State v. Lopez
| Citation | 563 S.W.3d 409 |
| Decision Date | 24 October 2018 |
| Docket Number | No. 04-17-00568-CR,04-17-00568-CR |
| Parties | The STATE of Texas, Appellant v. Martin LOPEZ, Appellee |
| Court | Court of Appeals of Texas |
APPELLANT ATTORNEY: Michael Dwight Goains, P.O. Box 591340, San Antonio, TX 78259.
APPELLEE ATTORNEY: Nathan E. Morey, Paul Elizondo Tower, 101 W. Nueva, Suite 525, San Antonio, TX 78205, Nicholas LaHood, Bexar County District Attorney's Office, 101 W. Nueva, Suite 370, San Antonio, TX 78205.
Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Luz Elena D. Chapa, Justice
The State’s motion for rehearing is denied. However, we withdraw our August 15, 2018 opinion and and judgment and substitute those issued today. The State appeals the trial court’s order dismissing a misdemeanor assault charge against Martin Lopez on speedy trial grounds. As the parties acknowledge, the facts of this case are relatively uncommon in speedy trial cases. Lopez, who suffers from mental health disorders, was arrested for "putting his teeth [on his elderly mother’s face] while trying to bite her." Lopez was placed in county jail, and he could not make bail. The State took nearly three months to decide whether a felony or misdemeanor assault charge would be more appropriate, determining ultimately to file a misdemeanor charge. A visiting judge thereafter denied Lopez’s request for bail and set trial for twelve days later. Despite Lopez’s trial counsel raising the issue of his incompetence to stand trial at the pretrial hearing, Lopez was not evaluated. At trial, the State and Lopez’s trial counsel expressed concerns about Lopez’s competency. Based on the length of Lopez’s pretrial incarceration and inevitable future delays for competency proceedings, Lopez requested that the trial court dismiss the case on speedy trial grounds. The trial court agreed and dismissed the misdemeanor assault charge. Considering the factors set out by the Supreme Court of the United States in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we conclude the trial court did not err and, accordingly, affirm the trial court’s order.
On April 18, 2017, Lopez allegedly "put[ ] his teeth [on his elderly mother’s face] while trying to bite her." Lopez was arrested that day, and he was unable to make bail. The State opened a felony case against Lopez, but Lopez was never indicted.
While Lopez was in jail, Lopez’s appointed trial counsel received a July 2, 2017 notice under article 17.151. See TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1 (West 2015). The notice stated Lopez had been in custody for seventy-five days awaiting an indictment. It further stated:
Pursuant to Article 17.151 section 1 of the Texas Code of Criminal Procedure, a defendant who is detained in jail pending trial of accusation against them must be released either on personal bond or by reducing the amount of bail required, if the State is not ready for trial of the criminal action for which they are being detained within 90 days from the commencement of their detention if they are accused of a felony.
On July 12, 2017, five days before the ninety-day deadline, the State filed a misdemeanor assault charge against Lopez and sought to keep him incarcerated in county jail.
At the July 27, 2017 pretrial hearing before a visiting judge, Lopez raised the issue of his competency to stand trial and requested a personal recognizance bond. The visiting judge denied Lopez’s request. Although the visiting judge ordered Lopez’s mental competence to be evaluated over the weekend, no evaluation was conducted. The trial date was set for twelve days later on August 8, 2017.
On August 8, 2017, the trial court called the case and began by asking Lopez questions, with the permission of his trial counsel. Lopez testified he has mental issues, but had no present desire to harm himself or others. Lopez testified he wanted the case dismissed because he had been in jail for four months. Lopez’s trial counsel orally moved for a speedy trial, requesting that the case be dismissed.
The State responded it had a right to notice on the speedy trial motion, and that it was ready to proceed to trial. However, the State raised "concerns about [Lopez]’s mental health and competency to proceed to trial, possibly." The trial court then stated:
All right. This is what I'm going to put on the record. This man has no place to live. Because of a prior suicide watch, Haven for Hope will not take him. He has been in jail. There is some serious questions about whether or not anybody can proceed with this case. There are serious questions about whether his mother will even testify against him. She is currently in possession of a protective order -- which means you have to stay away from her. So I feel like the victim in this case has been protected, and she’s quite involved in the case from what I've learned from the attorney, and she’s quite vocal about what she wants to accomplish.
The State did not object to the trial court taking notice of these matters.
The proceeding went off the record, and Lopez’s trial counsel filed a written Motion for Speedy Trial. Back on the record, the State again asserted its right to notice on the motion. The trial court overruled the State’s objection, noting the case was set for trial on that date and that the State had announced ready to proceed. The trial court admitted into evidence the article 17.151 notice that, together with Lopez’s testimony, showed Lopez had spent 112 consecutive days in county jail as of the August 8, 2017 trial date.
The trial court asked the State to explain the delay in the case up to that point. The following exchange occurred:
Lopez’s trial counsel further stated that both he and the State agreed there was an issue as to Lopez’s competency to stand trial or to enter a plea.
The trial court stated it had no choice but to grant Lopez’s Motion for Speedy Trial and to dismiss the case. The trial court and trial counsel explained to Lopez he could not see or contact his mother because she had a protective order. They also explained to Lopez that he was expected to seek mental health counseling immediately. Before the end of the hearing, the State argued the trial court could not dismiss the case because article 46B.005 of the Texas Code of Criminal Procedure required the court to order a competency evaluation. Apparently disagreeing with the State, the trial court signed an order granting Lopez’s Motion for Speedy Trial and dismissing the misdemeanor assault charge. The State timely filed a notice of appeal.
The State presents a single issue on appeal, "Did the trial court err by failing to order a competency evaluation and, instead, dismissing the information against [Lopez] less than four months after he was arrested?" The State argues that once the trial court believed Lopez might be incompetent to enter a plea or stand trial, the trial court had no discretion but to refer Lopez for a competency evaluation. See TEX. CODE CRIM. PROC. ANN. art. 46B.005(a) (West 2018). The State further argues the trial court lacked a basis to dismiss the case either under the Sixth Amendment or under Chapter 46B of the Texas Code of Criminal Procedure.
The State does not raise an issue or argue that the trial court erred by granting Lopez’s Motion for Speedy Trial based on the State not being provided with sufficient notice. The State also does not raise an issue or argue that the trial court improperly took judicial notice of any of the facts that the trial court noted for the record. In its reply brief, the State argues we may not consider any matters at the pretrial hearing before the visiting judge because Lopez "has not supplemented this Court with a record to support [his] claims" about the hearing. We disagree for two reasons. First, on August 8, 2017, the parties agreed that certain matters were raised at the pretrial hearing before the visiting judge. Thus, the record before us reflects some of the matters raised at the pretrial hearing. Second, because this is a State’s appeal, the State has the burden to present a sufficient record demonstrating its entitlement to the relief it seeks. See State v. Weiss , 8 S.W.3d 342, 344 (Tex. App.—Beaumont 1999, no pet.) ; State v. Thomas , 938 S.W.2d 540, 542 (Tex. App.—Dallas 1997, no pet.) ; see also Newman v. State , 331 S.W.3d 447, 450 (Tex. Crim. App. 2011) (). We therefore turn to address the State’s sole issue in light of the record presented by the State.
The State argues the...
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