Opinion
No. 10-03-00263-CR
Opinion Delivered and Filed October 13, 2004. DO NOT PUBLISH.
Appeal from the 54th District Court McLennan County, Texas, Trial Court # 2002-556-C. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Jeffery Popp was convicted of driving while intoxicated, a felony offense. The jury recommended a sentence of 10 years in prison and a $5,000 fine. The court ordered the sentence to begin after the sentence in another cause ran. We affirm. Popp initially contends the trial court erred in failing to grant a mistrial, sua sponte, when a juror responded by asking to be excused from the panel to one of Popp's outbursts during voir dire. No objection, request for instruction, or request for mistrial was made by Popp. Rules that require a timely and specific objection do not apply to two relatively small categories of errors. Saldano v. State, 70 S.W.3d 873, 888 (Tex.Crim.App. 2002). Popp's complaint does not fit within these small categories. Thus, because Popp did not object, he has not preserved his complaint for our review. TEX. R. APP. P. 33.1. In his second and third issues, Popp argues that the trial court erred in entering a nunc pro tunc judgment because 1) the trial court had no jurisdiction to do so; and 2) the trial court did not give Popp notice or the opportunity to be heard and have counsel present. The Rules of Appellate Procedure provide that once the record has been filed in the appellate court, all further proceedings in the trial court are suspended. Tex.R.App.P. 25.2(g). The appellate record was not complete until after the trial court entered its nunc pro tunc judgment. Popp cites no authority for his proposition that the trial court had no jurisdiction to enter the nunc pro tunc judgment. His second issue is improperly briefed and presents nothing for review. Long v. State, 137 S.W.3d 726, 737 (Tex.App.-Waco 2004, no pet.). Popp further contends that the trial court erred in entering the nunc pro tunc judgment because he was not given notice of the court's intent to enter the judgment and was not given an opportunity to be heard and to have counsel present. The purpose of a nunc pro tunc order is to have the court records correctly reflect a judgment actually rendered by the trial court. See Jones v. State, 795 S.W.2d 199, 202 (Tex.Crim.App. 1990); McGinnis v. State, 664 S.W.2d 769, 770 (Tex.App.-Amarillo 1983, pet. ref'd). The Court of Criminal Appeals has said, that before any unfavorable nunc pro tunc orders are entered, the person convicted should be given an opportunity to be present for the hearing and represented by counsel, in order to accord him due process of law. Shaw v. State, 539 S.W.2d 887, 890 (Tex.Crim.App. 1976). But more recently, the Court has said that if the trial court properly changed the order, remanding for a hearing would be a "useless task." Homan v. Hughes, 708 S.W.2d 449, 454-455 (Tex.Crim.App. 1986). When the trial judge pronounced Popp's sentence, he stated,
Mr. Popp, it is the sentence of the Court that you be confined to the Texas Department of Criminal Justice Institutional Division for a term of ten years, and fined $5,000.00. It is furthermore the sentence of the Court that this sentence shall begin to run when you have fully and completely discharged the sentence in 2002-277-C, whereby you were assessed eleven years in the Texas Department of Criminal Justice, Institutional Division. The sentence in this case shall begin to run when you have fully and completely discharged that sentence in cause number 2002-277-C.For some reason, this pronouncement did not appear in the written judgment. The judgment was then corrected to reflect the court's actual pronouncement. Popp does not contend that his sentences cannot run consecutively. Sending this cause back to the trial court for a hearing would be "useless." Popp's third issue is overruled. In his fifth issue, Popp contends the jury finding that he was competent to stand trial was against the great weight and preponderance of the evidence. A defendant is presumed competent to stand trial unless he proves his incompetence by a preponderance of the evidence. Acts of 1965, 59th Leg., vol. 2, p. 317, ch. 722 (repealed 2003) (formerly art. 46.02 § 1A). The correct standard of review for a factual insufficiency issue where the defendant has the burden of proof by a preponderance of the evidence is whether, after considering all the relevant evidence, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex.Crim.App. 1990). By the time of his trial, Popp had dismissed two retained attorneys and a court-appointed attorney. He was represented at the incompetency hearing by another court-appointed attorney. Three witnesses, two attorneys and a legal assistant, testified that Popp had periods of irrational behavior and did not understand the proceedings against him. However, the court-appointed psychiatrist determined Popp was competent to stand trial. And a former court-appointed attorney testified that, although he could not get Popp to take his criminal charges seriously, he did not think Popp was incompetent during his period of representation. Contrary to Popp's assertion, considering all the relevant evidence, the judgment is not so against the great weight and preponderance of the evidence so as to be manifestly unjust. Popp's fifth issue is overruled. In his fourth issue, Popp contends the trial court erred in failing to sua sponte impanel a second competency jury. See Acts of 1965, 59th Leg., vol. 2, p. 317, ch. 722 (repealed 2003) (formerly art. 46.02 § 2(b)). Under caselaw interpreting section 2, if a competency issue is raised by the defendant, any party, or the court and 1) evidence of incompetency is brought to the attention of the trial court by the defendant, any party, or the court, 2) of the type to raise a bona fide doubt in the judge's mind regarding the defendant's competency to stand trial, then 3) the judge must conduct a Section 2 "competency inquiry" to determine if there is some evidence sufficient to support a finding of incompetence, and if there is, 4) the judge must impanel a jury for a Section 4 "competency hearing." McDaniel v. State, 98 S.W.3d 704, 710-711 (Tex.Crim.App. 2003). And where there has already been one determination of competency by a jury and there is no error in that finding, to complain of the denial of a second hearing, the defendant must put forth some evidence of a subsequent change in competency or some "new evidence" in a manner analogous to the newly discovered evidence basis for a new trial. Miles v. State, 688 S.W.2d 219, 224 (Tex.App.-El Paso 1985, pet. ref'd). "Any other procedural and evidentiary framework would effectively block trial on the merits." Id. Popp made at least 47 outbursts either in front of or out of the presence of the jury before he voluntarily chose to not personally attend his trial. Most of those outbursts involved displeasure with his latest court-appointed attorney, an attorney Popp had previously retained, and the trial court. His attorney expressed concern for Popp's mental status but also acknowledged that Popp had been recently evaluated and found to be competent. Counsel also stated that he had not seen any significant change in Popp's behavior and would not ask for another evaluation "because this is the exact same behavior I have observed in the past three months." No error was found in the jury's determination of Popp's competence. And Popp has presented no evidence of a subsequent change in his competency to stand trial. Thus, the trial court did not err in failing to impanel a jury for a second competency hearing. Popp's fourth issue is overruled. Having overruled the issues properly presented, we affirm the judgment of the trial court.
The statutes regarding competency to stand trial are now located in TEX. CODE CRIM. PROC. ANN. art. 46B.001, et. seq. (Vernon Pamp. 2004-2005). The new chapter applies only to a defendant against whom proceedings have not been initiated under Article 46.02 before the effective date of the new chapter. Acts of 2003, 78th Leg., ch. 35 § 16. Popp does not fall within this category. Thus, the former chapter applies.