NUMBER 13-03-737-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CLIFFORD WASHINGTON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Garza
Appellant, Clifford Louis Washington, was found guilty of possession of cocaine, and was sentenced to community supervision. Appellant’s community supervision was subsequently revoked and he was sentenced to one year of imprisonment. Appellant contends on appeal that the trial judge erred by denying his motion for psychological evaluation on the issue of incompetency and by not holding a competency hearing prior to trial. Because we find that appellant did not provide sufficient evidence of incompetency, we affirm.
I. Background
After being arrested for possession of a controlled substance, appellant was deemed incompetent to stand trial. The trial judge ordered him committed to a mental health facility for a period not to exceed eighteen months, and ordered the facility to notify the court promptly if appellant attained competency. Several months later, Dr. Gabriel Durand-Hollis, appellant’s attending physician at Big Spring State Hospital, notified the court that appellant was competent to stand trial. Appellant subsequently pleaded guilty to possession of a controlled substance and was sentenced to community supervision.
After appellant violated provisions of his community supervision agreement, the State filed a motion to revoke appellant’s community supervision. Prior to trial, defense counsel filed a motion for psychological evaluation on the issue of incompetency. However, counsel withdrew this motion at the start of trial before the judge could rule on it, stating that he and appellant had discussed the matter and decided that appellant was competent. The trial judge warned counsel that, while it might be appropriate to renew the motion at a later time, he would view the motion with disfavor if it was only renewed after damaging evidence emerged or unfavorable rulings occurred. The State then presented several witnesses who testified that appellant had failed to meet the terms of his release. At trial, appellant’s testimony was rambling and occasionally non-responsive. Following appellant’s testimony, defense counsel made an oral motion to appoint an expert witness to evaluate appellant’s competency. The trial judge denied the motion, found that appellant had violated the terms of his community supervision agreement, and sentenced appellant to one year in a state jail facility.
II. Standard of Review
The appointment of an expert witness to evaluate a defendant regarding competency is within the discretion of the trial judge. Tex. Code Crim. Proc. Ann. art. 46.02 § 3(a) (Vernon Supp. 2004); Levya v. State, 552 S.W.2d 158, 161 (Tex. Crim. App. 1977). On this issue, a trial judge’s decision is subject to reversal only if the decision constitutes an abuse of discretion. Levya, 552 S.W.2d at 161. Likewise, the standard of review for evaluating a decision of whether to conduct an article 46.02, section 2 competency inquiry or hearing is whether the trial court abused its discretion. Garcia v. State, 595 S.W.2d 538, 542 (Tex. Crim. App. 1980); Grider v. State, 69 S.W.3d 681, 685 (Tex. App.–Texarkana 2002, no pet.).
A trial court in Texas is subject to reversal for abuse of discretion only if the decision was “arbitrary or unreasonable.” Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh’g). As long as a “trial court follows the appropriate analysis and balancing factors,” an appellate court should not impose its own judgment, regardless of how the appellate court may have preferred the case adjudicated on the merits. Id.
III. Appointment of Expert Witness
By his first issue, appellant alleges that the trial judge’s refusal to appoint an expert witness to examine him regarding competency constitutes error. The relevant statute provides:
At any time the issue of the defendant’s incompetency to stand trial is raised, the court may . . . appoint . . . disinterested experts...to examine the defendant with regard to his competency to stand trial and to testify at any trial or hearing on this issue.
Tex. Code Crim. Proc. Ann. art. 46.02, § 3(a).
The decision to appoint a disinterested expert to make a competency determination is within the sound discretion of the trial court and is only reversible where the court abuses that discretion. Bigby v. State, 892 S.W.2d 864, 885 (Tex. 1994). To determine if a trial judge abused his discretion concerning the statute, it is necessary to review the individual facts of the case. Levya, 552 S.W.2d at 161. Even if there is some evidence to suggest that a defendant is incompetent, section 3(a) does not necessarily compel the trial judge to appoint an expert witness. Id. Although a defendant is not required to prove he is incompetent to be entitled to a psychological examination, he must raise an issue of competence by providing the court with some evidence to support a finding of incompetency. Grider, 69 S.W.3d at 684-85.
Here, appellant had earlier been deemed incompetent to stand trial but was subsequently declared to have regained competency sufficient to stand trial. Evidence at trial suggested that appellant was indeed competent. The record reflects that Rogelio Sepulveda, a mental health and mental retardation (“MHMR”) service coordinator, testified that appellant was rational and seemed competent. Sepulveda further testified that appellant had been cooperative, rational, and had taken his medication since being re-incarcerated.
Furthermore, appellant’s testimony on the stand was rational. He testified that he understood the allegations as read by the judge, and stated that he believed he was competent to stand trial. Appellant also demonstrated a firm grasp of the facts of the case. The record shows that he was able to denote subtle distinctions regarding the appropriate answers to the prosecutor’s questions. Although he was occasionally non-responsive, such lapses occurred when he attempted to cut straight to what he evidently perceived to be the underlying problems regarding his probation violation. At one point, appellant testified non-responsively but extensively and lucidly about his disagreement with MHMR regarding the proper prescription medications that he should be taking. Appellant was again non-responsive when he articulated in much detail the reasons why he was unable to attend certain appointments required by his community supervision agreement. Such non-responsive answers militate against appointing an expert to determine appellant’s competency, as he demonstrated an ability to anticipate, understand, and attempt to mitigate the impact of potentially damaging responses. Appellant’s non-responsive answers demonstrate a lack of legal experience and knowledge of appropriate court room procedure, not a lack of competence.
The trial judge deemed not appointing an expert witness appropriate after having heard the evidence and testimony of appellant. There was considerable evidence to support the trial judge’s decision and no direct evidence of incompetency. As such, we conclude that this decision was not an abuse of discretion. Accordingly, appellant’s first issue is overruled.
IV. Competency Hearing Prior to Trial
By his second issue, appellant alleges that the judge’s refusal to hold a competency hearing prior to trial constitutes an abuse of discretion. The relevant statute provides:
The issue of the defendant’s incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.
Tex. Code Crim. Proc. Ann. art. 46.02, § 2(a) (Vernon Supp. 2004).
Defense counsel filed a motion for a psychological evaluation but withdrew it before the judge made a ruling. Thus, the question becomes whether the trial judge should have sua sponte held a section 2(a) competency inquiry to determine if a competency hearing was necessary prior to trial. See id.
The standard for whether a court should hold a section 2(a) competency hearing prior to trial, upon a motion by a party or the court, is “whether there is some evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetence.” Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980). A trial judge should not consider evidence of competence, but merely determine whether any evidence of incompetence exists. See Alcott v. Texas, 51 S.W.3d 596, 600 (Tex. Crim. App. 2001); Sisco, 599 S.W.2d at 613.
Appellant alleges that his history of mental illness, prior judgment of incompetency, and filing of a motion for a psychological evaluation constitute evidence sufficient to require the trial judge to hold a competency inquiry pursuant to section 2(a). A history of mental illness, even if judicially recognized, does not constitute evidence of incompetency to stand trial. See Levya, 552 S.W.2d at 160. Further, appellant’s motion for psychological evaluation is not probative of whether appellant was actually competent to stand trial. Otherwise, the mere filing of such a motion would always constitute sufficient evidence to require a hearing regarding competence, a patently absurd result. See Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997) (trial court exercised unnecessary “abundance of caution” when it held pre-trial hearing on competency when some evidence was a motion to appoint expert witness).
Appellant’s prior judicial determination of incompetency occurred on November 5, 2002, more than a year before the relevant trial was held. At that time, the jury determined that there was “a substantial probability” that appellant would soon be competent. This period of incompetency was declared over on March 24, 2003. The trial judge was within his discretion in determining that a brief period of incompetency that ended eight months prior to the relevant trial date, unaccompanied by any allegations of relapse or current incompetency, constitutes less than a scintilla of evidence that rationally may lead to a conclusion that appellant was incompetent immediately prior to the trial. We conclude, therefore, that the trial judge did not abuse his discretion in not holding a section 2(a) hearing and accordingly, overrule appellant’s second issue. We affirm the decision of the trial court. DORI CONTRERAS GARZA,
Justice
Do not publish.
Tex.R.App.P. 47.2(b)
Memorandum Opinion delivered
and filed this the 19th day of August, 2004.