Opinion
NO. 02-15-00210-CR
03-31-2016
GERALD DEMARSH APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-03206-B MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Gerald Demarsh appeals the trial court's judgment convicting him of assault causing bodily injury. In one issue, he contends that the trial court abused its discretion by not inquiring about whether he was incompetent to stand trial. We affirm.
Some documents within the record spell appellant's last name "Demarsh." Other documents spell the name "DeMarsh."
Background Facts
One morning in October 2013, Bob McFarling was sitting at a table and talking with friends at a senior center in Denton. Appellant entered the senior center, put some of his belongings on a countertop, walked toward McFarling, and began assaulting him. Appellant choked and repeatedly punched McFarling and told him that he was going to kill him. Bystanders pulled appellant off of McFarling. In the assault, appellant injured parts of McFarling's head (including his ears and lips) and right forearm; McFarling was "incapacitated for three weeks." According to McFarling, before the assault occurred, he and appellant had a dispute about whether McFarling owed appellant money for raffle tickets.
The State charged appellant with assault causing bodily injury. Before appellant's trial began, acting pro se, he filed several documents with the trial court. One such document was a letter that referred to a federal lawsuit in which appellant was the plaintiff. That letter gave four reasons why McFarling had allegedly provoked appellant's assault. Specifically, appellant wrote that McFarling had stolen raffle tickets at the senior center, had "deliberately kicked and bullied" a veteran, had taken a "republican presidential pin" from appellant, and had slapped appellant on his left shoulder after appellant had undergone surgery on it. The letter included appellant's statement that he had "whipped" McFarling. It concluded with appellant's claim that the criminal case against him was "under federal jurisdiction"; his request that the trial court dismiss the charge "or at least extend it until [it was] heard in Federal Court"; and his representation that if the trial court did not do so, the trial judge would be added as a defendant in the federal lawsuit. Several other documents relating to appellant's federal litigation appear in the record of this appeal, including one in which he compared federal judges to Nazis and another in which he stated that those judges had acted unconstitutionally. In another document, appellant wrote about judges on the Oklahoma Supreme Court who had been "taking bribes" and had therefore been sent to prison.
The trial court issued written admonishments to appellant about his right of representation by counsel and about the consequences and disadvantages of proceeding without counsel. Later, appellant sought appointed counsel, and the trial court appointed counsel to represent him. Soon thereafter, however, appointed counsel filed a motion to withdraw, contending that his attorney-client relationship with appellant had been "irreparably damaged."
The trial court held a hearing on counsel's motion to withdraw. Counsel represented that appellant believed that counsel was not "working on his behalf" but was instead "working for the interest of the [State]." The trial court represented that it had initially appointed counsel for appellant in the "interest of justice" even though his income "was a little beyond what [the court would typically] consider for appointed counsel." Appellant stated that his counsel was "representing the [State]" and asked to again represent himself. Appellant also attempted to discuss the facts leading to the assault, but the trial court prevented him from doing so. Appellant stated that he wanted to represent himself so that he could "present [his] reasoning for whipping McFarling."
In part, appellant stated, "I have been put in jail, my son has been sent to the penitentiary for two years, and there's no reason other than him being my son. And I am an American citizen. I have a right to defend myself, and that's exactly what I'm going to do."
Also during the hearing on his counsel's motion to withdraw, when the trial court asked appellant about his educational background, appellant stated, "I had one semester of business administration at Oklahoma State University. My family [members] are the ones [who] educated and financed T. Boone Pickens, George Bush, Sr., and Jerry Jones. Jerry Jones happens to be my aunt's nephew." Without prompting by the trial court, appellant spoke about his federal litigation, including a suit against "district attorneys . . . for one million dollars." Finally, toward the end of the hearing, appellant spoke about his family's honors, including that his
dad was one of the best athletes in the United States. He taught the martial arts at Great Lakes Naval Training. He won the National AAU four times. He won two gold medals, one silver and one bronze, the National Collegiate, and the Missouri Valley Conference in wrestling. . . . [A]nd then one of my cousins was a chief justice in the Oklahoma Supreme Court, and he was captured on Corregidor and he went through the Bataan Death March.
The trial court granted counsel's motion to withdraw and again admonished appellant in writing about the consequences and disadvantages of representing himself. Appellant wrote several letters to the trial court before trial, including a letter in which he requested the appointment of "assistant counsel as [he did] not know how to [subpoena his] witnesses." Appellant also expressed that he needed to be able to enter the senior center, from where he had been banned, to talk to witnesses and prepare for his defense.
At the hearing related to appellant's counsel's withdrawal, along with giving appellant other verbal admonitions about representing himself, the trial court told appellant,
I'll be frank with you, what I often find [is that] individuals who aren't trained in the law don't understand why the law is how the law is. . . . So simply saying I want to stand in front of a group of people and tell them my story may or may not work depending upon what's admissible pursuant to the law. . . .
Now, if you want to represent yourself, I certainly can't preclude you from doing so, but I think you should think long and hard before doing it . . . .
Appellant represented himself at trial with the assistance of standby counsel. During voir dire, the State asked several questions of the veniremembers, and when the State finished doing so, the following colloquy occurred:
THE COURT: All right. Mr. DeMarsh, are you going to have any questions of the jurors?
MR. DEMARSH: Yeah.
THE COURT: Are you ready to proceed?
MR. DEMARSH: Yes.
THE COURT: Okay. You may.
MR. DEMARSH: My name is Gerald DeMarsh. I'm charged with assault. And I have listened to the [inaudible] here try to sway the jury. I'm 84 years old. The old boy I assaulted was 76.
[THE STATE]: Objection, improper voir dire.
THE COURT: I'll sustain the objection. You can't talk about the facts of the case.
Following this exchange, the trial court prompted appellant to ask the veniremembers questions. He asked three veniremembers whether they could give a fair trial, stated that he had "already got [his] jury," and concluded his questioning. Neither side submitted any challenges for cause. When the trial court brought the six selected jurors into the courtroom, appellant said, "Judge, I didn't get my three." The trial court informed appellant that he did not "get to pick who's seated," gave the jury panel several instructions, and arraigned appellant. He pled not guilty.
The remainder of the trial occurred the next day. Each side made opening statements. During appellant's opening statement, along with discussing other topics, he attempted to explain to the jury why he had assaulted McFarling. During the State's case-in-chief, appellant cross-examined witnesses, including McFarling. Several times, the trial court instructed appellant to ask questions to the witnesses rather than make statements. At one point during his cross-examination of McFarling, appellant stated, "I don't know how to defend myself, Judge." And during the State's direct examination of one of the senior center's employees, appellant stated, "Judge, I don't deny any of this. I had a just reason to do what I did." In fact, the consistent theme of the trial was appellant's admission that he had assaulted McFarling joined with his opinion that he had good reasons for doing so. During cross-examination of a police officer, appellant asked the officer about appellant's federal lawsuit concerning the Dallas Police Department, and appellant later suggested that his assault prosecution had been motivated by retaliation for his federal litigation.
When the State rested, appellant sought a directed verdict of not guilty, but the trial court denied that request. The trial court instructed appellant about his right to remain silent, but he chose to testify. Appellant's standby counsel offered to ask him questions to assist in his testimony, but he decided to testify without counsel's assistance because counsel was not "aware of a lot of the things that happened."
During his case-in-chief, appellant called his adult son, Steven, to testify. Steven stated that he had never known appellant to deliberately provoke trouble and that he knew that appellant felt intimidated by McFarling. During appellant's testimony, he claimed that the State was "desperate . . . to get a conviction," offered his perspective concerning extraneous-act evidence that the State had presented during Steven's testimony, spoke again about his federal lawsuits, offered reasons why he had assaulted McFarling, talked about his history in the oil business (including his connections to George Bush Sr. and T. Boone Pickens), and spoke about his medical treatment in jail after his arrest.
At one point in his testimony, while attempting to explain why he assaulted McFarling, appellant stated,
I was in the 1st Infantry Division and the 1st Engineer Combat Battalion, and we were the ones that cleared the beach for the Normandy invasion. I was not in the invasion, I was just 13 years old, but I was in the company that did do it, and I was in the 1st Engineer Combat Battalion. And I'm not accustomed to running and tucking my tail, you know, every time somebody hollers boo, and I -- you know, even the Alamo and everywhere else, you know, the Texans pretty well stood, and if they hadn't have, we would have been in pretty bad shape.
After the parties closed their presentations of evidence and presented closing arguments, the jury found appellant guilty. The parties did not present more evidence on punishment, but they presented closing arguments to the trial court. Appellant again claimed that McFarling had provoked the assault; he stated that "all [he] did was stand [his] ground." The trial court assessed appellant's punishment at 180 days' confinement but suspended imposition of the sentence and placed him on community supervision.
After the trial, appellant continued to file pro se documents. In one document, he alleged that he had "letters from George W Bush, Dick Chaney, Steven Forbes, [and] Ex President [Jimmy] Carter to verify [his] character." He again stated that he had "four reasons for whipping McFarling" and again referred to his federal lawsuits. In another document, appellant asked for "all court procedures [to] be put on hold until [his case] could be heard in front of the United States Civil Rights Commission." He also wrote in separate documents about many other matters unrelated to his assault against McFarling. Appellant brought this appeal.
Competence to Stand Trial
In his only issue, appellant, who is represented by counsel on appeal, argues that his right to a "proper determination of his incompetence to stand trial was violated when the trial court failed to follow the mandatory procedures of [the code of criminal procedure] once evidence suggesting that [he] was incompetent to stand trial came to the court's attention." We review issues involving competency determinations for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds as stated in Turner v. State, 422 S.W.3d 676, 692 & n.31 (Tex. Crim. App. 2013); Lewis v. State, No. 14-14-00779-CR, 2016 WL 93760, at *6 (Tex. App.—Houston [14th Dist.] Jan. 7, 2016, pet. filed) ("We review a trial court's failure to conduct a competency inquiry for abuse of discretion."). We may not substitute our judgment for that of the trial court; instead, we determine whether the trial court's decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426. A trial court's firsthand factual assessment of a defendant's competency is entitled to great deference on appeal. Ross v. State, 133 S.W.3d 618, 627 (Tex. Crim. App. 2004).
The prosecution and conviction of an incompetent defendant violates due process. Owens v. State, 473 S.W.3d 812, 816 (Tex. Crim. App. 2015). Although a defendant is presumed competent to stand trial, a defendant is incompetent when the defendant does not have a sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings. Tex. Code Crim. Proc. Ann. art. 46B.003(a)-(b) (West 2006); Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789 (1960); Turner, 422 S.W.3d at 689.
"If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial." Tex. Code Crim. Proc. Ann. art. 46B.004(b) (West Supp. 2015). Once the trial court (or either party) suggests that a defendant may be incompetent to stand trial, the court "shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." Id. art. 46B.004(c). A suggestion of incompetency is the threshold requirement for such an informal inquiry, and such a suggestion "may consist solely of a representation from any credible source that the defendant may be incompetent." Id. art. 46B.004(c-1). If after the informal inquiry the court determines that evidence exists to support a finding of incompetency, the court must conduct further proceedings to determine the issue of competency. See id. art. 46B.005 (West 2006).
The legislature has amended section 46B.004 to make a "suggestion of incompetency," not a trial court's bona fide doubt of incompetency, the threshold requirement for conducting a competency inquiry. See Iniquez v. State, 374 S.W.3d 611, 615 n.3 (Tex. App.—Austin 2012, no pet.).
As another intermediate appellate court has explained,
[T]here are three steps involved in raising and resolving an issue of incompetency to stand trial: (1) a suggestion of incompetency, (2) an informal inquiry, and (3) a competency trial . . . . Yet, a trial court is not required to engage in all three steps in every case. The process is progressive, meaning a trial court only moves to the next step if the requirements of the preceding step were met.
Factors relating to a defendant's competency under the standard of article 46B.003(a) include the capacity of the defendant to rationally understand the charges against him; to disclose to counsel pertinent facts, events, and states of mind; to engage in a reasoned choice of legal strategies and options; to understand the adversarial nature of criminal proceedings; to exhibit appropriate courtroom behavior; and to testify. See id. art. 46B.024(1) (West Supp. 2015); Musgrove v. State, 422 S.W.3d 13, 15 (Tex. App.—Waco 2013, pet. ref'd). Evidence showing incompetence may include bizarre behavior by the defendant or a recent history of severe mental illness or at least moderate mental retardation. Graves v. State, No. 02-15-00141-CR, 2015 WL 9244767, at *3-4 (Tex. App.—Fort Worth Dec. 17, 2015, pet. filed) (mem. op., not designated for publication) (concluding that a defendant's "attempt at suicide, without any evidence of severe mental illness, [was] not a suggestion of incompetence requiring a hearing").
However, statements by a defendant that suggest "some irrationality" do not necessarily suggest incompetence to stand trial under article 46B.003. See Ross, 133 S.W.3d at 627. The fact that a defendant is mentally ill does not by itself mean that he is incompetent. Turner, 422 S.W.3d at 691; see Clemens v. State, Nos. 05-15-00025-CR, 05-15-00027-CR, 2016 WL 347149, at *3 (Tex. App.—Dallas Jan. 28, 2016, no pet. h.) (mem. op., not designated for publication) (explaining that a defendant is incompetent only when a "mental illness operates in such a way as to prevent him from rationally understanding the proceedings against him or engaging rationally with counsel"). Similarly, a defendant's desire to have "his day in court and . . . to tell his story his way," even when expressed with rambling speech, does not necessarily suggest incompetence. Lawrence v. State, 169 S.W.3d 319, 322-23 (Tex. App.—Fort Worth 2005, pet. ref'd); see also Johnson v. State, 429 S.W.3d 13, 18 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ("Bizarre, obscene, or disruptive comments by a defendant during court proceedings do not necessarily constitute evidence supporting a finding of incompetency.").
We must decide whether the trial court abused its discretion by failing to conduct an informal competency inquiry in light of the facts contained in the record. See Montoya, 291 S.W.3d at 426. Certainly, the record contains several written and oral statements made by appellant that were rambling, grandiose, irrelevant to the proceedings in the trial court, and perhaps delusional. But the record also contains many statements in which appellant expressed his understanding of the proceedings against him. In his pretrial pro se writings that appear in the clerk's record, appellant recognized that he was charged with assaulting McFarling and claimed that McFarling had provoked the assault, asked for a jury trial, asserted his right of self-representation, sought an extension of the trial date to receive treatment for cancer, asked for and obtained a court-appointed attorney and standby counsel, acknowledged and rejected a plea bargain that the State had offered to him, and recognized his need to access the senior center to speak with witnesses and prepare for trial.
Appellant referred to a federal suit concerning his assault against McFarling, and the clerk's record indicates that such a suit existed. Although the record reflects that appellant might have been mistaken about an alleged connection between his federal suits and his state criminal charges, nothing in the record negates his understanding about the criminal charge against him that he expressed at other times in the trial court.
During a pretrial hearing and during the trial, appellant expressed his understanding of the charge against him and of instructions given to him by the trial court, and he insisted on defending himself and telling his reasons for intentionally assaulting McFarling. The record from his trial establishes that he consulted with his standby counsel about several matters; and his standby counsel, who now represents him on appeal, never asserted that he was incompetent to stand trial. During part of the trial, standby counsel assisted appellant in asking questions.
For example, during voir dire, appellant said to the jury panel, "My name is Gerald DeMarsh. I'm charged with assault. . . . I'm 84 years old. The old boy I assaulted was 76." Later, appellant correctly stated that he faced the possibility of a "year in jail" for the assault charge. See Tex. Penal Code Ann. § 12.21 (West 2011), § 22.01(a)(1), (b) (West Supp. 2015).
During the hearing on his counsel's motion to withdraw, appellant said, "I'd rather defend myself, Judge, and that way I'll know that it's presented the way I want it presented." After the State rested at trial, when the trial court admonished appellant about his right to remain silent, appellant said, "I don't have anything to hide, Judge. I'm just trying to get this thing straight." Appellant's principal theme throughout the proceedings in the trial court was that McFarling provoked the assault. --------
While appellant did not handle the stages of the trial with the same skill that an experienced attorney could have (as is demonstrated by his decision to question only three veniremembers and his tendency to make statements to witnesses rather than ask questions), he had been previously warned in writing and verbally that self-representation had disadvantages, and he does not argue on appeal that the trial court should not have allowed him to represent himself. His lack of knowledge of the intricate procedures of a trial does not raise a suggestion that he was incompetent to stand trial. Cf. Godinez v. Moran, 509 U.S. 389, 397-400, 113 S. Ct. 2680, 2685-87 (1993) (comparing the competency required to stand trial with the competency required for self-representation and stating that the defendant's technical legal knowledge is irrelevant to the determination of competence for self-representation); Washington v. State, No. 13-03-00737-CR, 2004 WL 5050475, at *2 (Tex. App.—Corpus Christi Aug. 19, 2004, no pet.) (mem. op, not designated for publication) (explaining that a lack of legal experience and knowledge of courtroom procedure does not equal a lack of competence to stand trial).
Considering all of the facts in the record, we cannot conclude that the trial court abused its discretion by implicitly concluding that appellant had a sufficient present ability to consult with his standby counsel with a reasonable degree of rational understanding and had a rational as well as factual understanding of the proceedings against him. See Tex. Code Crim. Proc. Ann. art. 46B.003(a); Montoya, 291 S.W.3d at 426; see also Ayers v. State, No. 01-14-00621-CR, 2016 WL 316490, at *4 (Tex. App.—Houston [1st Dist.] Jan. 26, 2016, no pet. h.) (mem. op., not designated for publication) (reiterating that the "the relevant inquiry is whether [a defendant's] mental instability was such that he lacked the capacity to understand the nature of, and object to, the proceedings against him, to consult with counsel, and to assist in preparing his defense"); Lewis, 2016 WL 93760, at *6-7 (holding that a trial court did not abuse its discretion by not conducting an informal inquiry into competency even though the defendant engaged in obstructive and confrontational behavior, asserted that he was a "sovereign citizen," and lacked understanding of relevant legal rules); Welch v. State, No. 08-14-00116-CR, 2015 WL 4480872, at *4 (Tex. App.—El Paso July 22, 2015, no pet.) (not designated for publication) (holding that the trial court did not abuse its discretion by not inquiring into a defendant's competency because although the defendant "ranted and raved and professed confusion and lack of understanding at certain points of the proceedings[,] . . . it is evident that he understood the adversarial nature of the proceedings against him and was able to participate in them meaningfully"); Teague v. State, No. 06-14-00053-CR, 2015 WL 2236642, at *5 (Tex. App.—Texarkana May 13, 2015, pet. dism'd) (mem. op., not designated for publication) (holding that even though a defendant had written bizarre letters to a trial court, the court did not abuse its discretion by failing to conduct an inquiry into competence because other facts in the record showed that he understood the proceedings against him and was able to consult with counsel). We therefore hold the trial court did not err by failing to sua sponte conduct an informal inquiry into appellant's competency to stand trial. We overrule appellant's sole issue.
Conclusion
Having overruled appellant's only issue, we affirm the trial court's judgment.
PER CURIAM PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ. DAUPHINOT, J., concurs without opinion. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: March 31, 2016
Tadlock v. State, No. 06-15-00049-CR, 2016 WL 323554, at *8 (Tex. App.—Texarkana Jan. 27, 2016, no pet. h.) (mem. op.).