In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00171-CR
WESLEY GARZA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Childress County, Texas
Trial Court No. 5454, Honorable Stuart Messer, Presiding
August 29, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant Wesley Garza appeals from the trial court’s judgment adjudicating him
guilty of the offense of possession of a controlled substance,1 revoking his deferred
adjudication community supervision, and sentencing him to ten years of imprisonment.
Appellant challenges the judgment through four issues. We will affirm.
1
TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2012).
Background
Appellant plead guilty in September 2012 to the third degree felony offense of
possession of a controlled substance. The court deferred a finding of guilt and placed
appellant on community supervision for a period of three years.
Two months later, the State filed a motion to adjudicate appellant’s guilt, alleging
violations of the terms of his community supervision. In January 2013, appellant’s
counsel filed a motion requesting an examination of appellant regarding his
competency, and advising the court appellant was being treated at a state hospital. In
February 2013, the State filed an amended motion to adjudicate, alleging additional
failures to report and additional violations of his community supervision terms arising
from his drug use and possession.
Philip J. Davis, Ph.D., examined appellant. After his examination but before the
court heard the report, appellant filed a motion for a jury trial to determine his
competency. Davis was the only witness to testify at a hearing held immediately before
the hearing on the motion to adjudicate. Davis’s report also is in evidence. He testified
to his opinion that, while appellant had a history of mental illness and treatment for such
illness, he satisfied the criteria to be considered competent to stand trial. The trial court
found appellant competent for the adjudication proceeding.
Appellant plead “not true” to the allegations in the State’s motion to adjudicate.
He more than once interrupted the hearing on the motion. The hearing nonetheless was
completed, and the trial court found appellant violated terms of his community
supervision. Punishment was assessed as noted. This appeal followed.
2
Analysis
Failure to Conduct Formal Competency Hearing
We begin with appellant’s last issue by which he contends he was entitled to a
jury trial on the issue of competency and his due process rights were violated when he
was denied the jury trial he requested. The State argues the trial court did not abuse its
discretion in failing to conduct a jury trial as to appellant’s competence because the
court's informal inquiry did not reveal evidence that rationally could lead to a
determination of incompetency. We agree with the State.
The Texas Legislature has adopted the constitutional standard for competency to
stand trial in Article 46B.003(a) of the Texas Code of Criminal Procedure.2 Turner v.
State, 422 S.W.3d 676, 690 (Tex. Crim. App. 2013). Under our current statutory
scheme, any "suggestion" of incompetency to stand trial calls for an "informal inquiry" to
determine whether evidence exists to justify a formal competency trial. Id., citing TEX.
CODE CRIM. PROC. ANN. art. 46B.004(c) (West Supp. 2014) ("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").
The trial court here conducted an informal inquiry following the motion by
appellant and the examination by the appointed expert. See TEX. CODE CRIM. PROC.
ANN. art. 46B.021 (authorizing appointment of expert when suggestion of incompetence
2
Tex. Code Crim. Proc. art. 46B.003(a)(1) & (2) (West 2006) ("A person is incompetent to stand
trial if the person does not have . . . sufficient present ability to consult with the person's lawyer with a
reasonable degree of rational understanding; or . . . a rational as well as factual understanding of the
proceedings against the person.").
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exists). The question, then, is whether, “in light of what became known to the trial court
by the conclusion of the informal inquiry, it should have conducted a formal competency
trial.” Turner, 422 S.W.3d at 692. The answer depends on whether "some evidence
from any source" had arisen by that time "that would support a finding that [the
appellant] may be incompetent to stand trial." Id. In making this determination, a trial
court must consider only that evidence tending to show incompetency, "putting aside all
competing indications of competency, to find whether there is some evidence, a quantity
more than none or a scintilla, that rationally may lead to a conclusion of incompetency."
Id. If so, then evidence exists to support a finding of incompetency, and the statutory
scheme requires the trial court to conduct a formal competency trial. Id.
Searching for evidence supporting a finding of incompetence, we begin with Dr.
Davis’s report, which reflects a diagnosis of “bipolar disorder with psychotic features,”
and reflects appellant’s report to him of “an extensive history of treatment for mental
illness.” Appellant also reported he had been prescribed psychotropic medication for
“serious mental illness” and was taking the prescribed medication at the time of the
evaluation. Davis agreed appellant met the criteria to be considered seriously mentally
ill and that if he discontinued his medication, “his mental status and behavior will
deteriorate significantly.” However, Davis also testified that while “[m]ental illness can
affect competency to stand trial, and there are circumstances in which the individual
meets the criteria to be considered seriously mentally ill and still meets the criteria to be
considered competent to stand trial. They are -- they are not mutually exclusive.” See
Turner, 422 S.W.3d at 691 (the fact a defendant is mentally ill does not by itself mean
he is incompetent). Therefore, Davis continued, if appellant were to discontinue his
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medication, “[t]here is a possibility he might not meet the criteria [for competency] . . . .”
Davis further stated, “Again, I'd have to evaluate him without the medication, but that
level of history of the diagnosis of serious mental illness can certainly bring into question
an individual's competency.”
Other than his testimony regarding the effect of a discontinuance of his
medication, Davis’s testimony contains no suggestion appellant was incompetent at the
adjudication hearing. Davis expressed the opinion appellant satisfied the criteria for
competency to stand trial. Davis testified appellant was aware of the charges against
him and had a rational and factual understanding of the proceedings against him. He
also opined appellant had the sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding. Appellant’s counsel expressed no
contrary opinion at the hearing.
Reacting to Davis’s testimony of the potential for incompetency if appellant were
to discontinue his medication, the trial court inquired of appellant’s counsel whether
appellant had been administered his medication. His counsel stated, “I believe Mr.
Garza has been administered his medication. I have concerns of whether it's the right
amounts, but I believe he has been administered his prescribed medication.” Counsel
confirmed for the court that the administration of appellant’s medication was “not an
issue.” The court then concluded, “All right. I find that there is not evidence to raise --
there is not evidence to raise a bona fide doubt [3] in my mind regarding the Defendant's
3
Before an amendment to article 46B.004 effective September 1, 2011, the Court of Criminal
Appeals held that the “bona fide doubt” standard under a previous statute was the same as a suggestion
of incompetency sufficient to trigger an informal inquiry under the current statute. In Turner, the court
stated the legislative amendment “rejected the bona fide doubt standard for purposes of Article 46B.004.”
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competency to stand trial based upon the testimony of the expert, Dr. Phillip Davis. I do
not find. I have no doubt.”
We agree the record does not show any evidence that would support a finding
that appellant was incompetent to stand trial at the time the court conducted the
informal inquiry into appellant’s competency and heard the State’s motion to adjudicate.
See Grider v. State, 69 S.W.3d 681, 685 (Tex. App.—Texarkana 2002, no pet.) (holding
evidence that defendant was paranoid schizophrenic, taking medication, hearing voices,
and seeing visions was not evidence that defendant lacked ability to consult with lawyer
or understand the proceedings); Rice v. State, 991 S.W.2d 953, 957 (Tex. App.—Fort
Worth 1999, pet. ref'd) (holding that competency test is not whether someone labored
under mental, behavioral, or psychological impairment). The case is in the category of
those “in which there is some evidence of mental illness but no evidence from which it
may reasonably be inferred that the defendant’s mental illness renders him incapable of
consulting rationally with counsel.” Turner, 422 S.W.3d at 696.
There is no contention on appeal that the court erred by failing to reconsider
appellant’s competency because of his disruptive actions during the adjudication
hearing. His counsel once requested a continuance during the hearing after appellant
apparently inflicted superficial injuries on himself with a razor blade. Denial of that
request is not at issue on appeal. Appellant’s fourth issue is overruled.
____________________________
Turner, 422 S.W.3d at 692. Nonetheless, we read the trial court’s conclusion in this case to be that the
court had heard no evidence supporting a finding appellant was incompetent to stand trial.
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Sufficiency of Evidence Supporting Revocation
In his third issue, appellant challenges the sufficiency of the evidence to support
the revocation of his deferred adjudication community supervision. The decision to
proceed to an adjudication of guilt and revoke deferred adjudication community
supervision is reviewable in the same manner as a revocation of ordinary community
supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West 2010). We review an
order revoking community supervision under an abuse of discretion standard. Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492,
493 (Tex. Crim. App. 1984); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort
Worth 2007, pet. ref'd). In a revocation proceeding, the State must prove by a
preponderance of the evidence that the defendant violated the terms and conditions of
community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993);
Cherry, 215 S.W.3d at 919. The trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony, and we review the evidence in the
light most favorable to the trial court's ruling. Cardona, 665 S.W.2d at 493; Garrett v.
State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981) (panel op.); Cherry, 215 S.W.3d at
919. If the State fails to meet its burden of proof, the trial court abuses its discretion in
revoking the community supervision. Cardona, 665 S.W.2d at 493-94. Proof by a
preponderance of the evidence of any one of the alleged violations of the conditions of
community supervision is sufficient to support a revocation order. Cantu v. State, 339
S.W.3d 688, 691-92 (Tex. App.—Fort Worth 2011, no pet.).
The State submitted violations of three terms of appellant’s community
supervision at the hearing. On appeal, appellant’s issues focus on the violations
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surrounding the commission of a new offense and a subsequent positive drug test.
However, the court also found appellant violated two additional terms of his community
supervision.
Appellant’s community supervision officer testified to the two additional violations.
She testified appellant performed “poorly” under his community supervision.
Specifically, she testified appellant failed to report in January 2013 as required. She
also testified appellant failed to submit to a random drug test in November 2012 as
required. Either of these grounds would support the trial court’s order adjudicating
appellant’s guilt and revoking his community supervision. Cantu, 339 S.W.3d at 691-92.
Accordingly, we resolve appellant’s third issue against him.
Remaining Issues
Appellant’s remaining issues challenge the admission of drug test results.
Because we have found the evidence sufficient to support the trial court’s judgment on
two additional and unrelated grounds, it is unnecessary for us to address appellant’s
first and second issues. TEX. R. APP. P. 47.1. The judgment of the trial court is
affirmed.
James T. Campbell
Justice
Do not publish.
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