We have a case where the mildly MR defendant sexually assaulted a younger moderately MR victim.

Competency was not brought up at trial a year ago.

Now the appellate court has abated the appeal and wants our judge to conduct a competency inquiry a year after the fact.

Does anyone have any advice or experience with this?

We have sixty days to conduct this hearing and get the results to the appellate court.

�We abate the appeal for sixty days and remand the cause to the trial court so that the trial court may (1) retrospectively determine by informal inquiry whether there is some evidence that would support a finding that Appellant may have been incompetent to stand trial in this matter and, if so, (2) retrospectively determine under article 46B.005 whether Appellant was incompetent at the time of trial."

46B.021(b) has been activated by the Court of Appeals. The court should proceed from there, but perhaps establish an earlier deadline for the expert's report than spoken of in 46B.026(a) and the order should make clear that competency should be determined as of the date of trial using a time-modified version of the factors spoken of in 46B.024. Brandon and Caballero, 587 S.W.2d 741 speak of having a jury decide the issue, and that seems consistent with 46B.005(b).

Before triggering the competency, we have to have the "informal inquiry" into whether there is some evidence that might support a formal inquiry.

So what would satisfy the informal inquiry?

For a discussion of competency issues, see pages 16-18 of The Perfect Plea. For even more details, check out Mental Defenses by Jane Starnes. Both available through TDCAA.

You should also find a few cases discussing a retroactive competency evaluation. Basically, a psychiatrist has to decide whether defendant was competent when the trial occurred. Just give the doc all the information you can, including transcripts, do an interview of D, and come to a conclusion.

I understand that a doc would be necessary for a formal inquiry, but a doc wouldn't be necessary for the informal inquiry, right? Hiring a doc seems pretty formal.

Seems to me if the trial court didn't conduct a formal inquiry at trial, the court had already conducted an informal inquiry and determined a formal inquiry wasn't warranted.

How will the court now prove to the appellate court that it has conducted an informal inquiry after the fact?

If the trial court conducts this informal inquiry after the fact and then determines a formal inquiry is not warranted - how does the trial court convey this to the appellate court?

Findings of fact? Go on the record and just say it?

Wouldn't it be easier and safest just to have a psychiatrist appointed to conduct a competency exam, looking at whether the defendant was competent during trial, and have the judge acknowledge and adopt the written report, presuming it says the defendant was competent? Judge need not interrupt trial unless there was a bona fide doubt as to competency.

Not sure we have enough time. The sixty days started about 20 days ago.

There is sufficient time, if needed I can provide the names of some examiners in the Fort Worth area who can likely see the defendant and generate a report within 14 days. Purely for example, I did examinations of two defendants in TDCJ on Friday last, and will have reports to the court(s) today, Monday. I sent out the following to a Tex. Psychological Assn. Forensic listserv:
"An examiner is urgently needed to see a defendant whose case was remanded the trial court for a retrospective determination of competency. Please call Lori Jayne Kaspar, Hood County District Attorny, Granbury, TX 817 579-3245."

One more issue: Mental retardation is not dispositive of competency. Methodologically, an appraisal would necessarily be made of the defendant's present competency: If competent, a reasonable question would be whether there is any evidence to suggest that his competence changed in the interim period? If not competent, it is more difficult, though the same question arises,i.e. whether change has occured, coupled with the necessity to review collateral sources of information to ascertain the defendant's rational/factual knowledge/ability to relate at the time.