Boling v. State

OPINION

McCORMICK, Justice.

This is an appeal from a conviction of aggravated sexual abuse. Punishment, enhanced by a single prior conviction, was assessed at ninety-nine years. V.T.C.A. Penal Code, Section 12.42(c). Appellant and his brother were tried together for this offense.

Appellant initially contends the trial court erred in overruling his pre-trial motion for a competency hearing. The motion, in its entirety, reads:

“MOTION FOR INCOMPETENCY HEARING
“NOW COMES, David Dudley Boling, Defendant and makes his motion for an incompetency hearing before a jury prior to any trial on the merits of the case.
*242“Said motion is made pursuant to Article 46.02, V.C.G.P.
/s/ Gary J. Coker
GARY J. COKER Attorney for Defendant 7543 Bosque Waco, Texas 76710”

The motion does not comply with Article 46.02, Section 2(a), Y.A.C.C.P. The motion itself does not assert appellant’s incompetency nor bring forth any evidence of incompetency.1 However, the trial court, upon motion and in an effort to protect the indigent appellant’s rights, ordered a psychiatric examination.

Six days prior to trial, the court held a hearing on all pre-trial motions. Regarding the “Motion for Incompetency Hearing”, the trial court stated:

“THE COURT: Gentlemen, if the report —I’m not going to rule on this motion right at this time, I’ll rule on it Monday morning after I receive this report from Dr. Holbrook. And I will tell you in advance, however, that if Dr. Hol-brook’s report stated that these men are competent, well, your motion will be denied, at that time. I do not intend to have everybody run at every psychiatrist in the city at the taxpayer’s expense, it’s that simple. But I will withhold any action on that until Monday morning.”

Five days prior to trial, the court-appointed psychiatrist filed his report on the examination of appellant. The psychiatrist unequivocally stated that, in his opinion, appellant was not suffering from any mental disease or defect and was “competent to aid his attorneys in his defense.”

On the day of the trial and prior to the voir dire of the jury, the court formally ruled on appellant’s request for a competency trial:

“THE COURT: All right, on the record, Mr. Bowen, in both cause numbers, one being 77-250-C, it is entitled ‘The State of Texas versus Adrian C. Bol-ing’, and the other is Cause No. 77-251-C, entitled ‘The State of Texas versus David Dudley Boling’, the Court, after the pre-trial hearing, had withheld ruling on both motions that have been filed by the two attorneys, which was captioned ‘Motion for a Pre-Trial Hearing on Competency’, and one of them is called ‘Motion for Incompetency Hearing’. At this time, after reviewing the court-appointed psychiatrist’s report on the two Defendants, the Court is going to deny both of those motions.
“MR. BERGEN: Note our exception on behalf of the Defendant, Adrian C. Bol-ing.
“MR. COKER: Note our exception on behalf of David Dudley Boling, Your Honor.” (Emphasis added)

The record reveals that no evidence other than the psychiatric examination was introduced. Once the trial court ruled adversely, appellant did not attempt to perfect a bill of exception. Neither did appellant again raise the issue of competency during trial, or through a motion for new trial.

Appellant has failed to produce any legally competent evidence in this record of incompetency. The only evidence concerning appellant’s motion was the report from the court ordered psychiatric examination. The report outlines appellant’s educational, mental, and physical history. The psychiatrist unequivocally stated that appellant was competent. Appellant did not present any evidence to rebut the psychiatrist’s opinion. Thus, no evidence of incompetency was present. McWherter v. State, 607 S.W.2d 531 (Tex.Cr.App.1980); Vigneault v. State, 600 S.W.2d 618 (Tex.Cr.App.1980).

We, therefore, hold that the trial court did not abuse its discretion in refusing to hold a competency hearing. Appellant’s motion was discussed at a pre-trial hearing. It was formally ruled upon prior to trial. Appellant could have pursued the matter through a bill of exception or a motion for new trial. Moreover, appellant had ample *243opportunity to present evidence of incompetency during trial, thereby again raising the issue. Accordingly, the ground of error is overruled.

Appellant’s only other ground of error claims the trial court reversibly erred in not granting his motion to appoint additional experts. The trial court did, in fact, appoint a psychiatrist to examine appellant. However, when the reports on the co-defendants were filed, they were mistakenly switched. A later action by the court corrected the inadvertent error. The results of the psychiatric examination demonstrated sufficient competency for the appellant to stand trial.

Appellant, through inventive argument, does not focus on the trial court’s failure to appoint additional experts, but in reality attacks the clerical error of misfiling the psychiatric reports. Appellant asserts that, since the report was not in the proper record at the hearing, it amounted to a complete denial of any psychiatric examination in violation of Article 46.02, supra, and the right to prepare a defense in the competency hearing. However, appellant fails to produce evidence or demonstrate facts that the misfiling of the report resulted in prejudicial error. Neither did appellant ever demonstrate that a copy of the report was not sent to him. Article 46.02, Section 3(d), V.A.C.C.P. Indeed, the trial court announced in open court that it had the reports. Appellant had a right to request to examine the documents. Article 46.02, Section 3(d), supra.

Therefore, not only does appellant’s error on appeal fail to comply with his objection at trial, but he also fails to demonstrate how the inadvertent mistake in filing resulted in prejudicial harm. Accordingly, this ground of error is overruled.

The judgment is affirmed.

. Competent evidence can be shown through a variety of means: prior mental history, sufficient affidavits questioning an accused’s competency, or a psychiatric report. These examples are not meant to be the only methods of presenting competent evidence.