Reading Competency Reports: What Should Lawyers Expect of Competency Examiners?

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Tuesday, August 19th, 2014
Reading Competency Reports: What Should Lawyers Expect of Competency Examiners?

Preface

Both courts and counsel are the statutory recipients of competency reports conducted by court-appointed examiners.1 Oft times the reports appear to be written in Sanskrit and are unintelligible either because of reliance on technical language to describe ordinary matters or because statutory elements are not addressed.2

In this article, we will look at the critical elements of competency that should be addressed by examiners and discussed in any competency report.

What Competency Is

The legal definition of competency is succinct and phrased in the negative—e.g., see Tex. Code Crim. Proc. Ann. art. 46B.003:

“Art. 46B.003. INCOMPETENCY; PRESUMPTIONS. (a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against the person.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.”

More descriptively, however, competency should be thought of as a set of functional abilities that are task specific, and fluid— i.e., varying over time. A person is competent to perform specific tasks and may be competent in one arena, but quite incompetent in another. For example, few skilled attorneys are competent to perform neurosurgery, or prepare well-flavored barbecue for that matter. Competency in one domain may or may not be transferable to another, just as very facile litigators may not necessarily be competent appellate lawyers, though one area could inform the other. In trial, competency means that mere possession of rudimentary knowledge of procedures must be augmented with an ability to articulate the application of that knowledge in a specific case, and relate to counsel.3

As well, competency varies over time—just as skill in a sport activity, such as skiing, can vary over time, so would the knowledge of a defendant who is mentally ill and whose illness interferes with his/her capacity to think rationally.

What Competency Is Not

Competency to stand trial—in the present moment—is to be distinguished from sanity, which relates to the defendant’s state of mind at the time of the offense.4 These are different concepts, and relate to different points in time. Whereas competency applies to the defendant’s present knowledge of trial matters and his/her ability to assist counsel, sanity narrowly refers to the state of mind of the defendant at the time of the act with which charged. And more specifically, was the person suffering under such mental disease or defect that he did not know his conduct was wrong? These two states of mind may be far apart in time. It is quite possible to be incompetent now, but sane at the time of the offense and vice versa.

Competency to stand trial is also no measure of wisdom or general knowledge, though the obverse is also true—i.e., lack of general knowledge is not necessarily incompetence.5 If a defendant is unaware of some particular piece of legal knowledge, but quite capable of learning it if instructed, the person may or may not be deemed incompetent, depending upon the extent to which instruction can be offered quickly, as opposed to requiring some period of time and more formal instruction.

Nor, for that matter, is incompetence established by the mere presence of any particular diagnosis; neither psychosis nor mental retardation (now called an intellectual and developmental disability (IDD)) are dispositive of competence.6

At the same time, competency is not necessarily demonstrated by the defendant’s ready agreement with statements of counsel. In fact, too-ready acquiescence—just as too easily aroused negativism—may be indicia of lack of competence.

Collateral Information

Evaluations by experts conducted in a vacuum, without any collateral information whatsoever, are of little value. It goes without saying that unless the examiner is cognizant of the nature of the charges against the defendant, no opinion about the defendant’s capacity to appreciate the same is possible. Consequently, the statute requires that the expert be provided information “relevant to a determination of the defendant’s competency, including copies of the indictment or information, any supporting documents used to establish probable cause in the case, and previous mental health evaluation and treatment records.”7

In rare instances, a competence evaluation must be done without an interview with the defendant. This might be the case when a defendant refuses to speak with the evaluator, is only minimally cooperative with the evaluation, or is too impaired to participate in an interview. With sufficient collateral information, it may nonetheless be possible to render an opinion on the ultimate issue. For example, this might be the case if a defendant refuses the interview but there is a multitude of collateral information demonstrating that the person does not have, and has never had, a significant mental illness or intellectual disability. Such a report would obviously not contain quotes from the defendant demonstrating factual or rational understanding relative to the case at hand. It would then be up to the trier of fact to determine if the evidence presented by the evaluator met the preponderance standard.

Rendering such opinions is permissible both under the Rules of the Texas State Board of Examiners of Psychologists and the Specialty Guidelines for Forensic Psychology (2011), provided the limitations are clearly stated in the report. Art. 46B.025(a-1) prohibits the examiner from rendering an opinion solely on the basis of the defendant’s refusal to communicate, but the caveat above is “with sufficient collateral information.” Note, however, that intentional behaviors by defendants that are calculated to increase the likelihood of being found incompetent may result in sentencing enhancement. The opinion of the senior author in this article (MAC) was discussed in just such a circumstance. See United States v. Greer.8 In this case, the defendant entirely refused to speak with the evaluator.

Transparency

While Tex. Code Crim. Proc. art.46B.024 and .025 address the content of reports, it is incumbent upon examiners to exhibit transparency with regard to any and all sources upon which re­lied. Rule 705 of the Texas Rules of Evidence states that experts may be required to disclose the facts or data underlying expert opinion, and given the specificity of Art. 46B.024 and .025, there is every reason to disclose:9

  • All documents reviewed;
  • All persons interviewed;
  • Any and all tests or procedures utilized; and
  • Education, training and experience of the examiner relevant to the forensic services offered.10

This disclosure may be required by the Rules of Evidence,11 but also by the Specialty Guidelines for Forensic Psychology (2011).12 Total transparency in the evaluation process would necessitate listing all sources, all documents reviewed, all persons interviewed, and all tests or procedures used.

Documentation of Consent/Disclosure

Health providers commonly have a duty to obtain the fully informed consent of all persons who are either patients or subjects of evaluation. This duty is established by statute as well as rule.13 Competency evaluations, however, are of a different kind, and while it is possible that counsel may seek an ex parte order for such an evaluation wherein the participation of the defendant would be somewhat more voluntary, Art. 46B.021 contemplates that the evaluation is court-ordered and that the expert must state an opinion (Art. 46B.025) or explain why no opinion was given. In short, the consent of the defendant is not required. As a result, the burden on the examiner is to document making a good faith effort to advise the defendant as to the conditions of the evaluation, even if the individual is not capable of comprehending the disclosure. These conditions would include:14

  • The purpose of the evaluation, and who requested it
  • Who will have access to the information
  • The limits of confidentiality
  • Who employs the evaluator
  • Who pays fees
  • The approximate length of time to prepare a report.

Content of Report

A discussion of the contents of any competency examination must address the scope of the report itself and specifically that this examination is very focused, addressing specific statutory items, and including only clinical information directly relevant to the issue before the court. As such, a competency report is not a traditional clinical evaluation. In the more traditional evaluation, examiners may want to include a plethora of information about the defendant’s personal, educational, vocational, medical, and psychiatric history. Whereas, a shorter report that includes rudimentary and limited information about those areas may be more appropriate for purposes of evaluating competence. Put simply, reports that are excessively lengthy are to be eschewed—and very likely not read in their entirety. Information contained in an overly lengthy report may be more prejudicial than the probative value of the issue to be addressed.

Art. 46B.024 identifies factors to be considered in a competency examination. While, for the sake of clarity, some examiners may find it helpful to enumerate these areas, thus citing the statute,15 other examiners prefer to integrate each of the issues into the report itself without necessity for separation or division of the report or to integrate the elements into the sections specified by Dusky.

For example:

“Tex. Code Crim. Proc. art. 46B.024 requires that examiners consider specific factors in an assessment of competency:

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings . . .”

With regard to this issue, and in order to be most helpful to the court, the examiner might provide specific examples illustrating the defendant’s knowledge of the charges against him—e.g., “The defendant stated he was charged with aggravated assault, and said that he believed he could face a sentence of 2–20 years of confinement.”

Important, however, is that reports are not constructed so as to describe defendant responses in some rote manner, such that any negative response on any one of the 46B.024 issues is ipso facto evidence of incompetency, as when a person claims a poor memory for events and is immediately opined to be incompetent.

The central issues to be addressed by a competence evaluator are whether the defendant has the necessary functional abilities (enumerated above) to have a factual and rational understanding of the proceedings and to be able to rationally consult with counsel in formulating a defense. If the individual does not have these abilities, the next question is whether the deficits are due to mental illness or Intellectual Disability. The evaluator must provide enough evidence for the trier of fact to make an independent decision on the issue of trial competence.

Factual Understanding

This is probably the most basic element of competence. As suggested above, the evaluator could demonstrate a defendant’s factual understanding with simple, straightforward quotations from the defendant such as: “The judge controls the courtroom and decides on sentencing.” Alternatively, a defendant may initially claim to have no idea what a judge does, but later explain in detail what the judge did in a previous case. A defendant may know his exact charge and possible sentences. However, he may have no idea which of the many offenses mentioned at the time of his arrest are actually being pursued. He may also have no idea what prison time could result if convicted. But he may be well aware that he needs to ask his attorney, who will be able to provide this information. On the other hand, the defendant’s responses to queries may seem nonsensical, such as “assault is what happens on the asphalt . . . I was a road runner but never in the movies.” Or, a defendant might express a delusional belief that although his charge says “burglary,” he is secretly being charged with treason so the president can arrange for his execution. In such an instance the evaluator could explain that loose associations and/or delusional beliefs are symptomatic of the thought disorder from which the person suffers.

Rational Understanding

Rational understanding has never been clearly defined by the courts, but it is assumed to involve the ability to reason and make reasoned choices. A rational understanding might be dem­onstrated by explaining what evidence and witnesses the prosecutor might use against him in court. However, a competence evaluator should avoid questions that might tempt a defendant to make incriminating statements and may choose to present hypothetical scenarios similar to the current offense and explore the individual’s reasoning about evidence, witnesses, and defenses. The evaluator may also explore rationality by asking about testimony in general: What are the advantages and potential disadvantages of having a defendant testify? The same could be done with the concept of plea bargaining: How would a defendant decide to accept or reject a particular offer? It would be important for an evaluator to report any bizarre or grossly irrelevant statements made by the defendant in this process. If a statement appeared irrational on the surface, how did the defendant explain it? For example, a defendant may say he would rather have prison time than probation, but then explain that he has been on probation before, always violates it, and then spends even more time in prison—he would rather just get it over with and be free and clear, without restrictions.

On the other hand, if a defendant lacks the ability to rationally understand his case or court proceedings, the evaluator would need to explain exactly how this links to his mental problems. For example, the defendant may insist that he needs to testify, not about his charges, but to explain the gospel so that the prosecutor will come to Jesus and become a priest. This may be a delusion resulting from a psychotic disorder. Alternately, the defendant may simply appear totally confused by discussion of his case and simply say the prosecutor is a good person who is trying to help him. This may be the direct result of Intellectual Disability that could be demonstrated with the addition of evidence from school records and previous functioning and evaluations.

Ability to Consult with Counsel

To be able to consult with counsel, the defendant clearly must know that the role of his counsel is to assist him in obtaining the most favorable result. A competent defendant may have a cynical view of attorneys and the courts, perhaps saying they are all working together. However, cynicism is not a mental illness. It would be important for the evaluator to report the degree to which the defendant could maintain attention, focus on elements relevant to his defense, and maintain appropriate demeanor during the evaluation. His history of behavior in courtrooms or other public forums could also be significant. It would also be important to demonstrate that the defendant can present self-serving information to his attorney. Can he suggest persons his attorney should contact? Are there records his attorney should obtain (e.g., mental health records)? Are there questions the defendant specifically wishes to explore with his attorney? And, as part of this discussion, does the defendant make any bizarre, nonsensical, or irrational statements? It would be critical for the evaluator to present evidence as to whether the defendant has decisional competence—the ability to reason about and make decisions a defendant must make to proceed with his case. Can he make a reasonable cost/benefit analysis of his various plea options? If the answer is “no,” once again the evaluator must link the lack of functional ability directly to his mental deficits.

Clinical Findings

As stated earlier, a competency evaluation is not specifically a clinical evaluation, and consequently, clinical findings should be limited. Historical review of the defendant’s personal and mental health history should be very focused upon those items specifically relevant to the court’s determination. Moreover, each key piece of information should be identified as to its source.

Diagnoses

Art. 46B.024 asks examiners to opine as to whether the defendant has a mental illness or is a person with mental retardation. However, diagnoses should be used sparingly. Diagnostic nomenclature has long been defined by the DSM, now the DSM V, published by the American Psychiatric Association.16 Beginning with the DSM IV, in 2000, mental health diagnoses have been offered in multiaxial format—i.e., Axis I referred to the clinical disorders, largely those that were the focus of treatment. Axis II diagnoses referred to more enduring personality characteristics, styles or traits, as well as limitations of intellect. Axis III had to do with medical diagnoses, Axis IV current psychosocial stressors, and Axis V was a global assessment of function. These familiar features are no longer in the DSM V. The changes in DSM V may prove helpful in forensic contexts as examiners will be required to identify whether the person has a mental illness or is a person with mental retardation (now called Intellectual Disability), but without reliance upon a cookbook approach—e.g., three of five criteria, etc. Description of symptoms is more important than global labels, especially in a forensic context. Nonetheless, it is important that the evaluator, who opines a defendant is incompetent, describe a recognized mental illness/intellectual disability and not simply a “syndrome” endorsed by a few practitioners.

In addition, important with regard to forensic evaluations is that the presence of any specific diagnosis is not per se evidence of incompetency, as incompetency has behavioral and cognitive components defined by statute. Diagnoses do aid in establishing the presence of a recognized mental illness or disorder. Diagnoses do provide an explanation for functional deficits. But diagnoses are not exact. Direct or cross-examination of an expert, for example, on the issue of whether the defendant has a schizophrenia or a schizoaffective disorder is less relevant than whether a difference in the diagnosis would predicate a different treatment plan.

Malingering

The term “malingering” is all too often used outside the context of its narrow, technical meaning. Malingering specifically means either creation of symptoms not otherwise existing or exaggerating symptoms that do exist, but in both cases for the purpose of specific advantage to the defendant. Such advantages need to be external, such as a presentation of symptoms in the hope of securing a transfer to what is perceived as better housing, or sig­nif­i­cant mitigation of sentencing, or even exculpation, as in being found not guilty by reason of insanity. The advantages may also be more psychological, such as generation of much at­ten­tion and sympathy. The advantages tend to be situationally de­ter­mined and goal specific.17

Because malingering has such a pejorative aura, the term “response style” has come into vogue as a broader and more in­clusive term, inasmuch as the presupposition of the use of “malingering” is that the subject’s behavior is conscious and intentional. Whereas, “response style” could include persons whose behaviors are far less intentional, such as in someone sim­ply trying to emphasize the need for help. The identification of a response style that may be affecting performance is quite dependent upon collateral information—e.g., descriptions from correctional or treatment staff as to the manner in which the defendant behaves when not in an evaluation context. A defendant who is confused and unable to read or make sense might well be seen as significantly exaggerating nonexistent deficits if collateral information describes the person as playing cards or dominos on the treatment unit, reading, etc.

Any discussion of malingering or response style must include a careful examination of the defendant’s history. Are the individual’s current symptoms consistent with past behavior/cognitions? In some cases, psychometric instruments (e.g., the Structured Inventory of Reported Symptoms, the Validity Indicator Profile) can provide an additional piece of evidence, but would never be dispositive in and of themselves.

Linking Psychological Deficits and Legal/Functional Deficits

Forensic evaluations are specifically designed to assist the trier of fact in making a legal determination. Consequently, every item in a report, and every conclusion in a report, should be relevant to the legal issue before the court. To be sure, as cited in Graham v. State, opinions of a mental health expert are but opinions, to aid the trier of fact, and a court may accept some of an expert’s opinion, all of it, or none of it.18 In Texas, the examiner is required to offer an opinion on the ultimate issue—i.e., competency—however, the weight given to that opinion is a matter for the trier of fact.19 If an examiner opines that a defendant is incompetent and the court so finds, then the mandatory statutory outcome of such a finding of incompetency is commitment to a mental health program for competency restoration.20 By the Texas Constitution, no person may be committed for men­tal health treatment save on “competent medical or psychiatric testimony.”21 On the basis of Graham et al., the trier of fact could find a person competent despite expert opinion to the contrary. Thus, while incompetency must be established by expert opinion, a finding of competency could be made despite the expert’s opinion.

The issue, however, is that diagnostic labels or technical descriptions or clinical findings are irrelevant unless specifically linked to some functional ability at issue before the court. As earlier noted, reports accompanying persons committed to state facilities often lack such linkage. An example of an inadequate evaluation might read as follows:

The defendant was diagnosed with mental retardation at age 8. He was in special education throughout school and reads only at the 3rd-grade level. IQ scores have ranged from 52 to 68. He answered all questions with “I don’t know.” With such severe intellectual disabilities, he could not consult with counsel, and in my professional opinion, he is not competent to stand trial.

Statutory Abilities

Texas has long adopted the Dusky22 standard for competency, i.e.

(a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against the person

In Dusky, the Supreme Court held that “it is not enough for the district judge to find that ‘the defendant [is] oriented to time and place and [has] some recollection of events,’ but that the ‘test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’” Id.

In Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the United States Supreme Court specified that the standard for the various types of competency (i.e., competency to plead guilty, to waive counsel, to stand trial) should be considered the same. Justice Thomas wrote for the majority: “The standard adopted by the Ninth Circuit is whether a defendant who seeks to plead guilty or waive counsel has the capacity for ‘reasoned choice’ among the alternatives available to him. How this standard is different from (much less higher than) the Dusky standard—whether the defendant has a ‘rational understanding’ of the proceedings—is not readily apparent to us . . . [W]hile the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial . . . Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than the defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” Id., 509 U.S. at 397–399.

As noted, the Code of Criminal Procedure, however, operationalizes the Dusky standard into several abilities, described in 46B.024, which examiners must consider in constructing a report.

Ultimate Issue Opinion

Texas requires an opinion from the examiner as to whether the defendant is competent or not, or “explain why the expert is unable to state such an opinion.”23 However, an opinion is not merely a “yes” or “no,” but may include caveats clearly allowing the court to make the final decision. For example, an examiner could conclude that the defendant has a factual and rational understanding of the proceedings against him and has the ability to consult with counsel with a reasonable degree of rational understanding; however, should he be required to follow fast-paced courtroom procedures, testify, and be subject to cross-examination, his intellectual abilities probably would not be up to this task. It is then up to the court to determine if this is necessary in the particular case.24

Though there is controversy in other jurisdictions as to whether ultimate issue testimony is proper, in Texas, examiners must offer an opinion on competency or advise the court why such an opinion cannot be stated.25

Treatment

Examiners are required to offer fact statements to the court— i.e., if the defendant “is taking psychoactive medication,”26 and opinion as to whether the medication is necessary for the maintenance of competency, as well as the effect on the defendant’s “demeanor, or ability to participate in the proceedings.”27

Consequently, examiners should possess a sufficient degree of knowledgeability about the use of psychoactive medications and their properties to be able to answer questions from the court. As well, however, the examiner should comment both upon the nature of treatment given or needed as well as the urgency attached. Other issues include whether such treatment should be inpatient or outpatient and whether the defendant is likely to be willing or able to provide informed consent. Of course, upon a finding of incompetency there is a mandatory commitment for restoration, see Art. 46B.073, unless the person is released on bail and ordered to participate in an outpatient treatment program.

In Texas, it is also imperative that an examiner offer an opinion on the likelihood of restoration “in the foreseeable future,” where “foreseeable future” means the time frame available to the court for restoration—i.e., 60 days for misdemeanor cases and 120 days for felony cases, with a possible 60-day extension. Offering this opinion is crucial because Tex. Code Crim. Proc. art. 46B.071(b) prohibits commitment of a defendant for restoration if there is a finding that the person is unlikely to be restored in the foreseeable future. Rather, the court must then proceed under a 46B.102/103 commitment or dismiss, as per Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Consequently, the court must ensure that examiners offer such an opinion; otherwise there would be no expert opinion evidence before the court on the matter.

Distribution of Report

Tex. Code Crim. Proc. art. 46B.026 states that the examiner’s re­port should be completed not later than the 30th day after the issuance of the court’s order (though on good cause could be delayed). The report itself is to be sent to the court and to counsel for both parties. Often, examiners are not aware of the requirement to provide the report to counsel for both parties. Moreover, defendants sometimes demand copies of the report, but in this instance, have been given constructive notice of the content of the report through submission to counsel. As well, the report belongs to the court and the court controls distribution other than that identified by statute.

Summary

In the foregoing, we have discussed the statutory elements requisite to a competency examination, the elements of disclosure examiners must make to defendants, the necessity for inclusion in a report of all the sources upon which relied, the specific items to be addressed, and the distribution of the report.

Endnotes

1. Tex. Code Crim. Proc. Ann. art. 46B.026.

2. B. Thomas Gray, PhD, Joseph A. Black, MD, Linda K. Fulford, MEd, A. Dale Owen, AAS (2005), Evaluating Trial Competency Evaluations: Impact of Article 46B, Texas Psychologist, Vol. 56, Issue 2. This 2005 study at Vernon State Hospital found that fewer than 5 percent of examinations addressed all components, and almost 20 percent didn’t include even five of the ten statutorily mandated items.

3. See discussion in United States v. Duhon, 104 F. Supp.2d 663 (W.D. La. 2000), citing National Benchbook on Psychiatric and Psychological Evidence and Testimony (ABA Commission on Mental and Physical Disability Law, Sept. 1998), Chapt 7 at 169.

4. Tex. Penal Code § 8.01.

5. Rodriguez v. State, 899 S.W.2d 658 (Tex. Crim. App. 1995).

6. Ex parte Briseno, 135 S.W.3d 1, 5–6 (Tex. Crim. App. 2004); Leyva v. State, 552 S.W.2d 158, 160 (Tex. Crim. App. 1977); Lingerfelt v. State, 629 S.W.2d 216, 217 (Tex. App.—Dallas 1982, pet. ref’d).

7. Tex. Code. Crim. Proc. Ann. art. 46B.021(d).

8. See United States v. Greer, 158 F.3d 228 (5th Cir. 1998); discussed in Kroll, J. L. & Resnick, P. J. (1999), U.S. v. Greer: Longer Sentences for Malingerers, J Am Acad Psychiatry Law, Vol. 27, No. 4.

9. See also American Psychological Association (2011), Specialty Guidelines for Forensic Psychology, 10.07.

10. Id. Sec. 10.01 discusses focusing upon the legally relevant factors.

11. Tex. R. Evid. 703.

12. American Psychological Association (2011), Specialty Guidelines for Forensic Psychology, Sec. 9.02 would discourage reliance upon a single datum; Sec. 10.01 encourages attending only to evidence that is relevant to the case at hand; and 10.06, as well as 11.03, would encourage careful documentation of all sources utilized.

13. See Tex. Health & Safety Code § 313.001 et. Seq.; 22 TAC § 465.11.

14. Id. at 465.11.

15. Art. 46B.024. FACTORS CONSIDERED IN EXAMINATION. During an examination under this subchapter and in any report based on that examination, an expert shall consider, in addition to other issues determined relevant by the expert, the following:

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;
(B) disclose to counsel pertinent facts, events, and states of mind;
(C) engage in a reasoned choice of legal strategies and options;
(D) understand the adversarial nature of criminal proceedings;
(E) exhibit appropriate courtroom behavior; and
(F) testify;

(2) as supported by current indications and the defendant’s personal history, whether the defendant:

(A) has a mental illness; or
(B) is a person with mental retardation;

(3) whether the identified condition has lasted or is expected to last continuously for at least one year;

(4) the degree of impairment resulting from the mental illness or mental retardation, if existent, and the specific impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and

(5) if the defendant is taking psychoactive or other medication:

(A) whether the medication is necessary to maintain the defendant’s competency; and
(B) the effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Acts 2011, 82nd Leg., R.S., HB 2725, eff. Sept 1, 2011.

Art. 46B.025. EXPERT’S REPORT. (a) An expert’s report to the court must state an opinion on a defendant’s competency or incompetency to stand trial or explain why the expert is unable to state such an opinion and must also:

(1) identify and address specific issues referred to the expert for evaluation;

(2) document that the expert explained to the defendant the purpose of the evaluation, the persons to whom a report on the evaluation is provided, and the limits on rules of confidentiality applying to the relationship between the expert and the defendant;

(3) in specific terms, describe procedures, techniques, and tests used in the examination, [and] the purpose of each procedure, technique, or test, and the conclusions reached; and

(4) state the expert’s clinical observations, findings, and opinions on each specific issue referred to the expert by the court, state the specific criteria supporting the expert’s diagnosis, and state specifically any issues on which the expert could not provide an opinion.

(a-1) The expert’s opinion on the defendant’s competency or incompetency may not be based solely on the defendant’s refusal to communicate during the examination.

(b) If in the opinion of an expert appointed under Article 46B.021 the defendant is incompetent to proceed, the expert shall state in the report:

(1) the symptoms, exact nature, severity, and expected duration of the deficits resulting from the defendant’s mental illness or mental retardation, if any, and the impact of the identified condition on the factors listed in Article 46B.024;
(2) an estimate of the period needed to restore the defendant’s competency, including whether the defendant is likely to be restored to competency in the foreseeable future; and
(3) prospective treatment options, if any, appropriate for the defendant.

(c) An expert’s report may not state the expert’s opinion on the defendant’s sanity at the time of the alleged offense, if in the opinion of the expert the defendant is incompetent to proceed.

(d) The court shall direct an expert to provide the expert’s report to the court and the appropriate parties in the form approved by the Texas Correctional Office on Offenders with Medical or Mental Impairments under Section 614.0032(b), Health and Safety Code.

Added by Acts 2003, 78th Leg., ch. 35, Sec. 1, eff. Jan. 1, 2004. Amended by: Acts 2005, 79th Leg., Ch. 1269 Sec. 1, eff. June 18, 2005. Acts 2011, 82nd Leg., R.S., HB 2725 Sec. 8, Eff. Sept. 1, 2011.

16. American Psychiatric Association. (2013). Diagnostic and Statistical Manual of Mental Disorders (5th ed. Tex rev.). Washington, DC; Author.

17. Richard Rogers, PhD, Michael J. Vitacco, PhD, Samantha J. Kurus, BA, Assessment of Malingering with Repeat Forensic Evaluations, Patient Variability and Possible Misclassification on the SIRS and Other Feigning Measures. J Am Acad Psychiatry Law 38:1:109–114 (March 2010).

18. Graham v. State, 566 S.W.2d 941, 949 (Tex. Crim. App. 1978). “Only the jury can join the non-medical components that must also be considered in deciding the ultimate issue. The ultimate issue of criminal responsibility is be­yond the province of expert witnesses. Were it otherwise, the issue would be tried in hospitals rather than the courts.” Id.

19. Id. at 952.

20. Tex. Code Crim. Proc. art. 46B.073.

21. Tex. Const. art. I, § 15-a; see also Tex. Code Crim. Proc. art. 46B.074.

22. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

23. Tex. Code Crim. Proc. art. 46B.025(a).

24. Id. at art. 46B.025(4).

25. See Tex. Code Crim. Proc. art. 46B.025(a); Fed. R. Evid. 704 ; Bryant v. State, 340 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d): “Opinion testimony that is otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact. Tex. R. Evid. 704; Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004) (describing officer’s testimony that defendant had not been attacked); Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001) (holding that lay witness properly offered opinion regarding defendant’s criminal responsibility). The admissibility of such testimony is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. See Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993); see also Conner v. State, 891 S.W.2d 668, 670 (Tex. App.—Houston [1st Dist.] 1994, no pet.).

26. Supra at art.46B.024(5).

27. Id.