Edward Briceno v. the State of Texas

Opinion filed October 17, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00353-CR
__________

EDWARD BRICENO, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR44878

MEMORANDUM OPINION
A jury convicted Appellant, Edward Briceno, of murder, a first-degree felony.
TEX. PENAL CODE ANN. § 19.02(b)(1), (c) (West Supp. 2024). After rejecting a
sudden passion defense and finding an enhancement paragraph to be true, the trial
court sentenced Appellant to life imprisonment. In five issues on appeal, Appellant
argues that: (1) the evidence was insufficient to support his conviction; (2) the
evidence was insufficient to support the jury’s rejection of self-defense; (3) the trial
court erred by rejecting Appellant’s sudden passion mitigating defense; (4) the trial
court erred by finding Appellant competent during trial; and (5) the trial court erred
by denying Appellant’s motion for mistrial based on Appellant’s alleged
incompetency. We modify and affirm the judgment of the trial court.
Factual and Procedural History
In January 2015, Appellant, his wife, Mary Lozano, and their ten-month-old
son lived in the second-floor apartment of the motel Lozano managed. Dedrick
Lewis, who was in Midland for work, was staying in room 203, around the corner
from Appellant’s apartment. Around 11:00 a.m. on January 20, 2015, a housekeeper
found Lewis unresponsive in his room, and it was later determined that he died from
multiple stab wounds.
Midland Police Department (MPD) Sergeant Georvarsey Mitchell described
the bloody crime scene as the worst he had ever encountered. While waiting for
crime scene technicians to arrive, Sergeant Mitchell noticed blood on Appellant’s
front door. Another officer knocked on the door and Appellant answered. Sergeant
Mitchell observed blood on Appellant’s hands and prosthetic leg but did not observe
any wounds. Appellant “mentioned that what [officers] were looking for was in the
compartment in the closet, or [o]n the roof of the . . . hotel.” However, there was no
compartment in the closet. Officers also observed “blood splatter” in the bathroom
and “specks of blood” throughout Appellant’s apartment.
Investigator Kyle Demmer and his trainee were canvasing the parking lot and
noticed what looked like “a cracked eggshell” on the back of a red Dodge Charger
that “had tiny specks of . . . blood splatter on it.” Investigator Demmer later learned
that the vehicle belonged to Lozano, who gave officers permission to search her
vehicle. When the officers searched the vehicle’s trunk, they found articles of

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clothing that had blood splatter and stains on them, a backpack, a motel towel, and
a large kitchen knife.
Surveillance footage showed Lewis walking up the stairs to his room at
1:57 a.m. At 2:05 a.m., Appellant walked toward Lewis’s room, shirtless and
carrying a white towel in one hand. Appellant and Lewis briefly interacted
near Lewis’s room before Appellant walked out of view several seconds later. At
2:07 a.m., Appellant walked toward Lewis’s room again, but turned left down a
hallway before reaching it.
According to Appellant, he and Lozano had an argument on the evening of
January 19, 2015, so he went to a friend’s home to drink beer. When he returned, a
man he recognized approached him and told him to “be careful” of Lewis, who was
drinking on the balcony. As Appellant walked up the stairway, Lewis said “he was
going to put a bullet in [Appellant’s] head.” He approached Lewis to ask what he
was “tripping over,” and Lewis “immediately” started cussing at him. Appellant
claimed that Lewis “was a little drunk or on drugs,” and had a black handgun tucked
into his belt. Appellant, “in fear for [his] life[,] . . . immediately got away from it
and walked back to the apartment.” He further attested to “know for a fact” that
Lewis was in a gang known as the Crips.
Appellant explained that he kicked and banged on his apartment door because
“[he] was in fear for [his] life.” After he went back inside his apartment, he was
preparing to take a shower when he heard what sounded like a young woman’s
scream coming from Lewis’s room. Appellant stated that he “had reason to believe”
the “awful scream” he heard was his eighteen-year-old daughter’s voice, although
she lived in Odessa at the time. Appellant was in his boxers but felt that he needed
to see what was going on, so he put on his shoes to check and grabbed a kitchen
knife for protection.

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When Appellant went outside to investigate the screams, he decided to also
take the trash from outside his apartment to the dumpster. Appellant’s path took him
past Lewis’s room, where he was “confronted by Lewis immediately.” Lewis asked
Appellant, “Where do you think you’re going,” and he pulled Appellant into his
room. Appellant described feeling in danger as Lewis pushed him and caused him
to fall. Lewis then “trip[ped] over [Appellant’s] feet,” and “the knife . . . nicked his
neck as he[] [came] down.” Appellant claimed that, as they stood back up, he “poked
[Lewis] a little bit . . . in the shoulder” as Lewis advanced toward him. However,
Lewis continued to rush Appellant. As Lewis engaged Appellant the third time, the
two of them fell but Appellant “got up first, and [he] immediately walked out of the
room” and back to his apartment.
Appellant called a friend in Odessa for “help . . . handl[ing] the situation.”
Appellant recognized that he should have called law enforcement, but instead
wrapped the knife in a towel, put it in a backpack, and left in Lozano’s vehicle. But
because it had less than a quarter of a tank of fuel, Appellant ran out of gas. Lozano’s
sister, Danita, arrived between 6:00 a.m. and 7:00 a.m. to give Appellant gas, and he
returned home.
Lozano described Appellant’s behavior leading up to the murder as “[r]eal
anxious . . . just totally weird.” Although she did not see Appellant use
methamphetamine at that time, she believed that he had because his behavior was
consistent with other times that he had used methamphetamine, such as saying things
that did not make sense, and staying up for days at a time.
Earlier that night and prior to the murder, Lozano asked her sister, Danita, to
pick her up, due to Appellant’s behavior. When Danita arrived around 10:00 p.m.,
Appellant was reading the bible aloud to Lozano. Appellant “just turned around and
said that the devil was telling him to kill [Lozano].” Danita heard Appellant say that

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he needed to protect his family, though he did not say from what. Appellant left at
Danita’s request. Appellant returned home between 1:00 a.m. and 1:30 a.m., and
woke Lozano up as he “banged on the door.” Lozano let Appellant in then went
back to bed without interacting with him. Appellant “left [again] a little while after,”
and then Danita heard yelling outside the apartment. Although Danita was not sure
who was arguing, she believed she heard the voice of a Black man. Appellant
returned to the apartment shortly thereafter, and Danita saw “something in
[Appellant’s] hand, but [she] couldn't tell what it was, and he just wrapped it in a
towel.” Danita also saw that Appellant had a towel wrapped around himself.
Appellant left the apartment again. Danita denied hearing a woman scream, and
testified that Appellant’s daughter was not present the night of the stabbing.
Lozano did not hear from Appellant until 5:00 a.m. when he messaged her that
he had ran out of gas while driving her vehicle. After Danita brought him gas, he
returned to the motel, and sat in the vehicle for a while. Lozano woke Appellant up
around 9:00 a.m. and he went inside the apartment.
MPD Crime Scene Investigator Rhiannon Fry processed the items in the
Dodge Charger’s trunk and found several blood droplets throughout. When Fry
opened the backpack, she found an eight-inch kitchen knife wrapped in a towel. Fry
explained that the knife was sent to a laboratory for DNA analysis. Fry additionally
collected a pair of khaki shorts and shoes that both had what appeared to be blood
splatter on them.
Fry also collected evidence from Appellant’s apartment. Fry observed blood
on the apartment’s exterior door, which was collected for DNA testing. Fry
identified blood splatter throughout Appellant’s bathroom, some of which was
swabbed for DNA testing.

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Fry took photographs of Appellant in his apartment. Fry identified what
appeared to be blood on Appellant’s leg and prosthetic leg, which were swabbed for
DNA testing. Fry observed some injuries on Appellant’s right forearm. However,
Fry did not observe any other injuries, such as to Appellant’s hands. Appellant’s
shoes also had blood on them and were collected for DNA testing.
Reviewing room 203 and Lewis’s body, Fry noted that the bottom of Lewis’s
shoes had a significant amount of blood on them, indicating that he was still standing
while bleeding and that he stepped in the blood. According to Fry, no firearm was
located in Lewis’s room or on his person. Fry described an injury to Lewis’s arm as
a possible defensive wound, explaining that he may have put his hands up to protect
his face. Fry believed the knife recovered from Lozano’s vehicle was consistent
with the type of knife that caused Lewis’s injuries.
Tarrant County’s Deputy Chief Medical Examiner Tasha Greenberg, MD,
conducted an autopsy on Lewis on January 22, 2015. Dr. Greenberg explained that
Lewis had a blood alcohol level of .197 grams per deciliter. Dr. Greenberg noted
three injuries that she considered the most significant to Lewis: one on the left side
of his face, one on his lower neck, and one to his upper chest. According to Dr.
Greenberg’s autopsy report, Lewis suffered nineteen stab or slash wounds
throughout his body, as well as some abrasions, contusions, and lacerations. Lewis’s
injuries included a five-inch stab wound to the left side of his neck that injured
Lewis’s jugular vein, a four-inch stab wound to the right side of his neck, a six-inch
stab wound to the front of his neck, a five-inch stab wound to his upper chest that
injured his subclavian artery and vein, an eight-inch stab wound to the left side of
his chest, and five- and six-inch stab wounds to his left torso.

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Dr. Greenberg explained that the wounds on Lewis’s forearm and arm could
“be considered defensive or defensive-type injuries.” According to Dr. Greenberg,
Lewis’s cause of death was “multiple stab and cutting wounds.”
Brent Hester, a forensic scientist with the Department of Public Safety Crime
Laboratory in Lubbock, conducted a DNA analysis of the items collected by MPD
for comparison with the samples from Appellant and Lewis. Specifically, Hester
tested the knife, Appellant’s shoes, and swabs from Appellant’s leg and bathroom
faucet. According to Hester’s report, the DNA on Appellant’s shoes was “637
quintillion times more likely” to have come from Lewis than from an unrelated,
unknown individual while Appellant was ruled out as a contributor. The DNA found
on Appellant’s leg was “724 quintillion times more likely” to have come from Lewis
than an unrelated, unknown individual while Appellant was ruled out as a
contributor. As for the knife, the DNA on the blade was “774 quintillion times more
likely” to have come from Lewis than an unrelated, unknown individual, while the
DNA on the handle was a mixture of two DNA profiles with “1.09 sextillion times
more likely” from Lewis and “75.1 billion times more likely” from Appellant than
from two unrelated, unknown individuals. Finally, the DNA found on Appellant’s
bathroom faucet was “804 quintillion times more likely” to have come from Lewis
than an unrelated, unknown individual while Appellant was ruled out as a
contributor.
Appellant was indicted for murdering Lewis by cutting and stabbing him with
a knife. Prior to trial, Appellant was examined by a mental health professional and
determined to be incompetent. Appellant was reexamined after a restoration
program and, on June 3, 2021, the trial court found him to be competent to stand
trial. Appellant’s counsel subsequently requested that Appellant be reevaluated

7
for competency and, on September 23, 2022, Appellant was again found to be
competent. A jury trial began on November 14, 2022.
In addition to presenting the testimony of law enforcement and lay witnesses,
the State designated Doctor Roddy Marlene Strobel as an expert in psychiatry and
determination of competency. Dr. Strobel interviewed Appellant on August 3, 2021,
during which she spoke with Appellant in detail about the events around Lewis’s
death. Appellant testified that as he drove Lozano’s vehicle to Odessa, an early
1990s model single cab pickup with two Black men and a woman, who Appellant
told Dr. Strobel may have been his daughter, were following him. Appellant drove
as fast as ninety miles per hour to escape. Appellant never told Dr. Strobel that Lewis
pointed a gun at him.
The Evidence is Sufficient to Support Appellant’s Conviction
Appellant’s first and second issues are, according to his brief, “nearly
identical” challenges to the jury’s rejection of his self-defense claim. As such, we
consider them together.
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–
89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review
all the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d
729, 732 (Tex. Crim. App. 2018); Brooks, 323 S.W.3d at 895; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).

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Viewing the evidence in the light most favorable to the verdict requires that
we consider all the evidence admitted at trial, including improperly admitted
evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As such, we must defer to the
factfinder’s credibility and weight determinations because the factfinder is the sole
judge of the witnesses’ credibility and the weight their testimony is to be afforded.
Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is
deferential and accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from the facts.
Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778.
We may not reevaluate the weight and credibility of the evidence to substitute our
judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). Instead, we determine whether the necessary inferences are based
on the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict. Clement v. State, 248 S.W.3d 791, 796 (Tex. App.—
Fort Worth 2008, no pet.). Therefore, if the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict, and we
defer to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d
516, 525–26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778. As the factfinder,
the jury is “entitled to believe or disbelieve all or part of the witness’s testimony—
even if that testimony is uncontroverted—because [it] has the opportunity to observe
the witness’s demeanor and appearance.” Valtierra v. State, 310 S.W.3d 442, 447
(Tex. Crim. App. 2010).
The evidence need not directly prove the defendant’s guilt; circumstantial
evidence is as probative as direct evidence in establishing the defendant’s guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Carrizales v. State,

9
414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007)). Each fact need not point directly and independently
to the defendant’s guilt if the cumulative force of all incriminating circumstances is
sufficient to support the defendant’s conviction. Hooper, 214 S.W.3d at 13.
Therefore, in evaluating the sufficiency of the evidence, we treat direct and
circumstantial evidence equally, and we must consider the cumulative force of all
the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v.
State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); Isassi, 330 S.W.3d at 638;
Hooper, 214 S.W.3d at 13. “Mental states are almost always inferred from acts and
words” and “generally must be inferred from the circumstances under which a
prohibited act or omission occurs.” Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim.
App. 1998) (quoting Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App.
1991)).
Self-defense is a fact issue to be determined by the jury, and a jury’s verdict
of guilt is an implicit finding that it rejected a defendant’s self-defense theory.
Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991). For self-defense
claims, the defendant has the burden of producing some evidence to support the
claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); see also Saxton,
804 S.W.2d at 913–14 (contrasting self-defense from affirmative defenses and
explaining how burdens shift for self-defense). If the defendant produces some
evidence, the State has “the burden of persuasion to disprove the raised defense.”
Zuliani, 97 S.W.3d at 594. The State’s burden does not require the production of
any additional evidence; instead, “it requires only that the State prove its case beyond
a reasonable doubt.” Id.; see Saxton, 804 S.W.2d at 913. “Because the State bears
the burden of persuasion to disprove” a claim of self-defense “by establishing its
case beyond a reasonable doubt, we review both legal and factual sufficiency

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challenges to the jury’s rejection of such a defense under” the legal sufficiency
standard. Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d).
A person commits murder if he intentionally or knowingly causes the death
of another. PENAL § 19.02(b)(1). “A person acts intentionally, or with intent, with
respect . . . to a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result.” Id. § 6.03(a) (West 2021). “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.” Id. § 6.03(b). “[A]
person is justified in using force against another when and to the degree the actor
reasonably believes the force is immediately necessary to protect the actor against
the other’s use or attempted use of unlawful force.” Id. § 9.31(a) (West 2019). “A
person is justified in using deadly force against another: (1) if the actor would be
justified in using force against the other under Section 9.31; and (2) when and to
the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other’s use or attempted use of unlawful deadly
force.” Id. § 9.32(a).
B. Analysis
To find Appellant guilty of murder, there must have been sufficient evidence
that he intentionally or knowingly caused Lewis’s death without legal justification.
See PENAL § 19.02(b)(1).
Appellant does not dispute that he intentionally or knowingly caused Lewis’s
death. Rather, he argues that “the only evidence that the State produce[d] [was] that
there was an altercation initiated by the victim after displaying a firearm during a
drunken, threatening rant.” Appellant admitted that he stabbed or cut Lewis an
unknown number of times, and Dr. Greenberg’s report showed that Lewis was

11
stabbed or cut nineteen times, including several deep stab wounds to critical and life-
threatening areas. Dr. Greenberg concluded that Lewis’s stab and cutting wounds
caused his death. The knife Appellant used was found in Lozano’s vehicle that
Appellant drove shortly after the incident, and the knife contained the probable DNA
for Appellant and Lewis. Moreover, Appellant, Appellant’s clothing, and
Appellant’s apartment contained Lewis’s blood and DNA on them.
The only evidence supporting Appellant’s theory of self-defense came from
his own testimony, which the jury was free to disbelieve. See Valtierra, 310 S.W.3d
447; see also Muhammad v. State, No. 11-17-00328-CR, 2020 WL 3127345 (Tex.
App.—Eastland June 11, 2020, no pet.) (mem. op., not designated for publication)
(noting that Appellant’s self-defense claim was inherently a credibility question for
the jury to resolve where the only evidence of self-defense came from Appellant).
As set forth above, much of Appellant’s testimony was contradicted by other
evidence. For example, Appellant initially only testified to causing two of Lewis’s
wounds: a “nick” on his neck and a “poke” to his shoulder, while Dr. Greenberg’s
report demonstrated significantly more injuries to a much more serious degree.
Moreover, while Appellant had only a few minor injuries, Dr. Greenberg testified
that multiple injuries sustained by Lewis appeared to be defensive in nature.
Appellant testified to hearing a young woman scream. To the contrary, Danita
testified that she heard two men arguing but specifically denied hearing a young
woman scream. Appellant testified that the scream was from his own eighteen-year-
old daughter when there was no evidence of Appellant’s daughter ever being present
in Lewis’s apartment.
Finally, Appellant’s actions after Lewis’s death, such as flight, failing to
render aid, failing to call law enforcement, and taking steps to hide evidence, belie
his claim. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (noting

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that a factfinder may draw an inference of guilt from the circumstance of flight);
Patterson v. State, 606 S.W.3d 3, 27 (Tex. App.—Corpus Christi–Edinburg 2020,
pet. ref’d) (looking to appellant’s post-murder conduct in assessing the sufficiency
of the evidence supporting guilt); Kirk v. State, 421 S.W.3d 772, 781 (Tex. App.—
Fort Worth 2014, pet. ref’d) (referencing flight from the scene of a crime as evidence
a jury could consider in rejecting a self-defense claim). Accordingly, we conclude
there was legally sufficient evidence to support the jury’s finding that Appellant
knowingly or intentionally caused Lewis’s death and the jury’s rejection of
Appellant’s claim of self-defense beyond a reasonable doubt. See PENAL
§ 19.02(b)(1); Brooks, 323 S.W.3d at 899; Moore, 969 S.W.2d at 10; Smith, 355
S.W.3d at 145. Appellant’s first and second issues are overruled.
The Trial Court Did Not Err by Rejecting Appellant’s Sudden Passion Defense
By his third issue, Appellant argues that the trial court—whom Appellant
elected to assess his punishment—abused its discretion by failing to find that
Appellant acted under the influence of sudden passion. Appellant relies on the same
facts as his self-defense claim to support his sudden-passion claim.
A. Standard of Review & Applicable Law
At the punishment stage of a trial, the defendant may raise the issue as to
whether he caused the death of a person while under the immediate influence of
sudden passion arising from an adequate cause. PENAL § 19.02(d). If the defendant
proves the issue in the affirmative by a preponderance of the evidence, the offense
is reduced to a felony of the second degree. Id. “‘Sudden passion’ means passion
directly caused by and arising out of provocation by the individual killed or another
acting with the person killed which passion arises at the time of the offense and is
not solely the result of former provocation.” Id. § 19.02(a)(2). “‘Adequate cause’
means cause that would commonly produce a degree of anger, rage, resentment, or

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terror in a person of ordinary temper, sufficient to render the mind incapable of cool
reflection.” Id. § 19.02(a)(1).
We have previously observed that “the burden of production and persuasion
with respect to the issue of sudden passion” is upon the defendant. Herrera v. State,
676 S.W.3d 896, 905 (Tex. App.—Eastland 2023, no pet.) (quoting Wooten v. State,
400 S.W.3d 601, 605 (Tex. Crim. App. 2013); McKinney v. State, 179 S.W.3d 565,
569 (Tex. Crim. App. 2005)). The issue of sudden passion is akin to an affirmative
defense because the defendant has the burden of proof by a preponderance of the
evidence. See Matlock v. State, 392 S.W.3d 662, 667 & n.14 (Tex. Crim. App.
2013); Bullock v. State, 673 S.W.3d 758, 764 (Tex. App.—Dallas 2023, no pet.);
Bradshaw v. State, 244 S.W.3d 490, 502 (Tex. App.—Texarkana 2007, pet. ref’d).
As such, sudden passion may be evaluated for legal and factual sufficiency, even
after the Court of Criminal Appeals issued its opinion in Brooks. See Butcher v.
State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015); Matlock, 392 S.W.3d at 669–70.
In a legal sufficiency review of an affirmative defense, reviewing courts
should first examine the record for a scintilla of evidence favorable to the factfinder’s
finding and disregard all evidence to the contrary unless a reasonable factfinder
could not. Butcher, 454 S.W.3d at 20; Matlock, 392 S.W.3d at 669–70. The
factfinder’s rejection of a defendant’s affirmative defense should be overturned for
lack of legal sufficiency only if the appealing party establishes that the evidence
conclusively proves his affirmative defense and that “no reasonable [factfinder] was
free to think otherwise.” Butcher, 454 S.W.3d at 20 (alteration in original) (quoting
Matlock, 392 S.W.3d at 670).
In a factual sufficiency review of a finding rejecting an affirmative defense,
courts examine all of the evidence in a neutral light. Id.; Matlock, 392 S.W.3d at
671. A finding rejecting a defendant’s affirmative defense cannot be overturned

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unless, after setting out the relevant evidence supporting the verdict, the court clearly
states why the verdict is so much against the great weight of the evidence as to be
manifestly unjust, conscience-shocking, or clearly biased. Butcher, 454 S.W.3d at
20; Matlock, 392 S.W.3d at 671.
B. Analysis
Appellant argues that he was under the influence of sudden passion when he
stabbed Lewis based on Lewis’s threats, hearing screams of a young woman in
distress, and Lewis attacking Appellant. The trial court, as the factfinder, was free
to disbelieve Appellant’s version of events surrounding the stabbing. See Valtierra,
310 S.W.3d at 447; Butcher, 454 S.W.3d at 20; Matlock, 392 S.W.3d at 669–70.
Moreover, even if the trial court believed that Lewis threatened Appellant during
their initial encounter, Appellant walked away from the conflict. The trial court
could have thus reasonably determined that Appellant was not overcome by “anger,
rage, resentment, or terror” such that he was “incapable of cool reflection.” See
PENAL § 19.02(a)(1).
Similarly, the trial court was free to disbelieve Appellant’s unsubstantiated
claim that he heard a woman screaming, particularly in light of Lozano’s testimony
regarding Appellant’s behavior being consistent with his known use of
methamphetamine and his statement to Dr. Strobel that the occupants of the mystery
vehicle following him included his daughter. Appellant went to Lewis’s apartment
with knife already in hand even though he did not testify that he believed Lewis was
responsible for the alleged screams. Further, there was no evidence that when he
returned to Lewis’s apartment that any woman was ever there or was in distress. The
evidence does not support that either the claimed initial threat or the alleged scream
provoked Appellant to attack Lewis. See id.; Butcher, 454 S.W.3d at 20. Therefore,
upon review of the evidence in the record, we cannot say that Appellant’s proof of

15
sudden passion was such that “no reasonable [factfinder] was free to think
otherwise.” See Butcher, 454 S.W.3d at 20 (alteration in original) (quoting Matlock,
392 S.W.3d at 670).
Finally, we note that even had the trial court affirmatively found sudden
passion, it would not have precluded the trial court from considering a punishment
of life imprisonment. Although a sudden passion finding reduces the punishment
range for murder from that of a first-degree felony to that of a second-degree,
Appellant’s punishment was nonetheless enhanced by a prior conviction, which
would have made him eligible for a first-degree punishment, including life
imprisonment. See PENAL § 19.02(d), § 12.42(b); Segovia v. State, 467 S.W.3d 545,
558 (Tex. App.—San Antonio 2015, pet. ref’d) (concluding the trial court did not
err by denying jury instruction on sudden passion where defendant would have been
ineligible to receive its benefit based on punishment enhancements for prior
convictions). Accordingly, Appellant’s third issue is overruled.
The Trial Court Did Not Err When It Found Appellant Competent
Appellant’s fourth issue argues that the trial court abused its discretion by
concluding Appellant was competent or, alternatively, by failing to pause the
proceedings for a formal competency review. In support of his argument, Appellant
points to his psychiatric history and “delusions [that] were included as the basis of
[his] testimony.”
A. Applicable Facts
Following a break in Appellant’s testimony, Appellant’s counsel moved for a
mistrial. According to Appellant’s counsel, Appellant’s testimony “[went] into the
areas of . . . competency and the issues that were of concern . . . about fixed delusions,
fixed thoughts.” Appellant’s counsel explained that the “things that [Appellant] has
mentioned . . . are in line with the competency issues that we’ve had on and

16
off throughout a long period of time.” The State responded that several qualified
experts had determined that Appellant was competent to stand trial, including as late
as June 2022.
The trial court conducted an informal inquiry into Appellant’s competency.
During the inquiry, Appellant correctly identified the offense with which he was
charged, the punishment range, and what had occurred in the trial so far. Appellant
told the trial court that he understood the proceedings and the questions that had been
asked. Additionally, Appellant expressed dissatisfaction at his attorney’s suggestion
of incompetency and the delays leading to trial. Moreover, Appellant suggested that
his attorneys should have objected more and cross examined the witnesses “better.”
Importantly, Appellant indicated that he had made recommendations to his attorneys.
At the end of the informal inquiry, Appellant’s counsel “concede[d] that
[Appellant’s] responses to [the questions] certainly indicate[d] a very good
understanding of what’s been taking place.” However, Appellant’s counsel
reiterated that Appellant’s testimony indicated some “fixed delusions” that have
impacted Appellant’s recollection of the events surrounding Lewis’s death. The trial
court concluded that there was “no evidence suggestive of incompetency” and
denied the motion for mistrial.
B. Standard of Review & Applicable Law
A defendant’s due process rights are violated when he is tried and convicted
while he is mentally incompetent to stand trial. Pate v. Robinson, 383 U.S. 375, 378
(1966); Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018); Turner v.
State, 422 S.W.3d 676, 688–89 (Tex. Crim. App. 2013). Generally, a defendant is
presumed to be competent to stand trial unless proven otherwise by a preponderance
of the evidence. TEX. CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2018). If,
however, a defendant does not have (1) “sufficient present ability to consult with

17
[his] lawyer with a reasonable degree of rational understanding,” or (2) “a rational
as well as factual understanding of the proceedings against [him],” he is considered
to be incompetent to stand trial. Id. art. 46B.003(a).
A trial court must employ a two-step process in making competency
determinations before it may ultimately conclude that a defendant is incompetent to
stand trial. Boyett, 545 S.W.3d at 563. The first step is an informal inquiry; the
second step is a formal competency trial. Id. An informal inquiry is required when
a “suggestion” is presented from any credible source that the defendant may be
incompetent to stand trial. Id. (citing CRIM. PROC. art. 46B.004(a), (c), (c-1)).
During the informal inquiry, there must be “some evidence from any source
that would support a finding that the defendant may be incompetent to stand trial.”
CRIM PROC. art. 46B.004(c); Boyett, 545 S.W.3d at 563. The Court of Criminal
Appeals has described this standard as requiring “more than none or a scintilla” of
evidence that “rationally may lead to a conclusion of incompetency.” Boyett, 545
S.W.3d at 563–64 (citing Turner, 422 S.W.3d at 692). If the trial court determines
at the informal inquiry stage that “some evidence” of incompetency exists, it must
then order that the defendant submit to a psychological or psychiatric examination
and, except for certain exceptions, later proceed to a formal competency trial. Id.
(citing CRIM. PROC. arts. 46B.005(a), (b), 46B.021(b)). At the informal inquiry
stage, “the standard for requiring a formal competency trial is not a particularly
onerous one.” Id. at 564.
The trial court is not required to follow any specific protocols in conducting
the informal inquiry. George v. State, 446 S.W.3d 490, 501 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d). During the informal inquiry, the trial court “must
consider only evidence of incompetency, and it must not weigh evidence of
competency against evidence of incompetency.” Boyett, 545 S.W.3d at 564. Thus,

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in making this initial determination, “[the] trial court must consider only [the]
evidence [that tends] to show incompetency” and disregard “all competing
indications of competency.” Id. (quoting Turner, 422 S.W.3d at 692). “[S]ome
evidence must be presented at the informal inquiry stage to show that a defendant’s
mental illness is the source of his inability to participate in his own defense.” Id.
Thus, there must be:
some evidence from which it may rationally be inferred not only (1) that
the defendant suffers from some degree of [a] debilitating mental
illness, and that (2) he obstinately refuses to cooperate with counsel to
his own apparent detriment, but also that (3) his mental illness is what
fuels his obstinacy.

Id. (quoting Turner, 422 S.W.3d at 696). It is not enough to present evidence of a
defendant’s mental illness alone or his refusal to cooperate with trial counsel—
rather, there must be “some evidence” that indicates that the defendant’s mental
illness is the reason why he refused to rationally engage with his trial counsel. Id.
“Should the formal competency trial result in a finding of competency, the trial court
is not obliged to revisit the issue later absent a material change of circumstances
suggesting that the defendant’s mental status has deteriorated.” Turner, 422 S.W.3d
at 693.
Because the trial court can observe the defendant’s mannerisms and
behaviors, it is in a better position to determine whether a defendant is competent to
stand trial. McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003) (citing
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We therefore review
challenges to the adequacy of the trial court’s informal competency inquiry, its
findings and determinations following its informal inquiry, and its decision whether
to order a formal competency examination, for an abuse of discretion. George, 446
S.W.3d at 499 (citing Luna v. State, 268 S.W.3d 594, 600 (Tex. Crim. App. 2008));

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Goswick v. State, No. 11-16-00164-CR, 2017 WL 2986841, at *2 (Tex. App.—
Eastland July 13, 2017, no pet.) (mem. op., not designated for publication). We do
not substitute our judgment for that of the trial court; instead, we determine whether
the trial court’s decision was unreasonable. Goswick, 2017 WL 2986841, at *2. A
trial court does not abuse its discretion absent a showing that its decision was
arbitrary or unreasonable and we must afford great deference to a trial court’s factual
findings of a defendant’s ability to understand the nature of the proceedings pending
against him and to assist trial counsel in his defense. McDaniel, 98 S.W.3d at 713.
C. Analysis
Appellant’s counsel did not identify which portion of Appellant’s testimony
he believed to demonstrate Appellant’s “fixed delusions” at trial. Similarly, on
appeal, Appellant does not direct us to which statements or testimony represent
Appellant’s “fixed delusions.” Although Appellant had previously been found
incompetent, he had since been found competent on two occasions prior to trial,
including less than two months before his trial began. Thus, the trial court was not
obligated to revisit the matter “absent a material change of circumstances suggesting
that the defendant’s mental status has deteriorated.” See Turner, 422 S.W.3d at 693.
The trial court nonetheless conducted an informal inquiry into Appellant’s
competency. See Boyett, 545 S.W.3d at 563. During the informal hearing, Appellant
demonstrated that he had an adequate grasp regarding the charges against him and
the trial proceedings. We agree with the trial court that the record contains “no
evidence suggestive of incompetency”—nothing indicated that Appellant suffered
from a debilitating mental illness or that he obstinately refused to cooperate with his
counsel. See Boyett, 545 S.W.3d at 564. Accordingly, we conclude that the trial
court did not abuse its discretion by declining a formal competency trial or by finding

20
Appellant to be competent. See George, 446 S.W.3d at 499. Appellant’s fourth
issue is overruled.
The Trial Court Did Not Err by Denying Appellant’s Motion for Mistrial
In Appellant’s fifth issue, he argues that the trial court erred by denying his
motion for mistrial predicated on his incompetency. Appellant relies on the same
facts that he argued supported his challenge to the trial court’s finding of
competency.
A. Standard of Review & Applicable Law
A trial court’s ruling on a motion for mistrial is reviewed for an abuse of
discretion. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). “A mistrial
is a remedy of last resort.” See Berkley v. State, 298 S.W.3d 712, 714 (Tex. App.—
San Antonio 2009, pet. ref’d). A mistrial is proper when used to halt trial
proceedings because an error is so prejudicial that it is incurable—making an
impartial verdict impossible—or when a verdict would have to be reversed on appeal
due to obvious procedural error. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim.
App. 2000). “The determination of whether a given error necessitates a mistrial must
be made by examining the particular facts of the case.” Weinn v. State, 281 S.W.3d
633, 642 (Tex. App.—Amarillo 2009), aff’d, 326 S.W.3d 189 (Tex. Crim. App.
2010).
B. Analysis
Appellant’s sole argument supporting his motion for mistrial rests upon a
conclusion that Appellant was incompetent during trial. Because we have concluded
the trial court did not err by finding Appellant competent, we likewise conclude the
trial court did not err by denying Appellant’s motion for mistrial on the same basis.
See Wood, 18 S.W.3d at 648; Weinn, 281 S.W.3d at 642. Appellant’s fifth issue is
overruled.

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Modification of the Judgment
As an appellate court, we have the power and an obligation to modify the
judgment of the trial court to make the record speak the truth if the matter comes to
our attention in any manner and if we have the necessary information to do so. See
TEX. R. APP. P. 43.2(b); see also French v. State, 830 S.W.2d 607, 609 (Tex. Crim.
App. 1992); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet.
ref’d). The authority of an appellate court to reform incorrect judgments is not
dependent upon the request of any party, nor does it turn on the question of whether
a party has or has not objected in the trial court. See TEX. R. APP. P. 43.2(b); French,
830 S.W.2d at 609; Asberry, 813 S.W.2d at 529–30; see also Carmona v. State, 610
S.W.3d 611, 618 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Accordingly, we
modify the trial court’s judgment to reflect that the trial court, not the jury, assessed
Appellant’s punishment. See TEX. R. APP. P. 43.2(b).
This Court’s Ruling
As modified, we affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

October 17, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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