Opinion
Nos. 05-08-01433-CR, 05-08-01434-CR, 05-08-01435-CR
Opinion Filed May 26, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 203rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F04-50069-UP, F04-50070-HP, F04-50071-HP.
Before Justices MOSELEY, O'NEILL, and MURPHY.
OPINION
Frank Flores pleaded guilty, without benefit of plea bargain agreements, to three aggravated robberies. The trial court sentenced appellant to forty years' imprisonment on each offense. In each case, appellant contends in three points of error that the trial court's failure sua sponte to conduct an inquiry into whether appellant was competent to stand trial violated appellant's due process rights and article 46B.004 of the code of criminal procedure and that the trial court erred by not ordering the preparation of a presentence investigation (PSI) report prior to sentencing appellant. We affirm the trial court's judgments.
Competency to Stand Trial
In his first two points of error, appellant argues the evidence at the punishment hearing showed appellant began using drugs and alcohol when he was twelve years old and, therefore, established appellant "was under the influence of narcotics while his brain was undergoing formative development." Appellant asserts that "[u]nder these circumstances, a troubling question as to competency is raised and the trial court should have ordered an evaluation to determine the degree of damage done to Appellant." Therefore, appellant contends, the trial court violated appellant's due process rights to a fair trial and article 46B.004 of the code of criminal procedure by failing sua sponte to order an inquiry into whether appellant was competent to stand trial. We review a trial court's failure to conduct a competency inquiry for an abuse of discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999); LaHood v. State, 171 S.W.3d 613, 617-18 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). The due process right to a fair trial prohibits the prosecution of a person who lacks the mental capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. Drope v. Missouri, 420 U.S. 162, 171 (1975); Pate v. Robinson, 383 U.S. 375, 378 (1966); McDaniel v. State, 98 S.W.3d 704, 709 (Tex.Crim.App. 2003). Chapter 46B of the code of criminal procedure codifies these due process concerns and establishes the statutory framework for competency determinations. McDaniel, 98 S.W.3d at 708. A person is incompetent to stand trial if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational, as well as factual, understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1), (2) (Vernon 2006); Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App. 2008), cert. denied, 129 S. Ct. 904 (2009). If evidence indicating the defendant may be incompetent comes to the attention of the trial court, the court on its own motion must suggest that the defendant may be incompetent and then determine by informal inquiry whether there is some evidence from any source that would support a finding the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004(b), (c); Fuller, 253 S.W.3d at 228. A competency inquiry is not required, however, unless the evidence is sufficient to create a bona fide doubt as to whether the defendant is legally competent. Fuller, 253 S.W.3d at 228. A bona fide doubt "need not be sufficient to support a finding of incompetence and is qualitatively different from such evidence." Id. Evidence is usually sufficient to create a bona fide doubt regarding competency if it shows "recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant." Id. (quoting McDaniel, 98 S.W.3d at 710). Appellant argues the evidence presented during the punishment hearing about his extensive drug use from a young age should have suggested to the trial court that appellant was incompetent to stand trial. However, the use of illegal drugs, in and of itself, is insufficient to raise an issue regarding appellant's competency to stand trial. Fuller, 253 S.W.3d at 228 (noting defendant's "long history of drug and alcohol abuse," among other factors, was insufficient "by itself or taken together to create a bona fide doubt as to the appellant's ability to consult with his attorneys with a reasonable degree of rational understanding or as to his rational as well as factual understanding of the proceedings against him"); Bledsoe v. State, 519 S.W.2d 646, 647 (Tex.Crim.App. 1975) ("The appellant also testified that he had had a drinking problem, which would not raise the question of incompetency."); Reeves v. State, 46 S.W.3d 397, 400 (Tex.App.-Texarkana 2001, pet. dism'd) (evidence of drug addiction and suicide attempt did not reflect on defendant's ability to understand or participate in trial). Further, the record contains no indication appellant was not competent to stand trial. During the proceedings, appellant stated he understood the allegations against him, the criminal penalties applicable to the charged offenses, and his rights. He affirmed he had discussed the plea documents with his attorney and understood those documents. He testified about his conduct, the offenses, and his desire to receive drug treatment. His answers to the trial court's, the prosecutor's, and defense counsel's questions were articulate, responsive, and clear. There is nothing in the record to suggest appellant did not have sufficient present ability to consult meaningfully with his lawyer or did not have a rational, as well as factual, understanding of the proceedings against him. Under these circumstances, we conclude the trial court did not abuse its discretion by failing to conduct an inquiry sua sponte into appellant's competency to stand trial. We overrule appellant's first two points of error.Presentence Investigation Report
In his third point of error, appellant argues the trial court erred by not ordering the preparation of a PSI report. After the trial court pronounced appellant guilty, the following exchange occurred:THE COURT: [Defense counsel], [appellant] is entitled to a presentence report prior to sentencing in these three new aggravated robbery cases. Does he want a presentence report in those cases?
DEFENSE COUNSEL: Your Honor, — No, ma'am. I think the Court has information from — it's been just a year, I don't think — I don't think that anything additional will be — would be available to the Court. If the Court has access to his previous probation files, I mean, the reality of this, Judge, he was out just for a short period of time before this new offense was committed, and it's — I don't — the Court has heard from family and friends, and I don't think that there would be anything additional contained that we —
THE COURT: You want to make sure [appellant] doesn't want that.
(Off-the-record discussion.)
DEFENSE COUNSEL: No, Your Honor. At this time, we'll waive the presentence report. I've consulted with my client, and he's indicated — he agrees with me — he indicates that that's not necessary at this time.
THE COURT: And you agree with that statement, [appellant], you do not want a presentence report in these three new cases?
[APPELLANT]: No, ma'am.
THE COURT: You do not?
[APPELLANT]: No, ma'am.The trial court then sentenced appellant on all three offenses. Generally, absent a statutory exception, a trial court must order the preparation of a PSI report in a felony case before the imposition of sentence. Tex. Code Crim. Proc. Ann. art. 42.12 §§ 9(a), (g) (Vernon Supp. 2008); Griffith v. State, 166 S.W.3d 261, 262 (Tex.Crim.App. 2005). A defendant, however, may waive his right to the preparation of a PSI report. Griffith, 166 S.W.3d at 263. Appellant asserts he did not waive his right to a PSI report "[b]ecause the court's questions to Appellant were stated in the negative and Appellant responded in the negative," giving "rise to a double negative." Appellant argues the true meaning of his answers was unclear. We disagree. The record reflects appellant and defense counsel clearly and unambiguously waived the right to a PSI report. Because appellant waived his right to the preparation of a PSI report, the trial court did not err by failing to order the preparation of the report. We overrule appellant's third point of error. We affirm the trial court's judgments.