Opinion
No. 01-09-01153-CR
Opinion issued May 19, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Case No. 1137247.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
MEMORANDUM OPINION
In March 2009, Emran Wani pleaded guilty without an agreed recommendation to aggravated assault. Before punishment was assessed, Wani's counsel, on September 29, 2009, moved for a psychiatric examination to determine competency and sanity, which the trial court granted. After receiving evaluations that Wani was competent to stand trial and that he was sane at the time of the offense, the trial court assessed punishment at five years' imprisonment. Wani brings a single issue, contending the trial court erred in not conducting a competency hearing before accepting his guilty plea. We affirm. On appeal, Wani points to a September 25, 2008 motion for continuance in which his counsel requested additional time to investigate a "serious mental condition the defendant may have." The trial court granted that motion. The only other item in the record concerning Wani's mental condition that was filemarked before the court accepted Wani's guilty plea is his counsel's written representation that "I believe that he is competent to stand trial." Wani further points to a September 10, 2008 report from his private psychiatrist that contains a diagnosis of bipolar disorder and generalized anxiety disorder. Although there is no filemark on that report, there is a note from the trial judge dated September 29, 2009, the same date the court granted the motions for a psychiatric examination to determine competency and sanity. Wani suggests that this report may have been filed before the March 2009 guilty plea, but there is no prima facie evidence of the filing date on the report and no evidence adduced in the trial court regarding when it was filed. Article 46B.004(c) states, "On suggestion that the defendant may be incompetent to stand trial, the 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." TEX. CODE CRIM. PROC. ANN. art. 46B.004(c) (West 2006). Neither Wani nor the State contends that the trial court made an affirmative determination on the record as to whether some evidence existed to support a finding that appellant was incompetent to plead guilty. Wani argues that this Court should reverse for failure to conduct a sua sponte competency hearing before accepting his guilty plea, but does not point to any place in the record where he asked the trial court to rule on his competency. Texas Rule of Appellate Procedure 33.1(a) requires as a prerequisite for appellate review that the record show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.In this appeal, there is no request, objection, or motion from Wani on which he has received a direct or indirect adverse ruling concerning his competency to plead guilty. We note that Wani's September 29, 2009 motions for a psychiatric examination to determine competency and sanity did not question his competency to plead guilty. What Wani suggests, without citation to authority, is that the trial court had an affirmative duty to conduct an inquiry into his competency, notwithstanding his March 2009 agreement to plead guilty, based on the September 25, 2008 motion for continuance and the September 10, 2008 psychiatric report (assuming that report was in the court's file at the time of the guilty plea). Appellant does not argue under a Marin analysis that he cannot forfeit any right he has to a competency evaluation. See Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993) (discussing rights that can be forfeited, rights that can be expressly waived, and rights that cannot be waived), overruled in part by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). We hold that error, if any, regarding Wani's competency to plead guilty was not preserved. See Mapps v. State, No. 01-09-00565-CR, slip op. at 6 (Tex. App.-Houston [1st Dist.] Nov. 18, 2010, no pet.) (holding no preservation of alleged error to order on competency hearing because defendant failed to object before proceeding to trial); Salahud-din v. State, 206 S.W.3d 203, 208 (Tex. App.-Corpus Christi 2006, pet. ref'd) (same); Boitnott v. State, 48 S.W.3d 289, 293 (Tex. App.-Texarkana 2001, pet. ref'd) (holding no preservation of alleged error when defendant did not object to trial court's failure to make competency determination); see also 42 GEORGE E. DIX ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 26.71a (2d ed. Supp. 2009). Accordingly, we overrule appellant's sole issue and affirm the judgment of the trial court.
See TEX. PENAL CODE ANN. §§ 22.01(a)(2), .02(a)(2) (West Supp. 2010).
"9-29-09 Clerk is ordered to fax w/ competency exam order. Judge Krocker"
See TEX. CODE CRIM. PROC. ANN. arts. 46B.001-.171 (West 2006 Supp. 2010) (competency); arts. 46C.001-.270 (West 2006) (sanity). Code of Criminal Procedure article 46C.103 allows the same expert to examine a defendant with regard to both the insanity defense and competency to stand trial if the expert files separate written reports. TEX. CODE CRIM. PROC. ANN. art. 46C.103(a) (West 2006).