No. 09-09-00179-CR
Submitted on October 12, 2010.
Opinion Delivered November 10, 2010. DO NOT PUBLISH.
On Appeal from the 410th District Court, Montgomery County, Texas, Trial Cause No. 08-06-05873 CR.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
DAVID GAULTNEY, Justice.
A jury found John El Garner guilty of the felony offense of driving while intoxicated, third or more offense. Another jury later found him competent to stand trial. The trial court sentenced appellant to fifty years in prison. On appeal, Garner argues the trial court erred in failing to conduct a timely competency trial and in submitting an incorrect jury charge to the jury in the eventual competency trial. Because the issue of Garner's competency was determined as soon as reasonably possible, and the jury charge error did not result in egregious harm, we affirm the judgment.
The indictment and the judgment refer to appellant as "John El Garner AKA: John Elmer Garner AKA: Paul Joseph Gangler[.]"
TIMING OF COMPETENCY PROCEEDING
In his first issue, Garner asserts the trial court erred when it did not conduct a pre-trial competency proceeding. Garner filed a Motion Suggesting Incompetency and Request for Examination. The trial court granted the motion and appointed psychiatrist Dr. Walter Quijano to evaluate Garner's competency to stand trial. Approximately thirty days prior to the trial on the merits, Quijano filed his report concluding that Garner was competent to stand trial. Garner did not contest the report before the trial on the merits began. After jury selection, the State argued its motion in limine. The State sought to prevent Garner from presenting evidence regarding his competency or sanity since evaluations had been performed that found him sane at the time of the offense and competent to stand trial. Defense counsel then made a request for a competency hearing, arguing for the first time that newly discovered medical records were unavailable to Dr. Quijano when he evaluated competency. Defense counsel argued that he would be unable to represent Garner adequately if the court proceeded with the trial on the merits. The State maintained that under Article 46B.005(d) of the Texas Code of Criminal Procedure the court could proceed with the trial on the merits and then conduct a competency proceeding prior to sentencing. See Tex. Code Crim. Proc. Ann. art. 46B.005(d) (West 2006). Because a jury had already been selected when the newly-discovered-evidence issue was raised, the trial court relied on Article 46B.005(d). See id. After considerable discussion with the attorneys in which various options were proposed, the court denied the request that a competency hearing be conducted before proceeding further on the merits. The jury found Garner guilty. Approximately thirty days after the return of that verdict and prior to sentencing, a different jury was empanelled and that jury determined Garner competent. The trial court sentenced Garner to fifty years in prison. The prosecution and conviction of an accused while the defendant is incompetent violates due process. See Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The standard for determining competency is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Under Texas law, the defendant is presumed to be competent, and bears the burden to prove incompetence by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003 (West 2006). An inquiry into competency must be conducted when there is evidence "sufficient to raise a bona fide doubt in the mind of the judge whether the defendant is legally competent." Montoya v. State, 291 S.W.3d 420, 424 (Tex. Crim. App. 2009); see also Pate, 383 U.S. at 385. Either party or the judge may suggest the defendant is not competent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004(a) (West 2006). If such a suggestion is made, the trial court shall conduct an informal inquiry concerning "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). After this informal inquiry, if the trial court finds evidence to support a finding of incompetency, the trial court shall order an examination of the defendant as to the defendant's competency to stand trial. See Tex. Code Crim. Proc. Ann. art. 46B.005(a) (West 2006). A trial court's decision not to conduct a competency hearing is reviewed for an abuse of discretion. See Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A trial court abuses its discretion if its decision is arbitrary or unreasonable. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Garner argues that the trial court's failure to stay the trial on the merits and proceed immediately to a competency hearing violated Article 46B.004 and Garner's right to due process. Article 46B.004(c) provides that "[o]n 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). Subsection (d) of Article 46B.004 requires that if there is evidence supporting that finding, "except as provided by Subsection (e) and Article 46B.005(d)," the trial court must stay all other proceedings in the case. Tex. Code Crim. Proc. Ann. art. 46B.004(d) (West 2006). Article 46B.005(d) states, however, that "[i]f the issue of the defendant's incompetency to stand trial is raised after the trial on the merits begins, the court may determine the issue at any time before the sentence is pronounced. If the determination is delayed until after the return of a verdict, the court shall make the determination as soon as reasonably possible after the return." Tex. Code Crim. Proc. Ann. art. 46B.005(d). The trial court granted Garner's pre-trial motion for a competency evaluation and the psychiatrist found Garner competent to stand trial. Garner did not urge his request for a new competency evaluation based on newly discovered evidence until after the empanelling of the jury in the trial on the merits. Garner's competency trial occurred approximately thirty days after the guilty verdict and prior to sentencing. The jury found Garner competent. Under the circumstances, it appears the competency determination was made "as soon as reasonably possible after the return" of the verdict. See id. Garner's first issue is overruled. JURY CHARGE ERROR
Garner contends in his second issue the trial court erred when it submitted an incorrect jury charge to the jury in the competency trial. We review claims of jury charge error under a two-pronged test. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); see also Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). We first determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we then evaluate the harm caused by the error. Id. The degree of harm required for reversal depends in part on whether the appellant raised the error in the trial court. Id. When error is not preserved by a timely objection in the trial court, an unobjected-to charge requires reversal only if it resulted in "egregious harm." Id. at 743-44; Almanza, 686 S.W.2d at 171. In analyzing whether egregious harm occurred, we must consider the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information in the entire trial record. Almanza, 686 S.W.2d at 171; see also Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). "Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis." Hutch, 922 S.W.2d at 171. The jury charge at the competency trial asked the jury, "Do you find by a preponderance of the evidence that the defendant, John El Garner, is incompetent to stand trial for the offense charged against him?" Garner argues that the issue should have been phrased to ask whether Garner was incompetent at the time of the trial on the merits. Because Garner did not object to the phrasing of the question at trial, reversal is appropriate only if the erroneous charge results in egregious harm. See Ngo, 175 S.W.3d at 743-44; Almanza, 686 S.W.2d at 171. During opening statements, defense counsel stated, "Ladies and gentlemen of the jury, I think you probably have a pretty good idea that what we're going to attempt to determine today is whether or not Mr. Garner was competent during a time frame, February 2nd, 2009 and February 4th, 2009." Defense counsel and counsel for the State on numerous occasions referenced these dates, the dates of the trial on the merits, as the relevant time frame in their arguments and in questioning the witnesses. During closing argument, State's counsel explained that in answering the jury question regarding Garner's competency, the relevant time frame for the jury to consider was February 2-4, 2009. The jury heard the testimony from Dr. Roger Saunders, a clinical psychologist appointed by the court to evaluate Garner's competency to stand trial. Saunders testified that based on his evaluation he believes that at the time he interviewed Garner, Garner was incompetent to stand trial. Dr. Walter Quijano was appointed to examine Garner before the trial on the merits, and he found Garner competent. Quijano explained that Garner appeared to know his rights and when to assert them, and he behaved competently during the February 2-4 proceeding. Considering the evidence, the arguments of counsel, as well as the record as a whole, we conclude Garner was not egregiously harmed by error in the charge. See Almanza, 686 S.W.2d at 171; see also Hutch, 922 S.W.2d at 171. We overrule Garner's second issue. The trial court's judgment is affirmed.