Opinion
Appellate case number: 01-14-00641-CR
11-09-2017
Cornelius Milan Harper v. The State of Texas
ORDER Trial court case number: 11-DCR-056513 Trial court: 434th District Court of Fort Bend County
Appellant's counsel has moved the Court to abate these appellate proceedings for a determination of appellant's competency. In the motion, counsel states that appellant has requested that she take certain actions concerning his appeal and that she has serious concerns about appellant's request and his competence to make decisions regarding his appeal. Mot. at 2. Counsel further states that she believes appellant may not have sufficient present ability to consult with her with a reasonable degree of rational understanding or to assist in the appeal of this case. Mot. at 2 (citing TEX. CODE CRIM. PROC. art. 46B.003). Counsel therefore requests that we abate the appeal for a determination of appellant's competency. Mot. at 2.
Counsel notes that, under Code of Criminal Procedure, article 46B.004, "[a] suggestion of incompetency is the threshold requirement for an informal inquiry . . . and may consist solely of a representation from any credible source that the defendant may be incompetent." Mot. at 2 n.1 (citing TEX. CODE CRIM. PROC. art. 46B.004(c-1)). However, the "informal inquiry" to which article 46B.004 refers is an 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. art. 46B.004(c) (emphasis added). Appellant has already been tried.
Counsel does not explain the extent to which article 46B.004 applies when the case is on appeal, briefs have already been filed, and the case is set for submission. She provides us no authority regarding the circumstances under which an appellate court should abate an appeal for a determination of competency. Nor does she explain how such an abatement procedure would work or specify whether she is requesting that the case be remanded to the trial court.
Therefore, we DENY the motion without prejudice.
It is so ORDERED. Judge's signature: /s/ Harvey Brown
[v] Acting individually [ ] Acting for the Court Date: November 9, 2017