Belinda Montoya v. State ( 2007 )

NUMBER 13-06-462-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BELINDA MONTOYA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas

MEMORANDUM OPINION ON REHEARING

Before Chief Justice Valdez and Justices Benavides and Vela Memorandum Opinion by Justice Vela

The State has filed a motion for rehearing in which it requests that we affirm the judgment of the trial court or, alternatively, reform our previous opinion in this cause. We grant, in part, the State's motion for rehearing. We withdraw our opinion and judgment of June 7, 2007 and substitute this opinion and judgment in their place. In all other respects, the State's motion for rehearing is denied, as is the State's motion for rehearing en banc.

Appellant, Belinda Montoya, pleaded guilty, without a plea bargain agreement, ⁽¹⁾ to the offense of cocaine possession. The trial court sentenced her to fourteen months in state jail. By one issue, appellant asserts the court failed to inquire into her mental competency after the issue was sufficiently raised. ⁽²⁾ We abate and remand.

Background

The question before us is whether evidence came to the trial court's attention suggesting that appellant may have been incompetent to stand trial. If this occurred, then the trial court was required, sua sponte, to determine by informal inquiry whether there was some evidence from any source that would support a finding that appellant may have been incompetent to stand trial. The record suggests that appellant may not have had the ability to fully understand the proceedings against her. During the plea hearing, the trial court questioned appellant about whether she understood the consequences of pleading guilty without the benefit of a plea bargain agreement. As shown by the following exchange, appellant's answers to the judge's questions were not always responsive and coherent:

Court: Ma'am, I'm told there is no plea bargain agreement in your case. Do you fully understand and are you aware of the consequences of entering a plea of guilty without the benefit and protection of a plea bargain agreement?

Defense Counsel: Do you understand the full range of punishment is up to two years or six months in the State Jail?

Appellant: Oh, I understand that, yes.

Court: All right. I'm glad you understand the range of punishment, but what I'm asking you is do you understand the consequences, what it means and what can happen to you in entering a plea of guilty without the benefit and the protection of a plea bargain agreement?

Appellant: Do I understand?

Court: Yes.

Appellant: Is that what we talked about?

Defense Counsel: Yes, that the Judge has--can sentence you anywhere from probation up to two years in the State Jail facility.

Appellant answered affirmatively. After the court explained to her the consequences of pleading guilty without the benefit of a plea bargain agreement, the following exchange occurred:

Court: Okay. So do you understand the consequences of entering a plea of guilty without the benefit and protection of a plea bargain agreement?

Appellant: Yes.

Court: Okay. Do you want to proceed?

Defense Counsel: Continue?

Appellant: Continue?

Court: Yes, you want to continue?

Appellant: Yes.

After accepting her guilty plea, the court heard punishment evidence. Defense counsel offered the testimony of appellant and her sister, Michelle Montoya. Appellant testified that she had cirrhosis and Hepatitis C. She said her life expectancy was "[s]ix months to a year . . . ." She took four medications: lactose; Hypertone; Nexium; and Lasix. She also received a monthly infusion of white blood cells. Defense counsel asked her about the effects of her illnesses and the side effects of her medications as follows:

Counsel: Now some of the side effects you suffer from your medication and from your illness, is depression one of them?

Appellant: I guess you could say that and I get delusional. I don't know where I'm at. I go into a sleeping coma. I just don't know where I'm at, don't--I fall asleep anywhere. I don't know. Just different things.

Counsel: Forgetfulness?

Appellant: That, too.

Counsel: Do you have any regression?

Appellant: What do you mean?

Counsel: Do you regress back to your childhood?

Appellant: Yes, I act like a little kid.

Counsel: Drowsiness?

Appellant: Yes, I sleep a lot.

Counsel: Weakness?

Appellant: Yes.

Counsel: And is it during this period that-

Appellant: The only time I feel okay is when I have the white blood cells.

* * * * *

Counsel: And could this have been one of the reasons for doing cocaine is when you were depressed?

Appellant: Yes, . . . .

* * * * *

Counsel: And last night you tried to get yourself into the Emergency Room?

Appellant: Right. Well, they released me this morning about nine o'clock.

Counsel: And-

Appellant: No, not even nine o'clock. It was maybe, like, ten-something, eleven. . . .

* * * * *

Counsel: What was your medical complaint?

Appellant: My headaches and without--I had ran out of my medication, so I have to go redo that and when I don't take my medicine, I just get these real bad headaches and I go back into that stage again.

Appellant's sister testified that appellant

gets real sick. She's really sick. She's- There's times that she, you know, she doesn't know what she's doing, that she needs constant care, and they're trying to get that for her. They're trying to get a provider for her because she's not well and she looks well right now. The days that we see her, she's not. She's like a little kid. We have to get her dressed. We have to sit her down to try to take her medicine and then we have to constantly care, need constant care for her.

The court made no suggestion that appellant may be incompetent to stand trial. Further, the court made no determination by informal inquiry or otherwise whether there was some evidence from any source that would support a finding that appellant may be incompetent to stand trial.

Applicable Law and Analysis

The code of criminal procedure prohibits a trial court from accepting a guilty plea "unless it appears that the defendant is mentally competent. . . ." Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2006). A defendant must also be mentally competent to be sentenced. See Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996) (stating that sentencing is part of trial and competency considerations apply); see also Tex. Code Crim. Proc. Ann. art. 42.07, § 2 (Vernon 2006). Article 46B.003 provides that a person is incompetent to stand trial if he or she does not have: "(1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1) & (2) (Vernon 2006). 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. Id. art. 46B.003(b). Article 46B.004 states how the competency issue can be raised. The statute provides, in relevant part: "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." Id. art. 46B.004(b). On suggestion that the defendant may be incompetent to stand trial, subsection (c) states that "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." Id. art. 46B.004(c). ⁽³⁾

In other words, if, under subsection (b), evidence comes to the trial court's attention suggesting that the defendant may be incompetent to stand trial, then, under subsection (c), the trial court is required to determine by informal inquiry whether there is some evidence that would support a finding that the defendant may be incompetent to stand trial. Id.; Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.–Fort Worth 2005, pet. ref'd); cf., Kuyava. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976) (unless an issue is made of an accused's present insanity or mental competency at time of plea, the court need not make inquiry or hear evidence on such issue); Godoy v. State, 122 S.W.3d 315, 320 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (same).

A trial judge must conduct a competency inquiry (before the bench) only if sufficient evidence exists to create a bona fide doubt in the judge's mind whether the accused meets the test of legal competence. See Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001); Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). Recently, in Salahud-Din v. State, 206 S.W.3d 203 (Tex. App.–Corpus Christi 2006, pet. ref'd), we stated:

Evidence sufficient to prompt a competency hearing or inquiry must raise a "bona fide doubt" in the mind of the trial judge as to the defendant's competency to stand trial; a bona fide doubt exists if the evidence indicates recent severe mental illness, or at least moderate mental retardation, or truly bizarre acts by the defendant.

Id. at 208 (citing Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997)); See Moore, 999 S.W.2d at 395 (to raise competency issue by means of accused's past mental health history, there generally must be evidence of recent, severe mental illness or bizarre acts by the defendant or moderate retardation).

We review a trial court's failure to conduct a competency inquiry under an abuse of discretion standard. Moore, 999 S.W.2d at 393; LaHood v. State, 171 S.W.3d 613, 617-18 (Tex. App.–Houston [14th Dist.] 2005, no pet.). A trial court abuses its discretion if its decision is arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Lawrence, 169 S.W.3d at 322. Appellant's testimony showed that the side effects from her illnesses and medications caused her not to know where she was at, to act like a little kid, to be forgetful, weak, drowsy, delusional, depressed, and to go into a sleeping coma. The night before the plea hearing, she went to the emergency room because she ran out of medication. She had trouble remembering what time she left the emergency room. Her sister's testimony showed that appellant was "really sick" and that there were times when appellant did not know what she was doing. She also said, "The days that we see [appellant] . . . [s]he's like a little kid. We have to get her dressed. We have to sit her down to try to take her medicine and then we have to constantly care, need constant care for her."

Further evidence suggesting appellant may have been incompetent to stand trial appeared when the court was trying to determine if she understood the consequences of pleading guilty without the benefit of a plea bargain agreement. When the court asked her, "[D]o you understand the consequences, what it means and what can happen to you in entering a plea of guilty without the benefit and the protection of a plea bargain agreement?", she said, "Do I understand?" and "Is that what we talked about?" After she made these remarks, the trial court explained the consequences of pleading guilty without the benefit of a plea bargain agreement. When the court asked her, "So do you understand the consequences of entering a plea of guilty without the benefit and protection of a plea bargain agreement?", she answered affirmatively. However, when the court asked her if she wanted to proceed, she did not respond. Instead, defense counsel asked her, "Continue?", and she replied, "Continue?" When the court asked her, "Yes, you want to continue?", she finally answered in the affirmative.

We conclude the evidence demonstrated recent, severe mental illness, or at least moderate mental retardation, or truly bizarre acts by appellant. We find particularly troublesome the evidence showing that appellant had experienced instances when she was delusional, did not know where she was at or what she was doing, and acted like a "little kid". The evidence showed appellant did not have a rational as well as factual understanding of the proceedings against her. See Tex. Code Crim. Proc. Ann. art. 46B.003(a)(2) (Vernon 2006). Accordingly, the evidence was sufficient to prompt a competency inquiry because it met the threshold stated in Salahud-Din and should have raised a bone fide doubt in the judge's mind regarding appellant's competency to stand trial. See Salahud-Din, 206 S.W.3d at 208. We hold that because evidence came to the trial court's attention suggesting appellant may have been incompetent to stand trial, the court abused its discretion by failing, sua sponte, to determine by informal inquiry whether there was some evidence from any source that would support a finding that appellant was incompetent to stand trial. The issue is sustained.

We abate the trial court's judgment and remand the case for proceedings consistent with this opinion. See Casey, 924 S.W.2d at 949; Brown v. State, 871 S.W.2d 852, 860 (Tex. App.-Corpus Christi 1994, pet. ref'd).                                     

ROSE VELA  

Justice  

  Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 1st day of November, 2007.

1. In the "Amended Trial Court's Certification of Defendant's Right of Appeal" the trial court certified that "this criminal case: is not a plea bargain case, and the Defendant has the right of appeal."

2.

We view appellant's complaint as challenging the trial court's failure to formally suggest she may be incompetent to stand trial, See Tex. Code Crim. Proc. Ann. art. 46B.004(b) (Vernon 2006).

3. If, after an informal inquiry, the court determines that evidence exists to support a finding of incompetency, the court shall order an examination to determine whether the defendant is incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.005(a) (Vernon 2006). Furthermore, generally, if the court determines that evidence exists to support a finding of incompetency, the court shall hold a hearing before determining whether the defendant is incompetent to stand trial, and, on the request of either party or on the court's motion, a jury shall make the determination as to whether the defendant is incompetent. Id. arts. 46B.005(b), 46B.051.