
    Charles Ray OWENS, Jr., Appellant v. The STATE of Texas
    NO. PD-0967-14
    Court of Criminal Appeals of Texas.
    Delivered: October 28, 2015
    
      Vemard Solomon, Marshall, TX,.for Appellant.
    Timothy J. Canker, Assistant District Attorney, Marshall, TX, Lisa C. McMinn, State’s Attorney, Austin, TX, for the State.
   OPINION

Hervey, J.,

delivered the opinion of the Court in which

Keller, P.J., Meyers, Johnson, Keasler, Richardson, Yeary, and Newell, JJ.j joined.

Appellant, Charles Ray Owens, was charged with felony murder after he led police on a high-speed chase during which he hit two vehicles- and killed one of the drivers.' Before trial, he filed a motion arguing that he was incompetent to stand trial. Appellant claimed that, due to traumatic brain injury caused by the crash, he suffered from amnesia and was unable to remember anything about the wreck. After a mental-health assessment, the defense expert concluded that, even if Appellant did suffer from amnesia (which the expert could not rule out), such condition did not render him incompetent to stand trial. At the ensuing competency trial, Appellant called the expert to the stand to testify about his conclusions,, but. before the expert could testify regarding the. substance of his report, Appellant objected to his own witness and argued that the expert was not qualified to be appointed or testify as a competency expert. His complaint was founded on the belief that the witness did not meet a necessary continuing-education requirement. The judge allowed Appellant to argue (and he did) that the expert was not statutorily allowed to be appointed but otherwise overruled his objection and allowed the expert to testify. Appellant was found competent and later convicted of felony murder. He appealed the ruling of the trial court, and the court of appeals reversed and remanded for a new trial. It held that the trial court erred because the expert did not meet the statutory qualifications for a competency expert and that Appellant was harmed by that error. We will reverse the judgment of the court of appeals and remand this case for it to address Appellant’s remaining point of error.

I. Facts and PROCEDURAL histoRy

A, The offense

Appellant was driving with his fourteen-year-old son when he was pulled over for speeding. During the traffic stop, the officer learned that. Appellant had , an outstanding arrest warrant from Michigan. While awaiting confirmation of the warrant from dispatch, the trooper offered to let Appellant “drive [his] kid to where he needs to go, because we need to go and take care of this.” Appellant turned his truck around and drove home. According to the officer, as Appellant approached the residence, “he slow roll[ed] and drop[ped] the kid off’ and drove away in his truck at a high rate of speed. The trooper pursued him but “fell off’ because they were in a residential area and kids were standing in the vicinity. As Appellant approached a highway intersection from the west, the trooper saw the truck “go[ ] up in the air and [he] knew that [Appellant] had evidently hit something.” Appellant had raced into the intersection after running a stop sign and crashed into two vehicles driving south on the highway. The driver of one of the vehicles died at the scene from severe head injuries.

B. Competency

The State charged Appellant with felony murder. The defense filed a motion challenging Appellant’s competency to stand trial, arguing that Appellant was incompetent because his amnesia prevented him from remembering the crash. To prove its incompetency claim, the defense sought to have Dr. Thomas Allen appointed to evaluate Appellant, and the judge agreed to appoint him.

Allen concluded that Appellant was competent to stand trial because, even if he suffered from amnesia caused by injuries sustained in the crash, he could still consult with his attorney with a reasonable degree of rational understanding and had a rational understanding of the proceedings against him. Tex.Code Crim. Prog. art. 46B.003(a) (grounds for trial incompetence).

A'competency trial was subsequently held, and the defense called Allen as its first witness. During direct and redirect examination, defense counsel questioned Allen extensively about his credentials and eventually objected to proceeding with him as an expert because Article 46B.022 sets out qualifications of an expert to testify regarding competency and [Allen] testified that he did not meet the requirement. See Tex.CRIm. PROC. art. 46B.022 (requirements for an expert who is appointed to review trial competency). The trial court ruled that Allen could testify because defense counsel prepared the order appointing him. ■ Defense counsel responded that, regardless of how Allen was appointed, he “should be able to tell the jury [Allen] is not qualified to do this study.” The court replied that, “at this point, you know, that is up to you to direct that.... You will be entitled to go into the appointment of [him].” Subsequently, the defense argued to the jury that Allen was not qualified under the Texas Code of Criminal Procedure to be appointed as a competency expert, much less to evaluate a defendant’s trial competency or render an opinion thereon. Allen testified that Appellant was competent to stand trial, the jury found'him competent to stand trial, and he was subsequently convicted of felony murder and sentenced to forty years’ imprisonment.

On appeal, Appellant claimed that the trial court erred when it allowed Allen to testify regarding Appellant’s competency, and that he was harmed by that error. See Owens v. State 437 S.W.3d 584, 586 (Tex.App.-Texarkana 2014, pet. granted). The State responded that Appellant should not receive a windfall because he invited the error when he prepared the order appointing Allen but failed to sufficiently review his credentials. See Prystash v. State, 3 S.W,3d 522, 531 (Tex.Crim.App.1999). The court of appeals rejected the State’s invited-error argument and held that defense • counsel did not invite the error because Appellant’s attorney was unfamiliar with Allen, he prepared the motion appointing him only upon the prosecutor’s recommendation, and once he determined that Allen did not satisfy the statutory prerequisites, he timely objected and properly asked that Allen be disquali-, fied ' from testifying. See Owens,. 437 S.W.3d at 588. The court concluded that, because “the sole evidence against [Appellant’s] claim of incompetence was the testimony of Allen,” the determination of Appellant’s competency was fatally flawed, and he was harmed by that determination. Id. at 589. It further concluded that the proper remedy was to reverse the judgment of the trial court and remand for a new trial because “[a] fatal flaw in the determination of [Appellant’s] competence to stand trial renders anything that occurred during the ensuing trial moot.” Id. The court of appeals found it unnecessary to examine Appellant’s third ground — an alleged evidentiary variance — because it granted him a new trial based on his competency claim. Id..

We granted the State’s petition for review to determine whether “the appellate court erred in reversing the conviction’in lieu of abating the appeal and ordering a retrospective competency trial.”

II. Discussion

For the reasons we explain below, we conclude that the court of appeals erred in reversing Appellant’s conviction and remanding for a new trial. Even if the competency proceedings were flawed, the proper remedy would have been to abate the appeal and remand to the trial court for further proceedings. But because we ultimately hold that any error in allowing Allen to testify was harmless, we need not abate this appeal and remand the case for a retrospective competency hearing.

A. The court of appeals erred when it reversed the conviction and ordered a new trial.

We have long held that the appropriate remedy when there is an error in competency proceedings is to abate the appeal and remand the cause to the trial court to determine the feasibility of a retrospective competency proceeding. Turner v. State, 422 S.W.3d 676, 696-97 (Tex.Crim.App.2013); see Brandon v. State, 599 S.W.2d 567, 573 (Tex.Crim.App.1979). However, notwithstanding our extensive precedent, the court of appeals reversed Appellant’s conviction for felony murder and remanded for a new trial. The court decided that a new trial was necessary because the flawed competency determination “rendered] anything that occurred during the ensuing trial moot.” Owens, 437 S.W.3d at 589.

It violates principles of due process to put an incompetent person to trial. See Turner v. State, 422 S.W.3d 676, 687 (Tex.Crim.App.2013); see also Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Thus, if a defendant were tried and convicted, but later was found to have been incompetent to stand trial, that trial is rendered invalid on due-process grounds. However, if on remand the trial court determines that a retrospective competency evaluation is possible, and it is further found that the defendant was competent to stand trial when he was tried, then the defendant’s conviction remains valid and there has been no due-process violation. Ex parte Winfrey, 581 S.W.2d 698 (Tex.Crim.App.1979); see Barber v. State, 737 S.W.2d 824, 829 (Tex.Crim.App.1987); Caballero v. State, 590 S.W.2d 714, 714 (Tex.Crim.App.1980). Based on this principle and our precedent, the court of appeals would not have known whether Appellant’s felony-murder trial would have been rendered invalid because it did not first abate the appeal and remand the case for a retrospective competency hearing (assuming such a hearing is feasible). Consequently, the court of appeals erred when it reversed Appellant’s conviction and remanded for a new trial.

B. Even if it was error to allow Allen to testify, any eiror was harmless.

Our examination , of the record shows that the only evidence that Appellant was incompetent came from his attorney, who testified that “we believe that [Appellant’s] inability to confer in regard to the reality of the events [because of his amnesia] is [a]ffecting his abilities to rationally communicate with me about those events.” In contrast, to prove that Appellant was competent, the State introduced a redacted four-page letter written by Appellant to the judge, who previously presided over the case expressing remorse that the wreck happened and for the loss of life, but professing to remember nothing “from four days before the accident up until just before Christmas a little over a month later.” Appellant also said in his letter that, although he does not remember the wreck, he knows that “[he] had no intent to hurt anyone” and that he plans to compensate the victim’s family after he “serve[s] punishment” for what he has done. He concluded that he does “not feel that [he] should be charged for murder as tragic as th[e] crime is,” and that he thought a “vehicular manslaughter charge” was more “accurate.”

Addressing the State’s argument that any error was harmless, the court of appeals held that Appellant was harmed because it found that the letter from Appellant was not evidence that he was competent to stand trial, and it went on to say that, “[b]ecause the sole evidence against [Appellant’s claim of incompetence was the testimony of Allen and because Allen did not meet the statutory qualifications for an expert of that land of determination, we find the determination of his competence to be flawed.” Owens, 437 S.W.3d at 589.

We disagree that, as a matter of law, the letter had no bearing whatsoever on the relevant issues, i.e., whether Appellant was competent to stand trial. Tex.Code Ceim. PROC. art. 46B.003(a). Indeed, Appellant’s argument that he should not have been charged with murder, but some kind of lesser vehicular-manslaughter charge, was compelling evidence that he understood the seriousness of the charge he was facing. and, therefore, had a rational and factual understanding of the - proceedings against him. See Turner, 422 S.W.3d at 689 (“There is no reason to doubt that he understood that his life and liberty were at stake and what roles 'the various participants in the proceedings played.”).

Moreover, although defense counsel’s narrative testimony focused on the fact that Appellant was incompetent to stand trial because he could not recall the wreck, in making that argument counsel also said that he visited his client multiple times, yet he never complained or even suggested that, during those' visits, his client lacked a present ability to consult with him. See Gonzales v. State, 313 S.W.3d 840, 843 (Tex.Crim.App.2010) (stating that for amnesia to rise to the level of trial incompetence, the amnesia would have to compromise a defendant’s ability to think rationally at the time of trial). Additionally, counsel developed a trial-competency defense only because Appellant explained that, due to injuries he sustained in the wreck, he could not remember the circumstances of the offense. Turner,' 422 S.W.3d at 690-91 (“These legislative criteria for competency contemplate a defendant who is at least minimally able to interact with his trial counsel in a ‘reasonable and rational’ way (even if they do not necessarily agree) in formulating decisions how most effectively to pursue his de-Sense.”). Counsel does not argue that he could not rationally communicate with Appellant. His only argument is that Appellant was incompetent to stand trial because he could not remember the wreck, and thus, according to defense counsel, no mens rea defense could be prepared. But, although Appellant claims to not remember the facts of the offense, he could have nevertheless, relied upon the circumstances of the offense to develop a mens rea defense.

The court of appeals erred when it reversed Appellant’s conviction and . rer manded the case for a new trial due to a perceived fatal flaw in the competency proceedings. Further, we hold that any error in allowing Allen to testify because he was not qualified, as a competency expert under Chapter 46B of the Code of Criminal Procedure was harmless. We reverse the judgment of the court of appeals and remand this cause to that court to address Appellant’s third point of error.

Alcala, J., filed a dissenting opinion.

Alcala, j.,

dissenting

I respectfully dissent from this Court’s judgment remanding this case to the court of appeals for consideration of the third issue raised by Charles Ray Owens, appellant. I would instead remand this case to. the trial court for it to determine whether it is feasible to conduct a retrospective competency, hearing, and, if so, to conduct that hearing. If a retrospective competency hearing is feasible and if appellant is found to be competent, then the court of appeals should address appellant’s third issue.

I. Background

Appellant was charged with felony murder for the death of Bobby Smith, a motorist with whom appéllant collided during his attempt to evade police. Appellant moved the trial court to make a determination regarding his competency to stand trial. Appellant argues that he has no memory of the period of time from a few days before the incident until several days after, and that this amnesia renders him unable to assist counsel in preparing a defense. The trial court conducted a competency hearing at which Dr; Thomas Allen testified as an expert witness. During his examination of Dr. Allen, defense counsel ascertained that Dr. Allen did not meet the then-statutory qualifications to testify as an expert at a competency hearing. See Tex.Code CRiM. PROC. art. 46B.021. The court overruled defense counsel’s objection, and the jury found appellant competent to stand trial. A jury later fqund appellant guilty of the offense. He appealed his case to the court of appeals in Texarkana, alleging that (1) the competency hearing was fatally flawed because Dr. Allen was not qualified to testify, (2) the trial court erred by overruling the motion to quash the indictment, and (3) there was a fatal variance between the indictment and the evidence adduced at trial. Owens v. State, 437 S.W.3d 584, 585 (Tex.App.-Texarkana 2014, pet. granted). The court of appeals sustained appellant’s first issue, dismissed appellant’s second issue because it had not been preserved, and did not reach appellant’s third issue. Id. at 586, 589.

The court of appeals made three holdings in resolving appellant’s contention that the trial court committed reversible error by. admitting Dr. Allen’s testimony at the competency hearing., . First, it held that appellant did not invite the error by submitting Dr. Allen’s name as the competency expert because appellant did so on the State’s recommendation. Id. at 588. Second, the court of appeals held that Dr. Allen’s appointment violated the statutory requirements for the qualifications of competency experts. Id. at 589. The court of appeals explained that “the statutory language indicates that expert testimony is required to determine a defendant’s competence.” Id. Citing to Article 46B.021(a), (b) of the Code of Criminal Procedure, the court of appeals noted that the trial court “shall appoint one or more experts” to examine the defendant when “evidence exists to support a finding of incompetency to stand trial.” Tex.Code Cbim. PROC. art. 46B.021(a), (b). The court held that Dr. Allen did not meet the statutory criteria to be qualified as an expert on competency. Oioens, '437 S.W.3d at 589. Third, the court of appeals held that the failure to appoint a statutorily-qualified expert harmed appellant. Id. The harm analysis by the court of appeals discussed the State’s argument that a letter written by the appellant to the trial court served as persuasive evidence of appellant’s competency, so that appellant was not harmed by the erroneous admission of Dr. Allen’s testimony. Id. The court of appeals stated,

The State also contends that reversal is not warranted because the jury had other competency evidence before it, this ■evidence being in the form of a letter from Owens to the trial court. Although ■the State contends that the “letter clearly shows that [Owens] is competent,” we do not perceive how it does so, and the State fails to explain its conclusion to that effect.

Id. Because appellant was harmed, the court of appeals held that the erroneous admission of Dr. Allen’s testimony required reVersal. Id.

This Court’s majority opinion addresses only the harm analysis by the court of appeals. This Court decides that a letter written by appellant to the former judge that asserts he has no' memory of the events or of a period of time before and after the events shows that he is competent to stand trial even though there was no qualified expert testimony to establish competency. I disagree.

II. Analysis

This Court’s majority opinion does not disagree that the competency hearing was flawed because it did not meet the statutory requirements. The sole question at this juncture, therefore, is whether appellant was harmed by. the admission of the unqualified expert testimony. I conclude that, in the absence of the unqualified expert testimony, there was inadequate other evidence to find appellant competent to stand trial, even accepting- that there is a presumption of competency.

This Court’s majority opinion holds that the lack of a statutorily-required competency expert is harmless based on the letter appellant wrote to the trial court. Appellant states in the letter that, after watching a videotape of the offense, he believes that he should be charged with vehicular manslaughter instead of murder. For purposes of this discussion, I will agree with this Court’s majority opinion that those statements are evidence that appellant had the capacity during the criminal proceedings to rationally understand the charges against him; the potential consequences of the pending criminal proceedings; and the ability to engage in a reasoned choice of legal strategies and options, to understand the adversarial nature of criminal proceedings, and to exhibit appropriate courtroom behavior. See Tex Code Crim. PROC. art. 46B.024(1)(A), (C), (D), (E).

The statute, however, requires more than that. In addition to these factors, the statute requires a qualified expert to consider whether a defendant can disclose to counsel pertinent facts, events, and states of mind, and whether he can testify. See id. art. 46B.024(1)(B), (F). As the court of appeals observed, the letter cannot speak to this. The contents of appellant’s letter are based on his review of a videotape of the offense. In the letter, appellant states, “Watching the video, I could not believe my eyes.” I cannot conclude that a defendant has the ability to discuss pertinent facts, events, and states of mind, and to testify merely because he can watch a video of the events and recount what he sees on the video.

Excluding the improper testimony obtained from Dr. Allen, who lacked the statutory qualifications to testify in this case, the letter from appellant, which is based on him having watched a video of the events, fails to address the required statutory criteria that must be considered when an expert assesses whether a defendant is competent to stand trial. The letter, therefore, cannot serve as evidence that the statutory error was harmless.

But even if this Court considered his testimony, Dr. Allen determined that appellant did not have the ability to discuss pertinent facts, events, states of mind, or to testify about matters that occurred during the offense for which he was charged. Dr. Allen indicated that appellant could “tell his version of the events, except for a period of amnesia.” Dr. Allen acknowledged that appellant could “tell anything and testify to anything except anything that happened out there that is the subject of the criminal charge.” In response to the statement that appellant was “totally void of any knowledge of the facts of the event,” Dr. Allen answered, “Right.” Dr. Allen also indicated that he believed the amnesia was a result of appellant’s head injury and that the tests for malingering were negative.

Perhaps this Court’s majority opinion is really holding that amnesia is not a proper basis for finding any defendant incompetent to stand trial. If that is the holding, then this Court should analyze and provide legal support for that proposition. We have never held that amnesia could not be a basis for a finding of incompetency to stand trial. See Morris v. State, 301 S.W.3d 281, 293 (Tex.Crim.App.2009) (“And we do not discount the possibility that there might one day be an extraordinary ease in which an inability to recall the charged event because of amnesia could constitute mental incapacity to stand trial.”).

Here, the statute plainly requires that competency experts who possess certain qualifications give testimony at the hearing. The record shows that this did not occur. And the statute plainly requires that competency evaluations include the consideration of whether a defendant has the ability to disclose to counsel pertinent facts, events, and states of mind. Excluding Dr. Allen’s testimony, the record shows that this did not occur. Appellant’s letter based on his understanding of events from watching a video of the offense rather than from his own recollection cannot show that he has the ability to disclose to counsel pertinent facts, events, and states of mind. Because his competency hearing was fatally flawed, appellant is entitled to a new hearing.

III. Conclusion

I would hold that the presumption of competency is inadequate to uphold this finding of competency where the statute required the appointment of a qualified expert, which did not occur, and no other evidence suffices to establish competency under the criteria set forth in the competency statute. I, therefore, respectfully dissent. 
      
      . Allen’s explanation for finding Appellant competent to stand trial, even if he suffered from amnesia, was that
      For [Appellant] to have a rational understanding of the conduct charged, if you have evidence that you can present to him and he told me that you — that he had seen it, he can rationally understand that evidence. There was no impairment from hallucinations, delusions, his is simply I don’t remember doing that. I saw the video and police report and whatever, something like that.
      * ⅜ *
      [The competency statute] talks about rational and factual only in terms of the proceeding.. Does he understand what he is charged with. Does he know who the players are in this deal. Does ‘he know that it is adversarial. So if you go strictly by the Statute he doesn't even have to tell you factually what happened and it is not uncommon for clients to lie even to their defense lawyers, their Priest, their wives.
     
      
      . In this opinion, we do not address whether Allen was properly appointed as a competency expert.
     
      
      . We do not address whether the trial court erred when it allowed Allen to testify because we conclude that, even if the judge erred, any error was harmless.
     
      
      .Appellant argues only that Allen failed to meet the statutory qualifications to be appointed as a competency expert. He does not claim that he was prevented from presenting relevant evidence.
     
      
      . The court of appeals seems to have decided that, because there was no proof of competency after excluding Allen’s testimony from its analysis, Appellant must have been harmed. ' However, that is not necessarily so.
      .In Texas, a person is presumed to be competent “and shall be found competent” unless proven incompetent by a preponderance of the evidence. TexCode Crim. Proc. art. 46B.003(b). Thus, the relevant issue is not whether any evidence of competency was put on, but whether the defendant has overcome the presumption of competency. Id.
      
     
      
      
        . In his letter; Appellant addressed his state of mind based on only the circumstances of the offense as recorded on video:
      It is painfully clear to one that I am to blame for what happened. The Officer allowed me to drive the child that was with me home. He followed me, but fell behind quite a bit. I turned down a different road by the time he made a turn I dropped off the child and was gone.
      Watching the video I could not believe my eyes. I am still having a hard time dealing with it. All - of this time I have thought that there was some explainable misunderstanding or something. There is no excuse for what happened.
     
      
      . To prove harm when error is non-constitutional, a defendant must establish that the error, defect, irregularity, or variance affected his substantial rights. Tex.R,App. P. 44.2(b).
     
      
      . The Code of Criminal Procedure not only requires the appointment of experts who have particular qualifications, but it also sets forth the factors that must be considered by those experts in conducting a competency examination. See TexCode Crim. Proc. art. 46B.024. Article 46B.024 states,
      During an examination under this subchap-ter and in any report based on that examination, an expert shall consider, in addition to other issues determined relevant by the expert, the following:
      (1) the capacity of the defendant during criminal proceedings to:
      (A) rationally understand the charges against the defendant 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 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:
      (A) has a mental illness; or
      (B) is a person with mental retardation;
      (4) the degree of impairment resulting from the mental illness or mental retardation, if existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner; and
      (3) whether the identified condition has lasted or is expected to last continuously for at least one year;
      (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.
      Tex.Code Crim. Proc. art. 46B.024. Here, the sole expert who testified at the hearing was not qualified under the pertinent statute so his testimony must be disregarded. This record, therefore, is devoid of any expert testimony establishing the statutory considerations pertinent to a conclusion that appellant was competent to stand trial. See id. This Court’s majority opinion acknowledges the error in this case and addresses only the question of harm.
     