concurring.
The majority concludes that a defendant may raise the issue of competency to stand trial at any time before sentence is pronounced.1 I agree, and since appellant asked for a competency determination before sentence was pronounced, the trial court should have conducted a 2(b) hearing. I disagree, however, with the majority’s characterization of the Court of Appeals’ analysis of the issue.
The majority believes that the Court of Appeals considered appellant’s claim as raising the issue of whether he had been competent at the evidentiary portion of the revoca*950tion hearing, rather than whether he was competent at the time of sentencing. Maj. op. at 948. The majority also concludes that the Court of Appeals did not consider sentencing to be part of “trial.” I perceive the Court of Appeals’ analysis differently.
The Court of Appeals determined that since amnesia can result in incompetence to stand trial, appellant was entitled to have the trial court consider whether appellant’s particular amnesia resulted in his incompetence to stand trial. The Court then, itself, considered whether appellant’s amnesia was of a nature that would have required the trial court to empanel a jury for a § 4 hearing. The Court considered the appropriate factors in making the determination, i.e., those in Jackson v. State, 548 S.W.2d 685 (Tex.Crim.App.1977). Those factors primarily concern evidentiary matters, simply because those are the matters most relevant to determining whether a defendant who has amnesia has (1) a sufficient present ability to consult with this lawyer with a reasonable degree of rational understanding and (2) a rational as well as factual understanding of the proceedings against him.
Thus, I conclude that the Court of Appeals did understand that the issue to be determined was appellant’s competency at the time of sentencing, and that sentencing is a part of trial requiring competency of a defendant.
The trial court’s statements regarding whether competency was appropriate may have been a determination that appellant was not entitled to a § 4 hearing because the evidence of amnesia, even if believed, would not support a finding that he lacked present ability to consult with a lawyer and a rational and factual understanding of the proceedings. But the trial court could simply have meant that the defendant need not be competent at sentencing.
Like the majority, then, I would remand this cause to the Court of Appeals, for that Court to abate the appeal and remand the cause to the trial court. At that point the trial court should, without further evidence or hearing, in light of the factors in Jackson v. State, determine whether there is evidence to support a finding of incompetency to stand trial and, if there is, empanel a jury for a § 4 hearing.
McCORMICK, P.J., and MANSFIELD, J., join.. Art. 42.07(2), which lists incompetence to stand trial as a reason to prevent sentence, seems to apply to probation revocation proceedings even though in such cases sentence has actually been pronounced at a previous hearing. Art. 42.12 § 21(b) requires a defendant who wishes to waive a hearing on revocation of probation to affirm that "he has nothing to say as to why sentence should not be pronounced against him.”