Judge to decide whether Rubio is fit for retrial

BROWNSVILLE - A state district judge wants to determine whether John Allen Rubio, accused of killing his three children, is competent to stand trial before moving forward on his capital murder case.

Judge Arturo C. Nelson on Thursday scheduled a jury trial for Sept. 8 to determine whether Rubio is mentally capable to be retried.

Rubio, 29, made no comments during Thursday's hearing. He listened as the legal issues were discussed and also appeared to be writing either notes or doodling.

He is accused of killing his three children on March 11, 2003. The children were smothered, stabbed and mutilated, according to investigators.

If Rubio's capital murder trial moves forward, it is believed Rubio will use an insanity defense, as he used at his first trial in November 2003, court observers have said.

Rubio had been scheduled to stand trial again next month on three counts of capital murder. His new trial was initially set to begin in August last year, but was reset to November because legal motions were pending.

It was rescheduled to begin next month. Now, it's unclear when he will be retried.

During Thursday's hearing, Nelson also informed attorneys that he wants the case to be tried this year once Rubio's competency issues have been resolved.

"If he is found competent, we are going to be trying the case this year," Nelson said.

Because a gag order, attorneys are prohibited from commenting.

Rubio was convicted in November 2003 of three counts of capital murder in the deaths of his children Julissa Quesada, 3, John E. Rubio, 14 months and Mary Jane Rubio, 2, months. He pleaded not guilty by reason of insanity during the trial and was sentenced to death.

However, the conviction was reversed by the Texas Court of Criminal Appeals in September 2007, thereby granting him a new trial. He remains jailed at the Carrizalez-Rucker Detention Center in Olmito.

On Thursday, Nelson also said he will look for alternate venues for Rubio's capital murder trial if he is deemed competent to stand trial.

Although Nelson said he has not decided whether he will grant the defense's motion for a change of venue, he wants to search to be prepared. The venue issue will be discussed in a hearing scheduled for Aug. 13.

Nelson said if the court cannot find enough potential jurors who are unfamiliar with the case, he may move the trial from Cameron County.

"I'm not sure which way it is going to go" as of now, he said.

Rubio is being represented by court-appointed defense attorneys Ed Stapleton and Nat Perez, who filed motions last year seeking a change
of venue because of pretrial publicity.

Although Nelson denied their motion at that time, he said he reserved the right to order a change of venue at a later date if necessary.

Rubio's common-law wife and the children's mother, Maria Angela Camacho, was found guilty for her part in the killing and sentenced to life in prison.