James Lewis McGruder v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00413-CR

JAMES LEWIS MCGRUDER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court
Childress County, Texas
Trial Court No. 6939, Counts I, II, III, IV & V, Honorable Ron Enns, Presiding

June 9, 2026
OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

Appellant, James Lewis McGruder, appeals from his convictions for several

offenses and the resulting sentences imposed against him. 1 Through two issues,

Appellant contends the trial court erred when 1) it denied his motion for a sanity evaluation

1 Appellant was convicted of the following offenses and sentenced as indicated:

1) misdemeanor assault, 365 days in county jail and $1,000 fine;
2) burglary of a habitation, 15 years in TDCJ-ID and $5,000 fine;
3) burglary of a habitation with intent to commit aggravated assault, life in TDCJ-ID and
$10,000 fine;
4) aggravated assault, life in TDCJ-ID and $10,000 fine;
5) burglary of a habitation, life in TDCJ-ID and $10,000 fine.
and motion for continuance; and 2) it denied him the ability to address issues of

competency during trial. We affirm the judgment of the trial court.

BACKGROUND

In August 2022, Appellant was arrested after a prolonged criminal episode in which

he entered multiple homes without permission, took vehicles that did not belong to him

and that he did not have permission to use, and assaulted and injured people. Appellant

was arrested and subsequently charged with 11 criminal offenses all stemming from this

episode.

Appellant was found to be indigent and counsel was appointed to represent him

against the charges. Counsel requested a competency and sanity examination. An initial

competency examination was conducted in December 2022. Dr. Gina Matteson

concluded Appellant suffered from a mental illness that rendered him incompetent to

stand trial. No sanity examination was conducted at that time due to said incompetency.

Appellant was transferred to a state hospital where he underwent a competency

restoration process. By May 2024, Appellant was deemed competent to stand trial but

continued to suffer from schizoaffective disorder-bipolar type that required medication to

manage.

Appellant was held in custody while awaiting trial. In July 2024, the trial court

appointed Dr. Timothy Nyberg to conduct a sanity evaluation because the previously

requested evaluation was never conducted. However, when Nyberg attempted to

conduct that examination, Appellant objected and refused to participate.

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Counsel who was initially appointed to represent Appellant was subsequently

replaced by another attorney, who withdrew from representation on October 24, 2024.

Another attorney represented appellant thereafter. 2 That attorney filed a notice of insanity

defense, 3 a motion for appointment of a disinterested expert to evaluate Appellant’s

sanity, 4 and a motion for continuance to allow time for the evaluation and report. 5 Those

motions were filed on November 6, 2024, and trial was set for December 3, 2024. The

trial court held a hearing on the motions after which it denied Appellant’s motion for

continuance.

The trial began on December 3, 2024. During its opening argument, the State

argued that Appellant told arresting officers that he was “mentally incompetent” as a

means to “game the system.” When Appellant argued that he had, in fact, been

incompetent, the State objected on relevance grounds and the trial court sustained the

objection. At the conclusion of the trial, the jury found Appellant guilty of a lesser-included

misdemeanor assault charge on Count One but found him guilty as charged as to the

remaining counts that were submitted. Appellant timely filed the instant appeal.

2 It appears from the record that Appellant’s family retained counsel for him. There is no indication

Appellant’s indigency status changed.

3 See TEX. PENAL CODE § 8.01; TEX. CODE CRIM. PROC. art. 46C.051.

4 See TEX. CODE CRIM. PROC. art. 46C.101.

5 A prior motion for continuance had been filed and granted to allow previous counsel time to review

videos. The State argues that counsel did not mention the insanity defense or the need for time to have a
sanity evaluation conducted in this first motion. We note the State’s contention is accurate.
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ISSUE ONE: DENIAL OF CONTINUANCE AND SANITY EVALUATION

By his first issue, Appellant contends the trial court abused its discretion when it

denied his motion for sanity evaluation and motion for continuance. In the alternative,

Appellant contends that counsel’s failure to ensure that a sanity evaluation occurred

constituted ineffective assistance of counsel. We overrule the issue.

Denial of Continuance and Sanity Evaluation

“When a defendant demonstrates that sanity will be an issue at trial, due process

requires that the State ‘assure the defendant access to a competent psychiatrist who will

conduct an appropriate examination and assist in evaluation, preparation, and

presentation of the defense.’” Lighteard v. State, 982 S.W.2d 532, 533 (Tex. App.—San

Antonio 1998, pet. ref’d) (quoting Ake v. Okla., 470 U.S. 68, 83, 105 S. Ct. 1087, 84 L.

Ed. 2d 53 (1985)). Stated another way, a defendant’s entitlement to an expert to assist

him in his defense is dependent on the defendant’s demonstration that sanity will be a

significant factor at trial. See De Freece v. State, 848 S.W.2d 150, 159 (Tex. Crim. App.

1993) (en banc) (“Once it is shown that insanity will be a significant factor at trial, the trial

court abuses its discretion in failing to appoint . . . a competent psychiatrist to assist in the

evaluation, preparation[,] and presentation of his insanity defense.”); Arausa v. State, No.

07-02-00396-CR, 2003 Tex. App. LEXIS 6752, at *5 (Tex. App.—Amarillo Aug. 6, 2003,

no pet.) (per curiam) (to establish entitlement to assistance of expert, defendant generally

obligated “to disclose his defensive theory to the trial court and support it with factual

allegations and/or evidence as to why and how expert testimony would aid in the proper

presentation of that theory”); Norton v. State, 930 S.W.2d 101, 110 (Tex. App.—Amarillo

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1996, writ ref’d) (to be entitled to expert to assist in defense, defendant must make

“required threshold showing that his sanity was likely to be a significant factor at trial”).

This Court has held that “in order to invoke the right to appointed psychiatric help at the

threshold, a defendant must make a preliminary showing that the question as to his sanity

is one with merit undergirded with evidentiary support.” Day v. State, 704 S.W.2d 438,

440 (Tex. App.—Amarillo 1986, no writ).

However, in the present case, Appellant’s motion for sanity examination requested

the appointment of a disinterested expert to examine Appellant regarding his sanity at the

time of the offenses. 6 Such a request is distinguishable from a request for an expert to

aid the defense. We will refer to the appointment of a disinterested expert as a “statutory

expert.” See TEX. CODE CRIM. PROC. art. 46C.101(a) (authorizing appointment of expert

when “notice of intention to raise the insanity defense is filed”). The appointment of a

statutory expert is within the trial court’s discretion. Caldwell v. State, 696 S.W.2d 606,

608 (Tex. App.—Beaumont 1985, writ ref’d) (addressing prior statute authorizing

appointment of disinterested expert); see also TEX. CODE CRIM. PROC. art. 46C.101(a) (if

notice of insanity defense filed, the court “may” appoint disinterested expert). However,

this Court has stated that, “a preliminary examination by the statutory expert as provided

by the statute is nearly always necessary.” Norton, 930 S.W.2d at 111. The statutory

expert does not fulfill the role of psychiatric assistant to an indigent defendant but “may

6 We note that, at no point, did Appellant request the appointment of a psychiatric expert to aid in

his defense. See Arausa, 2003 Tex. App. LEXIS 6752, at *6–7 & n.5 (defendant’s request for disinterested
expert did not raise issue of appointment of expert to aid in defense).
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well serve an important function in identifying whether sanity will be a significant factor at

trial.” De Freece, 848 S.W.2d at 159.

In the present case, the trial court appointed a statutory expert twice. In December

of 2022, Appellant was determined to be incompetent to stand trial, so a sanity evaluation

was precluded. See TEX. CODE CRIM. PROC. art. 46C.103(b) (prohibiting concurrent

evaluation of sanity if defendant determined to be incompetent to stand trial). Once

Appellant’s competency was restored, the trial court appointed Dr. Timothy Nyberg to

perform a psychiatric evaluation of Appellant to determine his sanity at the time of the

offenses. Nyberg attempted to perform this evaluation on August 13, 2024, but Appellant

refused to participate in the examination. Two different explanations for Appellant’s

refusal are identified in the record. According to Nyberg, Appellant refused to participate

without first speaking to his counsel because he did not approve of Nyberg providing a

detailed account of the examination to the trial court and district attorney. 7 At the October

1, 2024 hearing on Appellant’s motion for continuance, Appellant’s counsel explained that

Appellant refused to submit to Nyberg’s examination because he objected to questioning

regarding Appellant’s state of mind while he was committing the charged offenses

because the questions were “assuming that he did commit the offenses, and his position

is he did not.”8 The record contains no further explanation as to why Appellant refused

7 “When a defendant asserts the insanity defense and introduces supporting psychiatric testimony,

his silence may deprive the State of the only effective means it has of controverting his proof on an issue
that he interjected into the case . . .” and therefore the defendant may be ordered to submit to a sanity
examination conducted by a statutory expert. Estelle v. Smith, 451 U.S. 454, 465, 101 S. Ct. 1866, 68 L.
Ed. 2d 359 (1981).

8 Appellant contends that the record does not establish that Appellant’s counsel consulted with him

about the sanity evaluation and what it entailed. However, Appellant’s briefing does not address counsel’s
direct statement that Appellant refused to participate in the sanity examination because it was his position
that he did not commit the charged offenses.
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to submit to Nyberg’s examination. We conclude that the explanations for Appellant’s

refusal to participate in Nyberg’s sanity evaluation illustrate that Appellant made a

knowing and voluntary waiver of any right to a sanity evaluation which might have

attached. See Norton, 930 S.W.2d at 110 (record showing competent counsel who

advised a strategy inconsistent with insanity defense and defendant’s agreement with

that strategy shows a knowing and voluntary waiver of known rights).

The trial court’s appointment of Nyberg implies that it made the initial determination

that Appellant presented enough evidence to entitle him to a sanity evaluation by a

statutory expert. However, when a trial court determines that a statutory expert should

be appointed to conduct a sanity evaluation, it need only appoint a statutory expert and

make the defendant available to the expert. See Day, 704 S.W.2d at 441 (appointment

of statutory expert and subsequent evaluation met trial court’s responsibility). Because

in the present case the trial court fulfilled its obligations and it was Appellant who refused

to participate in the examination, we conclude that the trial court did not abuse its

discretion in denying Appellant’s last request for a sanity evaluation. See Caldwell, 696

S.W.2d at 608 (appointment of statutory expert is within trial court’s discretion).

As to the trial court’s denial of Appellant’s request for continuance, we again

assess the trial court’s ruling under an abuse of discretion standard. Gallo v. State, 239

S.W.3d 757, 764 (Tex. Crim. App. 2007). In light of Appellant’s refusal to participate in

the sanity examination ordered by the trial court, we conclude that the trial court did not

abuse its discretion in denying Appellant’s continuance request to enable a sanity

evaluation of Appellant. See Norton, 930 S.W.2d at 109 (“Instead of submitting to the

properly ordered examination by the court-appointed psychiatrist and thereby attempting
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to make a threshold showing, appellant withdrew his plea of insanity, thereby waiving any

error that may have resulted from the trial court’s failure to appoint a partisan expert.”).

Having determined that the trial court properly discharged its responsibility of

appointing an expert and making Appellant available for a sanity evaluation, we conclude

that the trial court did not abuse its discretion by refusing to continue the trial to allow for

a sanity evaluation that Appellant had previously refused.

Ineffective Assistance of Counsel

Appellant also argues, in the alternative, that Appellant’s failure to obtain a pretrial

determination of his sanity at the time of the offense was the result of ineffective

assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy

the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Rylander v. State, 101 S.W.3d 107, 109–10 (Tex. Crim.

App. 2003) (en banc). The first prong requires a showing that counsel’s performance fell

below an objective standard of reasonableness, and the second prong requires a showing

that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Strickland, 466 U.S. at 687; Smith v.

State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). We begin our Strickland analysis

with the presumption that counsel was competent and that his decisions “fell within the

wide range of reasonable professional assistance.” Thompson v. State, 9 S.W.3d 808,

814 (Tex. Crim. App. 1999); see Strickland, 466 U.S. at 689 (establishing presumption

that actions “might be considered sound trial strategy”). An appellant must affirmatively

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“prove, by a preponderance of the evidence, that there is, in fact, no plausible professional

reason for a specific act or omission” to overcome that presumption and succeed on the

first Strickland prong. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); see

also Landers v. State, 110 S.W.3d 617, 622 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref’d) (noting sound trial strategy presumption “cannot be overcome absent evidence in

the record of the attorney’s reasons for his conduct”). “If counsel’s reasons for his conduct

do not appear in the record and there is at least the possibility that the conduct could have

been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an

ineffective assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex.

Crim. App. 2002) (en banc).

Appellant contends that “the failure of prior defense counsel . . . to expediently

ensure a sanity examination was performed . . . resulted in the issue of [Appellant’s] sanity

to not be fully investigated.” However, Appellant did not develop a record explaining why

prior counsel may not have pursued a sanity evaluation. In fact, as addressed above, the

record reflects that prior counsel employed the strategy of denying that Appellant

committed any of the charged offenses. That another attorney might have pursued a

different strategy at trial does not establish that counsel’s representation was ineffective

unless the chosen strategy lacked any plausible professional justification. Kuhns v. State,

No. 03-00-00818-CR, 2002 Tex. App. LEXIS 2214, at *13 (Tex. App.—Austin Mar. 28,

2002, no pet.); see Rivera v. State, 405 S.W.3d 729, 735 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d) (mem. op., not designated for publication) (“An accused is not entitled to

errorless or perfect counsel.”). Appellant does not contend that prior counsel’s strategy

was unjustifiable, and we cannot find that it fell below the wide range of professional

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norms. Consequently, we overrule Appellant’s alternative contention that his prior

counsel’s representation was ineffective.

We overrule Appellant’s first issue.

ISSUE TWO: EXCLUSION OF COMPETENCY EVIDENCE

By his second issue, Appellant contends that the trial court abused its discretion

when it denied him the ability to address issues of his competency during the trial.

Appellate courts review a trial court’s ruling regarding the admission or exclusion

of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim.

App. 2011). Under that standard, a trial court’s ruling will only be deemed an abuse of

discretion if it is so clearly wrong as to lie outside “the zone of reasonable disagreement,”

id., or if it is “arbitrary or unreasonable,” State v. Mechler, 153 S.W.3d 435, 439 (Tex.

Crim. App. 2005). If the trial court’s evidentiary ruling is correct under any applicable

theory of law, it will not be disturbed even if the trial court gave a wrong or insufficient

reason for the ruling. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

Error in the admission or exclusion of evidence is generally reviewed for non-

constitutional error. Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007). The

exception is when evidence offered by the defendant is erroneously excluded and that

evidence is so vital to the defendant’s theory of the case that it effectively prevents the

defendant from presenting a defense. Id. An appellate court must disregard a non-

constitutional error that does not affect the defendant’s substantial rights. TEX. R. APP. P.

44.2(b). If, after examining the record as a whole, we have fair assurance the error did

not influence the jury, or influenced the jury only slightly, we will not reverse a conviction.
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Cook v. State, 665 S.W.3d 595, 599 (Tex. Crim. App. 2023). We will only reverse a

conviction for non-constitutional error if we have “grave doubt” about whether the result

of the trial was substantially influenced by the error. Barshaw v. State, 342 S.W.3d 91,

94 (Tex. Crim. App. 2011). A “grave doubt” exists when, “in the judge’s mind, the matter

is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of

the error.” Id.

We note that, in Texas, the issue of a defendant’s competency to stand trial and

the affirmative defense of insanity are distinct legal concepts, governed by separate

standards and procedures. See Manning v. State, 730 S.W.2d 744, 747–48 (Tex. Crim.

App. 1987) (en banc) (discussing the differences). A competency examination evaluates

whether a defendant has the mental capacity to understand the proceedings and assist

in his defense at the time of trial, while a sanity evaluation determines whether the

defendant was legally insane at the time of the offense. Id. While the two may overlap

to some degree, the standards and uses of each differ. Id.

In its opening argument, the State argued that Appellant’s response to being read

his Miranda rights that he was “mentally incompetent” was evidence of Appellant trying

to “game the system.” Appellant, during his opening argument stated that, “[w]hat you’re

going to learn about during this trial is that [Appellant], at one time, was found to be

incompetent.” The State objected to Appellant’s reference to his competency as

irrelevant. After Appellant argued that the State had opened the door in its opening

argument, the trial court sustained the State’s objection. Subsequently, the trial court

sustained the State’s relevancy objection to testimony from Dr. Gina Matteson about the

competency evaluation she performed on Appellant in December of 2022. The record
11
reflects that the trial court specifically authorized Appellant to inquire into Matteson’s

opinion regarding Appellant’s mental health. Notably, even after the trial court expressly

indicated that Appellant could make an offer of proof regarding how Matteson would have

testified, Appellant did not make such an offer. 9 Consequently, the competency evidence

that was excluded by the trial court is only that Appellant was determined to be

incompetent to stand trial in December of 2022.

Considering the scope of the excluded evidence, even if we were to assume that

the trial court abused its discretion in excluding it, we cannot conclude that this evidence

was so vital to the defendant’s theory of the case as to effectively prevent him from

presenting his defense. 10 Walters, 247 S.W.3d at 219. After examining the record as a

whole, we cannot conclude that the exclusion of evidence that Appellant was deemed

incompetent in 2022 so influenced the jury as to raise grave doubts about whether

Appellant was afforded a fair trial. Cook, 665 S.W.3d at 599; Barshaw, 342 S.W.3d at 94.

Consequently, we find the exclusion of this evidence to be harmless.

We overrule Appellant’s second issue.

9 Appellant did make a bill of exception, providing that,

Dr. Matteson testified yesterday, and this Court instructed [d]efense counsel not to mention
competency evaluation or a determination of competency through Dr. Matteson. Had she
been allowed, Dr. Matteson would have testified in detail how a competency examination
is fully conducted and how her evaluation was conducted with respect to Mr. McGruder
and her findings that Mr. McGruder, at one point, was incompetent.

10 We are aware that Appellant couches his issue in terms of being denied the ability to present his

defense. But, since the record does not reflect the precise nature of the excluded evidence beyond that
Appellant was determined to be incompetent in December of 2022, the record as a whole does not reflect
that the excluded evidence prevented Appellant from presenting his defense. Walters, 247 S.W.3d at 219.
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CONCLUSION

Having overruled both of Appellant’s issues, we affirm the judgment of the trial

court.

Judy C. Parker
Chief Justice

Publish.

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