Nos. 05-03-01194-CR, 05-03-01195-CR.
Opinion issued April 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F02-50748-Uk; F02-73356-PK.
Affirmed.
Before Justices MORRIS, WHITTINGTON, and JAMES.
Opinion By Justice JAMES.
Jerry Wayne Waits appeals two robbery convictions. In each case, appellant waived a jury trial, entered a non-negotiated guilty plea before the court, and pleaded true to two enhancement paragraphs. The court found him guilty and sentenced him to confinement for fifty years in each case. Appellant raises one issue in each appeal. In appeal number 05-03-01194-CR (trial court cause number F02-50748-UK), appellant argues his due process rights were violated because after he was found incompetent by a jury and after he was subsequently evaluated as competent, but before there was a judicial determination restoring his competency, he signed a judicial confession and guilty plea. In appeal number 05-03-01195-CR (trial court cause number F02-73356-PK), appellant argues the court erred by not holding a hearing with respect to competency because appellant had ben found incompetent to stand trial in another criminal proceeding pending in that court. We affirm the judgment of the trial court in both cases.
Background
Appellant was indicted in both causes in May 2002. In July 2002, a jury found appellant incompetent to stand trial but also found a substantial probability that appellant would regain competency to stand trial within the foreseeable future. The court committed appellant to Vernon State Hospital. On December 30, 2002, Dr. Joseph Black opined appellant was then competent to stand trial. On March 23, 2003, Dr. Michael Pittman also concluded appellant was competent to stand trial. Subsequently, appellant signed a plea and waivers on May 22, 2003. On July 11, 2003, appellant appeared before the court for cause number F02-50748-UK. The court accepted appellant's waivers and pleas, signing the document appellant had signed in May, stating, "It appearing to the Court that the defendant is mentally competent. . . ." The court admonished appellant regarding his guilty plea, and appellant indicated he understood the admonishments, that he had reviewed his case with his lawyer, and that he understood his rights and his waiver of his rights. Appellant pleaded guilty to cause number F02-50748. The State offered appellant's signed, written judicial confession and stipulation of evidence and appellant's signed pleas of true to two enhancement paragraphs. Appellant did not object. Appellant stated he planned to plead no contest on cause number F02-73356-PK. On July 29, 2003, appellant again appeared before the court for both cause number F02-50748-UK and cause number F02-73356-PK. After a discussion with the court and his attorney regarding appellant's determination of what plea to enter in cause number F02-73356-PK, the court questioned appellant regarding the charges and his understanding of punishment range, and appellant indicated he understood those things, that he had reviewed his case with his lawyer, and that he understood his rights and his waiver of his rights. Appellant then pleaded guilty to cause number F02-73356-PK and to two enhancement paragraphs. The State offered appellant's signed, written judicial confession and stipulation of evidence and appellant's signed pleas of true to two enhancement paragraphs. Again, appellant did not object. The court found appellant guilty and sentenced him to fifty years in both cases. Due Process Complaint: 05-03-01194-CR
In appeal number 05-03-01194-CR (trial court cause number F02-50748-UK), appellant argues his due process rights were violated because, after he was found incompetent by a jury and after he was subsequently evaluated as competent but before there was a judicial determination restoring his competency, he signed a judicial confession and guilty plea. Appellant, however, never raised this complaint to the trial court; he has, therefore, waived any error. As a general rule, a party must present a timely, specific objection at trial to preserve a complaint for appellate review. Tex.R.App.P. 33.1(a). The failure to object can waive error involving constitutional rights. Muniz v. State, 851 S.W.2d 238, 255 (Tex.Crim.App. 1993); see Pondexter v. State, 942 S.W.2d 577 (Tex.Crim.App. 1996) (overruling First Amendment and due process complaints on appeal because it was "clear from the record that appellant made no objection at trial on this basis"); Gill v. State, 111 S.W.3d 211, 214 (Tex. App.-Texarkana 2003, no pet.) ("In order to preserve error for appellate review, an appellant must make a timely objection, state the grounds for the objection, and secure a ruling on the record from the trial court."); Jainicke v. State, 109 S.W.3d 793, 795-96 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). An objection is not necessary to preserve error if the error involves fundamental error affecting substantial rights. See Jainicke, 109 S.W.3d at 796. Appellant offered no objections at either the July 11 or the July 29 hearings, and he has not shown fundamental error occurred. The court did sign appellant's plea agreement that appellant had signed in May, but the State did not offer that plea agreement-the subject of appellant's current contention-into evidence. Instead, the State offered the judicial confession and the plea of true and the stipulation of evidence; these documents were signed in July 2003. Further, appellant has not shown how any alleged error affected him. His central complaint is that he alleges there was a presumption he was incompetent when he signed his plea in May. Thus, appellant complains only of the guilty plea he signed in May, not the entry of his plea to the court in July. In July, when the court signed appellant's plea, it found appellant competent to stand trial. Appellant was properly admonished, stated he understood the waiver of his rights, and he entered a plea of guilty before the court. As appellant notes in his argument, a record indicating proper admonishments with a plea serves as a prima facie showing the plea was made knowingly and intelligently. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). We resolve appellant's sole issue in appeal number 05-03-01194-CR against him. Failure to Hold Hearing: 05-03-01195-CR
In cause number F02-73356-PK, appellant contends the court erred by not holding a hearing with respect to competency because appellant had been found incompetent to stand trial in another criminal proceeding pending in that court. Appellant also argues that after the July 2002 finding of incompetency, the State had the burden to prove beyond a reasonable doubt that appellant was competent to stand trial. He argues the State failed to meet this burden, raising a bona fide doubt regarding appellant's competency to stand trial at the July 29, 2003 hearing. During any part of a trial, evidence of a defendant's incompetency may be brought to the trial court's attention from any source. Tex. Code Crim. Proc. Ann. art. 46.02, § 2(b); Mata v. State, 632 S.W.2d 355, 357 (Tex.Crim. App. 1982). When such evidence of incompetency is produced, the court must conduct an inquiry, referred to as a "Section 2(b) inquiry," outside the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial. Tex. Code Crim. Proc. Ann. art. 46.02, § 2(b). The evidence requiring a Section 2(b) inquiry is that which raises a bona fide doubt as to the competency of the defendant. Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App. 1997); Mata, 632 S.W.2d at 358. Evidence that raises a bona fide doubt is evidence that causes real doubt in the judge's mind as to the defendant's competency. Mata, 632 S.W.2d at 358. We review a trial court's decision whether to conduct a Section 2(b) inquiry under an abuse of discretion standard. See Clark v. State, 47 S.W.3d 211, 217 (Tex. App.-Beaumont 2001, no pet.). When a defendant has been found incompetent but likely to regain competency in the foreseeable future, he may be committed to a state hospital. See Tex. Code Crim. Proc. Ann. art. 46.02, § 5(a). When the head of that state hospital discharges the defendant, a final report is filed with the court and the court provides copies to the defendant and to the State. Id. art. 46.02, § 5(i). Unless either the State or the defendant objects, the court is authorized to base a determination about the defendant's competency solely on that report. Id. Appellant argues that after he was found incompetent to stand trial in July 2002, the State had the burden of proving, beyond a reasonable doubt, that appellant was once again competent to stand trial. However, the cases appellant cites are distinguishable. Arnold v. State, 873 S.W.2d 27, 35 (Tex.Crim. App. 1993), did not involve a prior adjudication of incompetency. Manning v. State, 730 S.W.2d 744, 748 (Tex.Crim.App. 1987), addressed insanity, but acknowledged the shift of burden. However, Manning addressed situations when a prior adjudication had not been vacated. See id. The other two cases appellant cites in support of his assertion do not address the burden shift; each case abated the appeal because there was no judicial determination on the record. See Schaffer v. State, 583 S.W.2d 627, 630 (Tex.Crim.App. [Panel Op.] 1979 (op. on reh'g); Byrd v. State, 719 S.W.2d 237, 238 (Tex. App.-Dallas 1986, no pet.). In the present case, the record indicates the court found appellant competent to stand trial on July 11, 2003. Accordingly, the cases cited by appellant are inapplicable; a judicial determination had been made prior to the July 29, 2003 hearing. Appellant also argues his incompetency finding from July 2002 should have raised a bona fide doubt regarding appellant's competence to stand trial in July 2003. In addition to the July 11, 2003 judicial notation that appellant was mentally competent, in July 2003, the court had before it two reports by physicians concluding appellant was competent to stand trial. Both reports were made several months after appellant was found incompetent to stand trial in July 2002. We find no intervening evidence that would have indicated to the trial court appellant had become incompetent to stand trial between July 11, 2003, when it found appellant competent to stand trial, and the July 29, 2003 hearing. We hold the court did not abuse its discretion in not conducting a Section 2(b) inquiry. See Clark, 47 S.W.3d at 217. We resolve appellant's sole issue in appeal number 05-03-01195-CR against him. We affirm both judgments of the trial court.