Opinion
Nos. 05-05-00464-CR, 05-05-00465-CR, 05-05-00466-CR, 05-05-00467-CR
Opinion Filed April 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F03-35742-PK, F03-35743-PK, F03-35744-PK, and F03-35745-PK. Affirm.
Before Justices RICHTER, LANG, and MAZZANT.
OPINION
In these appeals from four convictions for aggravated sexual assault, Parris Lee Johnson complains the trial judge erred in failing to sua sponte hold a preliminary hearing to determine his competency to stand trial after "evidence of his incompetency was brought to [the judge's] attention." Finding no error, we affirm. Johnson's complaint stems from the following evidence
* a statement that Johnson is mentally retarded with an IQ of less than 60;
* testimony that his mother and sister feel he "is more like a child than a grown man;"
* testimony that his mother and sister feel his low intelligence causes him not to know right from wrong;
* testimony that his sister hired him for a job but had to fire him because "he could not comprehend what was going on;" and
* testimony that although he "was graduated from" high school, he attended special education classes beginning in fourth grade.Johnson maintains this evidence "raised a bona fide doubt" as to his incompetency and justified a preliminary competency hearing. We agree with Johnson that by statue, a trial judge must conduct an informal inquiry as to a defendant's competency if some evidence suggesting a defendant may be incompetent to stand trial comes to the judge's attention. Tex. Code Crim. Proc. Ann. art. 46B.004(b), (c) (Vernon Supp. Pamph. 2005). This is so because the conviction of a defendant who is legally incompetent-who lacks (i) sufficient present ability to consult with counsel with a reasonable degree of rational understanding or (ii) a rational as well as factual understanding of the proceedings against him-violates due process. Id. art. 46B.003(a); Drope v. Missouri, 420 U.S. 162, 171-72 (1975); Alcott v. State, 51 S.W.3d 596, 598 (Tex.Crim.App. 2001). Here, although Johnson argues the trial judge failed to conduct the informal inquiry, the record reveals otherwise. At a preliminary hearing three days prior to trial, Johnson stated he would be pleading guilty to all charges at trial without benefit of a plea bargain. When asked by the judge why he was choosing an "open plea," Johnson replied that he "did not want to go to trial" and the State's offer of twenty-five years "was too much time." Johnson then stated he "needed help," wanted counseling, and was hoping for probation so he could "get some kind of help." Upon the judge's questioning, Johnson replied that he understood
* he had multiple charges pending against him as a result of separate offenses;
* the punishment range for each offense was "five to ninety-nine or life and optional fine of up to $10,000;"
* his counsel was court-appointed because he "could not hire one;" and
* that by pleading guilty he was admitting to committing the offenses.Upon further questioning by the judge, Johnson also stated he was not on any medications; he could read and had read the indictments himself; he understood his counsel and "other people who [had] talked to [him] about the cases;" and he understood the judge's role, knew who the judge was, wanted the judge to assess punishment because the jury "might give [him] higher than twenty-five [years]," and understood the judge could assess an even greater sentence. Several of the judge's questions were open-ended and Johnson's answers were responsive and well-thought, demonstrating Johnson was able to communicate with his attorney, understood the proceedings against him, and understood the implications of his plea. Given the record before us, we conclude the judge's inquiry at this preliminary hearing satisfied the requirement of the statue. See Lawrence v. State, 169 S.W.3d 319, 323-25 (Tex.App.-Fort Worth 2005, pet. ref'd) (concluding judge's inquiry into defendant's mental health, ability to understand conversations with counsel and investigator, and ability to understand charges against him satisfied statutorily-mandated informal inquiry). We overrule Johnson's sole point of error. We affirm the trial court's judgments.
This statement was obtained from a written report by a psychologist who examined Johnson to determine the existence of "any mitigating factors" for sentencing purposes. However, the psychologist did not administer an IQ test himself and it is unclear what the source of the IQ score is and when the testing was done.
In arguing that the judge erred in not holding a hearing sua sponte to determine his competency to stand trial, Johnson relies on former Texas Code of Criminal Procedure article 46.02. See Act of May 23, 2001, 77th Leg., R.S., ch. 828, § 3(a), 2001 Tex. Gen. Laws 1556, repealed by Act of April 30, 2003, 78th Leg., R.S., ch. 35, § 15, 2003 Gen. Laws 72. That article was repealed effective January 1, 2004 and replaced with article 46B. See Act of April 30, 2003, 2003 Gen. Laws 72. In repealing article 46.02, the legislature provided that the change in law applied only to defendants against whom proceedings under article 46.02 had not been initiated. Id. Here, although the indictments against Johnson were filed in November 2003, nothing in the record suggests Johnson had proceedings under article 46.02 pending against him on January 1, 2004. Accordingly, we apply article 46B to these cases.