Richard Robles Vigil v. State ( 2008 )

Affirmed and Memorandum Opinion on Remand filed October 23, 2008

Affirmed and Memorandum Opinion on Remand filed October 23, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-05-01015-CR

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RICHARD ROBLES VIGIL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 824,929

M E M O R A N D U M   O P I N I O N   O N   R E M A N D

Appellant Richard Robles Vigil entered a plea of guilty to the offense of indecency with a child.  The trial court deferred adjudication of guilt and placed appellant on community supervision.  Subsequently, the State alleged appellant had violated the conditions of community supervision and moved to adjudicate his guilt.  The trial court adjudicated appellant=s guilt and sentenced him to two years= confinement.  On original submission, appellant contended that the trial court erred in not sua sponte holding a hearing on his competency.  We dismissed for want of jurisdiction because appellant attempted to appeal the trial court=s decision to adjudicate his guilt.  Vigil v. State, No. 14-05-01015-CR, 2006 WL 1911483 (Tex. App.CHouston [14th Dist.] July 13, 2006) (mem. op.).  Subsequently, the Court of Criminal Appeals resolved a conflict among the courts of appeals and held that a court of appeals has jurisdiction to consider the merits of a defendant=s claim that he was not competent at the time of the hearing on the State=s motion to adjudicate guilt.  Durgan v. State, 240 S.W.3d 875, 878 (Tex. Crim. App. 2007).  The court vacated our July 13, 2006, judgment and remanded to this court in light of its decision in Durgan.  Vigil v. State, No. PD-1598-06, 2008 WL 366628 (Tex. Crim. App. Feb. 6, 2008) (not designated for publication).  We therefore address appellant=s sole issue in which he contends the trial court erred in not sua sponte holding a hearing on his competency.  On remand, we affirm.

On May 3, 2000, appellant was placed on ten years= deferred adjudication probation for indecency with a child.  On June 27, 2005, the State filed a motion to adjudicate appellant=s guilt, alleging he violated his deferred adjudication probation by committing another offense and failing to participate in the sex offender treatment program.  On July 14, 2005, the trial court ordered that psychiatric and medical examinations be performed on appellant because he showed signs of mental illness.  A psychiatric report filed August 18, 2005 indicated appellant did not need psychiatric medications.  On September 9, 2005, the trial court entered judgment adjudicating guilt and sentenced appellant to two years= incarceration.

In a single issue, appellant argues that because the trial court noted he showed signs of mental illness, the trial court should have stayed the hearing on the motion to adjudicate and ordered a test to determine his competency.

We review a trial court=s decision not to conduct an informal competency inquiry under an abuse of discretion standard.  Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999); Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.CFort Worth 2005, pet. ref=d).  A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.  Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006).  A defendant is incompetent to stand trial if he lacks (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.  Id. art. 46B.003(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.  Id. art. 46B.004(a).  If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the trial 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, 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).

A competency inquiry is not required, however, unless the evidence is sufficient to create a bona fide doubt in the mind of the trial court about whether the defendant is legally competent.  McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003).  Evidence is usually sufficient to create a bona fide doubt regarding competency if it shows Arecent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant.@  Id.  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 claim or credible source.  Brown v. State, 129 S.W.3d 762, 765 (Tex. App.CHouston [1st Dist.] 2004, no pet.).

In this case, the trial court signed an order for psychiatric or medical review on July 14, 2005.  In that order, the trial court noted that appellant displayed Asymptoms of mental illness.@  On July 27, 2005, a medical status report was filed indicating that appellant was physically able to attend court.  On August 18, 2005, a psychiatric status report was filed in which the attending physician noted that appellant did not need psychiatric medications.

At the beginning of the hearing on the motion to adjudicate, the trial court admonished appellant that if he pleaded not true to the allegations in the motion and proceeded to trial, he would not be able to accept the plea bargain offered by the State.  The court permitted appellant to consult with his attorney prior to his plea.  There was no indication either from appellant or his attorney that he was unable to consult with his attorney about the consequences of his plea.  There was never an allegation, nor evidence, that appellant could not consult with his lawyer with a reasonable degree of rational understanding or that he did not have a rational as well as factual understanding of the proceedings against him.  Appellant presented no evidence that would raise a bona fide doubt about his competency prior to his plea of not true to the allegations in the State=s motion to adjudicate.

Upon review, we conclude that the trial court did not abuse its discretion in failing to hold an informal inquiry into appellant=s competence to stand trial because no evidence suggests that appellant lacked (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.  See Tex. Code Crim. Proc. Ann. art. 46B.003(a).  There is no evidence indicating recent severe mental illness, moderate mental retardation, or truly bizarre acts by appellant.  See Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997); Salahud‑Din v. State, 206 S.W.3d 203, 209 (Tex. App.CCorpus Christi 2006, pet. ref=d).  Evidence of mental impairment alone does not require a competency hearing where no evidence indicates that a defendant is incapable of consulting with counsel or understanding the proceedings against him.  Reed v. State, 112 S.W.3d 706, 710B11 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).  Accordingly, the trial court=s failure to conduct an informal competency inquiry did not constitute an abuse of discretion.

We overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion on Remand filed October 23, 2008.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).