Opinion
Nos. 05-03-01724-CR, 05-03-01725-CR
Opinion Filed November 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F01-50061-Qt and F01-50062-QT. Affirm.
Before Justices WRIGHT, RICHTER, and MAZZANT.
OPINION
In these appeals from judgments adjudicating guilt and revoking community supervision, Roberto Arce asks us to reverse the judgments and find the trial judge abused his discretion in denying, during sentencing, Arce's request for a competency evaluation. We decline to do so and affirm the trial court's judgments. A defendant is presumed competent to stand trial and be sentenced unless it is proven by a preponderance of the evidence that he is incompetent, that is, that he lacks (i) a sufficient present ability to consult with counsel with a reasonable degree of rational understanding, or (ii) a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon Supp. Pamph. 2004-05); Casey v. State, 924 S.W.2d 946, 949 (Tex.Crim.App. 1996). At the time Arce was sentenced in November 2003, the Texas Code of Criminal Procedure allowed a trial judge discretion to appoint a disinterested expert to examine a defendant regarding his competency to stand trial and be sentenced whenever the issue was raised and when some evidence existed that the defendant did not understand the proceedings or could not assist in the defense. Act of May 23, 2001, 77th Leg., R.S., ch. 828, § 3(a), 2001 Tex. Gen. Laws 1556, repealed by Act of April 30, 2003, 78th Leg., R.S., ch. 35, § 15, 2003 Tex. Gen. Laws 72;Bigby v. State, 892 S.W.2d 864 (Tex.Crim.App. 1994); Grider v. State, 69 S.W.3d 681, 685 (Tex.App.-Texarkana 2002, no pet.). To satisfy this threshold, more than a general failure to cooperate must be exhibited. Burks v. State, 792 S.W.2d 835, 840 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd). Generally, evidence of mental illness, at least moderate retardation, or "truly bizarre" acts by the defendant must exist. Compare McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003) (such evidence usually sufficient to satisfy higher bona fide doubt standard for competency inquiry under former article 46.02) with Grider, 69 S.W.3d at 685 (no error in denying competency evaluation where evidence showed appellant understood proceedings and, though he had schizophrenia, needed to have his medication dosage corrected and received Social Security disability payments, no evidence showed he was unable to consult with counsel). Here, the record reflects defense counsel requested a competency evaluation after Arce repeatedly and inappropriately answered questions posed to him by denying he had committed the underlying offenses of aggravated robbery. For example, when asked whether he understood the State "had offered him forty-years on these cases in exchange for an agreed plea of true," his response was "Why? I didn't do anything." When asked whether he "had turned down the plea bargain on the revocation," he replied "Yes, but I am not the one who committed those crimes." Defense counsel interpreted Arce's responses as an "inability to follow the logic of his questions," thus justifying an evaluation. However, counsel did not state Arce lacked an understanding of the proceedings against him or the present ability to consult with him. Nor does any evidence in the record show Arce is mentally ill, mentally retarded, or was acting in a "bizarre" manner. Moreover, the record reflects Arce testified throughout the sentencing hearing that he understood that he had previously pleaded guilty to the two robbery cases, had signed the "probation papers," was in court for sentencing determination, understood at least some of the probation terms, and wanted the judge to reinstate his probation so he "could follow [it] to the letter of the law." Given the record before us, we conclude the relied-upon testimony shows nothing more than uncooperativeness. We further conclude, given the lack of evidence that Arce could not assist counsel as well as Arce's testimony that he understood the nature of the proceedings, that the trial judge did not abuse his discretion in denying Arce's motion for a competency evaluation. See Bigby, 892 S.W.2d at 885 (no abuse of discretion in denying additional evaluation where neither counsel's affidavit nor appellant's statements that he was a danger and did not wish to be present at trial indicated appellant did not understand proceedings or have present ability to consult with counsel); Hall v. State, 808 S.W.2d 282, 286 (Tex.App.-Houston [1st Dist.] 1991, no pet.) (no abuse of discretion in denying competency evaluation where appellant testified he knew what proceedings about and knew who judge and district attorney were and their functions and no testimony showed appellant unable to consult with counsel). We resolve Arce's sole issue against him. We affirm the trial court's judgments.
Effective January 1, 2004, article 46B of the Texas Code of Criminal Procedure replaced former article 46.02 concerning incompetency to stand trial. As mentioned above, Arce's trial predated this revision. Accordingly, we cite to former article 46.02.