Affirmed and Memorandum Opinion filed May 1, 2007.
In The
Fourteenth Court of Appeals
____________
NO. 14-06-00553-CR
____________
TROY MELONE BAUGH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 05CR0893
M E M O R A N D U M O P I N I O N
Appellant, Troy Melone Baugh, appeals following his felony conviction of burglary of a habitation and sentence of life in prison.[1] In his two points of error, appellant contends that (1) the trial court=s finding that he was competent to stand trial was so against the great weight and preponderance of the evidence as to be manifestly unjust, and (2) the trial court abused its discretion in failing to sua sponte conduct an informal inquiry into appellant=s competency. We affirm.
I. Background
Because the issues raised by appellant relate only to his competency at trial, we need not discuss the events leading to his arrest. Shortly after appellant was indicted for the charged offense, appellant=s counsel filed a Motion for Psychiatric Examination which was granted by the trial court. Dr. Victor Scarano performed the examination report and concluded that appellant was incompetent to stand trial, but that with proper treatment, appellant=s competency would be restored. On June 7, 2005, after reviewing Dr. Scarano=s report, the trial court found, and both parties agreed, that appellant was at that time incompetent to stand trial, and ordered that appellant be committed to the North Texas State Hospital Vernon Campus (the AVernon Hospital@) with the objective of attaining competency.
A report from the Vernon Hospital filed on September 16, 2005, concluded that, after treating and evaluating appellant, he was then presently competent to stand trial. Following this report, on September 19, 2005, appellant was ordered to be returned to the trial court for trial proceedings. On May 17, 2006, a jury found appellant guilty of burglary of a habitation.
II. Analysis
In his first point of error, appellant argues that the trial court=s finding of his competence to stand trial was so against the great weight and preponderance of the evidence as to be manifestly unjust. Because appellant returned to the trial court after having been deemed incompetent to stand trial by that court, Article 46B.084 of the Texas Code of Criminal Procedure applies. See Tex. Code Crim. Pro. art. 46B.084(a) (AOn the return of a defendant to the committing court, the court shall make a determination with regard to the defendant=s competency to stand trial.@). Article 46B.084(a) states that, in making its determination as to whether a defendant has gained sufficient competency to stand trial, the trial court may rely Asolely on the report filed under 46B.080(c),[2] unless any party objects . . . to the findings of the report not later than the 15th day after the date on which the report is served on the parties.@ Id art. 46B.084(a).
During a break in voir dire proceedings, the trial prosecutor raised the issue of Article 46B.084 and inquired whether the trial court had ruled on defendant=s competency since his return from commitment. The trial court then had this discussion with the parties:
The Court: Okay, Counsel, I=ll tell you that I=m looking at 46B.084, which says, [quoting statute]. Looking at this [46B.080] report, it appears to be filed September 13, 2005.[3]
Did the State file an objection to this finding?
Prosecutor: No, Your Honor.
The Court: Did the Defense file an objection within 15 days?
Defense Counsel: Not within 15 days. I was tempted. I=ve always been tempted, but I did not file the objection.
The Court: Based on the report, then, I=m going to find the Defendant is competent to stand trial as is stated by the report.
Because there were no objections to the report filed pursuant to Article 46B.080(c) finding appellant to be competent, the trial court was warranted in finding appellant to be competent based solely on the report. Furthermore, because the report was the only evidence presented with regard to appellant=s competency upon return to the trial court, the trial court=s finding was clearly not against the great weight and preponderance of the evidence.
Appellant bases his complaint under his first point of error on the fact that the report filed pursuant to Article 46B.080 was not a part of the appellate record at the time he filed his brief in this court. However, a supplemental clerk=s record containing that report has since been filed with this court. Appellant does not otherwise dispute the use or delivery of the report.[4] As a result, we overrule appellant=s first point of error.
In his second point of error, appellant contends that the trial court abused its discretion in failing to sua sponte conduct an informal inquiry into appellant=s competency. We review a trial court=s failure to conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999); LaHood v. State, 171 S.W.3d 613, 617-18 (Tex. App.CHouston [14th Dist.] 2005, no pet.). A defendant is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding, or (2) a rational and factual understanding of the proceedings against him. Tex. Code Crim. Proc. art 46B.003(a). A person is presumed competent to stand trial and shall be found competent to stand trial unless proven incompetent by a preponderance of the evidence. Id. art. 46B.003(b). If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the 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).
Appellant and the State dispute the meaning of Aevidence suggesting the defendant may be incompetent@ as stated in Article 46B.004(b).[5] We need not address this issue because we find no evidence presented to the trial court that appellant was incompetent to stand trial.
Appellant points to two separate sets of facts that he claims should have raised the issue of appellant=s competency at trial: (1) appellant=s medical history showing he needed to continue treatment in order to remain psychologically stable coupled with the fact that the trial court had not been assured that appellant had actually continued such treatment; and (2) the alleged fact that appellant=s counsel had difficulty communicating with appellant. The fact that a defendant has a history of mental illness and is required to continue treatment, does not, by itself, raise the issue of competency. See Moore, 999 S.W.2d at 395 (finding that prior hospitalization and treatment for hospitalization did not, per se, require a trial court to conduct a competency hearing); LaHood, 171 S.W.3d at 619 (holding that Athe fact that [defendant] may have been on psychiatric medication during trial and had a history of mental problems did not mandate a competency inquiry@). Rather, the essential inquiry is whether the defendant has an ability to consult with his attorney and has a rational and factual understanding of the proceedings against him. See Moore, 999 S.W.2d at 395; LaHood, 171 S.W.3d at 619. Appellant=s medical history in combination with the trial court=s lack of assurance that he was continuing treatment is also unpersuasive in raising the issue of competency. As stated earlier, a defendant is presumed competent to stand trial. Tex. Code Crim. Proc. art. 46B.003(b). Therefore, the trial court needs no affirmative assurances that a defendant is competent (i.e., evidence that defendant has continued treatment); rather, there must be some facts indicating incompetency. Appellant=s facts allegedly indicating evidence of incompetency do not overcome that burden.
Appellant also argues that the issue of competency should have been raised by his alleged difficulty in consulting with his attorney throughout the trial proceedings. Appellant points to the following instances which he claims reveal counsel=s difficulty in communicating with him:
(1) When arraigned outside the presence of the jury, appellant=s counsel answered that appellant Astands mute@;
(2) When later arraigned in the presence of the jury, appellant=s counsel again stated that appellant Astands mute@;
(3) Appellant=s counsel=s statement during a conference with the trial court regarding the admissibility of certain evidence that: AMr. Baugh=s behavior during these proceedings has been an example of his behavior throughout our one year of knowing each other. He stands mute. I had no idea of the existence of that history until [the prosecutor] provided it to me.@
A defendant=s failure to cooperate with counsel is not probative evidence of incompetence. Burks v. State, 792 S.W.2d 835, 840 (Tex. App.CHouston [1st Dist.] 1990, writ ref=d). Similarly, defendants often choose to remain silent while being arraigned. See, e.g., Tex. Code Crim. Proc. art. 27.16(a) (AIf the defendant refuses to plead, the plea of not guilty shall be entered for him by the court.@); Schultze v. State, 177 S.W.3d 26, 30 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d) (noting that appellant refused to enter a plea); Alcott v. State, 26 S.W.3d 1, 4 (Tex. App.CWaco 1999), aff=d, 51 S.W.3d 596 (Tex. Crim. App. 2001) (finding that defendant=s decision to remain silent when asked to enter a plea regarding an enhancement at the punishment phase was insufficient evidence of incompetency). If such actions were considered evidence of incompetence, Aone could effectively avoid criminal justice through immature behavior.@ Burks, 792 S.W.2d at 840.
Appellant also seems to suggest that his counsel could or would not communicate with him throughout the course of the trial proceedings. We note that incompetence is ultimately judged by the ability of a defendant to consult with his attorney rather than a defendant=s actual consultations with his attorney. Tex. Code Crim. Proc. art. 46B.003(a). Otherwise, a defendant could avoid criminal justice by simply choosing not to speak with his attorney. Nevertheless, the record does not support appellant=s assertion. For instance, in appellant=s initial Motion for Psychiatric Examination, appellant=s counsel discusses communications with appellant, albeit communications that led counsel to conclude that appellant was incompetent. That conclusion, however, was based on appellant=s temperament in communicating with counsel, not on a lack of communication. The record also reflects that appellant=s counsel was able to discuss sex offender registration requirements with appellant and that appellant understood those requirements. Additionally, appellant responded at various points in the trial to the trial court=s questions. Finally, the Vernon Hospital report concluded that while appellant Adid not believe he would consider the advice of his attorney,@ appellant had the capacity to disclose pertinent facts, events, and states of mind to counsel, and to engage in a reasoned choice of legal strategies. In sum, the record fails to show that appellant did not have the ability to consult with his attorney with a reasonable degree of rational understanding. As a result, we find no evidence raising an issue of defendant=s competency to stand trial. The trial court, therefore, did not abuse its discretion in failing to conduct a sua sponte inquiry into appellant=s competency. We overrule appellant=s second point of error.
We affirm the judgment of the trial court.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed May 1, 2007.
Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant=s sentence was enhanced by a prior felony conviction.
[2] A 46B.080(c) report is one filed by the Ahead of a facility to which a defendant has been committed@ stating certain facts including the reasons why the defendant should be discharged from the facility. Id. art. 46B.080(c).
[3] The report was actually filed on September 16, 2005. The report was sworn to on September 13, 2005.
[4] For instance, appellant does not argue that he did not receive the report as required by 46B.080(c). See id. art. 46B.080(c) (AThe court shall provide copies of the report to the attorney representing the defendant . . . .@).
[5] Former Article 46.02, which was amended and replaced with Article 46B.004 in 2004, stated that the issue of competency is raised when evidence of the defendant=s incompetency is brought to the attention of the trial court from any source. Tex. Code Crim. Proc. art. 46.02, repealed by Act of April 30, 2003, 78th Leg., R.S., ch. 35 ' 15, 2003 Tex. Gen. Laws 72. Cases interpreting that statute found that the issue of competency is raised only if the evidence brought to the trial court=s attention raises a bona fide doubt in the trial court=s mind about the defendant=s competency to stand trial. See McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003); Reed v. State, 112 S.W.3d 706, 710 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Appellant argues that the current statute, which states that the issue of competency is raised when evidence suggesting the defendant may be incompetent, abandons the bona fide doubt standard used prior to the statute change in favor of a less strict standard. See Greene v. State, No. 04‑05‑00783‑CR, 2007 WL 390309, at *5 n.3 (Tex. App.CSan Antonio Feb. 7, 2007, no pet.) (op. on reh=g.) (finding that, because the current Article 46B.004 is worded differently from the former Article 46.02, the Legislature intended to Adepart from the >bona fide doubt= requirement previously established by case law@). But see Salahud‑Din v. State, 206 S.W.3d 203, 208 (Tex. App.CCorpus Christi 2006, pet. filed) (employing the bona fide doubt standard while noting that the statutory language in the code of criminal procedure governing competency hearings has recently been amended); Ford v. State, No. 05‑04‑01819‑CR, 2006 WL 710946, at *1 n. 1 (Tex. App.CDallas Mar. 22, 2006, no pet.) (not designated for publication) (stating that, because the language of the statutes is substantially similar, Awe see no reason not to apply that standard to this case@); LaHood, 171 S.W.3d at 618-19 (applying the bona fide doubt standard after the statute change); Richardson v. State, No. 01‑04‑00281‑CR, 2005 WL 267708, at *2 n. 3 (Tex. App.CHouston [1st Dist.] Feb. 3, 2005, no pet.) (not designated for publication) (concluding current statute=s requirement to conduct an informal inquiry is substantially similar to that set forth in former Article 46.02 and applying the bona fide doubt standard).