Order filed September 8, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00010-CR
__________
MICHAEL ANDREW GUERRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 010874
ORDER
In 2015, a jury convicted Appellant, Michael Andrew Guerra, of indecency
with a child by contact. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2019). The
trial court assessed his punishment at confinement for a term of five years in the
Institutional Division of the Texas Department of Criminal Justice. However, the
trial court suspended Appellant’s sentence and placed him on community
supervision for seven years.
On March 30, 2017, the State filed its initial motion to revoke Appellant’s
community supervision. In September 2017, Appellant’s trial counsel filed a motion
suggesting incompetency wherein he requested an examination of Appellant. In
February 2018, after a hearing, the trial court entered an order of commitment based
upon its determination “that there is sufficient evidence to believe that this
Defendant does not possess a rational understanding of the charges against him and
that this Defendant is not able to provide meaningful assistance to Counsel in the
preparation of this matter for trial.” On September 3, 2019, the trial court heard the
motion to revoke Appellant’s community supervision. At the conclusion of the
hearing, the trial court found that Appellant violated a condition of his community
supervision by committing an offense against the laws of the State of Texas—assault
on a public servant. The trial court then revoked Appellant’s community supervision
and sentenced Appellant to confinement for a term of five years in the Institutional
Division of the Texas Department of Criminal Justice.
Appellant raises two issues for our review, contending that the trial court
abused its discretion at the hearing on the motion to revoke by (1) failing to order a
formal competency examination and (2) failing to conduct an informal competency
inquiry. Because the record indicates that some evidence did come to the trial court’s
attention suggesting Appellant was not competent at his revocation hearing, we abate
this appeal and remand to the trial court to determine whether a retrospective
competency determination is feasible. If it is feasible, then the trial court shall
conduct one.
Background Facts
Appellant was convicted of indecency with a child and placed on community
supervision for seven years. While Appellant was on community supervision for
indecency with a child, he was convicted of assault on a public servant. Appellant’s
second conviction is a separate cause, trial court cause no. 011608, which we
2
addressed in our opinion in Guerra v. State, No. 11-19-00359-CR, 2022 WL 599241
(Tex. App.—Eastland Feb. 29, 2022 no pet.) (mem. op., not designated for
publication). Appellant’s commission of and subsequent conviction for assault on a
public servant served as a ground for the State’s motion to revoke Appellant’s
community supervision.
As it relates to this case, the State introduced Appellant’s second conviction
at the hearing on the motion to revoke as evidence that he violated a condition of his
community supervision. Included in the appellate record for this case is the
reporter’s record from the trial for assault on a public servant. The parties make
frequent references to that reporter’s record as well as the briefs filed in the other
appeal. However, our review of the questions presented in this appeal is limited to
the revocation hearing and the clerk’s record for this cause number. Accordingly,
we do not address arguments made by the parties related to trial court cause
no. 011608.
In trial counsel’s September 2017 motion suggesting incompetency, he
described Appellant as “fixated on the idea that his detention is unlawful,” exhibiting
“rapid, and frequently non-stop speech,” and exhibiting the belief that he is the
“victim of ongoing injustice” and “is being persecuted by the system.” The State
did not oppose the motion and the trial court issued an order for Appellant’s
examination. Based upon its determination of incompetency, the trial court
committed Appellant to North Texas State Hospital, Vernon Campus, in February
2018.
At some point later, Appellant was hospitalized at Big Spring State Hospital.
On August 8, 2018, the trial court extended Appellant’s commitment by twelve
months because evidence indicated that Appellant was not yet competent to stand
trial. The examining physicians diagnosed Appellant with schizoaffective disorder
and polysubstance abuse, which they determined required consistent medication in
3
order for Appellant to maintain competency. Our record does not indicate when
Appellant was released from Big Spring State Hospital—however, the twelve-month
extension expired on August 7, 2019.
Appellant’s revocation hearing occurred on September 3, 2019. At the
beginning of the hearing, Appellant’s counsel informed the trial court that he needed
to bring a matter to the court’s attention “before making an announcement of ready.”
Trial counsel stated that Appellant did not understand the reason for the hearing and
that Appellant believed that there were no pending charges against him with respect
to indecency with a child. Trial counsel further advised the court that Appellant
“persists in agreeing with his present competence.”
The trial court briefly questioned trial counsel about Appellant’s competency.
Trial counsel advised the trial court that he was not able to discuss the pending
motion to revoke with Appellant because Appellant believed that his conviction for
indecency with a child “went away.” Trial counsel informed the trial court that, in
August, Appellant was found competent and tried in his assault case, but counsel
distinguished the two cases—explaining to the trial court that Appellant understood
the other charges but was unable to understand the revocation hearing because he
believed the indecency charge was dropped. The trial court did not question
Appellant, but instead declared that it was “willing to stand on the finding of
competency unless there is another motion submitted concerning competency.”
During the hearing, Appellant made frequent interjections indicating he did
not understand the proceeding. Appellant testified at the revocation hearing. He
frequently accused the trial court and attorneys of “typing up new papers” and
accusing him of a crime that he believed happened while he was incarcerated. His
testimony was rambling and often unintelligible. With respect to his conviction for
indecency with a child, Appellant testified that there were papers that “proved” he
was innocent. He also testified: “Y’all are abusing my rights, my constitutional
4
rights and everything and the Declaration of Independence, constitutional rights,
statute of limitations and civil rights.” Appellant testified that, after his release from
Big Spring and return to Jones County, he refused to take all medication prescribed
at the state hospital in Big Spring. At the conclusion of the hearing, the trial court
stated on the record that Appellant spoke “extremely rapidly, nonresponsively.”
Analysis
Appellant raises two issues on appeal, contending that (1) the trial court erred
when it failed to conduct an informal competency inquiry and (2) if the trial court
did conduct an informal inquiry, the trial court erred when it failed to order a formal
competency trial. Because the two issues are procedurally linked, we address them
in the order set out in Article 46B. See TEX. CODE CRIM. PROC. ANN. art. 46B.004
(West 2018). Article 46B imposes a duty on the trial court to act when competency
is implicated in a criminal proceeding. Id. art. 46B.004(b). Thus, if the trial court
heard evidence that suggested Appellant was incompetent, it had a duty to perform
an informal inquiry into Appellant’s competency. Id. art. 46B.004(b),(c).
We note at the outset that Appellant presented the same issues concerning his
competency to stand trial in our Cause No. 11-19-00359-CR that he presents in this
appeal. The trial in Cause No. 11-19-00359-CR occurred on August 13, 2019. The
revocation hearing in this appeal occurred on September 3, 2019.
In Cause No. 11-19-00359-CR, we determined that “some evidence” had
come to the attention of the trial court suggesting that Appellant may not have been
competent when he stood trial. Guerra, 2022 WL 599241, at *2. We initially abated
the appeal and remanded to the trial court to determine whether a retrospective
competency determination was feasible. Id. When the trial court determined that a
retrospective competency determination was not feasible, we reversed Appellant’s
conviction based upon his competency claim and we remanded the case for a new
trial. Id. at *2–3.
5
It is a violation of due process for an incompetent person to be tried, convicted,
or sentenced for a criminal offense. See Pate v. Robinson, 383 U.S. 375, 378 (1966);
Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). Due process also
requires that a defendant be competent for revocation proceedings. Reeves v. State,
46 S.W.3d 397, 399 (Tex. App.—Texarkana 2001, pet. dism’d). “Further, a
defendant must be competent at the time of [ ] sentencing.” Id. (citing CRIM. PROC.
art. 42.07(2).
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.” CRIM. PROC. art. 46B.003. It is the
constitutional duty of each state to provide reasonable procedures to address the
issue of competency. Medina v. California, 505 U.S. 437, 449–51 (1992). The
Texas Legislature codified this due process requirement in Article 46B, which places
a duty on the trial court to act on its own motion if “evidence suggesting the
defendant may be incompetent to stand trial comes to the attention of the court.”
CRIM. PROC. art. 46B.004.
We review a trial court’s decision regarding competency inquiries for an
abuse of discretion. See Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App.
2009). Reviewing courts determine whether the decision was arbitrary or
unreasonable and do not substitute their judgment for that of the trial courts. Id.
The procedure for determining competency involves two distinct stages, the
informal inquiry and the formal competency trial, each with a different evidentiary
standard. Boyett v. State, 545 S.W.3d 556, 565 (Tex. Crim. App. 2018). Here,
Appellant contends first that the trial court erred in failing to initiate the first step in
the competency procedure. The evidentiary threshold to trigger an informal inquiry
is low. Clark v. State, 592 S.W.3d 919, 925 (Tex. App.—Texarkana 2019, pet.
6
ref’d). To initiate the mandatory informal inquiry, the trial court needs only a
suggestion of incompetency or evidence that demonstrates “only a mere possibility
of incompetency.” Boyett, 545 S.W.3d at 565.
Article 46B.004 provides that the basis for an informal inquiry may come
from any credible source, including observations indicating that the defendant is
incompetent within the meaning of the statute. See CRIM. PROC. art. 46B.024 (listing
factors that indicate incompetence). As applicable to Appellant’s revocation
hearing, the Article 46B factors include Appellant’s ability to rationally understand
the charges against him, his capacity to engage with his counsel in a reasonable
manner, the presence of mental illness, and Appellant’s testimony that he was not
taking his prescribed medication. Id. art. 46B.024(1)(A), (2)(A), (4), (5)(A).
At the start of the hearing, Appellant’s trial counsel informed the trial court
that Appellant did not understand the reason for the hearing and that Appellant
believed that there were no pending charges against him. Trial counsel also
informed the trial court that Appellant believed himself competent and would object
if someone were to contest competency. The trial court then asked Appellant’s trial
counsel if he was “able to communicate with [Appellant] concerning . . . these
proceedings.” Appellant’s trial counsel replied that Appellant “believes the case
went away . . . and I am not able to discuss [the revocation proceeding] with him.”
Appellant’s trial counsel also informed the trial court that Appellant was tried
for assault on a public servant a month prior to the revocation hearing. In this regard,
a different trial judge presided over the revocation proceeding. Trial counsel
indicated that he was able to communicate with Appellant about the assault charge
because Appellant recognized and understood that charge, but that Appellant did not
understand the revocation proceeding case because Appellant believed that his
conviction for indecency with a child had been resolved. While the trial court
questioned Appellant’s counsel, Appellant interjected multiple times asking for
7
proof of the underlying charge and alleging that “they keep typing up new papers.”
The trial court did not question Appellant about his understanding of the procedure
or charge.
The trial court was also aware that Appellant had a history of mental illness
because Appellant was committed to state hospitals in 2018 to determine his
competency. Appellant’s commitment occurred after the State filed its original
motion to revoke community supervision. One of the examining physicians, Dr.
Shiraj Vahora, diagnosed Appellant with schizoaffective disorder and polysubstance
abuse. Dr. Vahora’s report stated that Appellant was:
suffering severe and abnormal mental, emotional or physical distress;
is experiencing substantial mental or physical deterioration of the
patient’s ability to function independently, which is exhibited by the
proposed patient’s inability, except for reasons of indigence, to provide
for the proposed patient’s basic needs . . . and is not able to make a
rational and informed decision as to whether or not to submit to
treatment as evidenced by: PATIENT STILL VERY DELUSIONAL
AND DOES NOT BELIEVE HE NEEDS PSYCH MEDS AND IS
CURRENTLY ON COURT ORDERED MEDS, NEEDS
CONTINUING PSYCH INPATIENT TREATMENT FOR
STABILITY AND TO ENSURE MED COMPLIANCE OR ELSE
WILL DECOMPENSATE.
When questioned about his previous commitment at the revocation hearing,
Appellant testified that he was wrongly committed for psychiatric treatment and that,
once released, he refused to take his prescribed medication.
In addition to Appellant’s counsel’s comments and his documented history of
mental illness, Appellant’s own testimony indicated that he did not understand the
purpose and procedure of the revocation hearing. He testified that he had been
incarcerated since his trial for assault on a public servant and that he did not
understand how the charge for indecency with a child could be brought if he was
8
“incarcerated, handcuffed and ankle cuffed.” Appellant testified that no one would
show him the files or evidence against him.
Finally, at the conclusion of the revocation hearing, the trial court noted, for
purposes of the record, that Appellant “was speaking extremely rapidly,
nonresponsively. I couldn’t hear . . . all of it. . . . There is going to be a problem on
the record, you know, of having an accurate transcription of what he said . . . I
couldn’t’ understand it . . . .”
Appellant contends that all of these factors provide credible evidence to clear
the “suggestion” or “mere possibility” of incompetency threshold, thereby
obligating the trial court to conduct an informal competency inquiry. See CRIM.
PROC. art. 46B.004(b); Boyett, 545 S.W.3d at 565. The State responds that even if
there was a “suggestion” of incompetence, the trial court’s questions to Appellant’s
counsel at the start of the hearing constituted an informal inquiry. The State also
contends that the trial court had “just a month earlier, conducted an informal inquiry
into Appellant’s competency at the start of his assault trial.”1
Assuming, without deciding, that the trial court’s line of questioning to
Appellant’s trial counsel at the outset of the revocation hearing was a sufficient
informal inquiry, the purpose of an informal inquiry is to determine “whether there
is some evidence from any source that would support a finding that the defendant
may be incompetent to stand trial.” CRIM. PROC. art. 46B. 004(c). If the trial court
does find some evidence of the defendant’s incompetency at the informal inquiry,
“the court . . . shall stay all proceedings in the case” and conduct a formal
competency trial. Id. art. 46B. 004(d).
Appellant contends that the inquiry revealed sufficient evidence, in this case
“some evidence” as required by Article 46B.004(c), to require the trial court to
1
As we previously noted, a different judge presided over Appellant’s assault trial.
9
initiate a formal competency trial. The Court of Criminal Appeals has explained
that the “some evidence” standard in Article 46B.004(c) only requires “‘more than
none or a scintilla’ of evidence that ‘rationally may lead to a conclusion of
incompetency.’” Boyett, 545 S.W.3d at 564 (quoting Turner v. State, 422 S.W.3d
676, 692 (Tex. Crim. App. 2013)). During the informal inquiry, the trial court “must
consider only evidence of incompetency, and it must not weigh evidence of
competency against the evidence of incompetency.” Id.; see also Bautista v. State,
605 S.W.3d 520, 527–28 (Tex. App.—Houston [14th Dist.] 2020, no pet.)
(explaining that “the informal inquiry is not the appropriate venue for determining
the merits of a claim of incompetency”).
It is insufficient to stay the proceedings and order a competency trial simply
because the informal inquiry reveals more than a scintilla of evidence that the
defendant is mentally ill, that he “refuses to cooperate with his trial counsel,” or
both. Turner, 422 S.W.3d at 691. Instead, there must be more than a scintilla of
evidence that suggests that “the defendant’s refusal to rationally engage with counsel
is caused by his mental illness.” Boyett, 545 S.W.3d at 564. “When a defendant’s
mental illness operates in such a way as to prevent him from rationally understanding
the proceedings against him or engaging rationally with counsel in the pursuit of his
own best interests, he cannot be made to stand trial consistent with due process.”
Turner, 422 S.W.3d at 691.
Thus, there must be more than a scintilla of evidence to suggest that
Appellant’s mental illness prevented him from (1) consulting his counsel with a
reasonable degree of rational understanding or (2) having a rational and factual
understanding of the proceedings against him. See CRIM. PROC. art. 46B.003. As
set out above, at the beginning of the hearing there was at least “some evidence” that
Appellant (1) had a debilitating mental illness, (2) had been prescribed medication
for his illness, (3) had regained competency through his medication, and (4) was
10
unable to rationally and factually understand the proceedings against him. Then,
after Appellant’s testimony, there was some evidence that Appellant had stopped
taking the medication that his prior evaluating physician deemed necessary for
maintaining competency. The trial court had at least some evidence that expressly
indicated that Appellant needed to continue his medication “or else [he] will
decompensate.”
All of these things amount to at least “some evidence” that Appellant was
incompetent. Therefore, we hold that the trial court abused its discretion when it
failed to initiate a formal competency trial and stay the proceedings as required by
Article 46B.004(c)–(d). 2 As such, we abate this appeal and remand this cause to the
trial court with instructions to conduct a retrospective competency trial, if feasible.
See Boyett, 545 S.W.3d at 566; Turner, 422 S.W.3d at 696; Bautista, 605 S.W.3d at
530. On remand, the trial court shall first determine whether such a competency trial
is possible “given the passage of time, availability of evidence, and any other
pertinent considerations.” Turner, 422 S.W.3d at 696; see George E. Dix & John
M. Schmolesky, 43 Texas Practice: Criminal Practice and Procedure § 31.81
(3d ed. 2020) (discussing retrospective competency hearings and the feasibility of
such hearings). Should the trial court find that a competency trial is feasible, it shall
conduct the trial as required by Chapter 46B, Subchapter C, of the Code of Criminal
Procedure. If the trial court finds that a retrospective competency trial is not feasible,
the record of the proceedings on remand shall be returned to this court and the appeal
will be reinstated at that time.
The State contends that Appellant waived this right by failing to object. However, when a law
2
imposes a duty on the trial court to act, it creates a right that is waivable only, and the inaction of a party
does not waive the issue on appeal. See, e.g., Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App.
2004); Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993).
11
We order the trial court to prepare appropriate written findings within twenty
days after it has determined whether a retrospective hearing is feasible, and the
results of the proceeding should the trial court find it feasible. We further order the
district clerk to forward a supplemental clerk’s record containing the trial court’s
written findings within twenty days after the trial court files its written findings or
order. Additionally, the court reporter for the 259th district court is directed to create
a supplemental reporter’s record containing a transcript of all further proceedings
associated with the retrospective competency trial and to file the supplemental
reporter’s record in this court within thirty days after the trial court files its written
findings or order.
Finally, we note that the State has raised a cross-issue on appeal asking us to
reform the judgement to correct a clerical error involving Appellant’s sentencing
date. Because we abate and remand, we additionally order the trial court to correct
the error so that the record accurately reflects the sentencing date.
It is so ordered.
PER CURIAM
September 8, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
12