COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00039-CR
JEREMY WICKER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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In January 2010, pursuant to a plea bargain agreement, Appellant Jeremy
Wicker pled guilty to criminal solicitation of a minor, and the trial court placed him
on five years’ deferred adjudication community supervision. In March 2010, the
State filed a motion to proceed with adjudication. At the hearing on the State’s
motion, the trial court asked Appellant if he had ―ever had any mental health
problems.‖ Appellant informed the trial court that he has Asperger’s syndrome,
1
See Tex. R. App. P. 47.4.
that he should be on medication, and that he had not been able to take his
medication since being confined in jail nine months earlier. The trial court then
had a brief discussion with defense counsel about Appellant’s competence.
Defense counsel stated that Appellant understood what defense counsel told
him, that Appellant was ―able to converse with [defense counsel] in a competent
manner,‖ and that defense counsel did ―not believe there [was] an issue
regarding [Appellant’s] competence.‖ The trial court then asked Appellant if he
thought he understood ―what’s going on today,‖ to which Appellant answered,
―Yes, ma’am.‖
The trial court accepted Appellant’s pleas of ―true‖ to all of the allegations
in the State’s motion. The trial court then proceeded with adjudication. One of
Appellant’s witnesses was Dr. Dan Creson, a psychiatrist who had evaluated
Appellant. Creson testified that Appellant has trouble with ―understanding the
social implications of what he does and how he understands the world in which
he lives.‖
The trial court found the allegations in the State’s motion true, adjudicated
Appellant guilty, and sentenced him to ten years’ confinement and a fine of
$1,000.
In five points, Appellant challenges the validity of his pleas of true to the
allegations in the petition, arguing that the trial court abused its discretion by
failing to conduct an adequate informal inquiry into his competence under article
46B of the Texas Code of Criminal Procedure and that this error affected his
2
substantial rights; that the bona fide doubt as to his competence rendered his
pleas constitutionally invalid under both the state and federal constitutions, and
that the constitutional errors he alleges are structural and not subject to a harm
analysis. Because the trial court committed no reversible error and because
Appellant’s pleas were valid, we affirm the trial court’s judgment.
Article 46B.003 provides,
(a) A person is incompetent to stand trial if the person does not
have:
(1) sufficient present ability to consult with the person’s lawyer
with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the
proceedings against the person.
(b) 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.2
Appellant relies on evidence of his Asperger’s syndrome and testimony of
Dr. Creson that Appellant has trouble understanding the social implications of his
actions and the world he lives in. Appellant argues that this is evidence that he
lacks a rational understanding of the proceedings against him. He also argues
that the trial court was obligated to make further investigation into his
competence to stand trial because Article 46B.004 provides,
(b) If evidence suggesting the defendant may be incompetent to
stand trial comes to the attention of the court, the court on its own
2
Tex. Code Crim. Proc. Ann. art. 46B.003 (West 2006).
3
motion shall suggest that the defendant may be incompetent to
stand trial.
(c) 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.3
The trial court, however, inquired of Appellant and of his counsel whether
Appellant was competent to stand trial. Appellant said that he had been in
special education and was taking medication, but he did not suggest that he was
unable to communicate with his attorney with a reasonable degree of
understanding or that he lacked either a rational or factual understanding of the
proceedings against him. In fact, in response to the trial court’s question,
Appellant stated that he understood what was going on in court. When the trial
court specifically inquired into these matters with trial counsel, trial counsel
assured the trial court that he was able to communicate effectively with Appellant
and specifically stated that competence to stand trial was not an issue.
We review the trial court’s actions under an abuse of discretion standard. 4
A trial court abuses its discretion when its decision is arbitrary or unreasonable. 5
Considering the record as a whole, we hold that the trial court did not abuse its
discretion by not making additional inquiry regarding Appellant’s competence to
3
Id. art. 46B.004(b), (c) (West Supp. 2011).
4
Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009).
5
Id.
4
stand trial. Indeed, the record reflects that the conscientious trial court made
extensive and concerned inquiry into Appellant’s competence. The trial court
complied with both the letter and the spirit of both the applicable statutes and
constitutional guarantees of due process.
We therefore overrule all of Appellant’s five points on appeal and affirm the
trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
MEIER, J., filed a dissenting opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 23, 2012
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00039-CR
JEREMY WICKER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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DISSENTING MEMORANDUM OPINION1
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I dissent from the majority opinion because the trial court conducted an
inadequate informal inquiry when it questioned Appellant Jeremy Wicker and his
court-appointed counsel about Wicker’s competency to stand trial.
If a bona fide doubt exists about the defendant’s competency to stand trial,
the trial court must conduct an informal inquiry to determine whether some
evidence from any source supports a finding of incompetency. Tex. Code Crim.
1
See Tex. R. App. P. 47.4.
Proc. Ann. art. 46B.004(c) (West Supp. 2011); Montoya v. State, 291 S.W.3d
420, 425 (Tex. Crim. App. 2009); Fuller v. State, 253 S.W.3d 220, 228 (Tex.
Crim. App. 2008), cert. denied, 555 U.S. 1105 (2009). A person is incompetent
to stand trial if he does not have (1) sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding or (2) a rational as
well as factual understanding of the proceedings against him. Tex. Code Crim.
Proc. Ann. art. 46B.003(a) (West 2006). The informal inquiry ―allows the trial
judge to . . . determine whether the behavior of the defendant during a
proceeding indicates a lack of rational understanding.‖ Montoya, 291 S.W.3d at
425.
At the beginning of the hearing on the State’s motion to adjudicate, Wicker
informed the trial court that he has Asperger’s syndrome, that he was supposed
to be taking medication for that condition, but that he had not taken any
medication since being incarcerated sometime in March 2010.2 Dr. Dan Creson
testified that he evaluated Wicker in 2009 and that he concurred with Wicker’s
contention that he had Asperger’s syndrome. According to Dr. Creson,
Asperger’s syndrome is part of the autistic continuum; a common symptom of the
condition includes difficulty communicating. Knowing of Wicker’s condition, the
trial court asked Wicker a single question and Wicker’s attorney a single question
about Wicker’s competency to stand trial. The trial court did not ask Wicker’s
2
The hearing took place in January 2011.
2
attorney if he had even known that Wicker has Asperger’s syndrome, nor did the
trial court ask any questions of Wicker about his ability to communicate with his
attorney or of his Asperger’s syndrome.
In my opinion, when the trial court learned that Wicker had Asperger’s
syndrome and that he had not taken medication for the condition since March
2010, it should have, at a minimum, posed more than just one single question to
Wicker regarding his competency to stand trial. The trial court should have
inquired further into Wicker’s ability to communicate with his attorney and the
effects, if any, of his Asperger’s syndrome on his competency. I fail to see how—
at the outset of the hearing and before an opportunity to sufficiently observe
Wicker—the trial court could have gleaned from a single question whether
Wicker could not consult with his attorney with a reasonable degree of rational
understanding.
The inadequacy of the inquiry is apparent when compared to the informal
inquiries made by other trial courts. In Lawrence v. State, the defendant told the
trial court that he had been treated for depression, and in addition to questioning
defense counsel, the trial court questioned the defendant if he had told his
attorney about the condition, whether he understood the charges against him,
whether he understood his conversations with his attorney, and whether he was
able to explain his side of the case to his attorney. 169 S.W.3d 319, 323–25
(Tex. App.—Fort Worth 2005, pet. ref’d). In Smallwood v. State, in addition to
questioning defense counsel, the trial court asked the defendant whether he was
3
competent, of sound mind, insane, or crazy; whether he knew what ―competent‖
meant; whether he knew what the charges were against him; whether he had
ever been told that he needed any special treatment or medical care for his
condition; and whether he knew what he was doing when he committed the
charged offense. 296 S.W.3d 729, 731–32 (Tex. App.—Houston [14th Dist.]
2009, no pet.).
In Johnson v. State, the trial court questioned the defendant about his
plea, the charges against him, the punishment range for each offense, his court-
appointed counsel, and his understanding of a guilty plea; whether he was on
medication; whether he understood defense counsel; and whether he understood
who the judge was and what his role was. Nos. 05-05-00464-CR, 05-05-00465-
CR, 05-05-00466-CR, 05-05-00467-CR, 2006 WL 1000071, at *1 (Tex. App.—
Dallas 2006, no pet.) (not designated for publication). And in Gray v. State, in
addition to questioning defense counsel, the trial court inquired of the defendant
whether he had reviewed and understood documents before signing them and
what offense he was pleading guilty to. 257 S.W.3d 825, 828 (Tex. App.—
Texarkana 2008, pet. ref’d).
Like the adequate informal inquiries conducted by the trial courts in
Lawrence, Smallwood, Johnson, and Gray, the trial court in this case should
have asked more than merely one question of Wicker once it learned that he has
Asperger’s syndrome but that he had not taken his medication since being
incarcerated months earlier. The trial court could not have determined from the
4
brief colloquy that occurred at the outset of the hearing on the motion to
adjudicate whether Wicker’s behavior indicated a lack of rational understanding.
Accordingly, I would hold that the trial court abused its discretion by performing
an inadequate informal inquiry into Wicker’s competency to stand trial. Because
the majority holds that the trial court’s inquiry was adequate, I respectfully
dissent.
BILL MEIER
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 23, 2012
5