Affirmed and Opinion filed September 23, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00765-CR
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JUNIOR BENNETT BEDWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 43,401
O P I N I O N
Appellant, Junior Bennett Bedwell, appeals from his conviction for the felony offense of driving while intoxicated (ADWI@). See Tex. Pen. Code Ann. ' 49.09(b) (Vernon Supp. 2004). Charged by indictment, appellant entered a plea of Anot guilty.@ The indictment, as amended, contained two enhancement paragraphs to which appellant entered a plea of Anot true.@ A jury found appellant guilty, found the enhancement paragraph true, and assessed punishment at fifteen years= confinement in the Institutional Division of the Texas Department of Criminal Justice. In two points of error, appellant complains (1) the trial court erred by instructing the jury in its punishment charge regarding a felony conviction that occurred more than ten years prior to the primary offense, and (2) the trial court erred by allowing the penalty phase to proceed over defense counsel=s objection that appellant was incompetent to continue the trial due to his medical condition. We affirm.
Appellant was arrested on March 3, 2002, for DWI in Brazoria County. The indictment originally listed four prior DWI convictions as jurisdictional enhancements: (1) a 1997 misdemeanor DWI conviction in cause number 739,351, (2) a 1988 felony DWI conviction in cause number 17,380, (3) a 1984 misdemeanor DWI conviction in cause number 43,034, and (4) a 1985 misdemeanor DWI conviction in cause number 44,108. Subsequently, the indictment was amended. The 1988 felony DWI conviction was abandoned as a jurisdictional enhancement paragraph and added as a punishment enhancement paragraph. Another punishment enhancement paragraph was added that described a felony conviction in Mississippi for marijuana possession.
Appellant moved to quash the indictment prior to trial. The trial court held a pretrial hearing on May 27, 2003. Pointing out that the present indictment contains jurisdictional enhancement paragraphs describing prior convictions in 1984 and 1985, appellant argued that the State was unable to use those same 1984 and 1985 convictions because they had already been used to enhance the 1988 conviction to a felony. The trial court denied appellant=s motion. Appellant re-urged this same objection during the punishment phase of the trial. The trial court then read the charge of the court on punishment to the jury. The charge contained only one enhancement paragraph that described the 1988 felony DWI conviction.
In addressing appellant=s first point of error, we note that appellant=s objection at trial is different than his point of error on appeal. Because a trial objection must comport with the issue raised on appeal, we find he has preserved nothing for review on appeal. Tex. R. App. P. 33.1(a); see also Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). As previously indicated, appellant=s objection at trial related to the use of a prior conviction as both a jurisdictional and punishment enhancement. Alternatively, appellant complains on appeal that his punishment could not be enhanced by the 1988 conviction for a different reason. Citing section 49.09(e) of the Penal Code, appellant asserts that the 1988 conviction became final more than ten years ago and cannot be used to enhance his punishment. In fact, appellant=s counsel specifically stated at the hearing on the motion to quash that he was not addressing whether the indictment was faulty for alleging a conviction more than ten years old.[1] We overrule appellant=s first point of error.
Appellant complains in his second point of error that the trial court erred in allowing the penalty phase to continue over counsel=s objection that appellant was incompetent to continue in trial. A[A] person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.@ McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). A court must conduct a competency hearing if evidence of incompetency is brought to attention of the trial court.[2] However, a competency hearing is not required unless the evidence is sufficient to create a bona fide doubt in the mind of the judge whether the defendant meets the test of legal competence. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A bona fide doubt may be raised if the evidence Ashows >recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.=@ McDaniel, 98 S.W.3d at 710. The trial court may rely upon personal observations, known facts, and evidence presented in motions or affidavits in making its determination. Thompson v. State, 915 S.W.2d 897, 902 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d). We review the trial court=s decision not to conduct a competency hearing under an abuse of discretion standard. Id.
On the morning of May 30, 2003, the trial court convened to conduct the penalty phase of appellant=s trial. However, appellant failed to appear. A capias issued for his arrest. Appellant arrived at the courthouse sometime after noon, and the trial resumed at 1:00 p.m. Appellant testified that he suffers from silicosis and had felt especially bad the night before. He stated that he had been coughing and spitting up blood and was weak and dizzy. When he awoke, appellant visited his doctor=s office. Appellant related that the doctor examined him, took blood samples, and gave him several injections. At the conclusion of appellant=s testimony, appellant=s counsel urged the trial court to grant a continuance in light of appellant=s condition.
There is simply no evidence in the record demonstrating a bona fide doubt about appellant=s competency. Most importantly, the evidence does not speak to mental incapacity. At most, the record contains appellant=s statements that he was feeling Adizzy,@ was Asweating all over,@ and was having some vision trouble. After appellant testified, the court noted, AI think he=s demonstrated by his testimony that he=s articulate, that he can express himself well, . . . was able to very clearly describe his condition this morning and that he got medical assistance and he appears to be competent and capable of going forward at trial.@ Appellant=s counsel was also concerned about the appellant=s ability to understand the effect of his decision to plead Anot true@ to the enhancement paragraphs. The trial court gave an explanation. When asked if he understood what the judge had said, appellant nodded and said, AYeah.@
In light of the record presented here, we find the trial court did not err in failing to conduct a formal competency inquiry or a jury competency hearing. Accordingly, appellant=s second point of error is overruled.
The judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed September 23, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant=s counsel stated,
[I]f a person charged with a DWI and were in some way trying to upgrade that DWI if there has been ten years lapse between the last one that they=re using, then they can=t do that. So, they have to have an intervening DWI in there; but that really doesn=t speak to my problem.
[2] The requirement that a court conduct a competency hearing was previously found in article 46.02 of the Code of Criminal Procedure. Act effective Aug. 29, 1977, 65th Leg., R.S., ch. 596, 1977 Tex. Gen. Laws 1458, 1458. However, article 46.02 was repealed in the last legislative session. Act effective Jan. 1, 2004, 78th Leg., R.S., ch. 35, ' 15, 2003 Tex. Gen. Laws 57, 72. In its place, the legislature added Chapter 46B to the Code of Criminal Procedure. Id. ' 1. Irrespective of the change in chapters, a court is still obligated to Adetermine by formal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.@ Tex. Code Crim. Proc. Ann. Art. 46B.004(c) (Vernon Supp. 2004). This new provision only applies to proceedings initiated after January 1, 2004. Act effective January 1, 2004, 78th Leg., R.S., ch. 35, ' 16, 2003 Tex. Gen. Laws 57, 72.