Opinion
06-22-00011-CR
07-14-2022
NICHOLAS TREY MCDOWRA, SR, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: June 14, 2022
On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 27313
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
SCOTT E. STEVENS JUSTICE
In July 2018, as part of a plea bargain, Nicholas Trey McDowra, Sr., was sentenced to ten years in prison, but the trial court suspended the sentence and placed him on five years of community supervision, fined him $250.00, assessed court costs against him, and ordered that he have no contact with the victim. On November 19, 2021, the State filed a motion to revoke McDowra's supervision, alleging that he had failed to report, to remain in the county, and to attend a court-ordered Post Traumatic Stress Disorder (PTSD) program. McDowra entered a plea of "not true" to all three of the State's allegations. After a hearing, the trial court found all three allegations to be true, revoked McDowra's community supervision, and imposed an eight-year prison sentence.
McDowra was charged with the third-degree-felony offense of violation of a bond/protective order with two or more prior convictions. See Tex. Penal Code Ann. § 25.07(a)(3), (g)(2) (Supp.).
On appeal, McDowra contends that (1) there was insufficient evidence to support the trial court's revocation on any of the three grounds alleged by the State and that (2) the trial court erred by not conducting a sua sponte mental health inquiry. Because we find that a preponderance of the evidence supported the trial court's finding that McDowra failed to report and that the trial court was within its discretion not to inquire as to McDowra's mental health, we affirm the trial court's judgment.
I. Factual and Procedural Background
In July 2018, McDowra was placed on community supervision for a term of five years. In January 2021, the State filed a motion to revoke his supervision, alleging that McDowra had violated a condition of his community supervision. Rather than revoke his supervision, the trial court amended the terms of his supervision and ordered him to participate in a Department of Veterans Affairs (VA) Post-Traumatic Stress Disorder (PTSD) program.
Luke Luttrell, the director of the Lamar County community supervision program, testified that he had been McDowra's community supervision officer since July 2018 when McDowra was initially placed on community supervision. At some point, McDowra's primary supervision was transferred to Oklahoma, where he was supposed to report to community supervision officers in Choctaw County. Luttrell testified that McDowra had not reported there "at all." McDowra was also supposed to report in Lamar County. But because he lived in another State, McDowra was allowed to report to officials in Lamar County either online or through the mail.
Luttrell testified that the last time he saw or heard from McDowra was in February 2021, when McDowra was released from jail pursuant to the prior revocation proceeding. McDowra did not report to or contact Luttrell from April 2021 through November 2021, when the revocation proceeding began. Because he had not contacted Luttrell's office to report in, Luttrell believed that McDowra was in violation of the conditions of his community supervision and that he should be sentenced to the Texas Department of Criminal Justice.
McDowra testified that he contacted the VA to sign up for the PTSD course, but he was told that the next such program did not start until June 7, 2021. He did not report to Luttrell's office because he believed that he was taking the PTSD course in lieu of reporting for community supervision.
In April 2021, after his primary supervision was transferred to Oklahoma, McDowra was arrested in Pushmataha County, Oklahoma, on "[f]our counts of a handgun" and "two counts of assault of a [Child Protective Services] worker." McDowra testified that he was incarcerated on those charges from April 2021 through October 2021. McDowra admitted that he never tried to contact the community supervision office in Lamar County while he was incarcerated. He also admitted that he did not try to contact the community supervision office even after he had gotten out of jail in October because he did not believe that he was required to do so.
A few weeks later, on December 2, 2021, McDowra was arrested pursuant to the State's November 2021 motion to revoke. After a transfer from Oklahoma, he was placed in the Lamar County Jail until the day of the revocation hearing.
In its motion to revoke, the State alleged that McDowra failed to (1) report to his community supervision officer in Lamar County, (2) remain in the court-ordered county, and (3) complete the court-ordered PTSD program. McDowra entered a plea of "not true" to all three of the State's allegations. After a hearing, the trial court found all three allegations to be "true," revoked McDowra's community supervision, and imposed an eight-year prison sentence. McDowra appealed to this Court.
II. Sufficient Evidence Supported the Trial Court's Decision to Revoke Community Supervision
In his first point of error, McDowra contends that the evidence was insufficient for the trial court to revoke his community supervision on any of the three grounds alleged by the State. We first address the issue of whether McDowra reported to the community supervision office because it is dispositive of this point of error. See Lively v. State, 338 S.W.3d 140, 143 (Tex. App.-Texarkana 2011, no pet.)
"We will review the trial court's decision to revoke community supervision for an abuse of discretion." Id. (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); In re T.RS, 115 S.W.3d 318, 320 (Tex. App-Texarkana 2003, no pet.)). "The trial court does not abuse its discretion if the order revoking community supervision is supported by a preponderance of the evidence; in other words, the greater weight of the credible evidence would create a reasonable belief that the defendant has violated a condition of his or her community supervision." Id. (citing Rickels, 202 S.W.3d at 763-64; In re T.RS, 115 S.W.3d at 320). "In conducting our review, we view the evidence in the light most favorable to the trial court's ruling." Id. (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); In re T.RS, 115 S.W.3d at 321). "If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown." Id. (citing Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); In re T.RS, 115 S.W.3d at 321).
The State alleged in its motion that McDowra failed to comply with the following two conditions of the trial court's original order placing him on community supervision:
2. Report in person, as scheduled, to the Community Supervision and Corrections Department (CSCD) of Lamar County, or the county in which you are permitted to reside. Answer all assessment questions and inquiries related to supervision truthfully and follow all recommendations of your case plan.
3. Remain within the supervising county unless permitted to depart by the CSO and mail or webmail a monthly report form to Lamar County CSCD if permitted to reside outside of Lamar County.
The State also alleged in its motion that McDowra failed to comply with the following condition of the trial court's later order modifying the conditions of his community supervision:
Condition 33. As an alternative to imprisonment, the defendant shall submit himself, immediately into the U.S. Department of Veterans Affairs (VA) Program for recovery from Post-Traumatic Stress Disorder to include a substance abuse treatment rehabilitation phase for a term determined by the VA of not less than 6 months nor more than 24 months.
While in said VA Program, the defendant shall participate in all programs, obey all rules and regulations, follow and successfully complete all recommended treatment programs and remain in the center until discharged upon the recommendation of the Staff.
While in said VA Program, the defendant shall submit to urine, breath, hair, nail, and saliva samples as requested to be used for the detection of alcohol and other drugs.
Here, the preponderance of the evidence supports the trial court's finding that McDowra failed to report. Luttrell testified that McDowra had not contacted his office since February 2021. McDowra admitted to the trial court that he failed to report to the community supervision office in April before he was incarcerated and that he likewise failed to report in October and November after he was released. As a result, the trial court was within its discretion to revoke McDowra's community supervision, and we overrule this point of error.
Because we have found one sufficient ground for revocation, it is unnecessary for us to consider McDowra's remaining complaints regarding the other grounds to revoke his community supervision. See Ex parte Brown, 875 S.W.2d 756 (Tex. App.-Fort Worth 1994, orig. proceeding).
III. The Trial Court Did Not Err by Not Conducting an Incompetency Inquiry
In his final point of error, McDowra contends that the trial court erred by not conducting a sua sponte informal inquiry into his mental competency.
"We review for an abuse of discretion the totality of the facts surrounding a trial court's implied decision not to hold a competency inquiry." Gray v. State, 257 S.W.3d 825, 827 (Tex. App.-Texarkana 2008, pet. ref d) (citing Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999)). "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; or (2) a rational as well as factual understanding of the proceedings against the person." Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.003(a); Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008); Eddie v. State, 100 S.W.3d 437, 443 (Tex. App-Texarkana 2003, pet. ref d)). "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." Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.003(b)).
"The same standard applies to a revocation hearing." Lindsey v. State, 310 S.W.3d 186, 188 (Tex. App.-Amarillo 2010, no pet.) (citing McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003)).
"If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the trial court, the [trial] court on its own motion shall suggest that the defendant may be incompetent to stand trial." Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.004(b)). "On suggestion that the defendant may be incompetent to stand trial, the [trial] court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.004(c)). "If, after an informal inquiry, the trial court determines that evidence exists to support a finding of incompetency, the trial court shall order an examination to determine whether the defendant is incompetent to stand trial in a criminal case." Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.005(a); Salahud-din v. State, 206 S.W.3d 203, 208 (Tex. App.-Corpus Christi 2006, pet. ref d)).
Here, McDowra informed the trial court that he had previously been found "mentally incompetent" and that he had received mental health treatment. McDowra claimed that he had been diagnosed with a "list of stuff and that he takes several medications to treat his mental conditions. Even so, due to his incarceration, he was unable to take all his prescribed medication. McDowra also affirmed that he understood the purpose of the proceedings and why he was there. The trial court stated to McDowra, "There is no suggestion of incompetence here, though, today and your responses to the Court's questions are very appropriate as well as your behavior in court so at this point in time the Court has no reason to believe otherwise regarding your competency."
While McDowra said he had been found to be mentally incompetent in the past, "past mental-health issues raise the issue of incompetency only if there is evidence of recent severe mental illness, at least moderate retardation, or bizarre acts by the defendant." See Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009), superseded by statute on other grounds, Tex. Code Crim. Proc. Ann. art. 46B.004(c-1), as recognized in Turner v. State, 422 S.W.3d 676, 692 & nn.31-32 (Tex. Crim. App. 2013). There was no such evidence here. Moreover, the trial court found no suggestion of incompetency after it had questioned, interacted with, and observed McDowra at the outset of the revocation proceeding. "[T]hose who observed the behavior of the defendant at the hearing were in a better position to determine whether [the appellant] was presently competent." Id. at 426.
Based on the foregoing, we find that the trial court was within its discretion not to conduct an inquiry into McDowra's competency because the evidence was insufficient to create a bona fide doubt in the mind of the trial court about whether McDowra was legally competent at the time of the proceeding. See id. at 425-26. As a result, we overrule this point of error.
IV. Modification of Judgment
The Texas Rules of Appellate Procedure give this Court authority to modify judgments to correct errors and make the record speak the truth. TEX. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App - Texarkana 2009, no pet.). Here, the judgment revoking McDowra's community supervision reflects that he pled "TRUE" to the allegations in the State's motion to revoke; however, at the outset of the revocation hearing, he entered pleas of "not true" to the allegations. Therefore, we modify the judgment to indicate that McDowra pled "not true" to the allegations in the motion to revoke.
V. Conclusion
As modified, we affirm the trial court's judgment.