Martin v. State , 1973 Tex. Crim. App. LEXIS 2058 ( 1973 )

OPINION

ODOM, Judge.

Appeal is taken from an order revoking probation.

On October 5, 1970, appellant pleaded guilty before the court to the offense of driving a motor vehicle upon a public highway while intoxicated, second offense. Punishment was assessed at five years, but the imposition of sentence was suspended and appellant was granted probation.

A motion to revoke appellant’s probation was filed on March 31, 1972, and the same was revoked and sentence pronounced on April 26, 1972.

Appellant’s single contention is that the court abused its discretion in revoking probation in that evidence reflected that appellant was not competent to stand trial and due process required the court to halt the proceeding and conduct a hearing on the competency of appellant to stand trial.

Appellant relies primarily upon his October 29, 1964, commitment to Rusk State Hospital for an indefinite period, which recites that he was “mentally incompetent,” all matters of fact and law having been submitted to the court. The docket sheet of the court below, in the record before us, reflects that a continuance in the primary cause was granted on May 11, 1970, because appellant was at that time in Rusk State Hospital. We also observe that the record reflects appellant was committed to Rusk State Hospital on August 24, 1964, on a writ of commitment for temporary hospitalization as a mentally ill person, for observation or treatment not to exceed 90 days.

All of these factors relied upon by appellant to support his assertion that the court below should have halted the April 26, 1972, revocation proceedings and conducted a competency hearing pre-date the original trial of appellant on October 5, 1970. Furthermore, the court certainly knew appellant was at Rusk when it granted the May 11, 1970, continuance in this cause. Nevertheless, the court accepted appellant’s plea of guilty on October 5, the judgment reciting “it appearing to the Court that the Defendant is sane.” See and compare Holder v. State, Tex.Cr.App., 406 S.W.2d 436. That judgment carries a presumption of regularity and of conformity with the requirements of Article 26.13, Vernon’s Ann.C.C.P. There was no appeal from the conviction and the record before this court does not reflect what inquiry was conducted before appellant’s guilty plea was accepted.¹ That the question of competency was resolved against incompetency at the prior proceedings wherein appellant’s plea was accepted is the only conclusion which may be reached on the record before us. Such finding would of necessity remove any pre-existing presumption arising from appellant’s commitments in 1964. The question before the trial court was appellant’s competence to consult with counsel and understand the proceedings at that time, and once decided in favor of competency, any earlier presumptions to the contrary vanish forever.²

In the instant case this argument is even more compelling, because the guilty plea was accepted by the same judge sitting in the same court as later heard the motion to revoke probation now before us on appeal. Consequently, he could take judicial notice of his prior determination made before accepting appellant’s guilty plea. In such a case as this one, the presumption which would normally arise from a prior judicial determination of mental incompetence simply is no longer of force.

Finding no abuse of discretion by the court below, the revocation of probation is affirmed.

1 . Furthermore, the adequacy of such inquiry is not before us for review, this being an appeal from the revocation of probation and not from the October 5, 1970, conviction. At this date appellant’s recourse, if any, must be by writ of habeas corpus.

2 . The record contains nothing originating during the period between acceptance of appellant’s guilty plea on October 5, 1970, and the revocation hearing on April 26, 1972, which would raise a question concerning his competence to consult with counsel and understand the proceedings at the revocation hearing.