Tullos, Clayton v. State

Affirmed and Memorandum Opinion filed August 15, 2006 Affirmed and Memorandum Opinion filed August 15, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00356-CR NO. 14-05-00357-CR ____________ CLAYTON TULLOS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1003376 and 1003377 M E M O R A N D U M   O P I N I O N Appellant Clayton Tullos asserts that the trial court erred in accepting his pleas of guilty in two aggravated assault cases and proceeding to sentencing without sua sponte ordering a mental competency hearing. We affirm. I. Factual and Procedural Background Appellant was charged with the felony offense of aggravated assault in two separate cause numbersB1003376 and 1003377. Appellant pleaded guilty to both charges without an agreed recommendation from the State as to punishment in either case. A pre-sentence investigation report was prepared and submitted to the trial court in both cases. The trial court found appellant guilty as charged in both cases, and assessed punishment at three years= confinement in each case, for a total of six years= confinement. II. Issue Presented In a single issue, appellant contends that the trial court abused its discretion in failing to sua sponte inquire into his competency prior to sentencing because he had a history of mental illness, was not stable unless on medication, and allegedly had difficulty understanding the proceedings. III. Analysis We review a trial court=s failure to conduct a competency inquiry under an abuse-of-discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App.); LaHood v. State, 171 S.W.3d 613, 617B18 (Tex. App.CHouston [14th Dist.] 2005, no pet.). A person is presumed competent to stand trial and shall be found competent to stand trial unless proven incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon Supp. 2004‑05) (formerly codified at Tex. Code Crim. Proc. Ann. Art. 46.02 (Vernon 1979)). A defendant is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding, or (2) a rational and factual understanding of the proceedings against him. Id. art. 46B.003(a). When, as in this case, a defendant pleads guilty, the trial court is not required to hear evidence concerning competency unless the issue is raised at that time. See Kuyava v. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976); Godoy v. State, 122 S.W.3d 315, 320 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d). Article 46B.0004 of the Code of Criminal Procedures provides, in pertinent part, as follows: (a) Either party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial. A motion suggesting that the defendant may be incompetent to stand trial may be supported by affidavits setting out the facts on which the suggestion is made. (b) If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial. (c) On suggestion that the defendant may be incompetent to stand trial, the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. Art. 46B.004 (Vernon Supp. 2005). A Acompetency,@ inquiry is required only if the evidence brought to the judge=s attention raises a bona fide doubt in the judge=s mind about the defendant=s competency to stand trial. Id. art. 46B.004; McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003). A Abona fide doubt@ is a Areal doubt in the judge=s mind as to the defendant=s competency.@ Mata v. State, 632 S.W.2d 355, 358 (Tex. Crim. App. 1982). In the inquiry, the court must determine whether there is Asome evidence@ to support a finding of incompetency, and, if the court so finds, it then must commence a hearing. McDaniel, 98 S.W.3d at 710; see also Tex. Code Crim. Proc. Ann. arts. 46B.005(b), 46B.051. The requirements of each step must be fulfilled before the next step becomes applicable. McDaniel, 98 S.W.3d at 710‑11. Evidence capable of creating a bona‑fide doubt about a defendant=s competency may come from the trial court=s own observations, known facts, evidence presented, motions, affidavits, or any other credible source. Brown v. State, 129 S.W.3d 762, 765 (Tex. App.CHouston [1st Dist.] 2004, no pet.). If evidence warrants a competency hearing, and the trial court denies such a hearing, the defendant is deprived of his constitutional right to a fair trial. See Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 945, 15 L.Ed.2d 815 (1966). When the record does not demonstrate that a defendant lacked ability to consult with his counsel or ability to comprehend the proceedings factually and rationally, an appellate court will not conclude a trial court abused its discretion by not conducting a competency inquiry. McDaniel, 98 S.W.3d at 712. A defendant=s mere assertion that he is incompetent, without supporting facts or evidence, is not sufficient to require a sua sponte competency inquiry. Id. Likewise, evidence of a defendant=s drug addiction, depression, or attempt at suicide can be insufficient to raise a bona fide dispute concerning the defendant=s competency to stand trial. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999) (holding that defense counsel=s comments on defendant=s courtroom outbursts and unspecified allegations of difficult communication with defendant were insufficient to require competency hearing); Reeves v. State, 46 S.W.3d 397, 399B40 (Tex. App.CTexarkana, 2001, pet. dism=d) (concluding that although there was evidence regarding defendant=s drug addiction and a suicide attempt, this evidence did not reflect on her ability to understand or participate in the proceedings on that day). Similarly, a defendant=s memory gaps concerning the events of a crime do not necessarily give rise to a bona fide dispute concerning competency. See Jackson v. State, 548 S.W.2d 685, 691 (Tex. Crim. App. 1977). Nothing in the record of appellant=s plea hearing triggered a duty in the trial court to conduct a competency hearing. The trial court=s questions to appellant and appellant=s responses show that appellant understood the charged offenses, had signed each of the waivers of his right to a jury trial, realized the full range of sentences and fines that could be assessed as punishment for each offense, and that he still wished to plead guilty to the charged offenses. Appellant contends that the testimony by Carol Morgan at the sentencing hearing raised a bona fide doubt as to appellant=s competency. Ms. Morgan testified that appellant suffered from chronic schizophrenia and that three weeks before the charged offenses, he was undergoing treatment at the Harris County Psychiatric Center. She further testified that appellant did not appear to be completely stable when he was released from the center. Although appellant may have been on psychiatric medication and had a history of mental problems, we cannot conclude from the record that this condition affected his ability to communicate with his attorney or to understand proceedings against him at the time he actually entered his guilty pleas. At the end of the sentencing hearing, the court gave appellant the opportunity to speak and he offered a few words in his own defense. When asked by the court why he pleaded guilty, appellant stated, ABecause, I felt that I was stressed from my work; and plus, I had to go get my medication; and then, I am there; it=s just a big problem living around family... .@ Appellant=s statements do not reflect a lack of understanding on his part. His response, though inarticulate, indicates that he comprehended the question. His answer, though ineffective, was not irrational and was not the type of response that would have alerted the trial judge to question his competency. See Donnell v. State, 148 S.W.3d 674, 676 (Tex. App.CBeaumont 2004, no pet.) (finding that although statements by defendant may have been ineffective, they were not irrational and did not necessarily alert the trial court to the possibility of an issue regarding competence). The record, taken as a whole, also shows that appellant understood the proceedings, as well as the trial court=s statements and his counsel=s recommendations. Nothing in the record raised a bona fide doubt as to appellant=s competence. See Brown, 129 S.W.3d at 766 (concluding the evidence that defendant had history of mental and behavioral impairments, that he had been diagnosed with Attention Deficit Hyperactivity Disorder, that he previously had been treated with various medications, and that he suffered inability to recall past events or circumstances of robbery, did not create bona‑fide doubt about defendant=s competency to stand trial for aggravated robbery, so as to warrant a competency inquiry). Therefore, we conclude the trial court did not err in failing to sua sponte order a mental competency hearing. We overrule appellant=s sole issue on appeal and affirm the judgments of the trial court. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed August 15, 2006. Panel consists of Justices Anderson, Edelman, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).