Texas Stamp


PD-0354-21 & PD-0355-21 09/15/2021

“Is a trial court presiding over a retrospective competency hearing required to force counsel on an unwilling defendant who is presumed to be competent?”

On initial appeal following Osorio-Lopez’s convictions for felony offenses, the court of appeals held there was a sufficient suggestion about Osorio-Lopez’s competence to stand trial, which the trial court should have inquired into. The appellate court abated the case for the trial court to determine, retrospectively, whether Osorio-Lopez had been competent at the time of trial. At that retrospective hearing, the judge allowed Osorio-Lopez to represent himself. After hearing evidence, the trial court ruled that Osorio-Lopez had been competent at trial, and the appeal resumed. This time, Osorio-Lopez argued it was error to allow him to represent himself at the retrospective competency hearing, and the court of appeals agreed. It held that there is no right of self-representation at a retrospective competency hearing, relying on several federal cases holding that a defendant cannot represent himself at his own competency hearing because it would require a trial court to simultaneously question a defendant’s competence to stand trial and determine, as Faretta v. California, 422 U.S. 806 (1975), requires, that he has knowingly and intelligently waived his right to counsel.

The State argues that the case doesn’t present the issue of whether there is a right to self-representation. That issue wasn’t what Osorio-Lopez complained of, nor could he have, since he was permitted to represent himself. Instead, the issue is whether a trial court can ever permit self-representation at this kind of hearing. The State contends that, since only a defendant’s past competency is at issue at a retrospective hearing and a defendant is again presumed competent once competency has been restored (as it was here), the concerns over a knowing, intelligent waiver at a contemporaneous competency hearing are not applicable.    


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