IN THE
TENTH COURT OF APPEALS
No. 10-05-00198-CR
No. 10-05-00199-CR
Vanessa Walker,
Appellant
v.
The State of Texas,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court Nos. 10392-A and 10545-A
MEMORANDUM Opinion
Vanessa Walker appeals from her plea of true to a motion to adjudicate on her deferred adjudication community supervision for attempted aggravated assault (10-05-00198-CR) and from her guilty plea to aggravated assault (10-05-00199-CR). In her plea bargain on both convictions, she agreed to three-year prison sentences, to be served concurrently. The trial court certified that Walker could appeal her competency to stand trial.
In each case, Walker filed a “motion suggesting incompetency and request for examination,” asserting that her competency to stand trial was in issue. In Cause No. 10545-A (the subsequent aggravated assault charge that also was the basis for the motion to adjudicate in the earlier cause), she asserted insanity as a defense and filed a “motion for examination regarding insanity.” The trial court entered an order for examination regarding sanity in Cause No. 10545-A and an order for examination regarding incompetency in Cause No. 10392-A, ordering that Walker be examined by Stephen L. Mark, M.D., a psychiatrist. Walker did not object to Dr. Mark’s appointment.
Dr. Mark twice examined Walker. In his competency examination, he found that she did not need psychiatric hospitalization, that she was on and should remain on medication, and that she was not mentally retarded. He noted that she had a long history of paranoid schizophrenia, being on medication, and having many hospitalizations. He wrote two reports from his competency examination; in one he concluded that she was competent to stand trial and that her competency would continue if she remained on medication. In the report after his second examination, Dr. Mark concluded that Walker was legally sane at the time of the alleged offense.
Walker then filed a motion for independent psychological evaluation in Cause 10392-A, asserting that, despite Dr. Mark’s evaluations, an independent psychological evaluation was warranted because neither she nor her attorney was sufficiently knowledgeable in psychology to assess her psychological condition. She also requested an examination by a psychiatrist or an expert of her own choice. See Tex. Code Crim. Proc. Ann. art. 46B.021(f) (Vernon Supp. 2005). With her motion, Walker did not provide any lay or expert evidence that Dr. Mark’s reports were inadequate in any respect, nor did she provide any new or additional information. See, e.g., id. art. 46B.004(a) (“A motion suggesting that the defendant may be incompetent to stand trial may be supported by affidavits setting out the facts on which the suggestion is made.”). The record does not reflect a hearing or a ruling on this motion.
Walker’s issue in each appeal complains of the trial court’s failure or refusal to grant the motion for independent psychological evaluation, and in Cause No. 10-05-00199-CR, she additionally alleges that the trial court erred in not holding a hearing on her competency and sanity. We will affirm.
We review a trial court’s failure to conduct a competency inquiry or hearing under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999).
The gist of each appeal is that Walker was not competent to enter into the plea agreements. A defendant must be competent at the time of her sentencing. Id. art. 42.07(2) (Vernon Supp. 2005); Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996). A person is incompetent to stand trial if she does not have (1) sufficient present ability to consult with her lawyer with a reasonable degree of rational understanding; or (2) a rational as well as a factual understanding of the proceedings against her. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (Vernon Supp. 2005). 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. Id. art. 46B.003(b).
The statutory scheme provides that, on the suggestion that the defendant is 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). “If after an informal inquiry the court determines that evidence exists to support a finding of incompetency, the court shall order an examination under Subchapter B to determine whether the defendant is incompetent to stand trial in a criminal case.” Id. art. 46B.005(a). Subchapter B provides for the qualifications and appointment of a disinterested psychiatrist or psychologist to examine the defendant. Id. arts. 46B.021-.022. In these two cases, Walker filed a motion suggesting incompetency, and the trial court properly performed its function by having her examined by Dr. Mark, who found Walker competent to stand trial.
The court must then determine whether there is “some evidence” to support a finding of incompetency, and, if the court so finds, it must then commence a hearing before a jury. McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003); see also Tex. Code Crim. Proc. Ann. arts. 46B.005(b), 46B.051. Evidence is usually sufficient to create a bona-fide doubt on the defendant’s competency if it shows recent, severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. McDaniel, 98 S.W.3d at 710. But prior hospitalization and treatment for mental illness do not per se warrant the trial court’s holding of a competency hearing. Moore, 999 S.W.2d at 395.
In these cases, all that happened after Dr. Mark’s reports on the competency issue was Walker’s filing of her motion for an independent psychological evaluation, which did not request a competency hearing nor provide information that warranted a competency hearing. At the subsequent plea hearing, neither Walker nor her trial counsel raised the issue of competency. And on appeal, other than quibbling with Dr. Mark’s reports, Walker does not point to different or additional information or evidence, other than her mental illness history. Based on the record before us, we conclude that the trial court did not abuse its discretion in failing to grant Walker’s motion for an independent psychological evaluation or to hold a competency hearing.
We overrule the sole issue in each appeal and affirm the trial court’s judgment in each appeal.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed May 17, 2006
Do not publish
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