Justin Andrew Kostura v. State

Affirmed and Majority and Concurring Opinions filed June 30, 2009 Affirmed and Majority and Concurring Opinions filed June 30, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00386-CR ____________ JUSTIN ANDREW KOSTURA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 263rd District Court Harris County, Texas Trial Court Cause No. 1131519 M A J O R I T Y   O P I N I O N Appellant Justin Andrew Kostura was convicted following a bench trial of indecency with a child and sentenced to twenty-five years= imprisonment. In his sole issue on appeal, he contends that the trial court erred by not conducting a competency inquiry sua sponte. We affirm. Appellant was released from prison in July of 2007. In September of 2007, the State charged appellant with indecency with a child, his cousin=s daughter, who was two years old at the time of the offense. At trial, the child=s mother testified that she witnessed appellant place his hand inside the child=s diaper and rub the child=s genital area. Appellant testified that he had not rubbed the child=s genitals, but had merely checked the side of the child=s diaper to see if it was wet because he had smelled a stench. The trial court found appellant guilty and recessed the trial for preparation of a pre-sentencing investigation report (PSI). To supplement the PSI, appellant=s trial counsel prepared a Sentencing Memorandum, which summarized medical records from appellant=s previous incarceration as follows: Diagnosis; Schizoaffective Disorder Impulse Control Disorder 03/17/06 [Appellant] striking knuckles against edge of bed. 10/25/06 [Appellant] derailing himself from sessions with hyperreligious and witchcraft themes, Athe devil got him . . . .@ 10/27/06 [Appellant] complaining about repetitive noises, said it=s like physical pain 11/02/06 [Appellant] hearing voices for a long time, [appellant] requesting more medication 11/03/06 [Appellant] states stepfather abused him, also cut himself on the chest, hearing voices, feeling paranoid and depressed 11/05/06 Hears voices like a whisper 11/07/06 Having hallucinations, [appellant] is depressed, hears voices and sees shadows 11/13/06 I am real paranoid and hear voices, [appellant] states he is good and bad 11/16/06 Still hearing murmuring voices, mood changes to mad to sad, has not hurt himself since moving to Jester IV 11/28/06 Partial remission psychoticChearing voices and tremors in hands 09/27/07 Mutilation to left upper chest, laceration 2 inches long 10/06/07 [Appellant] seen with laceration to left upper chest, [appellant] said Ahe had a fight with the devil.@ [Emphasis added]. However, the medical records summarized by and attached to the sentencing memorandum reveal that the last two incidents occurred in September and October of 2006, rather than in 2007, as reported by appellant=s trial counsel. Also, the medical records and trial testimony show that appellant=s previous incarceration ended in July of 2007. At the punishment hearing, appellant=s mother testified that he was treated at the Mental Health and Mental Retardation Authority (MHMRA) when he was younger. She also testified that appellant had been diagnosed with bipolar schizophrenia during his prior incarceration. Neither the parties nor the trial court raised the issue of appellant=s competence to stand trial. Appellant now asserts that the trial court erred by not conducting a competency inquiry sua sponte. We review a trial court=s failure to conduct a competency inquiry for an abuse of discretion. Lahood v. State, 171 S.W.3d 613, 617B18 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d); see also Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A defendant is not competent to stand trial if he lacks (1) a sufficient present ability to consult with his attorney with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (Vernon 2006). If evidence raising a bona fide doubt as to the defendant=s competence to stand trial comes to the trial court=s attention, the trial court shall sua sponte Asuggest that the defendant may be incompetent to stand trial@ and then Adetermine 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.@ Id. art. 46B.004 (Vernon 2006); See Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008). A bona fide doubt is Aa real doubt in the judge=s mind as to the defendant=s competency.@ Alcott v. State, 51 S.W.3d 596, 599 n.10 (Tex. Crim. App. 2001). Evidence raising a bona fide doubt Aneed not be sufficient to support a finding of incompetence and is qualitatively different from such evidence.@ Id. Evidence is usually sufficient to create a bona fide doubt if it shows Arecent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.@ McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003). Here, appellant argues that the sentencing memorandum contained evidence of recent severe mental illness and truly bizarre acts that should have created a bona fide doubt as to appellant=s competency, such that the trial court erred by failing to conduct a competency inquiry sua sponte. As noted above, our review of the medical records summarized in the sentencing memorandum shows that appellant=s trial counsel apparently erred by reporting two incidents as occurring in 2007, because the incidents were actually documented as occurring in 2006. Indeed, it is clear from the record that appellant=s incarceration at the facility where the records were taken ended well before the dates reported in the summary. Appellant relies on that error to argue that the trial court was presented with evidence that appellant suffered from a recent, severe mental illness within four months of the trial date, February 15, 2008. However, the records reflect that the most recent incident summarized actually occurred over fourteen months prior to the date of trial. Therefore, while the evidence showed that appellant had been diagnosed with a severe mental illness, no evidence suggested the illness was recent. See Brown v. State, 129 S.W.3d 762, 766 (Tex. App.CHouston [1st Dist.] 2004, no pet.) (finding no evidence of recent incompetency where evidence showed mental, behavioral, and cognitive impairments that did not occur within year of trial); Thompson v. State, 915 S.W.2d 897, 902 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d) (holding that depression and suicide attempts more than nine months prior to trial did not amount to recent severe mental illness and did not trigger competency inquiry). Moreover, appellant=s past history of mental illness and bizarre behavior did not mandate a competency inquiry absent evidence raising a bona fide doubt as to appellant=s present ability to communicate or understand the proceedings. See Lahood, 171 S.W.3d at 618; Brown, 129 S.W.3d at 766. Appellant=s attorney offered the evidence in the sentencing memorandum and through appellant=s mother in mitigation of punishment. At no point did the attorney complain of any inability to communicate with appellant, and there is no indication in the record that appellant=s behavior or comprehension during trial were abnormal. See Thompson, 915 S.W.2d at 902. To the contrary, the evidence produced at punishment was preceded by appellant=s lucid trial testimony, which showed him to be communicative and capable of (1) addressing the State=s accusations and evidence, (2) understanding the charges, and (3) mounting a plausible defense based on his reasonable alternative version of events and knowledge of medical terminology. See Ryan v. State, 937 S.W.2d 93, 106 (Tex. App.CBeaumont 1996, pet. ref=d) (holding that appellant=s trial testimony is a Agood barometer@ of competence); see also McDaniel, 98 S.W.3d at 712 (noting, in reviewing whether evidence raised bona fide doubt requiring competency inquiry, that lucid testimony on the part of a defendant has often been viewed as important in determining that defendant is competent to stand trial). In support of his sole issue, appellant cites Greene v. State, 225 S.W.3d 324, 329 (Tex. App.CSan Antonio 2007). But as appellant points out, Greene=s trial testimony was Aof the most bizarre quality,@ and although the Greene court noted the evidence of Greene=s schizophrenia, it ultimately held that AGreene=s trial testimony should have alerted the trial court of the possibility that Greene was incompetent.@ Id. at 329 (emphasis added). Unlike the situation presented in Greene, here appellant=s trial testimony demonstrated that he was competent at trial, and the punishment evidence regarding his past impairments was insufficient to create a bona fide doubt mandating a competency inquiry. We therefore hold that the trial court did not abuse its discretion by failing to conduct such an inquiry sua sponte. We overrule appellant=s sole issue. Having overruled appellant=s sole issue, we affirm the trial court=s judgment. /s/ Leslie B. Yates Justice Panel consists of Justices Yates, Guzman, and Sullivan. (Sullivan, J. concurring). Publish C Tex. R. App. P. 47.2(b).