COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-056-CR
MARIA LUISA DOMINGUEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In one issue, Appellant Maria Luisa Dominguez appeals the trial court’s
order revoking her community supervision. We affirm.
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… See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
In July 2007, Dominguez pleaded guilty to the offense of unauthorized
use of a motor vehicle. Pursuant to a plea agreement, the trial court placed
Dominguez on three years’ deferred adjudication community supervision. Less
than six months later, the State filed a motion to adjudicate, alleging that
Dominguez had violated her community supervision by (1) using cocaine and
marijuana, (2) not attending treatment for substance abuse, and (3) failing to
report to the probation department on more than one occasion. Dominguez
waived her right to a revocation hearing and entered a plea of true. The trial
court sentenced Dominguez to confinement for one year in a state jail facility.
Approximately two weeks later, Dominguez filed a motion for new trial and a
motion for a competency examination, asserting that she had been incompetent
to enter a plea of true. The trial court denied Dominguez’s motions. This
appeal followed.
III. Motion for New Trial
On appeal, Dominguez asserts that the trial court erred by denying her
motion for new trial because she lacked sufficient competency to waive her
right to a revocation hearing and to enter a plea of true.
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A. Standard of Review
We review a trial court’s denial of a motion for new trial and its decision
not to conduct a competency hearing under the abuse of discretion standard.
See Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Moore v.
State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999), cert. denied, 530 U.S.
1216 (2000); Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.—Fort
Worth 2005, pet. ref’d). 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).
B. Applicable Law
A person is competent to stand trial unless she lacks sufficient ability to
consult with counsel with a reasonable degree of rational understanding or lacks
a rational as well as factual understanding of the proceedings. Tex. Code
Crim. Proc. Ann. art. 46B.003(a) (Vernon 2006). A person is presumed to be
competent. Id. art. 46B.003(b). When a party moves, or when the trial court
becomes aware of evidence suggesting that a defendant is incompetent, the
trial court must conduct an “informal inquiry” to determine if there is some
evidence to support a finding that the defendant may be incompetent to stand
trial. Id. art. 46B.004(c). If there is such evidence, the trial court must order
an examination to determine if the defendant is competent and hold a trial on
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the issue of the defendant’s competency. Tex. Code Crim. Proc. Ann. art.
46B.005(a), (b); Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001)
(applying predecessor statute).
When competency is challenged in a motion for new trial, the trial court
does not look to whether the evidence raises a bona fide doubt as to
competence; instead, it applies the normal standard used in deciding a motion
for new trial, considering all the evidence presented, judging the credibility of
witnesses, and resolving conflicts in the evidence. See Purchase v. State, 84
S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Edwards
v. State, 993 S.W.2d 171, 175 (Tex. App.—El Paso 1999, pet. ref’d); Powell
v. State, Nos. 03-07-00548-CR, 03-07-00697-CR, 2008 WL 3540067, at *4
(Tex. App.—Austin Aug. 14, 2008, no pet.); Beltran v. State, No. 12-06-
00390-CR, 2007 WL 4216541, at *2 (Tex. App.—Tyler Nov. 30, 2007, pet.
dism’d). As a prerequisite to a hearing, the motion for new trial must be
supported by an affidavit specifically showing the truth of the grounds alleged
as a basis for a new trial. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim.
App. 1993). Affidavits that are conclusory in nature and unsupported by facts
are not sufficient to put the trial court on notice that reasonable grounds for
relief exist. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994).
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C. Analysis
In Dominguez’s motion for new trial, her counsel stated,
Defendant’s attorney was soon after notified by both the
Defendant and the Defendant’s family that the Defendant does not
have the brain functioning ability of an average adult and that the
Defendant did not understand what she was agreeing to when she
made her plea. The Defendant felt extremely confused and that
she should not question the Court and was, therefore, trying to be
agreeable.
In Dominguez’s motion for a competency examination, her counsel stated,
Defense Counsel believes that the Defendant may not have been
competent to stand trial at the time of her plea. She has been
previously diagnosed for mental illness. She called her attorney’s
office after her plea and said she did not understand what she was
doing. Her family has also indicated that she did not understand
the proceedings against her. Furthermore, counsel for the
defendant is not qualified to evaluate conclusively whether the
Defendant was competent to enter her plea without the specialized
assistance of a mental health expert.
Counsel’s statements that Dominguez felt “extremely confused” and that
“she did not understand what she was doing” are conclusory in nature. See id.;
Watson v. State, 37 S.W.3d 559, 561 (Tex. App.—Beaumont 2001, no pet.)
(holding that defendant’s affidavit stating, “I wish to state that I did not
intelligently, knowingly or voluntarily enter my plea. I did not understand the
plea agreement fully, and I did not understand the consequences of my plea,”
was too conclusory). Furthermore, Dominguez failed to provide any
evidence—such as her medical records or her doctor’s testimony—that she had,
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in fact, been “previously diagnosed with mental illness” or that she did “not
have the brain functioning ability of an average adult.” 2 See Fuller, 253 S.W.3d
at 229 (finding that assertion of incompetency, unsupported by facts or
evidence, is not sufficient, by itself, to show that the trial court erred in failing
to sua sponte order a competency evaluation); Buerger v. State, 60 S.W.3d
358, 363 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (holding that
defendant’s affidavit was too conclusory because despite the defendant’s
incompetence claim he “did not allege what medication he needed; why it was
needed or how its absence affected his competency during the hearing”).
Therefore, based on our review of the entire record, we conclude that the trial
court did not abuse its discretion by declining to hold a hearing on Dominguez’s
motion for new trial. Accordingly, we overrule Dominguez’s sole issue.
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… Even if we were to assume that the allegations contained in the
motions were true, they do not provide a basis for determining that Dominguez
was incompetent at the time she waived her right to an adjudication hearing or
entered a plea of true. Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App.
2008) (stating that the test for determining a defendant’s competency is the
defendant’s “present ability” to consult with her lawyer with a reasonable
degree of rational understanding).
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IV. Conclusion
Having overruled Dominguez’s sole issue, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, J.; CAYCE, C.J.; and MEIER, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 5, 2009
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