Full Opinion (html_with_citations)

                    In the
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                   No. 06-23-00034-CR



         TRAVIS ALSTON TURNER, Appellant

                            V.

           THE STATE OF TEXAS, Appellee




         On Appeal from the 202nd District Court
                 Bowie County, Texas
             Trial Court No. 21F1184-202




      Before Stevens, C.J., van Cleef and Rambin, JJ.
       Memorandum Opinion by Justice van Cleef
                                MEMORANDUM OPINION

       After a Bowie County jury found Travis Alston Turner guilty of the murder of Jennifer

Garrett, it assessed his sentence at life in prison, along with a $10,000.00 fine. Turner appeals,

maintaining that the trial court (1) violated his Sixth Amendment right to counsel of his choosing

when it required him to be represented by an attorney who was hired by his family, (2) erred

when it denied his suppression motion, (3) erred when it did not include a jury-charge instruction

addressing potentially illegally seized evidence, and (4) erred when it took judicial notice of the

results of a competency evaluation without requiring the evaluator to testify at trial because (a) it

was inadmissible hearsay and (b) it violated the Confrontation Clause. We affirm the trial

court’s judgment.

I.     Background

       Paige Grady, one of Garrett’s best friends, testified that the pair had attended school

together since the time they were in seventh grade. According to Grady, Garrett had many

friends and was very sociable. Garrett and Grady also worked at the same medical supply

company, as the compliance assistant and the chief financial officer, respectively. Garrett was a

dependable worker, and she was always on time for work.

       Grady testified that she also knew Turner and that his personality changed according to

wherever he was. Garrett and Turner dated during high school, but they were “off and on” after

they graduated. Grady said that Garrett and Turner “just kind of [had] a private relationship . . .

not a lot of people knew that they dated.”



                                                 2
       After graduation, Turner moved to Louisiana to attend college, but he returned to

Texarkana in 2019, at which time he gradually began “staying” at Garrett’s house. Grady said,

“So just over time, it was like more and more of his shoes would be in her room, or his clothes

would be on the floor, things like that.”      Grady testified that she had been privy to a

confrontation between Garrett and Turner. According to Grady, she somehow dialed Garrett’s

cell phone number, at which point Grady heard Garrett screaming, “[D]on’t put your F’ing hands

on me.” When Grady attempted to get Garrett’s attention over the phone, Garrett did not

respond. Grady said, “So eventually [Garrett] hung up the phone, and I tried to call her over and

over, and she didn’t answer. So [Garrett] called me back later.” After the confrontation, Grady

told Garrett that she overheard them fighting. Garrett told Grady that Turner was trying to give

her a hug, but Grady did not believe her. On multiple occasions, Grady asked Garrett about what

happened that day, but Garrett did not change her explanation.

       Not long after that, Grady, Garrett, and their friend, Darius Reed, were on their way to

have a night out when Garrett said that she needed to stop by her townhouse to pick up

something.   Grady and Reed were waiting in the car when they “saw a girl walk out of

[Garrett’s] door in SpongeBob pajama pants.” Grady said, “And then shortly after that, [Garrett]

came out, and she was hysterical. And she wouldn’t tell us anything” about what had just

happened.

       From observing Garrett and Turner when they were together, Grady did not believe that

Turner treated Garrett very well. Conversely, Grady felt like Garrett treated Turner “like a

king.” Regardless of Garrett’s hesitancy to tell Grady anything about her relationship with

                                               3
Turner, Grady continued to confront her about what was happening with Turner, but Garrett

continued to remain unreceptive to her inquiries. Eventually, Grady and Garrett had a “falling

out” over Turner’s behavior toward Garrett, which led to the end of their friendship. Grady said

that Garrett would try to “move on” but that Turner “would come back into the picture.”

       Caitlyn Pynes testified that Garrett and Turner’s relationship was in trouble the entire

time they were together. According to Pynes, Garrett was worried that Turner was being

unfaithful to her and that her uncertainties caused tension in Garrett and Turner’s relationship.

For instance, when Turner’s father passed away, Turner gave Garrett different versions of when

and where the funeral would take place. Garrett was afraid to attend but decided that she would

because Turner was her boyfriend. When she arrived at the funeral, Turner was sitting in the

family section with another female. Pynes said, “[Garrett] was crushed and called me crying and

very upset when she left there.” According to Pynes, “[Garrett] gave [Turner] an unreasonable

amount of grace considering his dad,” and there were “no repercussions for doing that.”

       In May 2021, Turner moved out of Garrett’s townhouse without giving her any notice.

Turner then went to live at his mother’s home where he remained until July 2021. During that

time, Turner was arrested and charged with the offense of family violence after he allegedly

assaulted his mother. According to Pynes, Turner had rules that Garrett was required to follow,

such as, not speaking to his mother or anyone else while Garrett was in his mother’s home.

Pynes told Garrett, “[S]tay away from him. That’s not normal.”

       Around 11:00 a.m., on August 12, 2021, Pynes was at work when she received a phone

call from Garrett’s co-workers, Reed and Brooke Kern, asking Pynes if she had spoken to Garrett

                                               4
that day. Although Garrett and Pynes usually talked to one another every day, they had not

spoken to each other that day. Pynes had not received a text from Garrett in response to a text

she had sent her the night before. While Pynes was on the phone, Reed and Kern were on their

way to Garrett’s home to see if she was alright. Initially, they saw that Garrett’s vehicle was at

home. Furthermore, Pynes explained that she and Garrett shared their locations on their iPhones

and that she could see that Garrett’s phone was in her home. Pynes said, at that point, she

became concerned, and she began thinking about leaving work to go check on Garrett.

            By the time Pynes had the opportunity to leave work, the other co-workers had arrived at

Garrett’s home and gone to the door. When Turner answered the door, he told them that Garrett

had not come home the night before. Shortly after that, Turner told Garrett’s co-workers “that he

was going to get food, and he left” in his “black BMW.”

            Before Pynes arrived at the townhouse with a key to Garrett’s home, one of the co-

workers informed Pynes by phone that they were about to use a credit card to enter the

residence.1 Pynes said that the coworker “was walking . . . through her every step on the phone.”

She said, “[O]kay, I’ve got the card. Okay. I’m at the door. And then all you hear is screaming,

like the worst scream you could imagine.” When Pynes arrived at the scene, she said that a co-

worker “was coming out saying, don’t go in.” Ignoring the warning, Pynes “ran inside, and the

first thing [she] could see right when [she] entered the door was [Garrett’s] head on the couch.”

Pynes’s first thought was that Turner might have “just knocked her out.” She continued, “And I

kept walking and got to the foot of the couch and just knew, like, looking at her that she was


1
    Garrett had shown her friends how they could get into her home by using a credit card to unlock the door.
                                                            5
dead.” Pynes collapsed to her knees, and when she looked up, she saw Lindsey, who happened

to be a medical student. Pynes asked Lindsey multiple times if Garrett was breathing, but

Lindsey “just [shook] her head no.” Eventually, Turner returned to Garrett’s home where “he

parked at the end of the street.”2

        That same day, Turner was arrested and charged with Garrett’s murder. The State

alleged in its indictment that Turner murdered Garrett by “impeding the normal breathing or

circulation of” Garrett’s blood by choking her. On January 31, 2023, jury selection took place,

and the trial began later that day. On February 6, 2023, the jury found Turner guilty of murder

and assessed his punishment at life in prison, along with a fine of $10,000.00. This appeal

followed.

II.     The Trial Court Did Not Violate Turner’s Sixth Amendment Right to Counsel

        In his first point of error, Turner complains that the trial court erred when it did not allow

him to secure counsel of his choice. “A criminal defendant has a right to secure counsel of his or

her own choice.” Gilmore v. State,
323 S.W.3d 250, 264
 (Tex. App.—Texarkana 2010, pet.

ref’d) (citing United States v. Gonzalez-Lopez,
548 U.S. 140, 144
 (2006); Wheat v. United States,
486 U.S. 153, 159
 (1988)). “Deprivation of the right is ‘complete’ when the defendant is

erroneously prevented from being represented by the lawyer he wants, regardless of the quality

of representation he received.” United States v. Gonzalez-Lopez,
548 U.S. 140, 148
 (2006).

        However, “the defendant’s right to counsel of choice is not absolute.” Gonzalez v. State,
117 S.W.3d 831, 837
 (Tex. Crim. App. 2003) (citing Wheat,
486 U.S. at 159
). “[W]hile there is

2
The State presented multiple witnesses who were present the day of Garrett’s murder. Their testimony was, for the
most part, consistent with Grady’s and Pynes’s testimony.
                                                       6
a strong presumption in favor of a defendant’s right to retain counsel of choice, this presumption

may be overridden by other important considerations relating to the integrity of the judicial

process and the fair and orderly administration of justice.”
Id.
 (citing Wheat, 486 U.S. at 158–

60). Among other things, “a trial court[] [has] wide latitude in balancing the right to counsel of

choice against the needs of fairness and against the demands of its calendar.” Gonzalez-Lopez,
548 U.S. at 152
 (citations omitted); see Childress v. State,
794 S.W.2d 119, 121
 (Tex. App.—

Houston [1st Dist.] 1990, pet. ref’d) (“This right [to obtain counsel of one’s own choice] cannot

be manipulated so as to obstruct the orderly procedure in the courts and must be balanced with a

trial court’s need for prompt and efficient administration of justice.” (citing Thompson v. State,
447 S.W.2d 920, 921
 (Tex. Crim. App. 1969))); see also Ex parte Windham,
634 S.W.2d 718, 720
 (Tex. Crim. App. 1982).

       As a result, the question before this Court is as stated in Gonzalez, whether the “trial

court[’s actions] unreasonably or arbitrarily interfere[d] with [Turner]’s right to choose his

counsel.” Gonzalez,
117 S.W.3d at 837
.

       As early as the first pretrial proceeding in September 2021, the trial court asked Turner if

he had an attorney to represent him. Turner informed the court that he was in the process of

hiring one, but that he could not do so until he was released from jail. The court asked Turner if

he had the financial ability with which to retain counsel. Turner responded, “Yes, sir, as soon as

I go to misdemeanor court.” The court asked Turner a second time if he would be able to hire an

attorney, explaining to him that it would need to appoint an attorney if he was unable to afford to

hire one.

                                                7
       The following month, during a second pretrial hearing, the trial court stated that Turner’s

family had hired Ron Davis to represent him. Davis did not appear that day, and the court reset

the case to October 25, 2021. On October 25, Davis appeared on behalf of Turner, at which time

Turner informed the court that Davis was not his lawyer. The trial court explained to Turner that

his family had retained Davis. Turner responded, “But I said I wanted to hire my own attorney.”

       Two more pretrial hearings took place with no mention of Turner’s choice of attorney or

that he had been able to hire one. During a May 19, 2022, pretrial hearing, the trial court

informed the parties that the case would proceed to trial on January 31, 2023.

       Two months later, on July 6, Davis appeared for a pretrial hearing without Turner

because Turner had been causing problems in jail.

       On December 5, 2022, at the ninth pretrial hearing, the trial court reminded the parties

that the trial was still set for January 30, 2023, noting, “We’ve been set for six months. So we’re

going January 30th.” Davis informed the trial court that there needed to be a hearing as to who

would represent Turner because Turner had made it clear to Davis that he did not want Davis

representing him. The court informed the parties that it would set the requested hearing on

January 5, 2023. At that juncture, Turner vehemently and repeatedly told the trial court in no

uncertain terms that Davis was not his lawyer. Turner exclaimed, “[T]hat lawyer can’t tell me

sh[*]t.”

       From the initial pretrial hearing in September 2021, Turner complained of Davis’s

representation. He also informed the court that he could hire his own attorney. Almost a year

and three months later, Turner continued to voice his dissatisfaction with Davis’s representation;

                                                8
yet, he never stated the reasons for his dissatisfaction, only that Davis was not his attorney and

that Davis could not “tell [him] sh[*]t.” In sum, Turner had well over a year to hire counsel of

his choosing, but he failed to do so. The trial court had the discretion to weigh Turner’s

continued requests to terminate his relationship with his current counsel against his year-long

failure to hire his preferred counsel. Furthermore, the trial court had a duty to ensure that its trial

calendar moved efficiently and that Garrett’s family was not forced to endure the emotional

upheaval of waiting for Turner’s trial to begin or for the trial to conclude.

       For these reasons, we cannot say that the trial court violated Turner’s right to counsel of

his choice in violation of the Sixth Amendment to the United States Constitution or Article I,

Section 10, of the Texas Constitution. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10.

       We overrule Turner’s first point of error.

III.   The Trial Court Did Not Err When it Denied Turner’s Motion to Suppress

       In his second point of error, Turner maintains that the trial court erred when it denied his

motion to suppress evidence that he contends was illegally seized from Garrett’s home.

       We must affirm the trial court’s ruling on a suppression issue “if it is correct on any

theory of law that finds support in the record.” Carrillo v. State,
235 S.W.3d 353, 356
 (Tex.

App.—Texarkana 2007, pet. ref’d) (citing Osbourn v. State,
92 S.W.3d 531, 538
 (Tex. Crim.

App. 2002)). This is because “[a] trial court’s ruling on a motion to suppress is reviewed for

abuse of discretion.” Kelly v. State,
529 S.W.3d 504, 508
 (Tex. App.—Texarkana 2017, no pet.)

(citing Oles v. State,
993 S.W.2d 103, 106
 (Tex. Crim. App. 1999)). “In performing this review,



                                                  9
we apply ‘a bifurcated standard of review.’”
Id.
 (quoting Myrick v. State,
412 S.W.3d 60, 63

(Tex. App.—Texarkana 2013, no pet.)).

       We give “almost total deference to the trial court’s determination of historical facts that

turn on credibility and demeanor while reviewing de novo other applications-of-law-to-fact

issues.” Carrillo,
235 S.W.3d at 355
 (citing Johnson v. State,
68 S.W.3d 644
, 652–53 (Tex.

Crim. App. 2002); Carmouche v. State,
10 S.W.3d 323, 327
 (Tex. Crim. App. 2000)). We also

“afford nearly total deference to trial courts’ rulings on application-of-law-to-fact questions, also

known as mixed questions of law and fact, if the resolution of those ultimate questions turns on

an evaluation of credibility and demeanor.”
Id.
 (citing Guzman v. State,
955 S.W.2d 85, 89
 (Tex.

Crim. App. 1997) (plurality op.)). We “review de novo mixed questions of law and fact not

falling within this category.”
Id.
 at 355–56 (citing Guzman,
955 S.W.2d at 89
). “[T]he burden

of persuasion is properly and permanently placed upon the shoulders of the moving party. When

a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is

his task to prove his case.” Pham v. State,
175 S.W.3d 767, 773
 (Tex. Crim. App. 2005)

(quoting Mattei v. State,
455 S.W.2d 761, 766
 (Tex. Crim. App. 1970)).

       Article 38.23(a) provides, in part:

       No evidence obtained by an officer or other person in violation of any provisions
       of the Constitution or laws of the State of Texas, or of the Constitution or laws of
       the United States of America, shall be admitted in evidence against the accused on
       the trial of any criminal case.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a).

       Turner argues that Kern, who was one of the first individuals to arrive at Garrett’s home,

illegally entered Garrett’s property in violation of the law. According to Turner, any evidence
                                                 10
that was found after Kern’s unlawful entrance should have been excluded at trial.          “If a

defendant challenges the admissibility of evidence under [Article 38.23(a)] on the ground it was

wrongfully obtained by a private person in a private capacity, the defendant must establish that

the private person obtained that evidence in violation of [the] law.” Mayfield v. State,
124 S.W.3d 377, 378
 (Tex. App.—Dallas 2003, pet. ref’d) (citing Carroll v. State,
911 S.W.2d 210, 220
 (Tex. App.—Austin 1995, no pet.)). However, “[i]f no violation of the law occurred,

[Article 38.23(a)] does not apply.”
Id.
 Therefore, we must determine whether Kern, or any of

her other friends, committed a crime, such as trespass, when they entered Garrett’s house without

her permission.

       The evidence showed that Garrett told her close friends, including Kern, that they were

always welcome in her home, even if she was not there. Furthermore, Garrett showed her

friends how they could enter her home by using a credit card. Moreover, Kern entered Garrett’s

home after Turner told her that Garrett was not there, knowing that Garrett’s vehicle was at the

townhouse, Garrett’s cell phone was inside the home, Garrett was not answering her friends’

repeated phone calls, Garrett’s friends believed Turner had been mistreating her, Turner had left

the scene, and Garrett had given her permission to go inside her home whenever she chose to do

so. Simply stated, no law was broken when Kern entered Garrett’s residence.

       Despite that, Turner argues that he was the last person in the home and that he had not

given Garrett’s friends consent to go inside of the residence. Yet, there was no evidence that

Turner had any ownership interest in the townhouse or that he was a co-tenant with Garrett. To

the contrary, the evidence showed that Turner stayed overnight on some evenings but that, on

                                               11
other nights, he did not stay there. In fact, Turner had moved out of Garrett’s townhouse without

even giving her any notice of his intent to do so. Simply put, the evidence did not show that

Turner had as much of a right to enter Garrett’s home as her friends did; in fact, he may have had

far less.

        For those reasons, the trial court could have determined that Garrett’s friends, including

Kern, did not violate the law when they entered Garrett’s home, and therefore, Article 38.23(a)

did not require the trial court to grant Turner’s motion to suppress. See TEX. CODE CRIM. PROC.

ANN. art. 38.23(a).

        As an alternative argument, Turner contends that the police had no right to enter Garrett’s

home without a warrant and that any evidence they found should have been suppressed. The

State argues that Turner had no standing to object to the entry into, or the search of, Garrett’s

home. We agree with the State.

        “The Fourth Amendment of the U.S. Constitution and Article I, Section 9, of the Texas

Constitution protect individuals from unreasonable searches and seizures.” State v. Betts,
397 S.W.3d 198, 203
 (Tex. Crim. App. 2013) (citing Richardson v. State,
865 S.W.2d 944, 948
 (Tex.

Crim. App. 1993) (plurality op.)). Furthermore, “[t]he rights secured by the Fourth Amendment

and Article I, Section 9, are personal, and accordingly, an accused has standing to challenge the

admission of evidence obtained by an ‘unlawful’ search or seizure only if he had a legitimate

expectation of privacy in the place invaded.”
Id.
 (citing Rakas v. Illinois,
439 U.S. 128, 139

(1978); Richardson, 865 S.W.2d at 948–49). The burden is on the defendant to prove the facts to

demonstrate “a legitimate expectation of privacy.” Villarreal v. State,
935 S.W.2d 134
, 138

                                                12
(Tex. Crim. App. 1996) (plurality op.). “He must show that he had a subjective expectation of

privacy in the place invaded and that society is prepared to recognize that expectation of privacy

as objectively reasonable.” Betts,
397 S.W.3d at 203
 (citing Villarreal, 935 S.W.3d at 138).

        Turner claims that he had standing to object because “[his] attorney asserted [at trial] that

Turner lived in the apartment.” That is argument, not evidence. In the same vein, Turner now

maintains that he had a reasonable expectation of privacy in Garrett’s home and that he had

apparent authority to give consent to enter the home because he “appeared to have been there

that night” and because he answered the door when Kern knocked on it.3 Turner’s claims are

based on speculation. There is no evidence as to when Turner arrived at Garrett’s home, how he

entered it, or even if he had permission to be there. Turner’s argument is meritless.4

        We overrule Turner’s second point of error.

IV.     The Trial Court’s Jury Charge Did Not Contain Error

        Next, Turner argues that he was entitled to a jury instruction pursuant to Article 38.23 of

the Texas Code of Criminal Procedure.

        An Article 38.23 jury instruction is mandatory only when there is a factual dispute

regarding the legality of the search. Pickens v. State,
165 S.W.3d 675, 680
 (Tex. Crim. App.

2005); Brooks v. State,
642 S.W.2d 791, 799
 (Tex. Crim. App. [Panel Op.] 1982); Malone v.

State,
163 S.W.3d 785, 802
 (Tex. App.—Texarkana 2005, pet. ref’d). In order to be entitled to


3
 During the hearing on Turner’s motion to suppress, Turner’s counsel informed the court that he would like to
“outline[] what happened there at the residence of Jennifer Garrett and Travis Turner the morning of August 12th.”
Turner immediately stated, “That wasn’t my legal residence.”
4
 Moreover, there was testimony at trial that officers did not enter the residence until after a search warrant was
signed by a judge.
                                                       13
such an instruction, “the defendant must show that (1) an issue of historical fact was raised in

front of the jury; (2) the fact was contested by affirmative evidence at trial; and (3) the fact is

material to the constitutional or statutory violation that the defendant has identified as rendering

the particular evidence inadmissible.” Robinson v. State,
377 S.W.3d 712, 719
 (Tex. Crim. App.

2012) (citing Madden v. State,
242 S.W.3d 504, 510
 (Tex. Crim. App. 2007)). “Where the issue

raised by the evidence at trial does not involve controverted historical facts, but only the proper

application of the law to undisputed facts, that issue is properly left to the determination of the

trial court.”
Id.

        In his brief, Turner states, “There was a fact issue as to whether the apartment was legally

searched and evidence was legally seized by police.” Specifically, Turner maintains that fact

issues existed as to (1) whether Kern had Garrett’s consent to enter the townhouse, (2) whether

“Turner [had] a reasonable expectation of privacy in the [townhouse],” (3) whether the police

had a valid “search warrant to search the [townhouse] and seize evidence,” (4) “[i]f so[,] what

was the timing and scope of the search warrant with regard to the timing and scope of the

search,” and (5) “[s]ince Garrett was dead, was there still a pending emergency.”

        With the possible exception of whether Kern entered Garrett’s apartment with or without

Garrett’s consent, the remaining asserted issues are legal, not factual. Furthermore, there was no

question that Kern entered Garrett’s apartment by using a credit card and that Kern testified that

Garrett had given her consent to do so; yet, Turner did not offer any affirmative evidence to

contradict Kern’s testimony. In fact, he did not offer any affirmative evidence to controvert any



                                                14
of the alleged historical fact issues. As a result, Turner was not entitled to an Article 38.23 jury

instruction.

         We overrule Turner’s third point of error.

V.       The Trial Court Did Not Err When it Took Judicial Notice of One of Turner’s
         Competency Evaluations When the Evaluator Did Not Testify

         Lastly, Turner argues that the trial court erred when it took judicial notice of an expert’s

report regarding Turner’s competency to stand trial without requiring the expert to appear and

testify during the competency hearing.                According to Turner, the report was inadmissible

hearsay, and its admission violated his right to confront and cross-examine the expert, in

violation of Crawford v. Washington,
541 U.S. 36, 61
 (2004).

         On January 5, 2023, the trial court conducted a competency hearing, where the court

learned that Turner had not cooperated with Dr. Margaret Podkova, who was the mental health

expert that had been hired by Turner to perform his competency evaluation. Podkova testified

that she lacked the necessary information to opine whether Turner was competent, generally, to

stand trial. But she did concede that, because there was a presumption of competence, Turner

was competent on that day to stand trial.5

         Notably, after Podkova unsuccessfully attempted to meet with Turner, Turner’s counsel

provided her with “a large file with police reports, as well as the initial psychological evaluation

5
 Lance Cline, who is an investigator with the Bowie County District Attorney’s Office, testified on behalf of the
State. Cline testified that he had participated in Turner’s case from the beginning. According to Cline, Turner’s
family noticed a distinct behavior change in him shortly after his father passed away. Prior to his arrest for Garrett’s
murder, Turner had been arrested in Texarkana, Arkansas, and was persuaded to go to a substance-abuse facility.
Further, around the time of Garrett’s murder, there had been an ongoing dispute about the distribution of his father’s
property, which included three to four million dollars’ worth of rental property. Cline was asked whether Turner’s
bizarre behavior could have been caused by his alcohol and drug abuse, along with the family’s dispute over his
father’s property, to which Cline answered, “That’s correct.”
                                                          15
by Dr. Smith [that had been prepared on November 17, 2021], as well as the addendum [to that

evaluation], which [she] received” the day before the competency hearing. After reviewing the

evaluation and the addendum, Podkova testified that, without any evidence to the contrary,

Turner was competent to stand trial.

        After hearing from both witnesses, the State asked the trial court to take judicial notice of

Smith’s competency evaluation and the addendum to it. In response, Turner’s counsel stated,

        Judge, I don’t -- procedurally, I object to the introduction of the reports. Of
        course, what we talked about from them is fair game. The person that did -- Dr.
        Smith is not here to be cross-examined, and it’s hearsay because it’s a document
        that would normally not be admitted. The testimony from the doctor would be
        admitted. So we just object to it.

The trial court stated, “I’m going to take judicial notice on the portions that were discussed and

relied on by [Podkova] and discussed in cross and direct.” The trial court then made a finding

that Turner was competent to stand trial.

        Even assuming, without finding, that the trial court erred when it took judicial notice of

portions of Smith’s evaluation in violation of the hearsay rule6 and Crawford,7 Turner has not

shown that he was harmed by the trial court’s ruling. First, the trial court made it clear that it

was taking judicial notice of only those portions of Smith’s report that Podkova relied upon in

making her evaluation. Notably, it was Turner who supplied the file and Smith’s evaluation to

Podkova for her review. Had Turner had problems regarding Podkova’s reliance on Smith’s

6
 “The admission of inadmissible hearsay constitutes non-constitutional error subject to the harm analysis rule under
Texas Rule of Appellate Procedure 44.2(b), which requires the reviewing court to disregard non-constitutional error
that does not affect a criminal defendant’s substantial rights.” Rivera-Reyes v. State,
252 S.W.3d 781, 786
 (Tex.
App.—Houston [14th Dist.] 2008, no pet.) (citing TEX. R. APP. P. 44.2(b)).
7
 Crawford error is constitutional error that is subject to a harm analysis. TEX. R. APP. P. 44.2(a); McNac v. State,
215 S.W.3d 420, 421
 (Tex. Crim. App. 2007).
                                                        16
evaluation, he could have questioned her—and, in fact, he did—about those concerns during the

competency hearing. In addition, while the trial court may have reviewed Smith’s evaluation of

Turner in finding that he was competent to stand trial, there is no indication that it relied only on

Smith’s opinion. Moreover, and as the State points out, Smith was not hired by the State to

evaluate Turner. Had Turner had questions about Smith’s evaluation, he was free to subpoena

him to appear at the hearing. Furthermore, even without the court’s consideration of Smith’s

evaluation, Turner, who had the burden to prove his incompetency, failed to do so. Lastly, the

trial court presided over at least nine pretrial hearings, with Turner being present during the

majority of those proceedings. During that substantial amount of time, the trial court had the

opportunity to observe Turner to consider whether he had a basic understanding of the legal

process and whether he understood the participants’ various roles in that process.

       Because Turner suffered no harm when the trial court took judicial notice of portions of

Smith’s competency evaluation, we overrule his fourth point of error.

VI.    Conclusion

       We affirm the judgment of the trial court.




                                              Charles van Cleef
                                              Justice

Date Submitted:        October 30, 2023
Date Decided:          December 22, 2023

Do Not Publish


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