Opinion
Nos. 05-02-01617-CR, 05-02-01618-CR
Opinion issued September 24, 2003. DO NOT PUBLISH.
On Appeal from the County Court, Rockwall County, Texas, Trial Court Cause Nos. CR00-0466 CR00-0467. ABATED and REMANDED
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
In this opinion, we address the trial court's failure to conduct a competency inquiry under article 46.02, section 2(b) of the Texas Code of Criminal Procedure during Chanda Leigh Bennett's trial for driving while intoxicated and failure to identify. We conclude the trial court erred by failing to conduct a preliminary competency inquiry, and we abate the appeal and remand the case to the trial court. Appellant contends in her second issue that the trial court erred by not conducting a hearing to determine her competency to stand trial. The State "offers no arguments" in response to this issue. Appellant's attorney first requested a competency hearing after the jury had been empaneled in her case. The State then complained appellant's request was untimely. The trial judge stated he had read "some papers" appellant had filed of record indicating that she had problems in school and suffered from bipolar disorder. Nevertheless, the trial court denied the request for a competency hearing at that time. Later in the trial, appellant's mother testified about appellant's mental and physical difficulties. She stated that appellant's education stopped at the eighth grade. According to her mother, she has had some significant learning disabilities and possible mental disabilities. She cannot work or even count change, and she gets a disability check because she is mildly mentally retarded. Her mother claimed she has trouble processing information. Despite this testimony, the record does not indicate the trial court ever conducted a competency inquiry. Article 46.02(b), section 2(b) provides: "If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial." Tex. Code Crim. Proc. Ann. art. 46.02, § 2(b) (Vernon 1979) (emphasis added). A competency inquiry under article 46.02, section 2(b) is required "only if the evidence brought to the judge's attention raises a bona fide doubt in the judge's mind about the defendant's competency to stand trial." McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003). Evidence sufficient to create a bona fide doubt generally involves recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. See id. If such a bona fide doubt does exist, the court must conduct a competency inquiry to determine whether there is some evidence to support a finding of incompetency; if there is some evidence, the court must then hold a hearing before a jury to determine whether the defendant is, in fact, incompetent to stand trial. Id. In this case, the trial court was on notice that appellant's competency was an issue in the case. Appellant's mother presented testimony that she was mildly retarded, unable to count change or hold a job, and had trouble processing information. She also suffered from significant learning disabilities and possible mental disabilities. Under the test stated in McDaniel, this testimony raised a bona fide doubt about appellant's competency to stand trial. See id. The trial court erred by failing to conduct a section 2(b) competency inquiry in the case. We therefore abate the appeal and remand the cause to the trial court to conduct an inquiry on whether there was evidence at the time of appellant's trial to support a finding of incompetency and, if necessary, to empanel a jury to determine whether appellant was competent at the time of trial. Cf. Barber v. State, 737 S.W.2d 824, 828-29 (Tex.Crim.App. 1987) (abating the appeal for a jury determination of competence at the time of trial).
Appellant has raised four other issues on appeal. We will address the rest of her issues once this matter is resolved.