Sherman & Plano, TX Criminal Defense Lawyer Blog
I only ask for competency evaluations now when I believe there is little chance of my client making an incriminating statement in the evaluation. This is more often than not, but I am a lot more protective now. Why? Because, if you have grounds to request a competency expert, you might also have grounds to request an insanity expert. Mental health is the overriding reason we see to request a competency evaluation. Your client or investigation discloses to you that he has been diagnosed with a serious mental illness (bipolar, schizophrenia), then you almost ALWAYS have to ask for a competency evaluation in felony court. The stakes are too high and the risk too great that your client might need treatment before standing trial. But, bipolar and schizophrenic people say some really harsh or threatening things sometimes. A client charged with a 3g offense who also discloses that they are bipolar or schizophrenic presents a HUGE risk of saying harmful or threatening things to the evaluator about their case or the court process. Disclosure of these statements might help a jury decide to go a lot higher on 2-20 or 5/15/25-life than if your client had not had an evaluation.
What is the answer to this problem? Ask for an insanity expert in a mental illness case. If your discussion with your client coupled with their family and/or medical records show that your client does or likely should have a diagnosable mental illness that a juror could find mitigating (or better yet, might be a defense to the crime), you have a duty to ask for an expert. Do not rely on the competency evaluator to be your insanity expert. The evaluator works for the Court. He may be a great punishment witness, but he may not. Either side can call him. But YOUR expert is YOUR expert and under Ake you are entitled to funds if your client cannot employ his own expert. And guess what, an insanity evaluator cannot evaluate your client for insanity unless your client is COMPETENT. Your insanity evaluator could or should be an expert that is also qualified to give a competency evaluation. Thus, if you have a question as to whether your client is competent but do not want him opening his mouth where the state and Court can hear (without you calling him first), an insanity expert will first evaluate the client for competency and only proceed with the insanity evaluation if they are COMPETENT. Woo hoo. Two birds, one stone. And, the price is about the same.
And since I practice in Sherman I have to mention the favorite statute of a great murder prosecutor, Grayson County’s own Kerye Ashmore. Texas Penal Code section 6.04(b), the law of “transferred intent”, states that “A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that: (1) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected.” This allows a murder conviction theory, in a shooting case in which a person shoots into a car or crowd and hits a person he was not intending to shoot, in its most simplistic form. It could also cover an arson case in which a homeless person dies when a structure believed to be empty is burned down by the actor, causing the homeless person’s death.
As for the law of parties, Texas Penal Code 7.02 outlines Texas criminal responsibility: “(a) A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. (b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.” Section (a)(2) is the normal theory of joint criminal responsibility – aiding, encouraging, soliciting – called “law of parties” that is presented to a jury to make a non-triggerman in a case such as a robbery or burglary gone bad liable for the murder by an accomplice to the underlying felony.
The third definition is the Texas codification of the traditional common law concept of “felony murder.” It is unclear why the second and third definition were needed, as they are very similar and intending to cause serious bodily injury is usually felony aggravated assault. The legislature must have wanted to make sure it covered every ground, especially when seats on death row could be at stake. Nevertheless, the third definition requires that a person be committing any felony, from first degree drug distribution to state jail forgery of a financial instrument (such as a check), yes any felony qualifies. At common law, the felony murder rule, as it was harsh, was often limited to felonies “a fortiorti”, i.e. serious felonies such as robbery, arson, burglary and others clearly dangerous to human life. One of the harsh consequences of felony murder is that, under liability as a party to a crime, it often can be charged to any participant in the underlying felony, making one who had no intent of hurting or killing anyone criminally liable for acts of another that resulted in murder. The typical situation is a “robbery gone bad” in which one robber of three shoots the store clerk. All three are on the hook for capital murder. But, felony murder is now also used in DWI cases, in which the felony of DWI3rd is being committed by the driver who has been twice previously convicted, as they are also committing an act dangerous to human life, driving intoxicated, during the commission of the underlying felony of DWI3rd.
Texas Penal Code 6.03 provides us with handy definitions of the intentional and knowing mental states: “(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Murder is a result oriented offense, i.e. intentionally resulting in death, so at a minimum under the first definition it must be proven that the actor was aware that his action was reasonably certain to cause death. That is the minimum proof required.
Criminal news in Texas seems to revolve around murder. Once a week we pick up the newspaper and someone has shot or stabbed somebody for something. Murder as an offense tends to be “complicated” legally because of the many defenses, beginning with the required mental states and running the gauntlet down to what Percy Foreman called “misdemeanor murder” — the jury lets the defendant go because the sumbitch that died “deserved it.” Texas also recognizes “sudden passion” where in the old days murder was reduced from a capital punishment or life-in-prison-potential to simple “involuntary manslaughter.” A husband was understandably out of his mind when he caught his wife in bed with the milkman, shot one or both of them, but shouldn’t be guilty of “murder.” “Sudden passion” still exists, but now as a punishment mitigation issue which reduces the punishment range for murder to the standard manslaughter level.
The punishment scheme for theft in Texas is relatively straight-forward by statute, which stair-steps from a Class C traffic level all the way up to a first degree felony. The statute says theft is: