                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00568-CR

                                           Vicente LOPEZ,
                                              Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010-CR-6974
                          The Honorable Angus McGinty, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: December 11, 2013

AFFIRMED

           Vincente Lopez appeals his conviction for retaliation, asserting he was incompetent to

stand trial. We affirm the trial court’s judgment.

                             BACKGROUND AND PROCEDURAL HISTORY

           In July 2010, Lopez was charged with retaliation arising out of verbal statements he made

threatening to shoot San Antonio Police Officer Brian Bigler because of the officer’s previous

arrest and emergency detention of Lopez. See TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (West

2011).
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           In February 2011, counsel for Lopez filed a motion requesting that Lopez’s competence to

stand trial be evaluated. The matter was referred to a criminal magistrate judge, who granted the

motion and ordered a mental health expert to perform a psychological evaluation on Lopez. The

report dated July 6, 2011 found Lopez competent to be tried on the retaliation charge. 1 At a brief

hearing, defense counsel and the State agreed that, based on the report, Lopez was competent, and

the criminal magistrate judge found Lopez competent to stand trial.

           By the time Lopez’s case proceeded to trial on June 25, 2012, he had retained new counsel.

A few days before trial, the court denied Lopez’s request to fire his attorney and have a new

attorney appointed. Before jury selection began on the first day of trial, Lopez’s attorney informed

the court that Lopez was refusing to talk to him, refused to fill out the election of punishment form

and apply for probation (for which he was eligible), refused to dress for trial, and had urinated on

himself. Counsel stated Lopez was not assisting in his defense, and was acting in an irrational

manner that was contrary to his best interests. Based on Lopez’s behavior that day, counsel stated

he had no choice but to ask the court for a brief continuance so that an emergency evaluation of

Lopez’s competence could be performed, noting that approximately one year had passed since his

prior psychological evaluation. Counsel also moved to withdraw, stating he could not provide

effective assistance if Lopez was not willing to communicate with him. The trial court denied

counsel’s motion to withdraw, noting that the attorney was a very experienced criminal defense

attorney whom Lopez had chosen to hire, and that Lopez had already made one change of counsel

during the pendency of his case which had been set for trial twelve times. The court also denied

defense counsel’s motion for a continuance and request for another competency evaluation,

explaining,



1
    The competency report is not included in the appellate record.

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                Each time Mr. Lopez has come to court, he appears to talk when he wants
       on whatever subject he wants to talk to - - talk about with little or no regard to the
       direction that I’m giving him; nevertheless, I have not seen anything in his conduct
       to find that he is incompetent or displaying symptoms of incompetence. Moreover,
       in July of last year, he had a complete competency evaluation and he was found
       competent, as was ruled on by Judge Carruthers.

               I believe Mr. Lopez’s antics today in urinating on himself, refusing to get
       dressed, and not talking with [his attorney] is merely an attempt to delay the
       proceedings and we’re not going to do that. We’re going to go to trial today. So,
       the defense’s request for a continuance is denied. What I’m going to do is admonish
       Mr. Lopez.

       The court proceeded to admonish Lopez that the trial was going to proceed and that he

would be permitted to remain in the courtroom for jury selection as long as he refrained from

speaking out and spoke only when addressed by the court. Even though Lopez stated that he

understood, he continued speaking in Spanish and the judge ordered him removed from the

courtroom during jury selection. Lopez was present during the rest of his trial, but continued

occasionally speaking out loud in Spanish as well as English during the proceedings. Lopez had

a Spanish interpreter throughout the trial, but also spoke in English at times.

       The evidence at trial showed that on the evening of April 7, 2010, a neighbor called the

police about Lopez being intoxicated and threatening him with a shovel. When the officers arrived,

they detained Lopez and placed him inside a patrol car. Upon seeing Officer Brian Bigler, Lopez

asked Bigler whether he was the officer who arrested him (Lopez) and took him to the hospital.

When Bigler replied, “yes,” Lopez became upset and began banging his head against the patrol car

window. Officer Lee Biegert removed Lopez from the patrol car and placed him on the ground to

gain control of him. After Lopez calmed down, Biegert allowed him to stand up. According to

Biegert, Lopez looked Officer Bigler in the eye and said, “I’ll shoot you, I’ll - - you’ll f**king

pay.” Biegert exclaimed that Lopez’s statement was “retaliation” and that Lopez could be charged.




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Lopez later said he had threatened “to sue,” not “shoot,” Officer Bigler. Biegert testified that

Lopez understood everything that was said to him in English, and replied in English, that night.

       Officer Mike Cockerham testified that he had been called out to Lopez’s house more than

twenty times for disturbances. Cockerham stated he never had any trouble communicating with

Lopez in English. On the night of April 7, 2010, Cockerham heard Lopez say to Bigler, “I’m

going to kill you, you’re going to f**king pay for what you did.” Cockerham also recalled Lopez

saying “I’m going to shoot you.” Lopez’s demeanor was angry at the time. The officers discussed

that Lopez’s statements constituted the offense of retaliation and that Lopez could be charged.

Lopez overheard, and began telling them, “that’s not what I said, I said I was going to sue him.”

Cockerham testified to his opinion that Lopez is very smart and knows how far he can push things

with the police.

       Officer Bigler testified that he had several previous encounters with Lopez before the April

7, 2010 retaliation incident. About eight months before, in August 2009, Bigler was called to

Lopez’s residence because Lopez was arguing with his neighbor. Bigler conducted an emergency

detention, arresting Lopez and taking him to the hospital because he believed Lopez was “suffering

from a mental health crisis” at that time. Bigler stated Lopez’s demeanor that night ranged from

excitable to calm, and that he was having random thoughts, asking Bigler to shoot him and then

stating Bigler was going to be blessed by God. Lopez did not appear to be in a stable state of mind.

After that arrest, Lopez wrote Bigler’s name and badge number on the inside of his white picket

fence with a permanent marker. On the night of April 7, 2010, Bigler heard Lopez yell at him that

he (Bigler) was “going to f**king pay,” and also said he was either going to “shoot” him or “sue”

him — Bigler was not certain which word Lopez used because Lopez has a strong Spanish accent.

Bigler stated he had always communicated with Lopez in English. In Bigler’s opinion, Lopez was



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not mentally unstable on that night. Bigler explained that Lopez was not exhibiting the severe

emotional highs and lows like he was eight months before.

       A neighbor also testified to the ongoing conflicts he and his family experienced with Lopez

over the last several years. The neighbor stated that Lopez was often drunk and antagonistic

toward his neighbors. He testified to calling the police several times due to conflicts with Lopez.

       Against his attorney’s advice, Lopez testified in his own defense. Lopez denied ever

threatening to shoot Officer Bigler, explaining that he had thought of suing Bigler but had since

changed his mind because he seemed like a nice guy, could be his son due to his age, and reminded

him of his nephew who was in law enforcement. When asked about the previous calls to police

by his neighbors, Lopez testified he had never threatened anyone, including any of his neighbors,

because that was against his principles. He stated, “[t]he people around me, they never make sues

against me. They’re friends. They’re friends from my mother. My lovely mother.” During his

testimony, Lopez generally spoke in Spanish with an interpreter, but often spoke over the

interpreter or continued speaking beyond what the interpreter translated as his answer; he also

sometimes spoke in English.

       The jury found Lopez guilty of retaliation against Officer Bigler, and he was sentenced to

five years’ imprisonment. Lopez now appeals.

                                            ANALYSIS

       On appeal, Lopez raises two related issues regarding his competency, arguing that: (1) the

trial court erred in denying his counsel’s request for a continuance to obtain a second competency

evaluation; and (2) the trial court violated Lopez’s due process rights by failing to sua sponte

conduct an informal inquiry into Lopez’s competency at the beginning of or during trial.

       Due process requires that, in order to be competent to stand trial, a criminal defendant must

have “sufficient present ability to consult with his lawyer with a reasonable degree of rational
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understanding” and must have a “rational as well as factual understanding of the proceedings

against him.” Turner v. State, No. AP-76580, ___ S.W.3d ___, 2013 WL 5808250, at *10 (Tex.

Crim. App. Oct. 30, 2013) (citing Dusky v. United States, 362 U.S. 402, 402 (1960)). This

constitutional standard has been codified in Chapter 46B of the Texas Code of Criminal Procedure,

which describes the circumstances that require a competency determination and details the

procedures to be followed. TEX. CODE CRIM. PROC. ANN. arts. 46B.001—.171 (West 2006 &

Supp. 2013). Under the code, a defendant is presumed competent to stand trial and shall be found

competent unless proven incompetent by a preponderance of the evidence. TEX. CODE CRIM.

PROC. ANN. art. 46B.003(b) (West 2006). A person is incompetent to stand trial if the person does

not have “(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree

of rational understanding; or (2) a rational as well as factual understanding of the proceedings

against the person.” TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West 2006); see Turner, 2013

WL 5808250, at *6 n.11 (noting that a competent defendant possesses both criteria). This standard

focuses on the defendant’s present ability at the time of trial. Montoya v. State, 291 S.W.3d 420,

425 (Tex. Crim. App. 2009).

       The issue of a defendant’s competence may be raised by either party’s motion or by the

trial court on its own motion. TEX. CODE CRIM. PROC. ANN. art. 46B.004(a) (West Supp. 2013).

“If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of

the trial court, the court on its own motion shall suggest that the defendant may be incompetent to

stand trial.” Id. art. 46B.004(b) (West Supp. 2013). Upon a suggestion that the defendant may be

incompetent, the trial court has a duty to conduct an informal inquiry to determine whether there

is “some evidence from any source that would support a finding that the defendant may be

incompetent to stand trial.” Id. art. 46B.004(c) (West Supp. 2013). Relying on Montoya, the State

argues that this evidentiary threshold of a “suggestion” of incompetency is the same as the “bona
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fide doubt” threshold under the former version of article 4B.004(c). See Montoya, 291 S.W.3d at

425 (holding that evidence that a “suggestion” of incompetency sufficient to trigger an informal

inquiry was the same as the “bona fide doubt” standard from the previous statutory scheme). That

argument is refuted by the plain language of subsection (c–1), which was added to article 46B.004

by legislative amendment, effective September 1, 2011. TEX. CODE CRIM. PROC. ANN. art.

46B.004 (c–1) (West Supp. 2013). As the Court of Criminal Appeals noted in Turner, after its

opinion in Montoya, the legislature expressly rejected the “bona fide doubt” standard by adopting

subsection (c–1) which states, “A suggestion of incompetency is the threshold requirement for an

informal inquiry under Subsection (c) and may consist solely of a representation from any credible

source that the defendant may be incompetent. A further evidentiary showing is not required to

initiate the inquiry, and the court is not required to have a bona fide doubt about the competency

of the defendant.” Turner, 2013 WL 5808250, at *11 n.32. Lopez’s trial commenced in July 2012,

well after the effective date of the amendment; therefore, the current version applies.

        Here, Lopez argues the record contains at least a suggestion that he was incompetent to

stand trial in that he did not have sufficient ability to consult with counsel and assist in his defense,

and he did not understand the charge against him. See TEX. CODE CRIM. PROC. ANN. art.

46B.003(a). Lopez contends that under article 46B.004(c), the trial court was required to conduct

an informal inquiry into his competence during trial, and the court erred in denying his counsel’s

request for another competency evaluation at the beginning of trial.

        With respect to a defendant’s ability to consult with counsel, the “legislative criteria for

competency contemplate a defendant who is at least minimally able to interact with his trial

counsel in a ‘reasonable and rational’ way (even if they do not necessarily agree) in formulating

decisions how most effectively to pursue his defense.” Turner, 2013 WL 5808250, at *10. Article

46B.024 sets forth factors to be considered by an expert in making a competency assessment,
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including the defendant’s capacity to: “(A) rationally understand the charges against the defendant

and the potential consequences of the pending criminal proceedings; (B) disclose to counsel

pertinent facts, events, and states of mind; (C) engage in a reasoned choice of legal strategies and

options; (D) understand the adversarial nature of criminal proceedings; (E) exhibit appropriate

courtroom behavior; and (F) testify. . . .” TEX. CODE CRIM. PROC. ANN. art. 46B.024(1) (West

Supp. 2013). Other considerations include the defendant’s current indications of mental illness,

his personal history of mental illness, whether the condition has lasted or is expected to last

continuously for at least one year, the degree of impairment resulting from the mental illness and

its specific impact on the defendant’s capacity to rationally engage with counsel, and whether the

defendant takes psychoactive or other medications and their effect on the defendant’s appearance,

demeanor and ability to participate in the proceedings. Id. art. 46B.024(2)-(5) (West Supp. 2013).

       Here, a mental health expert was ordered to perform a psychological evaluation of Lopez’s

competency upon his attorney’s suggestion, by motion, that he may be incompetent to stand trial.

The expert’s report found Lopez competent, defense counsel and the prosecutor agreed that he was

competent, and the magistrate judge found him competent to stand trial. At that time, the trial

court was under no duty to take any further action; however, the court was “effectively put on

notice of the need to maintain vigilance to assure that the appellant’s due process rights were

preserved.” Turner, 2013 WL 5808250, at *12. The question then becomes whether Lopez’s

actions and comments preceding and during trial amount to evidence “suggesting” he may have

been incompetent to stand trial, thereby triggering the trial court’s duty to make an informal inquiry

into Lopez’s competency at that time. See TEX. CODE CRIM. PROC. ANN. art. 46B.004(b), (c).

       On the first day of trial, the record reflects that Lopez refused to cooperate — refusing to

speak with his attorney, refusing to fill out the election of punishment form and the application for

probation, refusing to change clothes for trial, and urinating on himself. The record also reflects
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that Lopez sought to fire his attorney a few days before, and his request was denied by the court

as a delay tactic. After defense counsel’s request for a continuance for a competency examination

was denied, Lopez appeared briefly in court and was admonished to behave and control his verbal

outbursts. Even though Lopez stated he understood, he continued speaking out loud in Spanish,

and the court ordered him removed during jury selection.

       Once trial began, Lopez’s cooperation with his attorney and the trial court improved—e.g.,

he dressed appropriately in a shirt and tie, more or less restrained his verbal outbursts and followed

the court’s instructions, and asked for time to consult with his attorney before making the decision

to testify. While the record does show that Lopez disrupted the trial proceedings on several

occasions by speaking out loud in Spanish, and sometimes in English, it also shows that he

followed the instructions by the court and his attorney to stop talking on some occasions and

followed the trial court’s instructions regarding court proceedings, e.g., he rose for the reading of

the indictment, stated his plea of “not guilty” when asked, and sat down when instructed to do so.

After the State rested its case in chief and the jury was excused for the day, the trial court

acknowledged on the record that Lopez had so far refrained from making outbursts during the trial.

When the court instructed Lopez not to tell the jury “thank you” as they were leaving, Lopez stated

in English that he was sorry and thanked the judge. Defense counsel did not re-state his complaint

that Lopez was refusing to speak with, or cooperate with him, and did not renew his request for a

further competency evaluation during the trial proceedings.

       Most of Lopez’s verbal outbursts were claims of innocence and assertions of his rights, or

accusations that the State’s witnesses were lying. For example, during closing arguments, Lopez

became upset and stated out loud in English, “I’ve already had so many injustice. Fifteen months

in here and I’m innocent . . . I’m trying to use my rights only . . . I don’t need no more - - (talking

loudly in Spanish),” and later stating in Spanish, “This is not a fair court. I’m going to sue you.”
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When he was permitted to address the court during the sentencing phase, Lopez stated, “I am legal

Mexican resident and I have rights. And all - - and all I’m asking is that to exercise those rights .

. . like today to get my fingerprints. They forced me to get my fingerprints . . . they grab me, they

force me, and they put my hands like this (indicating) because I don’t want to do this. I - - I am -

- I am innocent 100 percent.” At the end of the sentencing hearing, Lopez refused to agree to the

court’s proposed conditions of probation. The following exchange occurred:

       THE COURT: Mr. Lopez. Mr. Lopez. You heard what I told you about conditions
       of probation. Are you going to agree?

       THE DEFENDANT: If - - if I was guilty about this, even if it was a little bit, I
       would be very grateful. (Defendant continuing to speak in Spanish).

       THE COURT: So are you going to agree to the conditions of probation or not?

       THE DEFENDANT:           I am innocent 100 percent and that is dishonesty.

       THE COURT: Are you going to agree to the conditions of probation or not?

       THE DEFENDANT: No, I ain’t - - I ain’t going to take probation. I’m innocent
       100 percent.

       In addition, the fact that Lopez chose to testify during the guilt/innocence phase against his

attorney’s advice is not evidence of mental incompetence rather than mere disagreement with his

attorney. Lopez consistently expressed his desire to tell his side of the story throughout the

proceedings. In addition, defense counsel questioned Lopez outside the jury’s presence about their

discussion concerning his right not to testify, and Lopez acknowledged the discussion. In fact,

Lopez asked to further consult with his attorney before making the final decision to testify. Lopez

acknowledged his right not to testify and expressed his desire to tell the jury his version of events,

stating the State’s version was “pure lies.” After deciding to testify, Lopez raised his hand to be

sworn as instructed by the judge, and responded lucidly to his attorney’s questions on direct

examination and the prosecutor’s questions on cross-examination. Lopez knew his age, his address


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and how long he has lived there, that he is a legal resident, and that he had very little formal

education. Lopez denied that he threatened to shoot Officer Bigler and stated that he instead

threatened to sue Bigler, which was consistent with what he later told the officers at the scene that

day. Lopez agreed there is a big difference between saying, “I’ll shoot you” and “I’ll sue you.”

Lopez gave some rambling testimony and some contradictory testimony about how many times he

had seen Bigler and his badge number, and also claimed not to recall his prior arrests, although he

did remember he was placed on probation for a DWI offense. Lopez, who mostly answered in

Spanish, often began answering before the question was fully translated, and often continued

talking after the interpreter started translating his answer, creating some confusion which is evident

in the record. As evidence of mental impairment, Lopez cites us to his complaint to the court

during the sentencing phase that he was “never allowed to testify.” But, viewing that comment in

the context of Lopez’s comments made just prior to his testimony, it is clear that Lopez was

referring to his desire to give a “speech” to the jury. In addition, Lopez asserts he did not

understand he was charged with retaliation against Officer Bigler, citing us to comments he made

about retaliation by and against his neighbor. The indictment initially contained another count

charging Lopez with retaliation by threatening to kill his neighbor, but the State dropped that count

prior to trial.

        In sum, while there is evidence that Lopez refused to cooperate with his attorney prior to

trial, and sometimes interrupted the proceedings by speaking out loud, and sometimes failed to

follow instructions, nothing in the record supports a rational inference that his conduct was “fueled

by mental illness” or was “a product of mental illness” rather than mere obstinacy. See Turner,

2013 WL 5808250, at *13. The sole evidence of mental illness was Lopez’s hospitalization in

2009, three years before trial. There was no evidence that he currently suffered from a mental

illness or that he was taking psychoactive or other medications at the time of trial. Neither a
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defendant’s mental illness nor his refusal to cooperate with counsel, by itself, means a defendant

is incompetent for trial. Id. at *11. “Indeed, even a mentally ill defendant who resists cooperating

with his counsel may nevertheless be found competent if the manifestations of his particular mental

illness are not shown to be the engine of his obstinacy.” Id. (citing Loftin v. State, 660 S.W.2d

543, 546-47 (Tex. Crim. App. 1983)). Viewed in the context of the entire record, Lopez’s behavior

immediately before and during trial did not raise a suggestion that mental illness was preventing

him from rationally understanding the proceedings or engaging rationally with his counsel, and

thus did not trigger the need for an informal inquiry into his competency, or further psychological

evaluation by an expert. See Turner, 2013 WL 5808250, at *11. Accordingly, we overrule

Lopez’s issues on appeal and affirm the trial court’s judgment.

                                                  Rebeca C. Martinez, Justice


Do not publish




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