ACCEPTED 01-14-00366-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/28/2015 10:02:56 PM CHRISTOPHER PRINE CLERK

No. 01-14-00366-CR FILED IN In ltre Court of AFpeaIs 1st COURT OF APPEALS HOUSTON, TEXAS For The First 1/28/2015 10:02:56 PM JudiciaL District of Texas CHRISTOPHER A. PRINE Houston, Te:<as Clerk

CHRISTOPHER WASHINGTON, APPELLANT VERSI]S

THE STATE OF TEXAS, APPELLEE

ON APPEAL FROM THE 178rH JUDICIAL DISTRICT COURT HARRIS COUNTY, TEXAS TRIAL COURT CAUSIi NO. 1259853

APPELLANT'S BRIEF

WENDELL A. ODoM JR. TEXAS BAR # 15208500 LoursrANA ST., SrE 200 HousroN, TEXAS 77002 (713) 223-5575 (713)224-281s lF^xl ATTORNEY FOR APPELLANT CHRlsroPl-tER WASHINcToN

IORAL ARGUMENT REQUESTED] IDENTITY oF PARTIES AND COUNSELS

Christopher Washington Appellant Sta te of Texas Appellee Wendell A. Odom, Jr. Appellate Counsel Louisiana St., Ste 200 I{ouston, Texas 77002

Patrick McCann Trial Counsel Texas Avenue, Ste 205 I-Iouston, Texas 77002

Devon Anderson District Attorney on Appeal 1201 Franklin St., Ste 600 Houston, Texas 77002 Maritza Antu Assistant District Attorney at Trial 120i Franklin St., Ste 600 Houston, Texas 7'7 002 TABLD oF CONTENTS

PAGE IDDNTTTTDS oF PARTItrs AND CoUNSDLS ........................... ....i TABLE oF CONTDNTS ............ .................... ii INDtrx oF AUTHORITIDS ..........".............'. iii STATEMENT oF THE CAStr ,..........'.............1 STATEMtrNT REGARDING ORAL ARGUMENT ........,....... ,,....'.'.'.'.'............2 QuESTroNs PRESENTED ..............'.......'......3 STATEMDNT oF FAcrs.......... '.........'......."..3 SuMMARy oF THE ARGUMDNT .,............... ......,,,...............,8 ARGUMDNT AND AurHoRITItrs ...............,.,,,, ....................9 I, ISSUE 1_ WHDTHtrR THE APPELLANT WAS DENIED DUE PROCESS WHDN THE TRIAL COURT REFUSED TO ALLOW THtr DEFENDANT TO OBTAIN THE ASSISTANCE OF AN EXPERT.

A. RULE oF LAw ................. .................'...."....'..9 B. Ttrsr UNDER TEXAS PENAL CODE S 7.02(8)......... ..........'...13 C. TDST UNDER MorIoN To SUPPRDSS,....... ..,..,.............."'.....21 D. CoNCLUSToN ..................... .......................,,,,27 II. ISSUE II _ WHETHER THE TRIAL COURT ABUSED THEIR DISCRETION WHEN THtrY DENIED THE APPELLANT A HEARING ON HIS MOTION FOR NEW TRIAL.

A. RULD oF LAw.................. .............................29 B, TRrAL COURT ABUSED ITS DISCRETION......,........... ...........30 C, CONCLUSTON .....,..,............ ,.,.......,...........,....39 III, ISSUE III - WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE APPELLANT'S RtrQUEST FOR A COMPETENCY TRIAL UNDER TtrxAS CODE oF CnrurNa,l PROCEDURE 46B.

A. RULE oFLAw.......... .............41 B. TRrAL COURT ABUSED ITS DISCRtrTION...........,,,......................,.............,..43 C. CoNcLUSToN ..................... ...........................46 PRAYDR FoR RtrLrDF.........,...... ......---........47 CERTTFIcATE oF SERVIcE ........-...........,..47 INDEX oF AUTHORITIES

CASEs

SrATUTtts No. 0I-14-00366-CR

In of Agpeals Ttre Court First For The JudiciaL District of Texas Houston, Texas

CHRISTOPHDR WASHINGTON, APPI,LLANT VERSUS

TH E STATE OF TEXAS, APPELLEE

ON APPEAL FRoM THE 178rr{ JUDICIAL DISTRICT COURT HARRIS COUNTY, TEXAS TRIAL COURT CAUSE NO. 1259853

APPDLLANT'S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT: COMES NOW, CHRISTOPHER WASHINGTON, Appellant in the above styled and numbered cause and would respectfully show the Court as follows: PRELIMINARY STATDMENT This is an appeal from a conviction for CAPITAL MURDER after a july trial in which the Appellant was found guilty. The court assessed punishment at life in prison with no possibility of parole.

On Ju\, 16, 2010, Appellant was indicted in cause nunber 1259853 fot the offense ol Capital Murder, a capital felony, in violation of Texas Penal Code $ 19'03 CR-l1'. On Aplil 8, 2014, jury trial commenced in this cause. On April 10, 2014, the jury found the Appellant guilty of Capital Murder. CR-148. The State of Texas did not seek tlre death penalty in this cause, and thus, on April 10,2014, the Court sentenced the Appellant to life in prison with no possibility of parole. CR-148. The Appellant gave timely notice of appeal on April 10,2014. CR-156.

STATEMENT REGARDING ORAL ARGUMENT APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT

I CR refers to the Clelk's Record followed by the page number, Thus CR-3 refers to the Clerk's Recold, page 3. RR refers to the Repofter's Record followed by the volurne IIumbeI then the page number. Thus RRI-l2 r'efels to the Reporter''s Reco|d, Volurne l, page 12, OuESTroNs PRDSI,NTED 1. Whether the Appellant was denied Due Ptocess when the Trial Courl refused to allow the Appellant to obtain the assistance of a psychological experl?

2. Whether the Trial Court abused its discretion when it denied the Appellant a hearing on his motion for new trial?

3. Whether the Trial Court abused its discretion when it denied the Appellant's request for a competency trial under Texas Code of Criminal Procedure 468?

STATEMENT oF FACTS A. Background Mr. Washington was born and raised in llouston, Texas with his rnother and cousin, Jamie Austin. At four or' five years of age, Mr. Washington was hit by a taxicab while riding his bicycle through his neighbolhood. RR2-2i. Mr. Washington was hospitalized for two days for injuries that were sustained to his head. RR20-21.

After this event, Mr. Washington was never quite the same. He was always slower than the other kids in the neighborhood, and struggled to make passing grades in school. RR4-63. Mr. Washington had attended public schools in Houston, but never obtained a high school diploma or GED. RR2-9, CR-165. This intellectual slowness affected Mr. Washington throughout his life as he continued to live with family assistance at the age of 39. RR4-66. Mr. Washington lived with his molher fi'om the time he was born until his conviction in this case. RR2-23. Simple tasks, such as

writing a check or paying a bill, took a ton of concentration for Mr. Washington.

RR2-26. He struggled to maintain jobs as simple instructions needed to be repeated multiple times, and Mr. Washington would slill complete the tasks incorrectly. RR2-

36-37. In his adulthood, Mr. Washington is viewed by those that know him best as still being a child that needed constant adult supervision to function. RR4-66. Mr. Washington continues to stluggle wilh all ofthese issues today.

B. The Capital Murder Case On the night of April 18, 2010, Mr'. Washinglon was at his home in Houston, Texas visiting with his sister, Narsha Washington ("Narsha").2 Narsha was dating a co- conspilator in this case, Robert Caslillo ("Flaco"). At some point that night, Flaco came by Mr. Washington's home to visit with Narsha. During his visit, Flaco asked Mr. Washington if he wanted to go for a ride with him and Flaco's brolher, Francisco Castillo ("Junior"). Mr. Washington obliged and went with Flaco and Junior. Junior was driving Flaco's car, and Mr. Washington and Flaco were in the back seat. During this trip, the three men saw the victim, David Rodriguez ("Mr. Rodriguez"), driving in his White Cadillac in North I-Iouston. Mr-. Rodriguez's car had expensive rirns and a sound system that caught the three men's attention. Flaco decided that he was going to rob Mr. Rodriguez. Mr. Washington and Junior agreed 1o participate in the robbery.

Juniol pulled up behind Mr. Rodriguez's car in fi'ont of a house in Norlh Houston.

Flaco got out of his car, jumped into Mr. Rodriguez's car, and drove himself and Mr. Rodriguez to a secluded area off of T.C. Jester and Fallbrook in North Houston. Mr. Washington and Junior followed Flaco and Mr. Rodriguez to the location in Flaco's car.

When the thtee defendants and the victim auived at the location off of T.C. Jester, Mr. Washington and Junior began going through Mr. Rodliguez's car. Mr. Washington and

This entilo section "B - Capital Murder Case" cornes llorn the confession of the Appellant. This confession is State's Exhibit 3A. The Repoflel's Record contains the entire confession, but they are in diffelent audio files and rneshed together. This l akes it impossible to reference in any clear rnanner other than to refelence the exhibit as a whole.

Junior starled taking speakers out of Mr. Rodriguez's Cadillac and placing them in Flaco's car. While Mr. Washinglon was carrying the speakers to Flaco's car, he heald a gunshot. When he turned around he realized that Flaco had fatally wounded Mr. Rodrgiuez in the grassy area next to Mr. Rodriguez's car.

Mr. Washington and Junior began to panic as killing Mr. Rodriguez was not part of the agreement that nighl. Scared for his own well-being, Mr. Washington jumped into Mr. Rodriguez's car and fled from the scene. About one half mile from the crime scene, Officer Bilinovich spotted Mr. Rodriguez's Cadillac running a stop sign. Officer Bilinovich altempted to pull over Mr. Washington for this violation, and Mr. Washington fled from the officer. Moments later', Mr'. Washington was taken into custody for evading arrest in a motor vehicle.

On tl.re morning of April 19,2010, officers with the Halris County Sherifls Office met with Mr. Washington in relation to the murder of Mr. Rodriguez. Mr. Washington confessed to his role ir.r the crime, and gave information linking Flaco and Junior to the crime as well. Mr. Washington was indicted for Capital Murder on July 16, 2010 in []arris County. Texas.

C. Intellectual Disability - Procedure In the days leading up 1o trial, Trial Counsel noticed that Mr. Washington was having trouble assisling in building lris defense 1o the charges. CR-165, CR-142-143. Notably, he was unable keep a coherent lirneline of facts, agreed with anything that was told to hirn, and struggled to solvs sirnple alilhmetic in preparation for his case. 1d. Trial Counsel had asked Mr. Washington about his n-rer.rtal health in the beginning of his representation and nolhing had been revealed at that time. 1d Concerned aboul Mr'.

Washington's inability to consult with his attorney about his defetrse, Trial Counsel confronted Mr. Washington's family about these newly appearing issues. Id. Mr. Washington's family disclosed the incident where Mr. Washington suffered head injuries when he was hit by a taxicab as a child, and his intellectual slowness throughout his life, at that tine. Id. They adrnitted thal they had not advised Trial Counsel previously because they were embarrassed, and didn't want Mr. Washington to be viewed as

"cra:2y". Id. Trial Counsel became concerned that Mr. Washington was suffelir.rg from an intellectual disability and further, may not be competent to stand trial.

Trial started on April 7,2010. On that day, Trial Counsel filed Appellant's Motion lor an Intellectual Disability and Cornpetency Evaluation and an accotnpanying Motiori for Continuance in order to have the evaluation perfotmed. CR-130. The Trial Court conducted two hearings regarding this motion. The first hearing was in front of Judge Wilkinson, a visiting judge in the 1781h District Courl. RR2. During this hearing, Mr. Washington's family testified to his issues delineated in the background section above - notably, Mr. Washington's accident when he was 4-5 years old, and his consistent intellectual slowness since that time. See RR4. Judge Wilkinson denied the Appellant's Motion for an Intellectual Disability and Competency Evaluation at that 1ime. RR4-80.

A second hearing was held the following day on April 8, 2010 in front of a second visitingjudge, Judge Mallia, regarding the Appellant's motion for an evaluation and short continuance. RR4. Judge Mallia also presided over'the tlial lor Capital Murder. In the second hearing, one mernber of Mr. Washington's family came forward to expound on Mr. Washington's low intelligence that had been discussed the day before. See RR4.

Trial Counsel also advised the Court that Mr. Washington was unable 1o assist in Voir

Dire on April 7,2010, and detailed the usefulness of this evaluation for challenging the motion to suppress and the foreseeable element of party liability. RR2-5-11. Trial Counsel discussed with the Trial Courl that he would need only a few days to conduct the evaluation, and provided a neuropsychologist who was available to conduct the examination immediately. RR4-7. Visiting Judge Mallia denied the Motion for arr

Intellectual Disability and Compelency Evaluation, and wanted the trial to go forward as planned. RR4-80.

On April 9, 2010, plior to the prosecution publishing Mr. Washington's confession, Trial Counsel moved again for an inlellectual disability evaluation and a continuance to allow the evaluation to occur. RR6-46-50. Trial Counsel again notified the Trial Court that they had a neuropsychologist, Shawanda Anderson, available to do the evaluation In support, Trial Counsel noted that he is re-urging now as the evaluation could be valuable to the admissibility of the statenent, and to Mr. Washington's decision to testify. RR6-46-50. Trial Counsel admitted the affidavit of his co-counsel at this time revealing some of the issues he had noticed while attempting to wol'k with Mr. Washington in preparation for trial. RR6-46-5, CR-142-143. Further, Trial Counsel filed Appellant's Motion for a Coutested Competency Trial under 458.003 and 468.051 of the Texas Code of Crirninal Procedure at this tirne. RR6-46-50. All motions were denied by the Trial Court once again. RR6-50.

SUMMARY OF THE ARGUMENT Appellant filed a Motion for an Intellectual Disability and Competency Evaluation in this case prior to trial. After two hearings, the Trial Coufl denied the Appellant's access to an exped that could assist the Appellant in building a defense to the Capital Murder charges. The Trial Court again denied this tequest when Appellant moved for the evaluation prior to the admission of his confession that was made to investigators in this case. This denial of access to expert assistance violated the Appellant's Due Prooess rights to the basic tools necessary to build a deferrse. These rulings by the Trial Court called into question the fundamental fairness of the ttial, and thus, the case should be remanded for a new trial on the rnerits.

Appellant also filed a Motion for a Contested Competency Trial pursuant to 468 of the Texas Code of Criminal Procedure. Prior to the Trial Court's ruling, Appellant placed a valiety of evidence before the Trial Courl lhat pointed to Appellant's inability to assist in building his defense - notably that Appellant did not have the sufficient present ability to consult with Trial Counsel with a reasonable degree of rational understanding.

The Trial Courl abused its discretion when it found that the evidence put forward was uot more than a scintilla, and thus, denied Appellant's Motion for a Contested Competency Trial.

POINT OF'ERROR ONE WHETHER THE APPELLANT WAS DENIED DUE PROCESS WHEN THE COURT REFUSED TO ALLOW THE APPELLANT TO OBTAIN THE ASSISTANCE OF A PSYCHOLOGICAL EXPERT ARGUMENT AND AUTHORITIES a. Rule of Law Due Process under the United Stales Constitution requires that a defendant have access 10 tlre basic raw materials integral to building an effective defense. Ake t,.

Oklahoma,47O U.S. 68, 105 (1985). These basic raw materials include the help ofa defense expert. 1d. The irnporlant questior.r when deciding if an expert is needed, is how important the scientific issue is in the case and how much help the def'ense expert will be to the defendant's case. .Rey v. State,897 S.W.2d 333, 338 (Tex. Crim. App. 1995).

A defendant is entitled to expert assistance if the defendant establishes a

substantial need and that the fundamental fairness ofa trial is called into question without that assistance. Rey, 897 S.W.2d 333, 338. There are three factors the coufls look at wlren considering whether a Defendant is entitled to the assistance of an expefi. Ake v.

Oklahoma,470 U.S. 68, 77 (1985). The first factor is the private interest that is at stake. Id. The private interest of the defendanl lies in the accuracy ofthe outcome of a criminal lrial. Id. at 78. This private intetest of the defeudant is "obvious and weighs heavily" due to the potential for loss of liberly. Id. aL 105. The second factor is the interest of the Slate. Id. The State's only interest is judicial economy. 1d The Coud has found that this interest is "not substantial" in light of the Defendar.rt's and the S1a1e's interest it'l the accuracy of criminal proceedings. Id. a|79. The third factor looks at how impo(ant the expert testimony will be to the Delendant irr building an effective defense as well as to

the factfindel in resolving issues in the case. 1d 'l'he Coutts use tlle thl'ee lactor lcst to

delermine when an expell is irnportant enough to truilding a clefense thal zrcoess is

lequired, Iley, 897 S.W.2d 333, 337. The Court notes that a Defendant nray be devastated by the absence of psychiatric testimony; while with that testimony they would have a

reasonable chance ofsuccess. Ake, a|83.

b. Three Part Test in Ake Though the facls in Ake lelated to the aid of a psychiatric expert for the insanity defense, Texas Coufis have expanded the lfte decision to all expert assistance. Rey, at

338. The Due Process test melely leans on the question of fundamental fairness calculated by weighing three factors: 1) the private iuterest at stake, 2) the interest of the state, and 3) the imporlance of testimony in building a defense and aiding the factfinder. Id. a|337-38.

1. Private Interest

The Defendant in this case was charged with Capital Murder, and was facing a life sentence without the possibility of parole ifconvicted. The Courts have consistently held that a Defendant facing any charge has a substantial interest in the accuracy ofthe proceedings. Tl.re inlerest is obvious when the Liberty at stake is as substantial as the punishment that follows a Capital Murder conviction. The Private interest in this case weighs heavily.

2. Interest of the State

The Courts have looked at two areas when reviewing the state's interest in an lfte analysis, judicial economy and burden to provide the expefi. Rey, at 339, In Rey, lhe

t0 Appellant asked for a pathologist to aid in building a defense to a Capital Murder charge out ofRandall County, Texas. Rey, at335-36. The defendant filed the motion for expeft assistance prior to trial, and the trial court ruled on the nlotioll aftel healing the testinony ofthe state's pathologist. Id In review, the Court of Criminal Appeals found that because there was a pathologist available in a "one-day" drive to Dallas, Texas, and that his fee was expected to be $2,200, that the state's interest in judicial economy was not substantial in light ofthe their overlapping interest in the accuracy of the proceeding.

Rey, a1339.

In this oase, the Appellant had acquired an expert to assist in building a defense on a Capital Murder charge. RR6-47. This experl was able 1o evaluate the defendant within 3-4 days. RR6-47. There was no fur.rding asked of the Court at the lime the motion was filed or ruled upon. Appellant's Motion for an httellectual Disability Evaluation and Continuance was filed and ruled on twice prior to the first witness taking the stand, and again at the introduction of1he Appellant's confession. RR2-52, RR4-12, RR6-46-50, In order to provide the defendant due process, the Trial Court in Rey would have had to continue trial for a brief period to allow the expert to review the case. This is true, because the Trial Court ruled on the Motion lbr Pathologist during trial. Id. a|335- 336. The Appellant's Motion for Continuance does not separate this case from the decision in Rey. Considering the state's conculrent interest wilh the defendant in the accuracy ofthe proceedings, the state's interest in judicial economy is not-substantial in light ofthe Appellant's interest. The Appellant's interest weighs more heavily than the interest ofthe slale as in Ake and Rey.

i1 3. Importance of Expert Testimony - Threshold Showing In the third pron g of the Ake test, the Defendant must make a threshold showing that the issue for which the expefl is to testify or evaluate is "likely to be a significant factor" attrial. Ake v. Oklahomq, 470 \J.5.68, 82-83, 86. In Rey, the Court found the issue 1o "likely be significant" as it went 10 the core ofthe Appellant's defensive theoty.

Rey, at 340-42. In cases where the threshold showing was not met under the Ake test, the Defendant typically failed to articulate a defensive theory and why the defensive expert would aid in establishing that theory. Id. at341; Moore v. Kemp,809 F.2d702,717-1'8 (1 lth Cir'. 1987) (defendant's request not sulficient where he did not advise cout't oftype of expcrt sougl.tl or role expert would play, hc did not offbr namc of oxpoll that miglrt be available or s1a1e what the expert coulcl have conlribulecl to <lefense); State v Edwards' 868 S.W.2d 682,698 ('l'cnn. Crirn. App. 1993) (clcfondant {'ailod to malic sullroiont showing Ibr DNA expert r.vhele:.notion not supported u'ith aflidavit ol othet prool' shou,ing particular nccd, dicl not discloso clcf'crrse tlrcory or disouss issttc of misidentihcation). In cases where the defendant has shown that they were entitled to the use of an exped, the defendant gonerally has made their defensive theory clear to the court, and has supported that assertion with factual allegations on the reasons that the experl could assist in establishing that theory. Rey, a1-341-342. Thus, to establish that the Appellant was entitled to an expert the Appellant must show that 1) a defensive theory was articulated to the Trial Court with factual allegations on the reasons the expen could assist in establishing that theory and 2) how important the issue that the expert was going to discuss was to the underlying case.

Defensive Theories Presented

In tl.ris case, the defendant arliculated two distinct defensive theories to the Trial Coult with accompanying factual allegations on reasons that the expert could assist in establishing those theories. The Trial Court was notified that the expett assistance would be used to suppofi a defense to the elements under Texas Penal Code $ 7 02(b) - what the defendant "should have anticipated", and to show that the Appellant's waiver of Mirandcr was not klowing and intelligent.

D. "should have Anticipated" under Texas Penal Code 7'02(b) a. Rule of Law - Texas Penal Code $ 7.02(b)

Under Texas Penal Code $ 7.02(b), a defendant may be liable for a felony committed by another under these circumstances: "if in the attempt to carry out a conspiracy ofone felony, another felony is committed by one ofthe conspirators, all conspirators are guilty ofthe felorry actually committed, though having no intent to comrnit it, if the offense was committed in furlherance of the unlawful purpose and was one that should have been anticipated as a rcsult of carraing out thc conspiracy." (e mph as i s a dde d).

Tex. Penal Code $ 7.02(b).

The courts have interpreted the "sliould have auticipated" term as meaning that the secondary felony should have been anticipated by this defendant (emphasis added) at trial. Anderson \,. State,416 S.w.3d 884, 891 (Tex. Crirn. App. 2013). The Cour1 \n Anderson, stated that the "should have anticipated" Ianguage in Texas Penal Code $ 7.02(b) is synonytnous with Pinkerton liability in Federal crirninal cases. 1d lJnder Pinkerton liabitity, the government nust prove, among other things, that "the defendant (entphasis added) couldhave reasonably foreseen that one ol more ofthe co-conspirators rnight cornmit the crime." [Jnited Slates v. O-Campo,973 F.2d i 015, 1021 (1st CiL. 1992). Thejury charge in this case reflects tl.ris undelstanding ofthe "should have anticipated" language as it states that, Capital Murder "was au offense that should have been anticipaled by the defendant as a result of carr-ying out the conspiracy." Supplemental Record 5. The language of Pinkerton, this jury - Page charge and Texas Penal Code $ 7.02(b) make it clear that the defendant's personal characteristics may be taken into account when deciding if the defendant should have anlicipated the secondary crime.3 Any different interpretation ofthe statute would allow a defendant 1o be held criminally liable for Capital Murder based on criminal negligence.

This means that thejury would not decide if a teasonable, objective person should have atrticipated the secondary felony's oocurrence, but rather should the Appellant have anticipaled its occurrence. Given the subjective standard of $ 7.02(b), the defendant's mental slowness or mental retardation would have gone to shape his mental state in regards to what actious he "should have anticipated" the other co- conspirators underlaking during the aggravated robbery. Without this evidence, the .jury was left to detern-rine this element of the offense by asking what a normally I The definition ofrecklessl]ess in Texas sheds some light on interpretillg the laDguage of $ 7 02(b).

Reckless is defined under Texas PeDal Code $ 6.03(c) as when one aware is ofbut consciously disregards a substantial and unjustifiable Iisk that the result will occur'. Reckless has been interpreted by the courts as the defendanL being subj ectively awale of the risk and stil I choosing to disregardil. Williausv. Stdte,235 S.W.3d ?42 (Tex. Crirn. App.200?), This subjective standard nrakes any intelligence issues relevant in defending against that lneus rea element. This is the least culpable mens rea elernent outside of criminal negligence.

functioning adult shoutd have anticipated. With this evidence, the defendant would change the standald that underlies parly liability by taking into account his intellectual disabilities or mental slowness. The question would become should the Appellant, a person with an intellectual disability, have anticipated that the co- conspirators would commit rnurder during the course ofthe robbery. The expert opinion and evaluation would have been used to bolster this defensive theory as

stated by Trial Counsel during his presentation ofthe motion.

b. Defensive Theorv Articulated to the Court

The Appellant arliculated this defensive theory on two separate occasions to the Trial Courl before their denial ofthe Appellant's motion for an intellectual disability evaluation by a neuropsychologist. The fir-st instance occurred during the Appellant's second pre-trial healing on April 8, 2010. When arguing for the Motion, Trial Counsel for Appellant stated that: "it would be a minor inconvenience to the jury if I could get this [evaluation] done, but it would truly impact the defense on both the statement and the general intent, which is critical to this. We agree that Mr. Washington was there. You know, there's not an issue with that. The issue is what he knew and understood and intended that evening. His intellectual disability goes to the heart ofthat. And I respectfully urge the Coufi to reconsider its ruling." RR4-8.

"I don't think it's going to make a difference 1o the dispensing ofjustice if we take a sholt break to get this done. And I believe I can get it done. Ifnothing else, the

IQ testing can be done, and I can get the raw scores back 1o the Court as -- rather than a finished report and, ifnecessary, have the expefi come in and testify."

Iil{4-9.

Later on in that same hearing, Tlial Counsel again articulated for the Trial Court the defensive theory that he wished to try the case on, and how a neuropsychologist's evaluation could aid in that defense: "Bu1 I don't think that it's beyond pale to simply, in an abundance of caution, check to make sure thal this nran is in full possession of his faculties when we'te about to hear whether he knowingly and voluntarily waived them and when we're about to decide what he would find foreseeable, because that's the test. Not that it's that person in that circumstances, including whether or not he's intellectually disabled. It's not an objective standard. And that directly goes to 1he heart ofour defense. I'm asking for no more than a few days. If I can't get it done, then I'll explain why I can't get it done, but I think the interest of.iustice would best be served by that." RR4-11-12 The Appellant in tl.ris case clearly stated that the defensive expert would be used to aid in his defense ofwhat was foreseeable under Pinkerton. and Texas Penal Code $

7.02(b).

c. Likely ro Be Sisnilicant slltisl From indictment to conviction there was only one issue for the jury to decide in this trial. That issue was whether the defendant should have anticipated that another

nrenrber of the robbery conspiracy would commit a murder in fultherance of that conspiracy. The importance of this issue was divulged to the Trial Court prior to his denials of the Appellant's Motion for an lntellectual Disability Evaluation.

During the Appellant's second hearing on the Motion for an Intelleclual Disability Evaluation, Trial Counsel gave notice to the Courl that he had no issue with the Defendant being present at the crirne. Trial Counsel did not dispute that the Appellant was present, Trial Counsel pointed out that the case lurned on the Appellant's mental state. RR4-8 (noting that the evaluation goes to the heart ofthat defense). In response to Trial Counsel's argument the State revealed their intention to plove the defendant's guilt under Texas Penal Code $ 7.02 (b): "Mr. McCann and i disagree as to the intent that is at issue in this case. The intent -- the defendanl's intent at issue is the intent to participate in the robbery part of 1he capital murder, not -- I'm not required to prove that the defendant intended the victim die that night. I will prove beyond a reasonable doubt that it was Roberl Castillo, the co-defendant who has been convicted, that it was he -- he was the one who intended to commit - to kill the complainant. He's the one who had the specific intent that night to kill the complainant and that the defendant in this case, undel the law ofconspiracy, agleed to parlicipate in the robber:y. And I will prove that it was in fufiherance -- the robbery -- the murder was in futtherar.rce of the robbery and the murdcr was also foresecable to the defendant." RR4,6-7.

The state advised the Trial Courl here that the specific intent ofthe Appellant would not be at issue in this case. Texas Penal Code $ 7.02(a)(2) and the Capital Murder

1l stalute lequire specific intent to be found guilty of Capital Murder. At this stage, the Trial Court was put on notice by the prosecution that $ 7.02(b) was the statute that would be used to garner a conviction. Tliis statute and a defense to the "should have

anticipated" language became the central focus and issue in the case at that time In that same hearing and in response to the State, the Defendant again talked of the need for an expert undel rese facts, stating that it was imperative to evaluate the Appellant before trial starled to detennine what was foreseeable to the Appellant. RR4- 11. Further, Appellant stated that the subjective standard of $ 7.02(b) made it irnperative that we have an expefl evaluate for any intellectual disabilities.

After hearing argument from both sides on the Motion for an Inlellectual Evalualion the Trial Court denied the motion for a psychological evaluation.

As the trial went forward, it became apparent that party liability under Texas Penal Code $ 7.02(b) was in fact the centlal issue in the case as stated in the Motion for an Intellectual Disability Evaluation. The closing arguments from the Appellant and the State reiterated their understanding ofthe ultimate issue in this case. In closing argument, the state advised thejury that they should go through a two part analysis to arrive a1 a conviction for capital murder. RR7- 13 3 - 13 7. One, the jury should answer the question on whether the defendant was a party to the underlying robbery. RR7- 13 3. This is undisputed, and the Appellant agreed that a guilty verdict on aggravated robbery is appropriate in this case. The second part oflhe state's test for the jury was to answer whether the defendant met the requirements ofTexas Penal Code $ 7.02(b). RR7-133- 36. The state expounded on the importance of $ 7.02(b) by stating the jury should "focus on" this section, because tl.rat is "why we are here". R7-136-137. The state then went one step fufiher and noted that they had no burden to prove that the defendant had the specific intent to do anything olher than commit a robbely. RR7-133. For the state, specific intent was "not at issue in this case." Id. Texas Penal Code $ 7.02(b) is the only viable tlieory for the prosecution if specific intent is not at issue outside the underlying robbery. AIl other theories of parly liability require a specific intent on part of the Appellant in order to be guilty of the actions of co-conspirators. The State solidified their dependence on this theory by stating that from opening statement to uow, the language in $ 7.02(b) has been the issue in this case. RR7-137.

Defense Counsel built his defensive strategy arourd the fact that the defendant should not have anticipated that one ofthe co-conspirators would take the life ofthe robbery victim. The Appellant depended on distancing himself from the actions of his co-conspirator - defending against the "should have anticipated" language of $ 7.02(b).

This was evident when Defense Counsel stated in closing argument: "But here's the other truth: Christopher didn't kill hinr. He didn't agree to kill him. And no one could have foreseen that David Rodriguez was going to die that night, except maybe the mad man that did it." d. Conclusion The defendant meets the threshold showing requirement of Ake's third prong The tlrird prong of Ake tequires the defendant to show that information from the expert will likely be significant at trial. Appellate Courts have looked at two different areas when deciding whelher this threshold requilement ofsignificance has been met with the Trial Court Judge: Whether the Defendant laid out 1) a defensive theory and how the

expert would aid in that theory, and 2) how impo(ant the issue that the expert was going to discuss was to the underlying case.

Here the defendant laid out to thejudge that he wanted an evaluation for intellectual disability to support a defensive tl.reory related to the conspiracy allegation by the State. More specifically, to go towards whether the defendant should have anticipated that a co-conspirator would commit capital murder during the robbery.

Appellant articulated not only the reasons for his concerns about the defendant's mental ability, but also outlined the subjectivity oftbe $ 7.02(b) standard that was the crux of tlre State's case and how an evaluation could procure valuable evidence to fighting the "should have anticipated" element. Trial Counsel atticulaled the defensive theory he wished to expound upon, and how the expert could assist in that theory.

Further, it cannot be overstated how central and crucial the "should have anticipaled" language was during the prosecution of the Appellant. It was the crux of the prosecution's case from pre-trial motions through closing argument. During the olal motion for an evaluation prior to trial, the state conceded that $ 7.02(b) would be the basis for their charge to thejury, and in fact, $ 7.02(b) was the only theory that the proseoution laid out to the jury as a viable avenue for conviction in closing argument.

This was the central issue to the case, and the imporlance ofhaving expefi testimony to combat that attack is apparent fi'om the record.

The Defendant met his th eshold requirenent under Ake based upon his articulation of 1) his defensive theory under $7.02,2) the way the expert would be used to assist in building that theory, and 3) articulating the impofiance ofthe "should have anticipated language" prior to 1he Trial Court ruling on the Motion.

E. Motion to Suppress Defendant's Statement Under Miranda a Rule of Law

In Mirttttdu v. Arizlna. the Supfeme Court or.rtlined 1he fiamework lot slatemenls lhal arc made to the state duling custodial inte::rogatiou. 'l'he Coul't recognized that r:ustotlizrl iutelrogations. by their ver1, natture, genelate "compelling pressurcs wliich wotli to underrninc thc iridividual's will to tesist ancl to contpcl hint to speak whole hc would no1 othelwise do so lieely." Mirundu t,. lrizona,381 tJ.S.436,467 (1966). Inoldelto cornbat the inlrcrenl conrpnlsior.r associatcd with custodial ititot't'ogatiot.t, fu[irandtt ir.nposecl procedules lhat police must Jbllow when denling with an aooused. A'lortut t'.

IJurbine,475 1J.S.412,420 (1986). Notab)y, Lhrtuda mandated that priolto the initiation o1'queslior.ring. the zrccused rnust be fully inlbrmed oftheir rights to teurain silerrt and 1o havc counsel ptcsct'rr. A4irutdtt, a|468. Once the accnsed hzrs becn rcad his lighls r:ndel Mirtmda,ll.re accused nrusl make a kuowiug, inlelligent, alld volutltary waiver o1'those lights fol queslioning to contillue. Id.ar444.475. I'hc Mirutcla *:'aiver has two distinct hurdlcs that rnust be orclssecl lbr'1he waiver 1o be eflcctive. Brewer v.

l!/illiunts,430 U.S. 387,404 (1977). ltirst. thc accused's waiver ofhis liglrts must bc volunlaly - a producL o1'liee and deliberate choice ralhet than intinidalion or coetoion. .A4oran, at 421. Second, 1he accused nrust have futl awareltcss of Lroth the trature of the righls he is waiving and the consequences o1'the deoision to waive those righls. /d.

Considering the "totality ofthe cilolunstances", both oflheso staudards nrust be tnel belbre a coLn't rnay oonolude theit ar ar,:ousecl's,l4irundu righls hacl been waivecl. Falc t,.

A4ichael O., 442 \1.5.701 .125 (11)'79).

Whcn looking at rvhethcl an accnsed has full arvarer.ress ofthc natute ofhis tights ancl the oonsequences ol'1he decision 1o waive those rights, a courL n.rus1 look at the particular thcts and cilcumstanccs, including the background, cxpetietlce, conduct, atld ecluoation ol'the accused. ,Iohnson v. Zerbst,304 IJ.S.458,464 (1938). All laots ur.rique to the accuscd lhat havc bcaring ou his cotrptehcnsion of his rights ate relevant il.l delernrining whethel the waivel is linowing alrd intelligent. L.eza v,Stttle,351 S.W.3d 344 'l'his u,ould ir.rclude lowcred intellect. dlug usc, ol othcr menlal clisorclers. Oursltourn r, Srare,259 S.W.3d 159, 172 (Tex. Clim. App. 2008).

The stale of Texas has codified Miranda iu Texas Code o[Climinal Pt'oceclule 38.22. tJnder'l'exas Code of Climinal Procedurc 38.22(2)(a), an. accused mltsl Lre tead five lisred righls belil'e any questioning by oll'icers. Tex. Ctin. Proc. Ann, Lfl.38'22 Sec. 2(a). If tlrc statcmcnt ofthe irccnsecl is vidco rccorded thcn these rigbts must bc lead to 1he accrrsed on rer.:older prior'1o questioning, aucl the accusc.cl lntlst Illake a l<no*'ing, ir-rteJlige:rt, ancl vo)untary waivcr of tliose rights. '.fex. Crinr. Proc. Anu. Art 38.22 Sec. 3(2).

b. Articulatiott o tlrc De e nsive Tlleor to tlte Tr ia l. Ckturl

Appellarrl lirs1 brought to the Tlial Clourt 1he need lor zrn experl 10 aicl in a 38.22 defonse in the first hcaring on 1ho Appellanl's Motjon fol Iulcllectuarl Disability and Cornpeter.rcy Evalualion on April 7 ,2010: "And as this Court is aware, under Osbourne v. State, a person's mental fitness or intellectual disability is relevant to a 38.22 issue, which is the subject ofa suppression motion before this Court. We would ask -- we have filed a motion for continuance, to which I have sworn, that we be set offfor this Court to order an intellectual disability evaluation, specifically IQ testing, and ifnecessary, adaptive deficit skills screening for Mr. Washington. I cannot, in good conscience, go forwald wilhout at least bringing tliis to the Coutt's attention." RR2-51-52. 'llial Counsel statcd that any intellcclual disability wor.rld plovidc valuable evidencc in the rnotion to sllpllress the dellendant's slatement. Further,'frial Couttsel articulated thal the Oulsbou'n issnc would tre the ccnlral issne in thal nrotion. 'l'hc'hial Corut denied the evaluation and use o1'1he expert at that tinte. RR2-50.

In the second hearing ou Appellant's Motion lbr intellccltral Disability and C-'ompctency l)valuation, llial C-'ourtscl agaiti presenled his plans to r"lsc the psychologiczrl

expert and her evaluation to suppless statements made by 1he Appellant to o1'ficels:

"But looking at these things in totality, I want to point out that we'r'e about to do today a motion to suppress where his intellectual abilities would be critical, if I had that information to my motion to suppress, and critical to a38.22 instruction, or issue under Osbourne v. State. I think it's also crucial because it may inform his ability to sit there and follow along with tlie officer, understand his rights, and to knowingly, intelligently, and voluntarily waive them. Without that information in hand, I believe that I'm harmed in terms of being able 1o proffer to this Coufi a reason that his staternent should not be in front of it." 1lR4-6.

"But I don't think that it's beyond pale to simply, in an abundance of caution, check to make sure tl.rat this man is in full possession of his faculties when we're about to hear whether he knowingly and voluntarily waived them." RR4-11.

'liial Counsel here oontinnes to request a psyohologicril evaluation ill older k) clcfcnd thc Appellant agaiusl a confession conriug into evidence tlrat clid not comply with llre nandates irL Miruntla aud 'l'exas Code o1'Clhrrirral Procedure 38.22. This is more inrportant rvl.rcn it is rnaclc li:rou't't that 1he voluttlaly. kr.rorving and intclligcnt waivcl ol llie de1-endant's Mirantlu riglrts was the main issue lrelbre the'L'ial Conrt in the Motion t<t

Sr"qrprcss. 'l his urolion was again dcnied, and thc'l'rial Coutt did not allow the Appellant an opportunity to obtain the assistance of an expert. During the Motion to Suppress, 1he prosecution began using facts to bolster theit position that thc waiver was in fact intelligently made. RR4-34-37. 'l'he ptosecution tiighliglrted certain points that they saw impo(ant to shou,ing that the defendant was lucicl and acting as other intelligcnt peoplc would in thal situation. 1rl In liglrt o1'the State's argurnellt, Dei'ense Counsel again nrovccl to liave 1he deli:ndant evaluatcd as he rvas n:rable to lay out thc nocessary lacts 1<;

lebut the ploseoution's posilion. RR1-34-37. This moLion wzrs again denied.

c. Likelv to be Sisnifican! sLIL4l The Appellant's s1a1emer1 to oflicers was likcly to be signilicant at trial. l'he s1a1cr11cl1t made by thc dc{'endant was a ctxfl:ssion to the ctirre. 'l'hc dcf'cndant laid out in his statemenl the exacl lacts aud circLunslances that led to the lobbery aud t.uutder o1

the victim in this casc. .lt should bc appal'ont to rnosl coufis thal conlcssious at's impoltant pieces of evidence, and matry limes, lhe only piece ol evidence. Additionally, Appellant nolified the'liial CoL['t o1'thc signifir:arrcc of thc statcll]eul wltcn ho lc-urged the rnotion to have the Appellant evalualecl lbl an iulelleclual disability plior 10 the oonfcssion being adrnittccl into cviclcnce - Appellant statccl that thc lnotion had 10 bc rc-

urgcd now bccallsc thc jury is about tlic sec the nlost significanl cvidcncc iu tlie casc lhat will illeparably rnoltl their decision making. RR5-47-48.

Alier reviewiug 1he entite leootd, DelLnse Clounsel's thoughts atid preseutations to the'llial Corut rverc in accord with tlre actual evidence at ttial. Without that statetnent, it is hart'l 1tl see how lhe prosecutiou wottlcl have been able to convict the Appellarlt o1'

Clnpital Muldcr. 'lhc State's Witncsscs testifiecl as follows:

a. Dellick Iloggcss testillcd first. Mr'. Boggess was a local resitlent 1ha1 lived in thc neighborlit.rod that was adjacellt 1o the orilne sccne o11'ol'IC.Jestel aud Fallbrook.

Mr'. Iloggess testificd that hc sar.r' a whitc Cadillac and a small dall< sedan parked olf ol'lC Jesler al or"tnd 12:3 0 AM on the morniug ol'April 19, 2010 as lrirn and

his wife lreaded ou1 to gct son.rething to eat, IIis wifc called the aulholities and leporled a suspicious vehicle at thal locatiotr.

Sec RR5-22-80.

b, Deputy Casey Bilinovich lestilied secoud. 'I'his o{Icer rvas the oue thal responded to Ms. Ilot'gess's call on the tnotning of April 19, 2010. She tcstified that a.s she turnecl onto TC Jester Iionr Fallblook she saw a White Cadillnc run the stop sign while making a right ttun onto Irallblook. Shc gave chasc 1o 1he vchicle The White Cadillac tled Jiom het'. aud uhitnalely rvrcoked iulo a posl in a r.realbl' neighborhood. 'l'hc drivcr of that vchicle was 1he Appellant, wlro was apprel.rended a1 the scelle. The passeugel j Lturped ovet a woodeu feuoe ancl escapccl.

,\'ce IUt5-80-132.

c. 'l'he thild person to testify for thc state \.\'as Sergeant Gary Srnith. I-le testifics that he arrivecl on the orime scene olI ol'IC Jester at 11:30 AM on the tnotuing o1'

ApLil 19, 2010. Sclgcanl Snith laid out thc crimc scene lbr thojury, including the localion o1'1lie viclirn's bocly. Further', he adds that he was able to collneot 1he

flccing While Cladillac fi'orn thc night belbrc 1o this murclet sccnc based on thc call into dispatch Ii'orn Ms. Bolgess.

Sec RR5- I 32- I 70.

d, 'fhe fourlh witness to testily was luvestigator Qtrintanilla. 'Ihis invesligator testified to thc ctimc sccue and the folcnsics that wcro t'un otl tlie victim's stolen white Caclillac, IIe conllmecl no iudependent evidence to link the del'endant to the crirre. '1-his investigatol was the onc that interviewcd the Appellanl duling his conl-essior.r, and laid the predicate lor the eutrance of State's Exhibit 3A - video lecording of the confcssiou.

S'cc Itll.5- 1 70-li I{(r- 1 0(r.

e. Next, Malilyn Martincz 1estified. Shc is thc victim's cousin in this case. She testilled thal she saw a dark colorecl sedau aud het cousiu's white Cadillac leave quickly from the fiont of hcr housc on 1he night 01- April 1 8. 201 0. She offct'ed no other evidenoe to Iinh the dei'endant to 1lte crime.

Sec RR6-10(r-128.

L Next, \4ary Anzalone. MD testilLed. Doctor Anzalone verilied that the death 01'

the victim was in facl cansed by the bullet woLtnd.

Scc ltl{7'5-33.

g. 'l-he last witness to tcstify was DcpLrty .Toc Nogucla. DcpLrt5' Noguet'a attenpted

to leconsll'uct the criure scene to velily exactly how the victirn rvas sl.rol. He

tcstificd that thc victim rvould have bectr on liis ktlcr:s, aud the gnn would havc been close to the viotinr's head,

&c RR7-33-1 16.

The only picce o1'cvidence that was addLrced at tfial that allirmatively linked the Appellant to the ctimc of Capital Murdcr, ol evctt tlre underlying Robbety. rvas that the Appellant was seen tulning onlo T.Cl. Jcster itt the victiln's While Cadillac aliel'the sr.rspicions call by Ms. Boggess. 'l'his piecc of cvidcrtcc wonld havc sut'cl)' tnade 1hc Appellant a suspecl to the murder o1'the victim in this case, bttt it rvould hzrve beeu insufficient on its own to support a couviction for Capital Murder. llverything abor.rt tJ:rc

under')ying story in this case hingecl ou lhe conl'ession o1'the Appellaul 'l'he pr<lsecutiou understood as much r,vhon they put forwald quolc aftel quotc olthe Appcllarlt's conlbssion during their olosing algumeirt. The defbndanl's t:onl'ession placed the defcnclant at thc sccne. laid out thc rigreen'tent for the rutdcrlying robbel'y. and put fonvard all o1'the key eviclence that the prosecution would use to shrtu' that the clel'endant should have anticipateci that a nrnlder could happcn in furtl.rerance o1'1hc robbct'y couspiracy.

There is little dispule that the conli:ssion lion thc deltnclant is the key piece o1 eviclence in tlrc casc against the defcndant,

4. C)verall Conclusion 'l'he Duc Proccss Clause of the lJnitccl States Constilution guarantccs that all delbndauts will have access to 1he rarv natelials necessary 1o build an effective defense. 'l'hese raw malcrials o{'ton includo the use of a clefonse expert to aid in challcnging issucs in the casc. Appcllant in lhis case. tequcsted thc assislance of ii neuropsychologist in diagnosing an iulelleclual disability. The results ofthat evaluation, and teslirronl' ofthe expefi. would have becrl used to bolstel two distinct clclcnsivc tl.reories - challcnge to the "shoulci have anlicipatecl" eleureut in Texas Penal Cbde S 7.02(b) and lo set the standard in answcling lvhcthcr 1hc Appcllant made a knowing and intelligcnt waivet of liis Mirandu riglrts. The impoltanoe of these 1wo issttes t'ele revealed 1o the l Lial Cottt't along with the uidcLlying lacts of Appellant's intelligence issucs and how the expcfl evalualion would be Lrsed to solidify Appellant's delense. Appellant alternptcd repeatedly to gct thc assistance o1'an expert, ancl rcpcatedly was clerried acccss by the 'l'rial Court Visiling Judge Mallia was put irr a dillicult position wilh Appellall asking I'or a continuance so close to tlial, horvcver, the Due Ptocess Clanse lequires agcess to these basio tools to insure the l'airness o1'the trial, A rreu'ops,vohologist's assistance in this casc, nndcl thcse 1acts. was one of thosc basio fitndar.ncutal tools. Without expert assistance, the lundameutal lairness ofthis 1r'ial is called into questi()ll.

Appellirnt was denied access to an expel-t a11er a substantial tteed was sh<lwn, and thus, his I)ue Pt'ocess lights wcrc violated rvhen the'frial Clourt lcfr-rscd to allow Appellant access 10 a neur'<lpsychologist lot an evaluation arrd possible testimony.

Appellant has rnct all factols in tlre,4tc tes1. 'l'his casc shoulcl tre renattded for a ncw tlial where Appellanl is nllowed 1o build his defense wilh tlie aid of a ueuropsychologist.

POINT OF ERROR TWO WHETHER THE TRIAL COURT ABUSED TI]EIR DISCRETION WHEN THEY DENIED THE APPELLANT A HEAzuNG ON HIS MOTION FOR NEW TzuAL ARGUMENT AND AUTHORITIES a. Rule of Law A motion lbt new trial is a prelec;uisite to pleseuling a point ol ett'or on appeal onl1, whcn nccessary to aclducc {acts not in the recold, 'l ex. Il.ule A14. Pl'oc 21.2. 'l'cxas RLrle o1'Appellate Procedure 21.3 euunrerates grounds where, if rnet by tlie dcI'endant, the 'l'rial Clourt must grant a new trial. 'l'ex. Ilule App. Proc. 21.3. llot'evet, thcse gr:ounds

ale not exclusive. See Slale v. Evans,843 S.W.2d 576,518-19 (Tex. Crirn. App. 1992); Stare v. Read,965 S.W.2d 74,77 ('1'ex. App.--Austin 1998, no pe1,). 'l'hc 'l'tial Cloufi has the discrelion to consider lnattel's not on 1he list providecl in Texas Rule o1'Appellate Ploccdnle 21.3 rvhen dcciding whethel to graut a ncrv trial. 1d.

In hearing the molion 1br tiew tlial, the lrial cotttl may receive evidence by affidavit ol othenvise. '1 ex. Rule App. Pt'oc. 2l,7. If thel'ale offcrcd and adnrittecl in evicleuce, sworn motious ancl alhdavils ma)/ sclve as ploof. o1'allegalions lbl a nl:w trial.

Sce Mclntire v. State,698 S.W.2d (r52, 65ti ('l'cx. CI'im. App. 1985). 'l'he Defcr.rdant may 'l'exas also lequesl thal a hearing be held in order 1o adduce live testiurotry inlo evidetrce.

Itrrle o1' Appellatc Proccdurc 21.7. 1\ Ilealing on a Moliott tbr Ncrv 'l"rial has lrvo pLfqroses. One, is 1o decide whelher the case should be retriecl, ,lrulllz v. Slate,286 S.W.3d 333,339 (Tex. Crirn. App. 2009). 'l'he second is 10 prcpare a rccxrrd fut'appcal should the molion be denied. ftl

A ;rrerccluisite to a hearing. and as a nlatter of pleading, motions for ncr'v trial mr'tst be supportecl by an allidavit ofeilher'the accused or solueone else speci{ioally showing the lruth of tlrc grolrnds asscrted . Mclntire v. Slqle,"698 S.W.2d 652, 65B ('l'ex. Crim. App. 1985). llowever, tlie a{lidavit is no1 r'e<;uired to lelleol every component legatly reqtriled to cstaLrlish relicf. bu1 tl're motion fol ncrv tlial or alTldavit rnust lef-lect that lcasonatrlc gr-ourrds exist lbr holding thal sucl.r leliel'oould be glanted. Reyes v. ,\t.u|e,849 S.W.2d 812, 816 (1'ex. Crim. App. 1993). A dclendant necd onll' asselt reasonable gtor.tuds for' reliel'rvhich iile not determinzrble lionr the lecord in ot'der to be entitled to a hoaririg. ft/. 'l-o deny the defcndaut a hcat'ing on an issue that is no1 cieterntinable fi orn the lecold

would deny the Appellant theil ohzrnce a1 teceiving a new lrial ancl o1'obtaining nrcarrirrgfirl appellatc review. Mclntire v. Slale,.698 S.W.2d 652, 658 (Tex. C)'im. App. 1985). When an accused cloes in 1ac1 present a motion for new trial raising matters not determinable frorn the record, upon which the acr:used conld be ontitled to rclief, thc tlial judge abuses his discretion in lailing to hold a healing. Reyes i,. Stqte,849 S.W.2d 812, 816 (Tex. Crim. App. 1993).

b. The Trial Court Abused its l)iscretion in failing to grant the Appellant's request for a hearing in his Motion for New Trial In older'1o l-rnd an abuse o1 discretion on lhe Tlial C'ourt's lailur:e to hold a

hcaring on a motion lor nerv 1r'ial, the appe)lant must shcxv tlrat: 1) the moli.ou for uerv tlial rvas lirnely liled, propelly presented, and suppofied by a swom alfidavit, 2) the rurotion fbl new lrial ancl acconrpanying affidavit nolifiod the.juclgc o1 a reasonablo

glounds lha1 could entitle the defenclant 1o leliel, and 3) 1he issue t'aisecl is not dcternirrablo f'r'onr the recorcl. Reyes v. State,849 S.W.2d 812, 816 (Tex. Crim. App. 1993); Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978).

a. A4ol io n wos T nel.r l:'/lad antl Presenl.ed with Suorn Alfidavit

On ApLil 10,2014. thc july lorurd the defendant guilty o1'Capital Murder'. and the Tlial Court sentenced the del'endant 1o ti1'e in plison without the possibility ol parole. CR- 148. A notice of appeal was timcly filcd on Aplil 10,2014. Cllt-l52 On May 9,2014, tlie Appellant timely liled a Motion lbl New 'l-r'ial with the 178(l' Dislrict Cotrrt o1'Harris County, l'cxas. Clt-157. 'l'lre Motion was prcscuted to thc cooldi:iatol of the 'flial Court in conrpliance nith 'l'cxas Rule of Appellate Ptooeclut'e 2l.6. ,\ee C1t-i71. Attached to tlre Motion fol New 'l'r'ial was an aflidavit from 'l'r'ial Counscl. 'l'he Motion for Ncrv l'r'ial and supporting alldavit delailed the lac1s underlying the groutrds 1'or 1hc Appellant's Motion for Ncw'l'r'iaJ - notably, the Trjal Corut's 1) dcriial of Appellanl's requcst to obtain an expelt 1br- assistanoe in building a deJ'ense under -,1/rc, 2) denial o1'tlie Appcllant's molion to continue so thc deltndant could be evaluated by tliat expert, and 3) denial o{'the Appellant's request lbl a compelency trial. CR-157-166. The Appellant rcqucstcd ar oral healing in ordcr to expand the record with live testimony lelating to thc Appollant's intellectual disability thal'I'r'ial C'ounsel hacl not been allowetl to pursue during 1hc tlial. 'l'his request 1br a hcaling rvas made 1o insure a correct decisiorr was nrade in the Motion Ior New 1\'ial and meaningl'ul review could be olrtaiued on tlireot appeal.

'I'he Motion fol New'frial was timely Iiled, pr:opelly pleseuted to 1he'frial Cjourl.

and was supportcd by an affidavit lrorn 'l'rial Couusel clelailing glouuds fol relief. 'l-his lirst prong o1 the antrlysis is met,

3l b. Apnelku'rt's Motion fo r New Trial an.d suooortins affidut,it nolified t lrc Triu l ('o t rrt,tf rcu.soua ls l t' g rounJs frtr rclicfthut \'(r( ttol detenninable fi"om tlte record i. Rule of Lalv 'l.'exas Ilule of Appellatc Proccclurc 21.3 lays out a list o1'spccific grouucls that woulcJ entitle aDelendantto leliel'in a Motion 1'orNew'Tlial. lJnder'21 3(b), a dcfendarlt

is entitlcd to a ncrv tlial if the 'll ial Court has conimiltcd a mzrterial clrot likcly 1o injure tlie Delbnclant"s rights. Further, the Trial Courl is not limited to 1he eight aleas Iocated in 'l'exas Rule o1'Appellate Proccdntc 21.1i, and l.ras discretion to glant relicl'iri the Del'endant's motiolL fol nerv trial lbr other reasous. "For I30 years, out trial oourls have had the discretion to grant a new trial in the intcrest ofiusticc. I{ule 21.3 does not provicle an exhauslive list." T'atlor v. Slate, 163 S,W.3d 277, 282 (Tex. App.-Ausliu 200s).

The Motion lbr New Trinl and suppo ing affidavit clelailed llvo distincl grounds, that oould enlitle thc l)c{tndant to leliel'anci wero not clctclrlinabls fi'om thc rccord.

Since the denial of the Appellant's Motiori lbl a Clonipelency 'll ial under 468 could be asosrtaincd frorn tho rccold, it is no1 argued in this scction.

ii. Ground for lLelief und er Ake v, Uniled Stales

n, Ann t'!luttt tttttilicd tlrc Trittl Ctttrrt ol rcusonublc rounds lhat cou.ld entitle l m lo relie 'l'he first ground for lelief in the Appellant's Motion lbr Ncw'l't'ial rvas a

ohallerrge wder t\rc. Priol'to trial. Trial Counsel moved lbt au evaluatiou of the Appcllant by a nouropsycJrologist in lwo hcaliugs on his Motion for lntellcclnal Disabilily and Compelency Evzrlr,ration. "frial Counsel re-ltrgecl this rnotion il'hile

obiecting 10 l)re pr.osccution's offcr of tlic AppeJlant's conf'cssion in Slate L,)xhibit 3A. In llie suppolting alhdai,il, Tlial Counsel detailed thal days bel'crre trial the del'endant had been unablc to assist him in buildiug a de1-ense for his case. CIR-165. Atound that same tirne, inlbrmation hatl beeu obtained fior.n 1he lamily thaL the Appellanl lterd been stluck b5r a oar a1 a yonllg age, and had not becn "r.ight" thcr.cafier. clR-165. 'l-rial counscl also details how expert lestinony rvould have been usecl to aid in the del'ense o1'the Appellant at lrial thlough dcfcnding against whclhcr 1hc dcfendant oould reasol.rabll' .[oresee thc

actions ol'the co-oonspiir.ttors, and rvhether'1he del'enclant's waivel o{'l.ris Mirtutt}a rigl't|s rvercknowing,intelligent,andvoluntaly,ClR-165.'lhcattackunder',4ftedctailcdaclaim that the due lrrocess r.ights o1'the def'endant hac{ been violaled by the Trial coutt rvlten they failed 1o providc cxpefi assistance 1br use at trial.

'Ihis issue lalls under relieflhat cau be sought uncler Texzrs Rule of Appellate Proocclulc 21.3(b) a matolial elror that is liltely to iniuro tlie dcfonclant's tights. Ar the very least, a violation oI the Appellanl's Clonstitulional Righls as sla|ed in Akc shoulcl lall uncler 1he Court's discrolion as otltcr grotutds lot lelicf made in the inlerest ofjustioe 'lhis issue was plopelly taised to the l'r'ial Courl, and detailed leasonable glor"rnds thal coulcl lravc cntitled the Appellant kr lclicl b. Th e Ake lsstte i,s t'tol Delerminable /rom lhe Record

In detcrrtining a [)ue Proccss claitl uuclct ;{/rc, thc maiu issttc is hor.v i1'llpol'tant llie scientilio issue is in the case, aud how much help a defeuse expert could hzrve given llclt 1t. f1141u, 897 S.W.2d 333. 338 ('l'ex. Clim. App. 1995).

1.)

Givcn thc standard 01'the Clonstitulional claitn unclet Ake,lliis issuc rvas not determinable li'onr the trial lecord. The Trial Coult liad uo1 allowed lbl re Appellant tcr

be evaluatcd fol an intellcctual disability prior to liis couviction. 'l'o determit.rc whcther the Del'endant's DLre Process rights rvete violated the Trial and AppellaLe Clottt'ts musl lool< at how importanl the scientific issue is in the case and how much help the defense expert could havc bcen (emphasis added) to the Appellant's case at trial. Though the Appellant was able to make a thleshold showing about the imporlance of the issue, he was unable 1o give the concrete evidence that is needed to bolster the lfre claim. In the Appellant's Motion for New Trial, Trial Counsel included affidavits alleging the facts within his knowledge that gave rise to the possibility ofan intellectual disability, but these statements pale in comparison to the power thal live testimony on the issue could have garnered. The Trial Court in the Motion for New Tlial and the Appellate Coutls would have been greatly aided in hearing more concrete information on the subject of Appellant's perceived intellectual disability.

'l'he I\4otion fbr Nerv'l'rial requesled an olal hcariug so that thc tccord could be expanded u,ith r.nole tangible inlblmation on the Appellant's jntellectual state. Willioul this adclitional ovidcnce, the'l'rial Court in thc Molion {bl Now'l'r'ial ancl 1hc Appollatc Court on appeal cannot clelelmine the valiclity of the Duc Ptocess isstte raised ul.rder.,lka.

An cvaluation and firlther ovidence on any inlellectual disability was nceded in ordet ttr mle on the ,,lfre issue and to expand the record fol Ayrpellate Cout1s to niake a decisiou on a possiblc violation of'1hc clcltndant's constitutionerl rights. Ciiven tltc two goals ofthe Motion lbr New Tr:ial, to decide i1'Ihe case neetls to be lelried at.rd to expaud the r-ecorcl lbl meaningfr-rl nppeal,lhc l'r'ial Court should havc glantod the Appe llant's reqttesl {bl a

I.rearing on the Motion fol Nerv'l'r'ial. As it stancls" the Appcllatc Courts al'e stLlck to pondel ila tlue intellectual <tisability exists in the Appellant. 'lhis evidence shotrld have bcen allowcd ro be put folwald in a livc hearirrg. 'l'lris issue is no1 dctcrniriablc from the lecorcl, and a healing should have been gt'an1ed to aid the Trial Court in ruling on the Motion Ibr Ncw'll'ial and thc Appclltrtc Cloults in cleciding this appcal

iii. Ground for Relief Based on'Irial Court's Denial of Appellant's Motion for Continuance a. Notified the Trial Court of RcasttnabLe ADD? llant Grou.nds o r Reli.e In olclel fot'the delendant 1o be gtarr.rlcd a ucw lriatl based ou the Trial Coutl's clenial of a I)ef'endanl's Motion 1br Coutinuancc. the clcltndant nltst shou'lhat the lrial court's denial was an abuse of discretion. (iallo t,. Sttrtc, 239 S.W 3d 7 57 ,7 64 ('lex' Crirn. App. 2007). Hei,setbalzv. Slate,90(r S.W.2d 500,517 (l'ex. Crirn. App. 1995). l'o show atr abuse o1 discrelion. the Appellalil rnusl shoiv thal: 1) the Trial c-'ourt en'ed in Do1

granling the nrotiou ftrr cottliltuaucc. and 2) thc dclcnclaut was acltrally harmed by tbat rnling. Ileiselbctz r,. Sta1e, 906 S.W.2d 500, 517 (Tex. Crirn App. 1995). A trial coult ll'ill en'in not gr'anling a molion fbt oontinttanoe if thc oasc Ibt'a coutittuatlce was so convir.rcing that no leasonable j uclge r.vould have urade that ruling in light ofoourL scheduling and thc iuterest of the stale- Gonzales v. Slate,304 S.W.3d 838, 842 ("['cx.

Clim. App, 2010). 'lhe appellate court will lind hann in the denial of a uotion lo contirue "'only if thc lccord shorvs rvith consiclolzrblo spcci{ici1y horv the clcltudalrt was harrned by lhe absence oltnole preparation title than he actually liad "'1d

In the Motion lbr New Trizrl aucl the sr4rporting allidavit the facls lelating to the Appcl)ant's Molion for Continuauce wcre outlined tblthc'i'rial Courl. CIR-157-165

'lrial Counsel askecl for a conlinnancc at various stages of thc proccedings in ordet to obtain expert assistance to evaluate the Appellant l'crr au iutellectual disability, S'ze Itll4- 80, Itl{2-52, Itlt6-50. 'll'ial Clounscl articulated 1he exaol clel'cnsivc theorics thal the expert's testimony would nid in eslablishing. Trial Counsel notified the l'r'ial Cotrrt that the contiunance would only lake a ferv days and thal a ncnropsychologist had already been selected who was availnble 10 oonduct 1l.re evaluation.

Ilthc'l'rial Cburt did abuse thcil disclction in dcnying thc Appe llarrl's Motion lor Cor inuance. lhis would be a tnalerial en'or thal was likely to inj ule the liglrts o1 llie clclcndant, cntitling the Appellantto lelief undcr'21.3(b). In adclition. any en:or iu the denial o.fthe Appellanl's Motion 1br Continuance could hzrve enlitled the Appellant to relief in the intcrest oljustice outsidc of the gror.rnds lislod in 'l'exas I{ulo of Appe)late Procedure 21.3. l'he Appellant liolifir'd the Tliarl Court ofleasonable grouncls that could cnlitlc thc Appcllant 1o rclicl b. The Mol iort fbr Cortl.inuance Lssue vtas nttt Determinable ft'ont tlrc llecord A'l'rial Cour-t's "Denial of a Motion lbr Continuance rvill be found an abusc of disr:r'etion on appeal only il'the r-ecorcl shows with considelable specifioity liow the clel-endant rvas halmecl Lry the abscnce olmote preparation titne than lie actually had. 'l his showing can orciinarily be matle only at a healing on er motion lbr uerv trial, beoause almost ah,vays only at that tine will thc defendanl be ablc to ploduco evidencc as to what adclitional inlblmalion, evidenoe or witnesses the c1e1'ense rvould hzrve had available if. the motion fol delay had treen glanted." (ionzrtlev v. Statc,304 srv3d 83 8. 842-843 ('l'ex. Clrirn. App. 2010).

ln Cionztles, the def'endant askcd fbr an expert 10 assist in blrilding his defcnsc in a

child sextral assault case. Id. ttt840. Specifically, 1he del'endant algued iat an expel1 was needed to rcrricw the mcdical lecorcls ofthe child victim in that case. /d at 841 'l'hc del'endant's requesl lbt'a ueclioal expelt was ntade the day o{'1rial, and the trial oourt dsnicd a rrotior.l for contiuuauce to allowthe expert 10 prcpare fot'trial. Id Aftct conviotion, the delendant filed a rnotion fbl new tlial reqr:estiug an ol'al hearing to dcvclop thc harrn related to the defetrdaut's allcgation that the'l'rial Cotrt abused theil' discletion iri deni,ing the molion to continue. Id. al84l-842. The Trial Court cleniecl the rnotion fol new tljal wilhout a hearing.

The Ciourt olCrirlinal Appeals helcl tliat the Trial Courl did not zrbuse its discletion by lnling on thc Motion lor Ncw '[ rial without a ltearing. 'l'he C]our1 in (iontrzttlcs, slalcd tharl 1he Trial Clor"ut had to make a cleternrination on i1'there r.i,as elror itt 1he denial o1'the Defbndant's Molion lor Contiuuaucc bcfbre the harnt analysis was.justificd. Id. at 843- 843. If the Juclge tburd no enor iu the denial o1'the coutinuance thcn the de1'endant would not neccl to develop harm in the second patt ofthe analysis. /d Put dilI'crently' thc Trial Clourt woulcl never ge1 to the harm analysis, ancl therefore. thc issue coulcl be dclclrnir-rable Ii'orn thc locold r'r'ithout livc tcstimony. /d In so linding, thc Corrrt of' Clrirninal Appeals ernl:hasizecl Lhal continutlnccs based ot.r the abseuce o1'a witness recpriro the clelenclant to dctail the due diligence that was lurdcflakeu in proclrrirrg tlro rvilness, and why they were unable 10 requesL the rvitness unlil the da),oltrial. 1d ln (ionzules, cotinsel for thc defendanl had beon on the casc for 8 months atid gavc uo explanation for waiting unlil Lhe clay oflrial belbrc requesting arssislance frotn au expert ancl a c<rrrtirrrrance. ld. aI84l-843.

JI 'l'his casc dil'lbrs fi'om ()onzclcs iu sonre vcry impofiant aspecls ln this case. during the rnotion fol colltinuarlce as well as the rnolion fot'new trial, the del'eudanl cletailed the exact reasons behind thc latc tcquest fbr cxpert assistance and rvhy the motiou for oontir]ual'rce was lilecl on the day of'trial.a CR-157-165. TI-re'frial Courlwaspulon notice that thc issucs detailcd irr the Molion fcrr Coutiuuance and Motion. lor Ncrv l l'ial had c6me to J'rial Couusol's attentiou j ust a few days befirre trial. Furthet, Tlial Coturscl asl<cd fol a lbur day continuance in otdct to have the dcfendant evaluatcd by a

psychologist lhat had iilready []ecn contacted. Given tlie n]aguilucle o1'the allegations nradc by the Appcllant itt rega::ds to the necd for expcrt assislance for his defense in a Capital Murcler.tlial, a foul ciay conlinuance shoLrld gleatly oven'ide the illlerest thnl the statc has in a pr.ompt trial or.the cjourt's scheduling. The case ntade by'I'rial clounscl was so convinciDg thal no reasonable trial judge *ould have not granted the motion to continue in orclel to have thc dcjtndant cvaluated. 11 q'as a srrall p|icc to pay for'

assulauce in the accuracy of a Ca1:ital Mtu'dc't' proseoution. The Trial Corut elred in dcnyiug thc AppelJant's Motjon for Conliuuance, and thus. zr harn.r arral-vsis was needecl

in orclel to rule ou the merits o1'this issue in the Motion for New Trial.

Oloe it is lixurd that lhc'l rial Cotrrt orred il1 dcllying a Motion fcrr Corrtinuancc, thc Trial Court rnust base the viability ol tliis glound lbr leliel on the plesettce olactual hartl 1o tlrc Appcllarrt. 'l his plong ofthe lest oanuot bc delettniued fitnr thc tecord as aolual

harn.r r.vould require knowledge olwhat the clel'eusive expet't would have becn able to pr.(

a Trial Counsel notified the Trial Court that the farnily did not come forward wjth the accident where Appellant was hit by a taxi until a few days before trial, because they were embatrassed ofhis slowness and did notwanttobe viewed as "crazy", RR4-8-9. Trial Counsel advised tlte Tlial Court ofpeople's reluctanc€ to come forward with issues dealing with mild letardalion and intellectual disability. RR6-49.

See Poittt of Error Three at 44-45 in this brieffor specific.facts befot e the iudge on the Appellant's Inlelligence Lssues. iuto evidencc at lr'ial. Thc dclcndant must be allorvecl to put forwald additional evidcnce relaling to his intellectual disabiliq' in ot'der to show the aottlal harnl that was caused by the denial of his motion lbr continuance. Witlrout thesc facts, the 1wo putposes of a Molion lor New'Il ial are frustlatecl: decicling il'lhe case should be t'ett-iecl ancl expanding

tlre rcoold fol a nrcaningful appcnl to this Court.

The Motion for Ncw 'I'rial and supporting affidavit raiscd ar teasonable ground Ibr reliel'in relaLion to thc'llial Court's denial ofthc Appellanl's Motion lbr (\rntinnancc.

This issue rvas not delert.t.tiuable liom the record i1sell', as the 'I'rial Court no1' tl'Ie Appcllatc Court can ascertain thc actual hartr 1o thc Appellant r.r'i1hott1 morc evidelrce.

The Tlial Cloult abuscd theil cliscrelion in no1 grarntiug dte defcutlant's request for a hearing in his Motion fbr New'l'rial to aid the'l'r'ial Court and this Courl ili theil'to'iow o[this issue. Withoul the healing, the Appellanl is uow uuable to tzrise the Motion 1br

Clontinuanoc issue on appcal bccausc he rvas dcniecl thc lighl to cxpancl tho rccorcl to show harm.

c. Conclusion

A Trial Court Juclge abuses theit discletion i{'they deny a del'endanl's request lor an oral Jrearing with live lestiurouy on a Motiou fol New'll'inl ii: 1) thc motion for trew tlial was timely Iiled. properll, pleselLtecl to the Trial Coult, and suppofied by a swotn affidavit, 2) thc motion for ncw tlial ancl acconrpanying affidavit notilicd the'flizil Cloult ol a reasonable glound that coLrld entitle the c1e1'endant to reliel. and 3) an issue is raised tliat is rrot deteminable fionr thc tecold. 'l'he Motion lbl Ncw'l'rial rvas timely filed and

properly presenlcd 10 thc 'l'rial Cloru1 rvith an accompauyit'tg srvorn aflidavil that laid out issues {ol reliell

'I'he Molion fbr Nerv'l'rial notilied llie 'l'ria[ (bult ol'a tcasonatrle glound that could entitle the Appellzrnt to relief. Those grouuds fot'relielwete a violation olthe Appollanl's l)uc Proccss righls undcr zlkc - thc 'l'rial (irurt crrod in donf ing Appcllanl access 10 an expert lhat could assist in his defense; arid. the Trial Court's eltor iu not granting thc defcndanl's Motion lor (lonLinuanco. Iloth ofthese issues woulcl allow the Tlial Coult to grant reliel'under'21.3(b) in drat tliey were matet'ial errors that are likely to injr.n'e the rights ol'tho clcfcndant. Cii,cn tlrc magnitude of lhc allegations, the'frial CoLtrt was also rvell within lheil discrelion to gtanl a new 1[ial ott grouuds not listccl under' 'l'exas llulc o1'Appcllale Procedure 21.3 in the inlerosl ol'justicc.

llotb ofthe issues p; escnlcd wole not determinable fi'om thc rccord. 'l'o ptopelly pl'esen1 the issues, the deI'enclanl neecled au olal hearillg rvith live testimol)y to expand on the intcllcctual disabilily issr.res that u'ere at the cot'c of each olthcse argnmcttls. ln or-dct' 1o show "lxrw much he\r an exllert oould have given", the I'rial Court is reqtlired to -fhe'1iial Cour-t lvould havc to kirow r.vhat conducl an ar.ralysis similar to harmful crrot'.

1he expert woulcl have added to the delerise to answeL a key question inllca. Withoul live tcstirnony and an expansion ollhe recold. the l'rial Court coultl no1 rnake their lr.tling on the Motion lbl New Trial and this Clourt is lell rvilh unansrvered cluestions. The sarne is true for the convcntional harm analysis that is rccluilcd frotn the'l'rial Court to rule ou the issue lelaling to the'l'r'ial Cour-t's denial ol the Appellant's Motiou lot Continuzuroe.

Without a lrealing. r.rcithcr Coult can auswcl the qnestion of n4rether thc Appellanl rvas prejLrdiced or harmed by thc abser.rce ofadditional lirne to plepare fol Lrial,

'l'hc observatiorrs l'rom'llial Cloutisel seeu in his affidavit palc in comparison to a lirll evaluation o1'the del'endanl to cletermine 1he lrresence ol'an intellectLral disability. 'l'his infomration was needed to rulc apptopriatcly on the Molion 1br Now'liial and for the Appellate Coulls 10 rule on the issues in this erppeal. The Tlial Coult Jttdge abusecl

his cliscr:ction whcn hc detricd the dcfenclant an oral Jrcaling rvith live teslimony in his Motion lill Nerv 'l'rial.

POINT OF ERROR THREE THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED TI-IE APPELLANT'S REQUEST FOR A COMPETENCY TzuAL UNDER TEXAS CODE OF CzuMINAL PROCEDRURE 468

ARGUMENT AND AUTHORITIES a. Rule of Law

A person whose mental condition is such that he lacks the capacity to understand the nature of the proceedings against him or to help to build a defense cannot be put to trial.

McDatiel v. State,98 S.W.3d 704, 709 (Tex. Crim. App. 2003). Putting an incompetent person to trial violates the due process rights ofthe Defendant. ft/. Under the United States Constitution and the State ofTexas statute, a defendant is not competent to stand trial unless he has a sufficient present ability to consult with his lawyer witli a leasonable

degree ofralional ur.rdelstar.rding and a rational as well as factual understanding ofthe proceedings against him. Tunter v. Slule , 422 S.W.3d 676, 689 (Tex. Crim. App. 2013); 'l'cx. Crirn, Ploc. r\nn. Art. 4613.003(a), 'l hc Dcf'endanl musl n'Icet bolh prongs of thc tcst be conpelenl 1cl stand lrial as the del'endanl's abilily to lationally assist in his deletrse is indispensablc to his cor.npetcucy. See'lurner, a|689.

To protect the due process rights ofthe Defendant, the trial courl is obligated to inquire into the accused's competency once the issue is sufficiently raised. Id' A nere suggestion of incompetency is sufficient to raise the issue. Turner, at 692. Orroe the issue of the defendant's currpetetlcy to sland trial ltas beer1 suggested. 1he courl sl.rall determine by "informal inquily" whetltet lhete is sotne evidence fi'om atiy soluce that would support a findiug that the defendant rnay be incompetent to sland trial. Tex. Code Crirn. Proc. Ann. afi.46B.004(c) (Vernon Supp. 2006). lf there is in fact son.re evidence fronr any source to suggesl thal the de1'endant may (cntphasi's atlded) be incompetent 1o

stand tr:ial then the Trial Courl shall order a competeucy heariug. Turner, a| 692. 'fo make the determinalion if some eviclence exists, the Tlial Court must put aside all competillg evidence that suggests colnpetence. and decide if more than a scintilla of evidenoe exisls that may rationally lead to a conolusion of incon-rpetency. 1d If this standard is rllet then the Trial Courl rnust ordet'a competency lrial. 1d. If a cour-t holds a trial to determine whether the defendant is illcompetent to stand 1rial, on the request of either palty or the motion ofthe court, ajury shall make the determination. Tex. Code. Crim. Proc. Ann. art. 468.051(a).

Trial Counsel in this case filed a Motion for an Intellectual Disability and Competency Evaluation and a Motion for a Contested Competency Tlial under Texas Rule of Criminal Procedure 46B. CR-130, CR-136. Appellant also made nunterous suggestions to the Trial Court relating to his concerns about the competency ofthe Appellant thloughout the ploceedings as detailed in the pr-ocedure facts portion of this brief. These motions and oral assefiions rnade to the Trial Couft were sufficient to raise the issue of competency triggeling an informal inquiry by the Trial Court. The Trial

Court tnade this informal inquiry in two liearings where the Appellant's family testified legatding the Appellant's intelligence issues, and affidavits ofthe Trial Counsel and his co-counsel's observations were presetrted to the Trial Court and put in the Clerk's Record on Appeal. RR2, RR4, CR-142. The only issue being contested is whether there was more than a scintilla ofevidence that the Appellant did not have sufficient present ability to consult with Trial Counsel with a reasonable degree ofrational understanding, such that the Trial Court abused its disctetion in not granting a competency trial.

a The Trial Court Abused its Discretion by Not Granting the Appellant's Request for a Competency Trial under Texas Code of Criminal Procedure 468 During the two hearings on the Appellant's Motion for lntellectual Disability and Competency Evaluation, the Appellant put forward facts lelating to his intelligence issues. This evidence came by way of testimony from the Appellant's family and affidavits from Trial Counsel. The evidence is as follows:

1. Appellant never'finished lJigh School. Itl{2-9.

2. Appellant had issues rvith his mernot'y. RR2-18.

3. At four or Iive yeats old, Appellarrt rlas struck Lry a taxicab r'vhile riding liis bicycle. 'l'his inciclont causcd thc Appellant to bc hospitalizod fot two days fbr hcad irrj urics. RR2-34. .

4. Farnily mcmbers rnlrst repeal simple ir.rslr'uctions to the Appcllant over and ot'cr belbrc he undelstands. I{l{2-23,

5. Appollant is easily inlluenccd by olhers and I'ails 1o think lbr himsclL l{11.2-26.

6. Appellant is unable to livc orr his own at the age of40. as he is unable to do the sinrple tasks it would tal<e to uraintain a resicleuoe. RR2-38

7. Glowing up the Appellant's uiolutaure rvas "dodo" dr're to lris kl,r' intclligence anci slowncss. Itl{2-48.

8. Appellant was uuable to actively palticipate in Jury Seleclion as secn by the trotes that he tooli during the plocess. Clll-135.

9. Appellant is turable to do simple arilhnretic like adding two uttmbers. RR4-69.

10. Appellanl lepeatedly showed Tlial Cotrusel an inabilily 1o compteheud the dcf'enscs available. the irrpact ofhis statenrent, ol his ability to tcstily on his own behall-.

cR-137.

1 1 Appellant rvoukl respond " 10 nrinutes" to any llc1 scettario legarding 1he case al tirrcs whcn thcy could rrol have been attywhclc near ten lril'tutes ClR-142.

12. Appellant r.r'or d ash lhc samc question ot cL attd ovcl to 'l'r'ial Clouusel aftel J'r'ial Counsel had answeled i1 in that sante conversation. CR-143.

13. Appellant would aglee with anything thal was presented to hitn by Trial Cot;nsel duling tlial prel;atation. C I{- 143.

14. Appcllant could not aid in building a lime lir.re in his dcfcnsc. 'l'rial Clounsel askecl Appellant when he alrived, plotnpting lhat is was 55 lninutes afler 8:00.

Appcllant would say 9:30. CR-143.

15. During Voil Dirc, Appcllant's only aclions wcrc to repeatcclll'ask if thc Jury would senlence him. CR- I 43.

A defendant is not competent to stand trial if he has an insufficient present ability to consult with his lawyer with a reasonable degree ofrational understanding, or he does not have a rational as well as factual understanding of the proceedings against hirn. I'unter v Stute.422 S.W.3d 676.689 ('l'cx.0im. App. 2013);'l'ex. Ctiur. Proc. Ann. Art. 468.003(a). Evidence relevant 10 these issues includes whethel'a del'endant can (1) understand the chargcs against him and the potential consequctices ofthe pending clirainal proceedings; (2) disolose 1o oouusel peltilielll laots, ovents. arcl states olnrind; (3) cngagc in a reasonecl choice o1'lcgal stt'ategics and options; (4) understand the advelszrizrl natule olcliminal proceedingsl (5) exlribit apploprierle courtroolr behavior; and (6) testily. Morris v. Sratc, 301 S.W.3d 281, 286-87 ('I'ex. Clini. App 2009).

'Ihe facts laid out before the'llial Corut prior 10 the mling on the Appellant's Motion lbr a Cornpelency Trial sltow much more than a scintilla of evidetroe that the Appellant did not lravc thc plcsent abilitl to consull rvith '[-rial (]ounscl rvith a reasonablc degrcc of tnder.standing. The Appellanl was unable to t{isclose to Trial Counsel relevalrt litcts zind cvcnts in a nranner lhat tttadc scuse. W)rcn protnpted to l'ecall timcs for a time line ol' events as lhey happeued, Appellant coulcl not felay this inlbrnation iu a coherettt lnauller.

Appcllant u,as also not ablc 10 cngagc in teasoned choicc in regalds 1o prcsentcd lcgal sllategies. He 1'ailod to undersland or l'ollow the def'enses as lhey wete laid out irr liont oll hirn. and did not r,u.rdelstand why his palcuts rvould no1 bo tcstilying in ccrtaiu proceecliugs. CR-143. The entile pt'ocess seemed 1o overwhelm Appellant's ability tcl lunotion. l;ur1Jrer. Appel)altt was not cngaged duringiury selcction evcn u'hcu prornpted

for assistancc b)'hjs l'rial Counscl. I1e sinrply sat and lepeated nonlrertiueut tlucslious to Trial Counsel. Most inrpoltzinlly, Appellant rvas not in a conditiotr to lestify on his own lre]ralf. lle would agree wilh anything thal was slated to him. and was lrot cohclellt enough to telJ the stoly o1'whal happencd on the night in questiou, He was t-tot able to do thc one thing that coulcl have beucliltcd hinr thc nrost in bis tl.ial - tcll his siclc oftbe s1ory.

b. Conclusion Aliel hearing all o1'the above evicience, the Tlial Court had 10 make a decisior.r on whetlicr therc was "moLc than a scirrtilla ofevidence that rnay rationally lead to a conclusion ol inconpelency." Turner, at 692. Under'Iexas Code of Crimitial Procedure 468, the l'rial Court must give a colnpetency trial to the defendant if tlris standald is met.

If he does not, then the Trial Courl has al:used its discretion. Turner, a|692. The evidenco bofore the'Irial Courl was much mole than a scirtilla and went to show that Appellanl was not able 1o aid in building a defense. This inzrbility to consnll with Ttial Counsel rvith a rational undcrstanding is at thc core ofcompetency. 'llris is evcn urot'c importarlt rvhen a defendanl is rurable to assisl in a lrial lor Capital Mur:der'. The Trial Court abused its discletion by denying Appellant's Motion lbr a Competency 'l.rial in this case as lhele was much more than a scinlilla of evidence that would rationally lead to a conclusion of compelency.

PRAYER FOR RELIEF For the reasons herein alleged, Appellant respectfully requesls this court reverse the.judgn-rent of the Trial Courl and remand the case for a new trial on the merits, or renand the case to the Trial Courl for a hearing on the Motion for New Trial

ND A. , JR. TexasBar# 15208500 Louisiana, Suite 200 Houston, TX77002 (7 t3) 223-ss7 s (713)224-28rs (FA]{) Attorney for Appellant CI{RISTOPHER WASHINGTON

CERTIFICATE OF SERVICE As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties, which are listed below on January 28,2015, as follows: Devon Anderson I{arris County District Attorney Appellate Division 1201 Franklin Street, Suite 600 I{ouston, Texas 77 002 Attorney for the State of Texas By: ElectronicTransmission

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