(Retired), dissenting.*
There are two stages in the competence-determination process. Alcott v. State, 51 S.W.3d 596, 601 (Tex.Crim.App.2001) (Price, J., concurring). First, the trial court conducts an inquiry into the accused’s competence to stand trial. Id. The second stage is a hearing before the jury on the merits of the claim. Id.
There are two ways a defendant’s competency may be raised. The first is before trial by written motion by the defendant by counsel or by the court. Tex.Code Crim. Proo. Ann. art. 46.02, § 2(a) (Vernon 1979). The competency of the defendant may also be raised during trial, as stated in the Texas Code of Criminal Procedure:
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 out of the presence of the jury to determine *446whether or not there is evidence to support a finding of incompetency to stand trial.
Tex.Code Crim. PROC. Ann. art. 46.02, § 2(b) (Vernon 1979) (emphasis added). If the accused’s competency is raised before trial by motion or during trial, the court must conduct a preliminary inquiry into the competency of the accused.
The Texas Court of Criminal Appeals has required a trial court to possess a bona fide doubt as to the defendant’s competency to trigger a competency inquiry during trial under Section 2(b). Alcott, 51 S.W.3d at 601. The court had said a bona fide doubt exists “if the evidence indicates recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant.” Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App.1997). If the trial court has a bona fide doubt, the court should conduct an inquiry outside the presence of the jury, at which time the court should determine whether there is some evidence of incompetency. Alcott, 51 S.W.3d at 602. At that point, after the court has found a bona fide doubt of the defendant’s incompetency, a mere finding of “some evidence,” which constitutes a quantity more than none or a scintilla standard, of incompetency triggers an actual competency hearing before a jury. Id.
As the law stands now, establishing a question of the accused’s competency to trigger a preliminary inquiry is more difficult to achieve than it is to meet the threshold to receive the actual competency hearing by a jury.
Because a competency inquiry is a prerequisite to reach a hearing on competency before the jury, the bona fide doubt standard should be a lower threshold than the evidence to support a finding by a jury of incompetency. As the law stands, the threshold for reaching the initial competency inquiry is higher than the competency hearing before a jury on the merits.
The standard by which a trial court should consider whether a defendant’s competency was sufficiently raised during trial should be in accordance with the Texas Code of Criminal Procedure. Therefore, if an issue was raised during trial that questioned whether a defendant had the sufficient present ability to consult with his or her lawyer, or if an issue was raised as to whether the defendant had a rational and factual understanding of the proceedings against that defendant, then a judge should conduct a preliminary inquiry into the defendant’s competency, as provided by Section 2(b). Instead, the Texas Court of Criminal Appeals has set up a requirement that the trial court should consider that bona fide doubt exists if the evidence indicates recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. Collier, 959 S.W.2d at 625. This is a judicially created standard which is not consistent with the Legislature’s determination of what competency is. This departure from the substantive standard set out for mental competency to stand trial amounts to a usurping of the Legislature’s law-making authority. It amounts to more than an interpretation or application of the Code of Criminal Procedure.
The present case comprised facts that sufficiently raised the defendant’s competency during trial. It appears from the record that the issue of Eddie’s competency was raised several times, and there was never a separate hearing inquiring about his fitness to stand trial. Specifically, before trial on the merits began, the court asked some questions of Eddie. The following was said at that time:
[EDDIE]: Well, I can’t answer that question because I really don’t know.
*447Like I said, I’ve had — I’ve seen some things — .
THE COURT: If you don’t know — .
[EDDIE]: Man, somebody is trying to kill me, man. Someone — someone— I’ve got an audio tape that can prove my — prove my innocence. Someone’s trying to kill me. Something’s going on.
THE COURT: Who tried to kill you?
[EDDIE]: There’s a dead guy up in Denton, Texas, that they say committed suicide. Something’s going on.
THE COURT: What’s that got to do with Gregg County Jail? That’s what I’m asking you.
[EDDIE]: While I was up there in Denton, County, trying to clear my name — .
THE COURT: No. I’m asking you about — .
[EDDIE]: — my lawyer told me to come down to Longview — .
THE COURT: Hold on, Mr. Eddie.
[EDDIE]: — and turn myself in — .
THE COURT: Hold on.
[EDDIE]: — and then pick up Scrappy Holmes as my lawyer.
THE COURT: Listen. I told you to hold on. I’m talking right this minute. I’m talking about Gregg County confinement — whether you’ve been deprived [sic] any rights while you’ve been in Gregg County’s custody. It’s a simple question. Have you or haven’t you?
[EDDIE]: I don’t know what you’re asking.
THE COURT: You know what your rights are.
[EDDIE]: No, I don’t.
THE COURT: You don’t?
[EDDIE]: Because I’ve tried to talk to some of these jailers over here, and they would answer back on the grievance form okay.
THE COURT: I find that the accused enters his plea freely, voluntarily, knowingly, and intelligently to those three particular allegations. And the Court is going to find them true accordingly. And a plea of not true is entered to all the other allegations contained in the amended application to revoke probation. I take judicial notice of all documents on file in this cause and any proceeding in this cause over which I have personally presided. And by agreement of the Defendant and Counsel previously, this matter — the revocation and the plea of not guilty in Cause Number 28,-783-B are heard simultaneously.
In addition to Eddie’s testimony raising his competency, his attorney pleaded to the trial court that Eddie was in need of psychological assistance. Moreover, Eddie’s counsel introduced three letters written by Eddie that were mailed to his counsel in an attempt to raise a question as to Eddie’s competency. Specifically, the letters Eddie mailed to his attorney include very explicit sexual suggestions. But more importantly, the letters raise an issue as to Eddie’s competency because they illustrate he did not have the ability to consult with his attorney with a reasonable degree of rational understanding. See Tex.Code Crim. Proc. Ann. art. 46.02, § lA(a)(l) (Vernon Supp.2003). Moreover, in one particular letter, Eddie wrote to his attorney, “Please help me [ — ] I need mental help.”
A fact-finder may ultimately determine this evidence is self-serving on Eddie’s part, but there is sufficient evidence to raise the issue of mental incompetency.
For these reasons, I would remand to the trial court to conduct an inquiry into whether the defendant was competent at the time of the trial. I respectfully dissent.
Justice, Retired, Sitting by Assignment.