Sosa v. State

OPINION

BOB McCOY, Justice.

Upon his pleas of guilty to two offenses of indecency with a child by contact, the trial court placed Appellant Israel Sosa on deferred adjudicated community supervision in each of these cases. A psychiatrist had examined Sosa and diagnosed him as competent to stand trial before he entered his guilty pleas. Sosa, who suffers from schizophrenia, was placed on the mental health case load in the community supervision department and remained on that case load until the State filed its petition to proceed to adjudication in each case, alleging failure to report for the months of October, November, and December 2004.

On April 26, 2005, Sosa filed a motion for a competency examination in each case. The motions did not include any affidavits or any factual allegations beyond a statement that Sosa’s counsel at revocation did not think that Sosa was competent. On May 2, 2005, the day of the adjudication hearing, the trial court first denied Sosa’s oral motion for continuance to have a com*832petency examination. The trial court then asked a series of thirty-two questions inquiring into Sosa’s understanding of the charges against him, his educational level, his job history, his familiarity with his family members, and whether he understood that he was on probation in the two cases. Based on Sosa’s answers, the trial court made a specific finding that Sosa was competent. The adjudication hearing then proceeded.

After hearing evidence that Sosa had alcoholism problems, failed to take his prescribed schizophrenia medications regularly, and had failed to report in the months of October, November, and December 2004, the trial court granted the State’s petitions, adjudicated Sosa’s guilt, and, in each case, sentenced him to six years’ confinement in the Institutional Division of the Texas Department of Criminal Justice, with the sentences to run concurrently.

In one issue, Sosa contends that the trial court abused its discretion by refusing to have him examined to determine his competence to stand trial before proceeding on the petitions to adjudicate. The State argues that this court’s consideration of Sosa’s issue on appeal would violate the prohibition against appeal from the trial court’s determination to proceed to adjudication. See Tex.Code CRIM. PROC. Ann. art. 42.12, § 5(b) (Vernon Supp.2005). However, we need not address the issue of whether article 42.12 section 5(b) precludes an incompetent defendant from raising his incompetence on appeal following revocation of his deferred adjudication community supervision and an adjudication of guilt, because here there was no evidence that Sosa was incompetent.

The trial court is required to appoint an expert to examine a defendant for competency only upon a determination that evidence exists to support a finding of incompetency. See id. art. 46B.021(b). Here, no evidence of incompetency exists; Sosa’s motion for an examination was not supported by an affidavit or other evidence, and the trial court’s careful questioning of Sosa at the adjudication hearing did not produce any evidence of incompetence. See id. at art. 46B.004 (a), (c). Therefore, the trial court was not required to appoint an expert to examine Sosa to determine if he was competent.

Accordingly, we overrule Sosa’s issue and affirm the trial court’s judgments.

DAUPHINOT, J., concurring.