (1), (2), and (3). The court must make the findings prescribed by this subsection to renew an order regardless of whether a hearing is requested or set. A renewed order authorizes treatment for not more than 12


29

months. If a hearing is not requested or set, the court may admit into evidence the certificates of medical examination for mental illness. The certificates constitute competent medical or psychiatric testimony and the court may make its findings solely from theses certificates and the detailed request for renewal. Section 574.066(g).