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posted April 24, 2012 08:46
Defendant is incompetent. Wants a jury trial. Case is a felony.

1) Does competency trial get heard in District court or can County court hear it?

2) How many jurors?
 
Posts: 956 | Location: Cherokee County, Rusk, Tx | Registered: July 11, 2001Reply With QuoteReport This Post
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posted April 24, 2012 10:18Hide Post
In district court. 12 jurors. Civil rules.

Defendant is plaintiff and gets to start. He has to prove he is incompetent, as there is a presumption of competency. By preponderance of the evidence.

Should be a short trial if everyone agrees he is incompetent (except the defendant).
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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posted April 24, 2012 11:00Hide Post
Thanks, very little question on competence from prosecution or defense attorney. I expect defendant will testify.
 
Posts: 956 | Location: Cherokee County, Rusk, Tx | Registered: July 11, 2001Reply With QuoteReport This Post
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posted April 24, 2012 11:34Hide Post
Always interesting when defendant testifies.

I had a competency trial in which the defendant's lawyer said she was incompetent, both the defendant and I agreed she was competent (even though she did have a raging mental disease). Jury agreed she was competent.

Then, at trial, defense lawyer argued she was insane. Defendant and I disagreed on that one as well. Defendant wanted self-defense (she shot her landlord because he was a CIA spy trying to assassinate her). Jury convicted.

Very interesting to see how everyone lined up.
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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posted April 26, 2012 09:18Hide Post
Sorry I was late in picking this up, Gordon. John is very correct viz. the procedure. Please look, however, at 46.071(b) -- as there was a change effective 9/1/2011, such that if your def is found "unlikely to be restored", you bypass a .073 commitment and go directly to a 102/103 (or dismissal depending on the gravity of the case). Inasmuch as restoration commitments - at your local facility - cost approximately $37k, and require +-100 days, we don't go for that unless necessary. The upshot is to ensure that you have a finding on that issue.
 
Posts: 264 | Location: Houston, TX | Registered: January 17, 2005Reply With QuoteReport This Post
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posted April 26, 2012 09:46Hide Post
Thanks. Trial is scheduled for 25 May.
 
Posts: 956 | Location: Cherokee County, Rusk, Tx | Registered: July 11, 2001Reply With QuoteReport This Post
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posted April 26, 2012 10:44Hide Post
Call me anytime if you need so to do. Note that a jury verdict must be unanimous, 46B.052. It is arguable whether the jury must make the determination of likelihood of restoration, or that is a judicial finding. For if the latter, then it is a single issue matter. Folks differ on that issue. Judge Carruthers in SA argued recently that the jury should also decide on whether the def meets civil commitment criteria. I say "no", for several reasons beyond the scope of this note.
 
Posts: 264 | Location: Houston, TX | Registered: January 17, 2005Reply With QuoteReport This Post
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