No. 04-04-00613-CR
Delivered and Filed: March 23, 2005. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-4984, Honorable Philip Kazen, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis SPEEDLIN, Justice.
SANDEE BRYAN MARION, Justice.
Defendant Cirio Castro was indicted for the offense of indecency with a child by contact. Defendant pled no contest and was placed on ten years' deferred adjudication. Subsequently, the State filed a motion to enter adjudication of guilt and revoke community supervision. On August 3, 2004, the trial court revoked defendant's community supervision and sentenced defendant to fifteen years' confinement. Defendant did not file a motion for new trial. On appeal, defendant contends he was denied a right to a competency hearing and the trial court erred in failing to allow him the opportunity to present evidence at a separate punishment hearing in violation of his state due process rights. We affirm.
COMPETENCY HEARING
In his first issue, defendant argues he was denied the right to a formal competency hearing after the issue of incompetency was raised in a motion filed by his attorney prior to his revocation hearing. In the motion, defendant's attorney requested that the defendant undergo a psychiatric evaluation because the "defendant does not have sufficient ability to consult with counsel to a reasonable degree of rational understanding, and does not have a rational or factual understanding of the proceedings now pending against [him]." However, the motion did not cite any specific problems defendant exhibited and did not include any statements or an affidavit from the attorney referencing specific problems he had communicating with defendant. The trial court denied the motion. The failure to grant a hearing before a jury on the issue of competency and the failure to appoint an expert to conduct a psychological evaluation are reviewed under an abuse of discretion standard. Grider v. State, 69 S.W.3d 681, 685 (Tex.App.-Texarkana 2002, no pet.). "A person is incompetent to stand trial if the person does not have: 1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; and 2) a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon Supp. 2004). A trial court is required to conduct a non-jury "competency inquiry" to determine whether to hold a jury trial on the issue of defendant's competency if (1) evidence of the defendant's incompetency is brought to the attention of the court from any source and (2) the evidence raises a bona fide doubt in the court's mind about the defendant's competency to stand trial. McDaniel v. State, 98 S.W.3d 704, 710-11 (Tex.Crim.App. 2003). Evidence is usually sufficient to raise a bona fide doubt if it shows recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. Id. When such a bona fide doubt exists, the trial court must conduct a competency inquiry to determine whether there is "some evidence" to support a finding of incompetency, and if so to commence a competency hearing before a jury. Id. When there is no evidence the defendant does not understand the proceedings or cannot assist in his own defense, a trial court does not abuse its discretion in failing to grant a hearing on competency. Grider, 69 S.W.3d at 685. At the revocation hearing, defendant's attorney stated he believed defendant was mentally ill and should be given the opportunity to participate in a mental health program. According to his attorney, defendant had been evaluated by a local mental health facility and was an acceptable candidate for their mental health program. Defendant's attorney never suggested defendant did not have the ability to consult with him or understand the proceedings. Instead, defendant's attorney only said defendant had a habit of biting his fingernails all the way down to his skin and was depressed. As further support, defendant testified and also provided witnesses who asserted that defendant suffered from mental illness. The witnesses noted defendant had a "temperature," was impatient, constantly bit his fingernails, and had threatened suicide. In his testimony, defendant stated that he had been diagnosed with depression but had not received treatment for his condition. Based on the evidence in the record, we hold that a bona fide doubt was not raised about defendant's competency to stand trial. See McDaniel, 98 S.W.3d at 710 n. 19 (reciting, as an example of sufficient evidence, attorney's recitation of "specific problems he has had in communicating with his client"); Moore v. State, 999 S.W.2d 385, 394 (Tex.Crim.App. 1999) (holding counsel's allegation of "unspecified difficulties in communicating" with client as insufficient; information must be "specific and illustrative of a present inability to communicate"); Townsend v. State, 949 S.W.2d 24, 27 (Tex.App.-San Antonio 1997, no pet.) (suicidal tendencies and depression did not support finding of incompetency). Therefore, under these facts, the trial court did not abuse its discretion when it refused to grant a hearing before a jury on the issue of competency. Grider, 69 S.W.3d at 685. SEPARATE PUNISHMENT HEARING
Defendant also contends the trial court erroneously failed to conduct a separate punishment hearing after his adjudication of guilt. Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992) (a defendant is entitled to a punishment hearing after adjudication of guilt, and the trial court must allow defendant to present evidence). The State argues, however, defendant has waived this issue because he presented evidence on punishment during the proceeding, and he failed to timely object to any error by the trial court in not conducting a separate punishment hearing. We agree with the State. Generally, a defendant must make a timely objection stating the specific ground and pursue a ruling on the objection to preserve a complaint for appellate review. Tex. R. App. P 33.1(a). Here, defendant had witnesses testify on his behalf and also provided his own testimony regarding his punishment during the adjudication proceeding. See Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999) (a separate punishment hearing is not required provided defendant is given an opportunity to present evidence during the proceedings). Furthermore, defendant was also given the opportunity to object to the trial court's failure to conduct a separate punishment hearing, but he failed to do so. Accordingly, defendant has failed to preserve his complaint for our review. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999) (failure to object or present evidence when given the opportunity waived appellate review of denial of right to separate punishment hearing). CONCLUSION
We overrule defendant's issues on appeal and affirm the trial court's judgment.