I respectfully dissent to the majority opinion only with respect to its disposition of appellant's point of error number four. In that point of error, appellant asserted the trial court erred in not following the prescribed procedures to determine mental competency. The proper procedure for such a determination is set forth in TEX.CODE CRIM.PROC.ANN. art.46.02 Secs. 2(b), 4(a), 4(c) (Vernon 1979).
I disagree with the majority only in its construction of section 2(b) of art. 46.02 which states:
*Page 751(b) If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any
source, the court must conduct a hearing . . . To determine whether or not there is evidence to support a finding of incompetency to stand trial. (emphasis added).
I construe the legislature's use of the phrase "must conduct a hearing" in Sec. 2(b) to mean that it intended such hearing to be mandatory. The majority states there was no evidence of incompetency during either phase of appellant's trial. It appears to me that the majority makes the same error as the trial court — conclusively determining there is no evidence without affording appellant a hearing to determine if there is any evidence.
The Texas Court of Criminal Appeals, in addressing an analogous factual situation, stated: "when the issue (incompetency) is raised 'during trial', Sec. 2(b)mandates that 'the court . . . determine whether or not there is evidence to support a finding of incompetency to stand trial' . . ." (emphasis added). Williams v.State, 663 S.W.2d 832, 833 (Tex.Crim.App. 1984); seealso Sisco v. State, 599 S.W.2d 607, 609 (Tex.Crim.App. 1980).
In the present case, it is undisputed that the question of appellant's competency was raised and no competency hearing was had. However, the majority opinion states: "when the sentencing hearing was set on March 17, there simply was no evidence from any source that appellant was then incompetent." This statement places a time limitation for finding incompetency to the date of the sentencing hearing. There is no such limitation in Sec. 2(b), as it uses the phrase "during the trial." Furthermore, I believe there is evidence in the record of such magnitude that it at least warranted a hearing by the trial court to hear evidence of appellant's incompetency, i.e. (1) nonsensical letters to defense counsel and the judge, (2) medical records concerning appellant's mental competency, (3) medical evaluations of appellant's competency by doctors made at the request of the trial judge, and (4) social security records indicating appellant was receiving disability payments.
One further contention raised by the state, but not addressed in the majority opinion, is that the provisions of art. 46.02 are not applicable to appellant's allegations of incompetency. The state argues that because the question of appellant's incompetency was raised in the period between the jury verdict and sentencing, it was not raised "during the trial" as required by art. 46.02 Sec. 2(b). I find no merit to this contention as it has been previously rejected by the Texas Court of Criminal Appeals in Williams v. State, 663 S.W.2d at 833.
Because I believe this court must follow the holdings of the Texas Court of Criminal Appeals in Williams andSisco, I would abate this case and remand it to the trial court with instructions to conduct a hearing to determine if there was evidence of appellant's incompetency during the trial. After the hearing, if there is no such evidence, the court should find accordingly and file its finding with this court. If the court finds that there is evidence of appellant's incompetency, it should follow the procedures prescribed by art. 46.02.