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 1999-05

Jesse Avalos v. State ( 1999 )


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  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    NO. 03-97-00780-CR

    Jesse Avalos, Appellant


    v.



    The State of Texas, Appellee







    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

    NO. 0971204, HONORABLE FRED A. MOORE, JUDGE PRESIDING

    A jury found appellant Jesse Avalos guilty of aggravated sexual assault of a child and assessed his punishment at ten years' imprisonment. See Tex. Penal Code Ann. § 22.021(a)(1)(B), (a)(2)(B) (West Supp. 1999). Appellant's primary contentions on appeal are that the trial court erred by denying his motion for continuance, failing to conduct a hearing on his competency to stand trial, failing to grant him a new trial, and admitting improper evidence. We will affirm.

    BACKGROUND (1)

    In a pretrial motion, appellant moved for the appointment of a psychological expert to assist in the preparation of his defense. The trial court granted this request by written order July 15, 1997, and the case was set for a jury trial in September. On the trial date, appellant requested a continuance because the court-appointed psychologist had not completed his evaluation of appellant. The trial court granted this request and rescheduled the trial for October 13.

    On October 10, appellant moved ex parte for the appointment of an additional expert; the trial court granted the motion and allocated appellant funds to secure an expert. On October 13, the morning trial was scheduled to begin, appellant filed his second motion for continuance, alleging the discovery of new evidence for a new defense. During the October 13 hearing on appellant's motion for continuance, appellant's attorneys explained to the court that their first expert indicated to them on October 10 that appellant required additional evaluation by other experts. Upon learning this, appellant's attorneys immediately requested that additional experts be appointed, and the trial court granted the motion around 4:30 p.m. on Friday afternoon. Appellant's attorneys explained that they had not been able to have appellant evaluated over the weekend and that one of their new experts would not be able to evaluate him until Wednesday, October 15. The attorneys refused to provide the trial court with more specific grounds for the continuance in open court and instead requested an ex parte hearing, citing Ake v. Oklahoma, 470 U.S. 68 (1985). (2) The trial court denied the request for an ex parte hearing, questioned appellant in open court, then denied appellant's motion for continuance.

    The case proceeded to trial as scheduled on October 13. On October 15, the jury returned its guilty verdict. Appellant had elected to have his punishment assessed by the jury, and the trial court instructed the jury to return the next morning for the punishment phase. Court recessed at approximately 2:00 p.m. and appellant was examined later that day by a mental health expert, Ray Johnson. (3)

    The following morning, before the jury was seated, the State presented to the trial court six witnesses who were going to testify regarding extraneous matters during the punishment proceeding. Appellant's counsel then called Ray Johnson, an unlicensed psychologist, explaining to the trial court that: "Last night you gave us a few hours to have our client examined by an expert. He has been examined and it is the opinion of Mr. Johnson, who examined him, that he is not competent." Johnson then testified that appellant has mild mental retardation and suffers from impulse control disorder. Johnson stated that based on his examination the previous evening, he had formed the opinion that appellant did not have a rational as well as a factual understanding of the proceedings against him because he did not factually understand what was occurring. He also testified that he was "not very sure" that appellant had a present sufficient ability to consult with his lawyers with a reasonable degree of rational understanding, because he was not sure appellant had a rational ability to consult with his lawyers. (4) Johnson was cross-examined by the State, and the trial court questioned Johnson as well. Upon conclusion and before the jury entered, the prosecutor inquired whether the trial court, based on the testimony that had just been brought to his attention, was making findings regarding appellant's competency to stand trial. The trial court judge responded:



    I don't know what the man was offered for. . . . I have never had anybody raise the issue right in the middle of trial. . . . I don't know why it was not raised until this time.



    My position is that I have got to do something with this jury because he gets several bites at the apple if I let this jury go. Then we go determine competency. I am going to finish this case with this jury, then I will worry about what I want to do with the evidence that has been brought to me about competency.





    (Emphasis added.)

    Appellant did not request the trial court to empanel a competency jury, did not request a mistrial, and did not object to the trial court's decision to defer the competency hearing. Defense counsel did attempt to clarify to the trial court that he previously "had suspicions" about appellant's competency but had not brought it up until this time because Johnson had not been available to examine appellant until the previous day. The attorneys then discussed with the trial court the parameters of Johnson's testimony in front of the jury sitting for the punishment; the trial court ruled that Johnson could discuss appellant's mental abilities but could not present his opinion regarding appellant's competency to stand trial because that "is for another jury."

    The parties presented ten punishment phase witnesses to the jury, and the jury began deliberating at approximately 2:30 p.m. The jury returned with a verdict on punishment that same day, assessing appellant ten years' imprisonment. After the trial court dismissed the jury, he stated, "I am not going to adjudicate any guilt at this time. I am not going to proceed to a sentence at this time because of what Mr. Johnson told us. We are going to recess until Monday week, which is the 27th, I believe." He then explained to appellant's attorney that he was going to permit an expert for the State to examine appellant for the limited purpose of determining whether appellant was competent to stand trial. The trial court stated that appellant's attorney had presented a "serious problem" that needed to be resolved:



    I am talking about the initial finding of whether there is evidence to support us getting to a jury on competency. . . . I haven't made a determination yet.





    (Emphasis added.) Appellant made no objection to the trial court's postponing the decision and did not request a trial to determine competency.

    Court reconvened October 27, and the trial court explained:



    The hearing we are here for today is to determine whether there is any evidence before the court, a scintilla of the evidence to show that Mr. Avalos is incompetent. . . . My understanding of what I am supposed to do now is determine whether there is any evidence that he is incompetent and it is [sic] the type of evidence that would get us to a fact determination of competency.





    The prosecutor agreed that this was his understanding as well, but appellant's attorney stated: "That is not my understanding." When the trial court asked appellant's attorney what he understood the proceeding to be, the following exchange took place:



    Defense Attorney: My understanding is that it is very clear to the State, if not to the Court, that error has been committed in this case. The code is clear. Article 46.02 requires that a mistrial be declared. It wasn't. I don't know what these proceedings are for. . . . It is true you are supposed to see if there is any evidence, even a scintilla of evidence that he is incompetent. You have that and you had it at trial and that was the time to declare a mistrial. . . . I think we are here because the State is going to try to show the harmlessness of the error which occurred at trial.



    The Court: What was the error?



    Defense Attorney: The failure to declare a mistrial and to impanel a trial [sic] for competency.



    The Court: That's what we are here for now.



    Defense Attorney: Well, there is no jury. It is a hearing.



    The Court: To decide if there is an issue raised.



    Defense Attorney: There was and the time has passed. We have error in the court. This proceeding is illegal.





    When the trial court asked appellant's attorney if he wanted the trial court to declare a mistrial, counsel stated: "you can't declare a mistrial now." When queried what he wanted the trial court to do, appellant's attorney stated, "I am not here on our motion." He stated that he was not asking for a hearing on competency because it had already been held when Johnson testified, and following Johnson's testimony the trial court was obligated to declare a mistrial. The trial court disagreed and explained that he wanted to hear anything appellant had to add to Johnson's previous testimony. Appellant's attorney stated that he had nothing to present. The State presented one witness and appellant's attorney declined to cross-examine him. The trial court then asked: "Now, does the defense claim that the gentleman is incompetent and do you want a jury trial on competency, and, if so, is Mr. Johnson going to testify?" Appellant's attorney responded: "Judge, I think we are going to have to remain silent on all of those issues." The trial court reminded him that it was appellant's burden to produce evidence that he was incompetent to stand trial.

    The State requested that the trial court pronounce sentence on appellant because of appellant's failure to take a position as to his competency. The trial court first requested that the State explain the State's expert's opinion. (5) Appellant objected to the prosecutor's testimony on the basis that it was inadmissible hearsay, that it violated appellant's constitutional right to confront adverse witnesses, and that appellant had consulted with the expert prior to the State's request that the expert examine appellant. The trial court responded that the rules of evidence did not apply in competency hearings. The prosecutor testified that the expert specifically stated that he had not been retained by appellant, and the trial court overruled all of appellant's objections. The prosecutor then explained to the trial court that the State's expert expressed the opinion that, although one had to speak slowly to appellant, he was competent because he had a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and had a rational as well as factual understanding of the proceedings against him. In response to a question, the prosecutor admitted he did not know the exact questions the expert asked appellant.

    Appellant's attorney indicated that he did not have any evidence to present in rebuttal or otherwise, and stated again that the State was using the hearing as an opportunity to cure the trial court's error in failing to declare a mistrial earlier. The State offered argument to the trial court as to why Johnson's testimony was insufficient to require a jury trial on the issue of appellant's competency. The trial court again questioned appellant's counsel: "Are ya'll claiming he is incompetent? I don't really understand." Appellant's counsel responded: "We can't really take a position one way or the other. What we did was we raised the issue. That's what we are obligated to do and we did it." The trial court was obviously frustrated by appellant's position and observed that appellant's refusal to offer evidence during the hearing left him with:



    no reason to believe the defense . . . would . . . present any evidence at a jury trial where they have the burden on incompetency because evidently, they wish to preserve their error on the manner in which I addressed it when we got to the defense evidence on punishment, which is when Mr. Johnson testified. Therefore, I am in a no-win situation. I am not going to call a jury in when no one is asking me to do it. . . .





    (Emphasis added.) The trial court determined that there was not a scintilla of evidence to establish appellant's incompetency and closed the competency hearing. The trial court then adjudicated appellant's guilt and sentence.

    Appellant filed a motion for new trial November 14. The motion alleged that the trial court erred by failing to declare a mistrial when it was presented with more than a scintilla of evidence of appellant's incompetency to stand trial. Attached to the motion was the affidavit of Gary Aitcheson, a mental health expert, who averred that it was his opinion that appellant was not competent to stand trial at the time of trial. The trial court held a hearing on the motion on December 5 and at appellant's request the trial court took judicial notice of Ray Johnson's testimony. The trial court also admitted into evidence the previously mentioned affidavit, along with the affidavits of two other experts, all of whom concluded that appellant was incompetent to stand trial at the time of trial. These three affidavits were presented to the trial court for the first time pursuant to appellant's motion for new trial. The trial court took judicial notice of a letter filed by the State's expert regarding his opinion that appellant was competent to stand trial. Finally, the trial court denied appellant's motion for new trial, and appellant perfected this appeal.



    DISCUSSION

    Competency Issue

    Appellant raises three issues on appeal regarding the treatment of his competency issue in the trial court. He argues that the trial court erred: (1) by failing to postpone the trial and empanel a second jury to determine appellant's competence as soon as the trial court heard Ray Johnson's testimony; (2) by permitting the prosecutor to testify during the October 27 hearing as to what the State's expert stated to the prosecutor regarding appellant's competency to stand trial; and (3) by failing to grant a new trial or order a formal competency hearing when appellant presented uncontradicted evidence of his incompetency to stand trial during his motion for new trial.

    It is well settled that the conviction of one who is legally incompetent to stand trial violates due process of law. See Pate v. Robinson, 383 U.S. 375, 378 (1966). Article 46.02 of the Texas Code of Criminal Procedure governs the procedure for making a competency determination. See Tex. Code Crim. Proc. Ann. art. 46.02 (West 1979). Section 2(b) dictates the procedure when the issue of incompetency is raised after trial begins:



    If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.





    Id. § (2)(b). While it is clear that evidence of incompetency may be brought to the trial court's attention "from any source," the court of criminal appeals has held that a section 2(b) hearing is required only if the evidence brought to the trial court's attention raises a bona fide doubt in the trial court's mind as to the defendant's competency to stand trial. See Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997). (6) After the section 2(b) hearing, the trial court must determine "whether there is some evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion of competency." Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980).

    If a bona fide doubt is raised in the trial court's mind regarding incompetency under section 2(b), and the trial court determines after a hearing that there is some evidence to support a finding of incompetency to stand trial, section 4(c) requires the trial court to empanel a jury to determine the issue; however, the trial court is allowed to set the issue for determination "at any time prior to the sentencing of the defendant." Tex. Code Crim. Proc. Ann. art 46.02, § (4)(c) (West 1979) (emphasis added). Only if the defendant is found incompetent to stand trial after the beginning of the trial on the merits must the trial court declare a mistrial in the trial on the merits. See id. The trial court's decision not to empanel a jury to determine competency is reviewed under an abuse of discretion standard. See Moore v. State, No. 72,638, slip op. at 5 (Tex. Crim. App. April 21, 1999) (citing Garcia v. State, 595 S.W.2d 538 (Tex. Crim. App. 1980)).

    Appellant contends in issue two that the trial court erred by failing to postpone the punishment phase of the trial on the merits and empanel a second jury upon hearing Ray Johnson's opinion that appellant was not competent to stand trial. We note first that appellant did not ask the trial court for this or any other relief at the time. He did not move for a continuance or request the court to empanel a competency jury, and he did not object to the court's continuation of the punishment phase. Instead, after conclusion of the punishment phase he complained from that point forward that the trial court should have ordered a mistrial following Johnson's testimony, although he never moved for a mistrial. In any event, appellant's contention is without merit. The statements on the record recited above establish that at the conclusion of Johnson's testimony, the trial court had not decided whether there was enough evidence to require that he empanel a jury and he postponed that decision until a later time. See Moore, slip op. at 7 (trial court has discretion as to when to conduct initial inquiry when issue raised during trial). Appellant first presented Johnson's surprise testimony during a pretrial hearing for the punishment phase when the trial court was considering other matters and witnesses relating to punishment, not competence. The trial court did not evaluate Johnson's testimony at that time to determine whether it supported a finding of incompetency to stand trial, and the proceeding did not constitute a section 2(b) hearing. See Casey v. State, 924 S.W.2d 946, 948 (Tex. Crim. App. 1996) (raising issue of incompetency is not equivalent to receiving section 2(b) hearing when trial court does not evaluate evidence to determine if it supports a finding of incompetency to stand trial). Appellant's attempts to characterize Johnson's testimony and the discussion surrounding his testimony as the section 2(b) hearing ignores the trial court's clear announcement that it was postponing a decision on the competency question.

    Even if Johnson's testimony could constitute a section 2(b) hearing, article 46.02, section 4(c) plainly permits the trial court to empanel a jury to decide the issue of competency at any time thereafter, prior to the sentencing of the defendant. See Tex. Code Crim. Proc. Ann. art. 46.02, § 4(c) (West 1979). The court of criminal appeals has recently addressed this issue:



    Article 46.02, § 4(c) contemplates that when the issue [of incompetency] is raised in a manner other than pretrial under § 2(a), the trial court is to determine whether there is evidence to support a finding of incompetency to stand trial. Section 4(c) does not necessarily require a halting of proceedings and a separate determination on competence. Rather, trial judges have discretion to decide when to conduct an inquiry. If as a result of the inquiry the trial judge determines that there is evidence to support a finding of incompetence to stand trial, the court is free to set the issue for hearing at any time prior to the sentencing of the defendant.





    Moore, slip op. at 7 (citing Williams v. State, 663 S.W.2d 833, 834 (Tex. Crim. App. 1984)). Accordingly, we hold that the trial court did not abuse its discretion by proceeding with the punishment phase and postponing adjudication and sentencing until the court could determine whether there was evidence to support a finding of competency, and, if so, to hold a competency hearing. Appellant's second issue is overruled.

    Appellant complains in issue three that the trial court erred by permitting the prosecutor to testify during the October 27 hearing as to what the State's expert had told him regarding appellant's competency to stand trial, in violation of the rules of evidence and appellant's constitutional right to confront his witnesses. The Texas Rules of Criminal Evidence, applicable at the time of the hearing, specifically provided that the rules of evidence did not apply to an article 46.02 hearing held to determine whether there is sufficient evidence of incompetency to require a jury determination of the issue. See former Tex. R. Crim. Evid. 1101(c)(3)(B). (7) Appellant's constitutional complaint is likewise without merit. An accused has the right, under both the federal and state constitutions, to confront his accusers. See U.S. Const. amend. VI, XIV; Tex. Const. art I, § 10; see generally Long v. State, 742 S.W.2d 302 (Tex. Crim. App. 1987). A psychiatrist who determines the accused's competency to stand trial is not an accuser. See Villareal v. State, 860 S.W.2d 529, 535 (Tex. App.--Corpus Christi 1993, pet ref'd). Furthermore, informing the court of an expert's opinion and how the witness will testify at a competency hearing in no way infringes the accused's right to cross-examine that witness at the future hearing.

    Appellant further argues within this issue that if the October 27 hearing could be characterized as a section 2(b) hearing, Johnson's testimony constituted more than a scintilla of evidence that appellant was not competent to stand trial and the trial court should then have empaneled a jury for a formal competency hearing. However, this issue is not properly raised as an independent ground of appeal in appellant's brief. Furthermore, we note that appellant never asked for this relief, although given the opportunity to do so, and his counsel expressly waived this complaint during the October 27 hearing. When the trial court inquired whether appellant wanted a jury trial on competency, counsel responded, "Judge, I think we are going to have to remain silent on all those issues." The trial court attempted to continue with the hearing and the State presented its evidence. The trial court then asked, "Okay. The defendants--I don't know who has the burden in this anymore because the defense doesn't want me to do anything. Is that right?" Appellant's counsel responded, "Yes. That's right." The trial court stated at the conclusion of the State's argument: "I am not going to call a jury in when no one is asking me to do it." The trial court subsequently determined that appellant had not raised a scintilla of evidence that he was not competent to stand trial.

    Despite the tortured proceedings throughout the various hearings, appellant nevertheless asserts by footnote in his brief that: "Regardless of what defense counsel did, because the court had before it more than a scintilla of evidence that Appellant was incompetent, it had a duty to proceed to a formal competency hearing." Based on the facts before us, we cannot say that the trial court abused its discretion by failing to empanel a jury to determine appellant's competency when appellant made clear his position that further proceedings were illegal and that he did not intend to participate or present any proof as to his competency then or in the event the trial court held such a proceeding. Appellant's third issue is overruled.

    Finally, appellant contends in issue four that the trial court erred by failing to grant a new trial or order a formal competency hearing when appellant presented uncontradicted evidence of his incompetency to stand trial during his motion for new trial. The competency hearing must be held before sentencing; therefore, the trial court did not err by failing to order a competency trial at the time it heard the motion for new trial. See Tex. Code Crim. Proc. Ann. art. 46.02, § 4(c).

    Appellant's motion for new trial alleges as its basis that the trial court "erred by failing to declare a mistrial when presented with more than a scintilla of evidence of incompetency," that being Johnson's testimony. This is an incorrect statement of law. The trial court is not required to declare a mistrial when the issue of competency is raised mid-trial unless a jury determines that the defendant is incompetent to stand trial. See id. As we have explained in detail above, a jury was never empaneled to determine competency in this case. Therefore, the trial court did not err as alleged in appellant's motion for new trial. We review the trial court's decision to grant or deny a motion for new trial under an abuse of discretion standard. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We hold that the trial court did not abuse its discretion by refusing to grant a new trial when presented with the incorrect ground that it had erred by not granting a mistrial.

    The trial court nonetheless held a hearing on appellant's motion for new trial, during which appellant offered into evidence the affidavits of three mental health experts who had concluded that appellant was incompetent to stand trial at the time of trial. The trial court admitted the affidavits and took judicial notice of Ray Johnson's testimony and of a letter filed by the State's expert opining that appellant was not incompetent to stand trial at the time of trial. At the hearing, appellant requested a new trial on the same incorrect grounds recited above, and again did not request a competency hearing and did not assert his desire for a competency hearing as a basis for requiring a new trial. Appellant cannot claim on appeal that the trial court erred by failing to order a formal competency hearing when appellant did not request one in his motion for new trial or during the hearing on the motion. Accordingly, we hold that the trial court did not abuse its discretion by failing to order a new trial or by failing to order a formal competency hearing. Appellant's fourth issue is overruled.



    Appellant's Motion for Continuance

    Appellant in his first issue contends that the trial court's denial of his second motion for continuance the day of trial was an abuse of discretion that constitutes reversible error. We disagree. As appellant points out, to establish that the trial court abused its discretion by denying a motion for continuance, appellant must show among other things that he was actually prejudiced by the denial of his motion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995).

    Appellant argues that he was prejudiced by the trial court's denial of his motion because his court appointed expert was not able to examine him before trial. Thus, he was not able to present the issue of his competency before trial and instead had to raise the issue mid-trial. Appellant never moved the court for a continuance on the ground that he was incompetent to stand trial. Appellant argues instead that had Johnson's testimony or report been available before trial, appellant could have asserted that he was incompetent, the competency evaluation could have been completed prior to trial, and the trial court could have appointed other experts, conducted a section 2(a) hearing, and empaneled a jury to determine appellant's competency, all as contemplated by article 46.02. See Tex. Code Crim. Proc. art 46.02, §§ 2(a), 3(a), 4(a) (West 1979). Article 46.02, however, provides for the issue of competency to be raised mid-trial and includes procedures for that situation as well. See id. §§ 2(b), 3(a), 4(c). That procedure does not prejudice an accused's rights but instead protects the accused. And, as we have explained, the trial court attempted to follow the statutory provisions for determining the issue of competency when appellant raised the issue mid-trial. Because we hold that appellant was not on this basis prejudiced by the trial court's failure to grant his second motion for continuance, we overrule his first issue.

    We note further that the trial court first granted appellant's request for the appointment of a psychological expert on July 15. The court had continued the trial once before because appellant had not obtained a complete investigation by the appointed psychologist. Appellant sought the appointment of a new expert only three days before trial, which the trial court again granted. Although the trial court did not grant appellant's continuance the day of trial, the evaluation he desired in fact was completed and available for use during the trial.



    CONCLUSION

    We have overruled appellant's four issues. The judgment of conviction is affirmed.





    Marilyn Aboussie, Chief Justice

    Before Chief Justice Aboussie, Justices Kidd and Patterson

    Affirmed

    Filed: May 20, 1999

    Do Not Publish

    1. Because appellant does not challenge the sufficiency of the evidence to sustain his conviction but instead complains of procedural errors during the trial, we will limit our factual discussion to the record of the proceedings and will not recount the facts of the offense.

    2. The record does not reflect any reason for the various psychological evaluations. The evidence indicates that appellant has mild mental retardation. The reference to Ake and counsel's comments regarding evidence of a new defense suggest appellant may have been exploring the defense of insanity. The question of insanity at the time of the offense, however, was never raised, and appellant has never complained that he was prevented from presenting any defense. Instead, the dispute centers on appellant's competency at trial.

    3. Ray Johnson is one of the experts appellant's attorneys retained to evaluate appellant after the trial court allocated appellant funds for additional experts October 10.

    4. The Code of Criminal Procedure establishes that a person is incompetent to stand trial if he does not have: "(1) sufficient present ability to consult with his lawyer 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 46.02, § 1(a) (West 1979).

    5. The trial court stated at the beginning of the hearing that the State's expert had left a voice message for the trial court coordinator that he would not be able to attend the hearing because he was in Denver, Colorado, "and the planes won't leave."

    6. The court of criminal appeals relies on Johnson v. State, 564 S.W.2d 707 (Tex. Crim. App. 1977) (on reh'g) for the proposition that the evidence raised must create a bona fide doubt in the trial court's mind regarding a defendant's competency to stand trial before a section 2(b) hearing must be held. Johnson held that if the issue of competency is raised mid-trial, a jury had to be empaneled if the evidence raised a bona fide doubt in the trial court's mind regarding the defendant's competency. See Johnson, 564 S.W.2d at 710-11. In Sisco v. State, 599 S.W.2d 607 (Tex. Crim. App. 1980), the court held that if the issue is raised pretrial, a jury had to be empaneled if there was more than a scintilla of evidence that the defendant was incompetent to stand trial. See Sisco, 599 S.W.2d at 613. In Williams v. State, 663 S.W.2d 832 (Tex. Crim. App. 1984), the court held that because the language of article 46.02 is identical regardless of whether the issue of incompetency is raised mid-trial or pretrial, only one standard should apply. The court determined that the Sisco standard should be applied in both situations and expressly overruled Johnson's bona fide doubt standard. See Williams, 663 S.W.2d at 834. The court states in Collier v. State, 959 S.W.2d 621 (Tex. Crim. App. 1997) that Williams overruled Johnson on other grounds. See Collier, 959 S.W.2d at 625. We glean from this that the court of criminal appeals has adopted the overruled Johnson standard as the standard that triggers a section 2(b) hearing while leaving intact the Sisco standard for determining whether a jury should be empaneled. See Moore v. State, No. 72, 638, slip. op. at 5 (Tex. Crim. App. April 21, 1999) (reciting both standards).

    7. The combined Texas Rules of Evidence, which went into effect March 1, 1998, retain this rule. See Tex. R. Evid. 101(d)(1)(D).

    granted appellant's request for the appointment of a psychological expert on July 15. The court had continued the trial once before because appellant had not obtained a complete investigation by the appointed psychologist. Appellant sought the appointment of a new expert only three days before trial, which the trial court again granted. Although the trial court did not grant appellant's continuance the day of trial, the evaluation he desired in fact was completed and available for use during the trial.



    CONCLUSION

    We have overruled appellant's four issues. The judgment of conviction is affirmed.





    Marilyn Aboussie, Chief Justice

    Before Chief Justice Aboussie, Justices Kidd and Patterson

    Affirmed

    Filed: May 20, 1999

    Do Not Publish

    1. Because appellant does not challenge the sufficiency of the evidence to sustain his conviction but instead complains of procedural errors during the trial, we will limit our factual discussion to the record of the proceedings and will not recount the facts of the offense.

    2. The record does not reflect any reason for the various psychological evaluations. The evidence indicates that appellant has mild mental retardation. The reference to Ake and counsel's comments regarding evidence of a new defense suggest appellant may have been exploring the defense of insanity. The question of insanity at the time of the offense, however, was never raised, and appellant has never complained that he was prevented from presenting any defense. Instead, the dispute centers on appellant's competency at trial.

    3. Ray Johnson is one of the experts appellant's attorneys retained to evaluate appellant after the trial court allocated appellant funds for additional experts October 10.

    4. The Code of Criminal Procedure establishes that a person is incompetent to stand trial if he does not have: "(1) sufficient present ability to consult with his lawyer 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 46.02, § 1(a) (West 1979).

    5. The trial court stated at the beginning of the hearing that the State's expert had left a voice message for the trial court coordinator that he would not be able to attend the hearing because he was in Denver, Colorado, "and the planes won't leave."

    6. The court of criminal appeals relies on Johnson v. State, 564 S.W.2d 707 (Tex. Crim. App. 1977) (on reh'g) for the proposition that the evidence raised must create a bona fide doubt in the trial court's mind regarding a defendant's competency to stand trial before a section 2(b) hearing must be held. Johnson