Opinion
No. 05-10-00449-CR
Opinion Filed June 17, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-10-98.
Before Justices O'NEILL, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Timothy Adam Martin of robbery and assessed punishment, enhanced by a prior felony conviction, at fifty-three years in prison. Appellant raises four issues on appeal, all related to whether proper legal standards were followed in determining whether he was competent to stand trial. We affirm. Evidence at trial showed appellant walked out of a Rockwall grocery store with a cart of unbagged goods without paying. The store manager approached him and asked for a receipt. Appellant did not produce a receipt and continued to load the groceries into his truck. When the store manager reached in to turn off the truck's engine, appellant began to punch him in the stomach and chest. After knocking the manager to the ground, appellant drove off. On the day of the first trial setting, defense counsel filed a motion for continuance seeking an evaluation of appellant's competency to stand trial. In the motion, counsel asserted she had learned three days earlier that appellant's sister had medical power of attorney over him. According to counsel, appellant's sister stated appellant had been on "several mood and mind altering drugs" for years that prevented him from being competent. Additionally, defense counsel stated she visited appellant at jail two days earlier, and appellant informed her he would not attend his trial, would not assist in preparation for trial, wanted to go to a mental hospital, and had told his witnesses not to come to trial. Defense counsel asserted she could not "effectively communicate with [appellant] during the trial at this time." The trial court granted the motion and appointed Dr. Mitchell H. Dunn to examine appellant's competency to stand trial. Dr. Dunn's report was filed with the trial court three weeks later and more than four weeks before the new trial setting. The report shows it was faxed to both the district attorney's office and defense counsel. In the report, Dr. Dunn opined that appellant was competent to stand trial. Dr. Dunn stated he attempted to contact appellant's counsel both before and after his evaluation, but she did not return his calls. He also reviewed documents provided by the district attorney's office. In the report, Dr. Dunn said he met with appellant at the Rockwall County Detention Center, described the purpose of the evaluation, and explained a report would be sent to the judge, his counsel, and the prosecutor. Appellant, who Dr. Dunn described as "neat in appearance," said, "Medical? Medical?" Dr. Dunn then explained the evaluation was not for the purpose of treating him but had been ordered by the court. Appellant then told Dr. Dunn that his sister "has the attorney power thing." Dr. Dunn explained he needed to talk to appellant to evaluate his competency, and appellant said, "I'm done. I'm done." Appellant attempted to leave the room, but the door was locked. He returned to his seat but refused to answer any questions, instead rocking in his chair with his head down. Dr. Dunn stated that because of the lack of a response from appellant, he could not fully evaluate appellant's "understanding of the charges, his ability to disclose information to his attorney, his ability to engage in a reasoned choice of legal strategies or his ability to understand the adversarial nature of the criminal proceedings." However, Dr. Dunn viewed appellant's lack of cooperation as a "choice" and stated appellant's behavior was not consistent with a mental illness nor was there any evidence appellant suffered from mental retardation. Further, Dr. Dunn noted a review of the offense report indicated that appellant was not mute, had the capacity to drive a car, and was employed at the time of the offense. Additionally, Dr. Dunn noted that appellant's criminal history indicated "some degree of experiential competence within the criminal justice system." Dr. Dunn stated it was "preferable" to give an opinion on competency when "one has the benefit of a fully cooperative defendant and collateral information." He then noted that absent sufficient evidence to the contrary, "the presumption of competence stands." Dr. Dunn opined that, without evidence to suggest appellant was not capable of understanding the charges or working with his attorney, appellant was competent to stand trial. One week before trial, appellant's counsel filed a second motion for continuance seeking a second competency evaluation and a motion for appointment of an expert to assist in the preparation of a defense. At a brief hearing on the motion for continuance, defense counsel noted that appellant did not speak with Dr. Dunn during the evaluation and argued Dr. Dunn's report was "not good enough" because he presumed competency. Defense counsel also told the court she "purposefully did not return [Dr. Dunn's] call" because she did not want him to "use what he hears from me and put that in his report for his evaluation." There was also discussion about when defense counsel received a copy of the report. The trial court denied the continuance, explaining that appellant had been evaluated, had made the "decision to talk to [Dr. Dunn] or not talk to him" and "that part of it is as complete as it can be." In four issues, appellant asserts the trial court erred in (1) denying his motion for continuance, (2) failing to order a second competency evaluation, (3) failing to order a competency trial, and (4) failing to reconsider competency after new evidence was presented at the punishment stage of trial. Because the second issue impacts our analysis of the first, we begin with it. We review a trial court's decision to deny a request for a competency examination for an abuse of discretion. Bigby v. State, 892 S.W.2d 864, 885 (Tex. Crim. App. 1994). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. See Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005). 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) (West 2006). Either party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004(a). On a suggestion of incompetency, the court may appoint one or more disinterested experts to examine the defendant and report to the court on the competency or incompetency of the defendant and to testify on the issue at any trial or hearing involving that issue. Tex. Code Crim. Proc. Ann. art. 46B.021. During an examination, the expert shall consider, in addition to other issues determined relevant by the expert, the various factors set out in the statute. Tex. Code Crim. Proc. Ann. art. 46B.024. A defendant is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003(b). Here, defense counsel filed a motion suggesting appellant was incompetent, and the trial court ordered that appellant be evaluated by Dr. Dunn. Appellant asserts Dr. Dunn's report was "a near nullity," which the trial court should have "corrected" by ordering a second competency evaluation. He argues that having ordered an evaluation in the first place, it was "incumbent on the trial court to obtain a report from the expert which did not suffer the limitations, reservations and adverse presumption actually contained in the report received." Dr. Dunn acknowledged he could not "fully" evaluate appellant because appellant would not respond to his questions. But nothing in the report suggests that appellant was mentally incapable of responding; to the contrary, Dr. Dunn concluded appellant's lack of participation was a "choice" he made and found appellant's behavior was not consistent with a mental illness. Further, Dr. Dunn stated he had no evidence that appellant suffered from mental retardation. Appellant has not cited authority suggesting a second evaluation is required when a defendant has voluntarily refused to cooperate during the first evaluation, nor do we believe the law so requires. Further, appellant's refusal to cooperate did not leave Dr. Dunn without any information upon which to base his opinion on competency. Dr. Dunn utilized information from other sources — the offense report and appellant's criminal history — to assist in his conclusion that appellant was competent, noting appellant was not mute, could drive a vehicle, was employed at the time of the offense, and had "experiential competence" in the criminal justice system. No new or additional evidence was presented at the hearing on the motion for continuance to suggest appellant was incompetent. Given the circumstances of this case, we cannot conclude the trial court abused its discretion in not ordering a second evaluation into appellant's competency. We overrule the second issue. In his first issue, appellant argues the trial court abused its discretion in denying his motion for continuance so that a second evaluation could be performed. We review a trial court's denial of a motion for continuance for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). To establish an abuse of discretion, there must be a showing the defendant was actually prejudiced by the denial of his motion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). To the extent appellant's complaint is based on his argument that the trial court's refusal to order a second evaluation, we have previously concluded no such error was shown. Thus, the trial court could not have abused its discretion in not continuing the trial on this basis. Appellant also asserts the trial court abused its discretion in denying his continuance after granting his motion to appoint a competency expert "as an expert witness" and authorizing funding. The denial, he asserts, prevented a reasonable opportunity for an evaluation. The record, however, does not support his assertion. Appellant filed his motion to appoint a competency expert on March 15 simultaneously with the second motion for continuance. But he relies on an order, signed on March 8, to support his contention the motion was granted. The order is entitled "Order on Motion for the Appointment of an Expert." In the order, the trial court states it considered the motion on March 4 and then authorized $500 in expenses "to be paid to the expert." The order did not identify the type of expert. Although the order approved funding for an expert, the timing of the pleadings makes it impossible for the March 8 order to have been issued in response to a motion for appointment of competency expert filed one week later. We overrule the first issue. In his third issue, appellant relies on article 46B.005 to argue the trial court erred in not holding a formal trial on competency. He asserts the provision "differs from the old law by reference to the preliminary `inquiry' which triggers an expert's examination, but otherwise has mandatory language for the trial requirement without any qualifiers." We disagree. Article 46B.005 provides: "If after an informal inquiry the court determines that evidence exists to support a finding of incompetency, the court shall order an examination under Subchapter B to determine whether the defendant is competent to stand trial in a criminal case." Tex. Code Crim. Proc. Ann. art. 46B.005(a). Except under certain circumstances, the court shall hold a trial under Subchapter C before determining whether the defendant is incompetent to stand trial on the merits. Tex. Code Crim. Proc. Ann. art. 46B.005(b). A trial is not required if (1) neither party's counsel requests one, (2) neither party's counsel opposes a finding of incompetency, and (3) the court does not, on its own motion, determine that trial is necessary to determine incompetency. Tex. Code Crim. Proc. Ann. art. 46B.005(c). A trial court's decision to grant or deny a formal competency trial is reviewed under an abuse of discretion standard. Bigby, 892 S.W.2d at 885. The record here shows that after suggestion by defense counsel, the trial court appointed Dr. Dunn to perform an evaluation of appellant so that the trial court could determine by informal inquiry whether there was evidence to support a finding that appellant might be competent. See Tex. Code Crim. Proc. Ann. art. 46B.021; see also Stine v. State, 300 S.W3d 52, 61 (Tex. App.-Texarkana 2009, pet. dism'd, untimely filed). Dr. Dunn met with appellant, who refused to cooperate with the evaluation, and determined appellant was competent. Based upon Dr. Dunn's report, the trial court apparently found there was no evidence to support incompetency (at least by the time of the hearing on the second motion for continuance), and the issue did not go beyond the initial informal stage. In the absence of evidence contradicting Dr. Dunn's finding, we cannot say the trial court abused its discretion in failing to hold a formal trial. In his brief, appellant argues such evidence exists. For reasons explained in the fourth issue, we reject his argument. In his fourth issue, appellant contends the trial court erred in failing to reconsider the issue of incompetency after new evidence was presented during his trial. Specifically, he relies on testimony by his mother at the punishment stage. Diana Sterling testified appellant almost died as an infant, apparently from SIDS, was born prematurely because of an assault, and seemed distant. She took him to counselors and psychiatrists for years and he was diagnosed with bipolar disorder two-and-a-half years earlier. He tried to commit suicide by taking a ninety-day supply of lithium, although she did not indicate when. She also said he went "downhill" after the deaths of one of his twin sons and his father and she believed he had a "mental problem." A judge must inquire into a defendant's mental competence once the issue is sufficiently raised. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). The issue is sufficiently raised when evidence suggesting incompetency comes to the trial court's attention and creates a bona fide doubt in the judge's mind as to whether the defendant is incompetent. See Tex. Code Crim. Proc. Ann. art. 46B.004(b), (c); Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009). A bona fide doubt may exist if the defendant exhibits truly bizarre behavior or has a recent history of severe mental illness or at least moderate mental retardation. Montoya, 291 S.W.3d at 425. Appellant's previous diagnosis of bipolar disorder, together with testimony that he had been depressed and had, at some time in the past, attempted suicide, implicate his competence to stand trial only if they impact his "present ability to consult with his counsel with a reasonable degree of understanding" and his "rational and factual understanding of the proceedings against him." See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999) (defendant's propensity toward depression does not necessarily correlate with ability to communicate with counsel or to understand proceedings against him; history of hospitalization and treatment for depression did not warrant competency hearing without evidence of severe mental illness or recent impairment); Brown v. State, 129 S.W.3d 762, 766 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (concluding defendant's previous mental and behavioral impairments, inability to recall past events, inability to recall circumstances of charged offense, and depression did not raise bona fide doubt as to defendant's competency); Reeves v. State, 46 S.W.3d 397, 399-400 (Tex. App.-Texarkana 2001, pet. dism'd) (concluding evidence of defendant's drug addiction and suicide attempt did not reflect on defendant's present ability to understand and participate in proceedings against her); Rice v. State, 991 S.W.2d 953, 957 (Tex. App.-Fort Worth 1999, pet. ref'd) (explaining that test of competency is not whether someone labored under mental, behavioral, or psychological impairment); Townsend v. State, 949 S.W.2d 24, 27 (Tex. App.-San Antonio 1997, no pet.) (concluding suicidal tendencies and depression did not raise bona fide doubt about defendant's competency). Although Sterling's testimony touched on past mental and medical issues, it did not suggest appellant was presently unable to consult with counsel or understand the proceedings against him. Nothing in the record suggests he exhibited bizarre behavior. Although appellant did not testify at trial, he did briefly testify regarding his desire not to testify and made appropriate responses to the questions. Further, the trial court was able to make a first-hand assessment of appellant over the course of the trial and was in a position to observe appellant's level of understanding of the proceedings. Even in the absence of Dr. Dunn's report, we cannot conclude Sterling's testimony raised a bona fide doubt about appellant's competency. Consequently, the trial court did not abuse its discretion in failing to reconsider the competency question. We overrule the fourth issue. We affirm the trial court's judgment
While the record is unclear what motion was decided by the order, defense counsel referenced a "mitigation expert" at the hearing on the continuance. Counsel stated the expert needed "more time to get her evaluation of him completed" but also stated the expert was not qualified to do a competency evaluation. Thus, to the extent this is the expert covered by the March 8 order, the trial court could not have abused its discretion in denying a continuance on the ground that he/she did not have adequate time to complete a competency evaluation.