dissenting.
I dissent to the majority’s disposition of appellant’s tenth ground of error in which he contends the trial court committed error at the pre-trial competency hearing by submitting to the jury a definition of competency to stand trial that was fundamentally erroneous and a denial of due process. Error at a pre-trial competency hearing may now be raised on appeal from the subsequent conviction. Jackson v. State, Tex.Cr.App., 548 S.W.2d 685.
Before trial appellant filed a motion for a pre-trial hearing to determine his competency to stand trial. A jury was impaneled *822to decide the issue and after evidence was heard the trial court instructed the jury to determine the issue by this standard:
“To establish insanity at the present time it must be established by a preponderance of the evidence that the defendant is laboring under such mental disease or defect of the mind as to be rendered incompetent to make a rational defense to the charges against him.”
Before this charge was submitted to the jury appellant requested a charge with this definition:
“To establish insanity at the present time, it must be established by a preponderance of the evidence that the defendant does not, by reason of mental disease or defect, have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and that he does not have a rational or factual understanding of the proceedings against him. In this regard, you are instructed that the term mental defect may include mental retardation.”
It is well settled that the definition of competency encompasses a two-part test. That test as set out in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as a factual understanding of the proceedings against him.” That standard was subsequently applied by the United States Supreme Court in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), and in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The Dusky test has been recognized by this Court in numerous cases. Ex parte Hagans, Tex.Cr.App., 558 S.W.2d 457; Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517; Sandlin v. State, Tex.Cr.App., 477 S.W.2d 870.
The trial court’s deviation from the Dusky standard was fatal in this case. Although the charge given by the judge in the instant case did not use the M’Naghten rule, as has been held improper for determining competency, it did use an instruction similar to a part of the instruction given in Ex parte Long, 564 S.W.2d 760 (Tex.Cr.App., En Banc, 1978). There the trial judge instructed the jury that the standard to use to determine the competency of the accused was:
“Inability at the time of this trial of the defendant to understand the difference between right or wrong, or inability in mind to understand and appreciate the nature of the act charged against him in the indictment and the consequence thereof, or inability of the defendant in mind to make a rational defense concerning said act or offense.” (Emphasis added).1
The third of the alternatives submitted in that charge was substantially the same as the standard submitted in this case. The last part of that charge measured competency by the ability of the accused “to make a rational defense concerning said act or offense,” while the present charge similarly instructed the jury that the standard of incompetency was whether or not the accused had the ability “to make a rational defense to the charges against him.” The jury charge on the competency issue in this case was as fully deficient with respect to the constitutional requirements of Dusky as was the one in Long. To instruct the jury that they must find whether the defendant was mentally competent to rationally prepare a defense leaves the jury to speculate as to what legal test is properly applicable. *823Such a test falls far short of what is required by Dusky, supra.
Since the issue of the appellant’s competency to stand trial was decided under a standard which did not afford him due process of law, the appellant is entitled to a determination of such issue under the proper standards. Furthermore, inasmuch as appellant pointed out the defect in the trial court’s charge by adequate request for a proper instruction, he is also entitled to reversal on state grounds for the trial error in overruling that request. Under state law, appellant was entitled to a more precise instruction to the jury on the standard to determine competency than the conclu-sionary “rendered incompetent to make a rational defense to the charges against him.”
It is also transparently clear that the majority have devalued the constitutional basis of the Dusky test in their effort to analogize the competency issue with the issue of insanity at the time of the offense. These two matters will not support the bridge the majority have attempted to erect between them. There is no established constitutional right to the insanity defense, whereas the right to a fair competency determination is of established constitutional magnitude. It is from this very difference that the insanity defense cases quoted by the majority carry no weight in deciding the issue in this case.
The insanity defense cases exhibit flexibility on the matter of standards, yet no such flexibility characterizes the competency issue. Inasmuch as the insanity defense springs from the inexact if not inconsistent realms of the behavioral sciences, it is to be expected that the standards experimented with on that issue should exhibit considerable difficulties whenever a rigid formulation of the issue is attempted. This is partly because that issue encompasses ethical and legal considerations that reach beyond any fact determination by behavioral scientists. See, Graham v. State, Tex.Cr.App., 566 S.W.2d 941; United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969.
The test for competency to stand trial, on the other hand, is a matter of federal constitutional right, is uniform throughout the land, is not beset with inconsistencies, and speaks to the heart of the matter: does the accused have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and does he have a rational as well as factual understanding of the proceedings against him.
In this case appellant specifically requested a charge in the language of the constitutionally mandated standard. The majority, by approving a test that asks whether the accused was rendered “incompetent to make a rational defense to the charge against him,” have deprived appellant of a fair determination of the competency issue. In this case, the jury, as the fact finder for the competency issue, was given no guidance on what standard to apply. Without any elaboration on what constitutes incompetence, they were instructed to decide whether he was incompetent. The purpose of a jury charge is to instruct the jury on the law. Without guidance on the law the jury cannot do its job. It received no guidance here, and therefore no fair determination of appellant’s competency to stand trial was made. Appellant specifically requested a proper charge on the issue. The trial court committed reversible error under state law when it denied appellant’s requested charge, and it committed reversible error under federal constitutional law when it submitted the erroneous instruction to the jury. The majority are wrong on both state and federal grounds and the judgment should be reversed.
I dissent.
ROBERTS, PHILLIPS and CLINTON, JJ., join this dissent.. The Court in Long held that the charge was based upon the M’Naghten standard and the application of such a standard constituted a violation of due process because it measured the competency to stand trial by a standard other than that set forth in Dusky. The majori- ' ty do not adequately distinguish the charge used in Long from the one submitted in this case. The charge in Long was in the alternative and included the terms used in this case. In fact, the charge in Long was more protective of the defendant than the one here, in that one of the alternative standards in that charge was whether the accused could understand and appreciate the nature of the act charged against him in the indictment. Yet, even that was held insufficient.