Dismiss in part; Affirm in part; Opinion Filed July 3, 2013.




                                            In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                     Nos. 05-12-00583-CR,
                               05-12-00584-CR, 05-12-00585-CR

                     DANIEL JULIAN LONDALE DEWITT, Appellant
                                      V.
                          THE STATE OF TEXAS, Appellee

                     On Appeal from the 401st Judicial District Court
                                   Collin County, Texas
            Trial Court Cause Nos. 401-82426-10, 401-82490-10, & 401-82491-10

                               MEMORANDUM OPINION
                        Before Justices Moseley, Lang-Miers, and Evans
                                    Opinion by Justice Evans

       Daniel Julian Londale DeWitt was indicted for theft, aggravated assault with a deadly

weapon, and assault by strangulation. At trial, appellant pleaded guilty to the two assault

charges, and the trial court considered the theft offense pursuant to article 12.45 of the code of

criminal procedure. Appellant now complains on appeal that the State is barred from trying him

for the theft offense in the future and the trial court erred in failing to inquire into his

competency. We dismiss the theft appeal and affirm appellant’s two assault convictions. The

background of the case and the evidence adduced at trial are well known to the parties, and

therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas

Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
       In his sole point of error in the theft case, cause number 05-12-00583-CR, appellant states

that “a penal code [sic] 12.45 dismissal bars future prosecution for the theft offense.” After the

trial court considered the theft offense during the punishment phase of appellant’s trial for the

two assault offenses, it granted the State’s motion to dismiss prosecution of the theft case. There

is no appealable judgment or order in cause number 05-12-00583-CR. We therefore dismiss the

theft case for want of jurisdiction. See TEX. R. APP. P.25.2(a)(2); Bohannan v. State, 352 S.W.3d

47, 48 (Tex. App.—Fort Worth 2011, pet. ref’d).

       In both of the assault cases, appellant complains that the trial court erred by failing to

conduct an informal inquiry into his competency sua sponte. He specifically argues that his

previous mental health issues combined with his expressed difficulties communicating with his

appointed attorney demonstrated the need for a competency inquiry.

       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.         See TEX. CODE CRIM. PROC. art.

46B.003(a) (West 2006). A judge must inquire into a defendant’s mental competence if the issue

is sufficiently raised. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). The

initial inquiry is informal and is required when evidence suggesting incompetency comes to the

trial court’s attention. See TEX. CODE CRIM. PROC. ANN. art. 46B.004(b),(c) (West Supp. 2012);

Jackson v. State, 391 S.W.3d 139, 141 (Tex. App.—Texarkana 2012, no pet.). We review a trial

court’s decision not to conduct an informal competency inquiry for an abuse of discretion. Id. at

426.

       The evidence in appellant’s cases did not suggest he was incompetent to stand trial. The

clerk’s records show that the trial court ordered a psychiatric evaluation shortly after the cases

were filed, but the records do not reveal the results of any evaluation. Evidence presented

                                               –2–
showed that, years before the instant offenses, appellant had spent time in the psych ward while

serving in the Army. He had been diagnosed with post-traumatic stress disorder and bipolar

disorder in the Army, but he stopped taking his medication. Later, he was admitted to a mental

hospital because he had cut himself with a knife. Appellant receives disability payments for

PTSD each month.

       Appellant’s former wife, the complainant in the two assault cases, testified that appellant

faked the symptoms of PTSD in order to obtain a PTSD diagnosis that prevented him from

deploying to Afghanistan. About one year before the assaults, appellant tried to re-enlist in the

military and underwent a psychiatric evaluation.       Records from that evaluation show that

appellant did not appear to have any “significant mood or other active psychiatric issues at this

time.” Nothing in the records before us shows appellant behaved strangely during the trial

proceedings or with his lawyer.

       Appellant acknowledges in his briefs that his actions were “unlikely to be considered

truly bizarre.” He contends nevertheless that the records show he was unable to communicate

with his lawyer due to a “communication lapse.” Appellant sent hand-written complaints to the

court about his difficulties in getting his lawyer to meet with him, filed his own well-written

motions, filed motions to proceed pro se that he later withdrew, and at one point filed a grievance

against his lawyer with the Texas State Bar. At trial, however, appellant made clear that he was

completely satisfied with his representation and was aware that his grievance action might be

dismissed. He also expressed his understanding of the proceedings and of his lawyer’s advice.

       As the State notes in its briefs, a failure to consult with counsel does not demonstrate a

lack of competence; instead, a defendant must be unable to consult with counsel. Appellant’s

communications with the court show that he understood the proceedings against him and was

sometimes frustrated with his lawyer, but not unable to communicate with the lawyer due to

                                               –3–
deficiencies in his mental abilities. The trial court did not abuse its discretion in failing to

conduct an informal inquiry on appellant’s competence. We overrule appellant’s sole point of

error in cause numbers 05-12-00584-CR and 05-12-00585-CR.

       We dismiss cause number 05-12-00583-CR for lack of jurisdiction and affirm the trial

court’s judgments in cause numbers 05-12-00584-CR and 05-12-00585-CR.




                                                    /David Evans/
                                                    DAVID EVANS
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47
120583F.U05




                                              –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DANIEL JULIAN LONDALE DEWITT,                        On Appeal from the 401st Judicial District
Appellant                                            Court, Collin County, Texas
                                                     Trial Court Cause No. 401-82426-10.
No. 05-12-00583-CR         V.                        Opinion delivered by Justice Evans.
                                                     Justices Moseley and Lang-Miers
THE STATE OF TEXAS, Appellee                         participating.

        Based on the Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.


Judgment entered this 3rd day of July, 2013.




                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE




                                               –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DANIEL JULIAN LONDALE DEWITT,                        On Appeal from the 401st Judicial District
Appellant                                            Court, Collin County, Texas
                                                     Trial Court Cause No. 401-82490-10.
No. 05-12-00584-CR         V.                        Opinion delivered by Justice Evans.
                                                     Justices Moseley and Lang-Miers
THE STATE OF TEXAS, Appellee                         participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 3rd day of July, 2013.




                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE




                                               –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DANIEL JULIAN LONDALE DEWITT,                        On Appeal from the 401st Judicial District
Appellant                                            Court, Collin County, Texas
                                                     Trial Court Cause No. 401-82491-10.
No. 05-12-00585-CR         V.                        Opinion delivered by Justice Evans.
                                                     Justices Moseley and Lang-Miers
THE STATE OF TEXAS, Appellee                         participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 3rd day of July, 2013.




                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE




                                               –7–
