No. 05-05-01562-CR
Opinion Filed September 8, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F02-50425-VK. Dismissed.
Before Justices BRIDGES, FITZGERALD, and LANG.
Opinion By Justice LANG.
Errick Patrick Henry appeals his conviction for injury to a child. After adjudicating appellant guilty, the trial court sentenced appellant to six years' confinement. In his sole issue on appeal, appellant asserts the trial court erred by not conducting a competency inquiry during the punishment phase of his adjudication hearing. Because we do not have jurisdiction over appellant's complaint, we dismiss the appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 25, 2002, appellant's pregnant live-in girlfriend woke him and told him that he needed to spank their five-year-old son for urinating on the living room floor. Appellant grabbed a belt and used it to strike his son, causing bruising on his son's body and head. Appellant waived a jury trial and entered a negotiated guilty plea to the offense of injury to a child. The trial court deferred adjudicating guilt, placed appellant on community supervision for four years, and assessed a $1500 fine. The State subsequently moved to proceed with an adjudication of guilt, alleging that appellant violated the terms of his community supervision by failing to report to his probation officer, failing to pay required fees, failing to perform community service, failing to complete a family violence counseling program, and failing to abide by the directives of supervisory programs as agreed. At a hearing on the State's motion to adjudicate, appellant pleaded true to the alleged violations and testified that he understood the potential punishment he faced if the trial court found the State's allegations to be true. Appellant stated that he did not perform the conditions of his community supervision because he did not know his way around the Dallas, Texas, area and he did not believe he was guilty of the charge to which he pleaded guilty. He further stated that he felt he received bad advice from his original trial attorney. Throughout his testimony, appellant appeared to understand the questions asked by counsel and the trial court and answered them responsively. During closing argument, appellant's counsel asked the court to consider appellant's "medical condition." At that point, appellant interjected in open court, "I got shot in the head." Both counsel then finished their closing arguments, and the trial court adjudicated appellant guilty. No additional testimony or evidence was offered on punishment, and the trial court sentenced appellant to six years' confinement. II. APPLICABLE LAW AND STANDARD OF REVIEW
A person is incompetent to stand trial if he lacks (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or (2) a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon Supp. 2006). A trial court must conduct a competency inquiry to determine whether there is evidence to support a finding of incompetency to stand trial if evidence suggesting incompetency is brought to the court's attention from any source. Tex. Code Crim. Proc. Ann. art. 46B.004 (Vernon Supp. 2006). A competency inquiry is required only if the evidence brought to the judge's attention raises a bona fide doubt in the judge's mind as to the defendant's competency to stand trial. McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003). Evidence is generally sufficient to create a bona fide doubt if it shows "recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant." Id. An appellate court reviews a trial court's decision on whether to conduct a competency inquiry under an abuse of discretion standard. See Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999). Article 42.12, section 5(b) of the Texas Code of Criminal Procedure states that no appeal may be taken from the trial court's determination to proceed with an adjudication of guilt. Tex. Code Crim. Proc. art. 42.12, § 5(b) (Vernon Supp. 2006); see also Henderson v. State, 132 S.W.3d 112, 115 (Tex.App.-Dallas 2004, no pet.) (holding appellant could not directly appeal trial court's conclusions on his competency that occurred during the adjudication of guilt process). However, a defendant may appeal issues unrelated to the adjudication of guilt and arising from the punishment portion of an adjudication proceeding. Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001). "[I]n the context of combined adjudication-sentencing hearings, evidence and procedures that relate directly and distinctly to the sentence imposed are cognizable on direct appeal even when the events themselves occur before the magic words, `I find you guilty.'" Hogans v. State, 176 S.W.3d 829, 834 (Tex.Crim.App. 2005). However, "[t]he fact that a defendant may appeal sentencing claims that temporally occur during adjudication `proceedings' does not give an appellate court jurisdiction to consider any issue framed as a punishment issue." Id. Rather, "the claim must, on its face, relate to the sentence imposed, not to the decision to adjudicate." Id. "The fact that evidence may be probative to both the decision to adjudicate and to the assessment of an appropriate punishment does not convert adjudication evidence into punishment evidence." Id. at 835. III. APPLICATION OF LAW TO FACTS
In his sole issue on appeal, appellant asserts the trial court erred by not sua sponte conducting a competency inquiry during the punishment portion of his adjudication hearing in order to determine whether there was evidence indicating the need for a competency hearing. Appellant concedes there was no evidence showing he was incompetent. However, he argues that "[g]iven the obvious effect on brain function that being `shot in the head' would have," his "testimony," constituted "sufficient evidence to create a bona fide doubt requiring further inquiry by the court." The State contends this Court lacks jurisdiction to consider appellant's issue because the alleged error occurred during the adjudication phase of appellant's hearing and therefore cannot be asserted on direct appeal. Alternatively, the State argues, the trial court did not err by not conducting a preliminary inquiry into appellant's competency because appellant's statement that he had been "shot in the head" was not sufficient to create a bona fide doubt in the judge's mind about appellant's competency. We conclude that appellant may not raise his complaint on direct appeal. Although appellant asserts that his complaint arises from errors that occurred after the adjudication of guilt, the record shows that appellant's guilt had not yet been adjudicated at the time of his statement in open court. Appellant further argues that his appeal is limited to an issue "unrelated" to his conviction and this Court therefore has jurisdiction. However, the issue of appellant's competency directly affected the trial court's determination of whether to proceed as to appellant's guilt on the offense charged. See Hogans, 176 S.W.3d at 836 (holding that appeal was properly dismissed where, even though purported error at adjudication hearing had some impact on punishment, it directly affected the decision to adjudicate). Accordingly, because the purported error complained of by appellant is not related "directly and distinctly to the sentence imposed," but rather "directly affected the decision to adjudicate," this Court does not have jurisdiction over appellant's complaint. See id. at 834-36. IV. CONCLUSION
We conclude that because the purported error complained of by appellant directly affected the trial court's decision to adjudicate, we have no jurisdiction to address appellant's sole point of error. We dismiss the appeal for lack of jurisdiction.