Opinion by Justice Whitehill

On Appeal from the 219th Judicial District Court Collin County, Texas
Trial Court Cause No. 219-83633-2017

MEMORANDUM OPINION

Before Justices Myers, Whitehill, and Pedersen, III
Opinion by Justice Whitehill

A jury found appellant guilty of online impersonation, found two punishment enhancements true, and assessed punishment at seventy-five years in prison.

In a single issue, appellant argues that his due process rights were violated when the trial court denied him a formal competency hearing. More to the point, his sole issue devolves to whether evidence that he was not completely helpful to defense counsel during trial preparation was sufficient evidence that appellant was unable to assist counsel in his own defense due to appellant's alleged mental incompetency that the trial court should have ordered a formal competency hearing before deciding to proceed with trial.

Because there was no evidence of a material change in circumstances from appellant's prior affirmative competence findings suggesting that appellant's mental status had deteriorated since he was adjudicated competent, the trial court did not err by refusing further evaluation or a formal competency hearing. We thus affirm the trial court's judgment.

I. BACKGROUND

Appellant's online impersonation conviction resulted from posting his ex-wife's picture on Craigslist with a caption inviting men to contact her for "no strings attached" sex.

Appellant's first trial resulted in a mistrial due to a hung jury. Approximately one year before the first trial, the trial court granted counsel's request for a competency evaluation and appellant was found competent to stand trial. A year later, the court ordered another evaluation and again, appellant was found competent. One month later, appellant was found incompetent and sent to the Terrell State Hospital.

At the state hospital, appellant was diagnosed with "Bipolar disorder, most recent episode manic with psychotic features, currently in remission." The doctors found that appellant's medications helped him attain competence and they advised that he was competent to stand trial. The judge held a formal competency hearing and adopted that finding.

After the mistrial in the first case, appellant was re-indicted, and the case was set for trial. The judge ordered another competency evaluation, but appellant was released on bond before it could be completed. Accordingly, the judge made a docket entry requiring that appellant return for a competency evaluation and further treatment as needed.

On March 15, 2018, Dr. Kristi Compton, a psychologist, found appellant competent to stand trial. Dr. Compton's diagnostic impressions were: "Bipolar I Disorder with psychotic features, in partial remission." She also found that: (i) appellant was not in a depressive or manic state; (ii) appellant was not experiencing hallucinations; (iii) appellant was not taking psychotropic medications but appeared to have sufficient capacity without them."

At a pretrial hearing three months later defense counsel raised the question of appellant's competence. After allowing counsel to share his observations about appellant, the court found appellant competent and said that appellant had "not met the minimum level necessary to raise competency as a concern to trigger the need for an additional examination."

The judge allowed appellant to serve as co-counsel with his attorney. Although appellant did not question witnesses, after counsel's closing argument, appellant also made a short jury argument. The jury found appellant guilty of online impersonation and true to two punishment enhancements.

II. ANALYSIS

A. Standard of Review and Applicable Law

A fundamental principle of our criminal justice system is that, as a matter of constitutional due process, an incompetent criminal defendant may not stand trial. Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018); see also Drope v. Missouri, 420 U.S. 162, 171 (1975) ("It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to trial."). The constitutional competency standard to stand trial is codified in the statutory scheme stated in Texas Code of Criminal Procedure article 46B, which describes the procedures for determining whether a defendant is competent to stand trial. See TEX. CODE CRIM. PROC. arts. 46B.001-.055.

We review a trial court's competency decision for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds as recognized in Turner v. State, 422 S.W.3d 676, 692 & n.31 (Tex. Crim. App. 2013); Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A trial court does not abuse its discretion absent a showing that its decision was arbitrary or unreasonable. Phillips v. State, No. 05-16-00850-CR, 2017 WL 2875522, at *1 (Tex. App.—Dallas July 6, 2017, no pet.) (mem. op., not designated for publication).

Procedurally, a trial court employs a two-step process for making competency determinations before it may ultimately conclude that a defendant is incompetent to stand trial: the first step is an informal inquiry; the second step is a formal competency trial. Boyett, 545 S.W.3d at 563. "An informal inquiry is called for upon a 'suggestion' from any credible source that the defendant may be incompetent." Id.; see TEX. CODE CRIM. PROC. art. 46B.004(a), (c), (c-1).

Substantively, incompetency to stand trial is shown if a person does not have: "(1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." Boyett, 545 S.W.3d at 563 (quoting TEX. CODE CRIM. PROC art. 46B.003(a)).

A defendant's mental illness does not, of itself, mean he is incompetent. See Turner v. State, 422 S.W.3d 676, 691 (Tex. Crim. App. 2013). Instead, the inquiry is whether a defendant's mental illness "operates in such a way as to prevent him from rationally understanding the proceedings against him or engaging rationally with counsel in the pursuit of his own best interests." Id. "Evidence that raises this possibility necessitates an informal inquiry . . . ." Id. Nonetheless, "[a] defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence." TEX. CODE CRIM. PROC. art. 46B.003(b).

At the informal inquiry, there must be "some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." Boyett, 545 S.W.3d at 563 (quoting TEX. CODE CRIM. PROC. art. 46B.004(c)). At this stage, the trial court "must consider only that evidence tending to show incompetency" and "put [ ] aside all competing indications of competency." Id. at 564 (quoting Turner, 422 S.W.3d at 692).

If there is some evidence supporting incompetency, the trial court must order a psychiatric or psychological competency examination, and, except for certain exceptions, must hold a formal competency trial. See id.; see also TEX. CODE CRIM. PROC. arts. 46B.005(a), (b), 46B.021(b).

Should the formal competency trial result in a finding of competency, the trial court is not obligated to revisit the issue later absent a material change of circumstances suggesting that the defendant's mental status has deteriorated. Turner, 422 S.W.3d at 693; see also Hageman v. State, No. 03-13-00549-CR, 2015 WL 3545761, at *3 (Tex. App.—Austin June 5, 2015, no pet.) (mem. op., not designated for publication).

B. The Informal Inquiry

The court found appellant competent in May 2017, and Dr. Compton reached the same conclusion again in March 2018, four months before trial. When trial began on July 31, 2018, counsel attempted to show changed circumstances by arguing that (i) appellant had been "more difficult" since the March evaluation and was "not assisting him" with preparing his defense; (ii) appellant focused on certain topics to the exclusion of others; and (iii) appellant had assisted more during the first trial when he was medicated.

Although counsel reported that appellant was difficult and not assisting him, counsel did not provide any specific examples concerning how appellant was unable to assist him. See Reed v. State, 112 S.W.3d 706,710 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (alleging unspecified difficulties is not enough). In fact, the trial judge asked defense counsel, "What information do you have, if any, that his behavior isn't that of a choice he's making as opposed to he's unable to help you because of some sort of competency issue . . . ?" Counsel provided no specifics but said that appellant's behavior with prior attorneys when he was deemed incompetent and counsel's current difficulties with appellant "imply[ed] something's not right."

Moreover, Dr. Compton's March 2018 report described appellant's ability to "Assist counsel with Defense" as "Below Average" "(due to agitation)." That appellant was difficult and not assisting counsel in July is consistent with the March finding concerning his ability to do so. Likewise, although appellant was on medication when found competent in May 2017, he was not on medication when found competent in March 2018. Therefore, counsel's statement that appellant was easier to deal with when he was medicated does not demonstrate a deterioration in his condition warranting further inquiry.

Significantly, counsel never said that appellant was unable to consult with him. See DeWitt v. State, No. 05-12-00583-CR, 2013 WL 338905, at *2 (Tex. App.—Dallas July 3, 2013, no pet.) (mem. op., not designated for publication). Instead, consistent with prior assessments of appellant as "ornery," the record shows only that appellant was being difficult. But this is insufficient to trigger additional assessment. See Keigley v. State, No. 05-17-00436-CR, 2018 WL 1559819, at* 14 (Tex. App.—Dallas March 30, 2018, no pet.) (not designated for publication) (court could reasonably have concluded that disruptive and uncooperative behavior did not demonstrate an inability to communicate with counsel or understand the proceedings).

Appellant relies on Boyett to argue that the trial court applied the incorrect standard by discounting the evidence of incompetence based on his in-court observations of appellant. See Boyett, 545 S.W.3d at 566. While the judge did reference "bona fide doubt" on one occasion, the record as a whole reflects that the court's ultimate analysis was correct.

In Boyett, there was some evidence of incompetency based on: (i) testimony that the defendant had a history of serious mental illness and was exhibiting behavior consistent with that illness and (ii) was acting in a manner that suggested that she was divorced from reality and unable to understand basic aspects of the trial evidence and proceedings. Id. Here, there was no such evidence for the court to have improperly weighed or balanced.

Moreover, although we do not balance evidence tending to show incompetence with competing evidence of competence, see Boyett, 543 S.W.3d at 564, we cannot ignore that the judge presided over both of appellant's trials and most of the related proceedings over a two-year period. We give the trial court's firsthand assessment of a defendant's ability to assist counsel and his understanding of the proceedings great deference. See McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003). And under the circumstances here, we cannot conclude the trial court erred by refusing to conduct a formal competency hearing or order further evaluation.

III. CONCLUSION

Because there was no evidence of a material change in circumstances suggesting that appellant's mental status had deteriorated since he was adjudicated competent, the trial court did not err by refusing to order further evaluation. The trial court's judgment is affirmed.

/Bill Whitehill/

BILL WHITEHILL

JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
180944F.U05

JUDGMENT

On Appeal from the 219th Judicial District Court, Collin County, Texas
Trial Court Cause No. 219-83633-2017.
Opinion delivered by Justice Whitehill. Justices Myers and Pedersen, III participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered March 30, 2020