                                 MEMORANDUM OPINION
                                        No. 04-11-00536-CR

                                    Billy Henderson RODGERS,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No. 12, Bexar County, Texas
                                      Trial Court No. 982855
                              Honorable Scott Roberts, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: July 25, 2012

AFFIRMED

           Billy Henderson Rodgers was convicted of driving while intoxicated and was sentenced

to one year in jail. His sentence was suspended, and he was placed on community supervision for

a period of two years. On appeal, he argues that the trial court erred in failing to conduct a

competency hearing to determine if he was mentally competent to stand trial and that the trial

court erred in admitting State’s Exhibits 7 and 8 in evidence. We affirm.
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                                          COMPETENCY

       The first trial in this case ended in a mistrial on August 26, 2009. Following that mistrial,

Rodgers moved for continuances seven times. In most of these motions, Rodgers argued that trial

should be continued because of his back problems. All but the last motion was granted by the

trial court. On June 14, 2011, the trial court heard Rodgers’s last motion for continuance, during

which Rodgers’s attorney raised his client’s competency to stand trial. Rodgers and his wife then

testified about Rodgers’s use of pain medication for his back and how that pain medication

affects him. After hearing the testimony, the trial court denied Rodgers’s motion for continuance,

concluding that Rodgers was competent to stand trial.

       On appeal, Rodgers argues that the trial court erred in failing to appoint a mental health

expert to evaluate his competence and in failing to conduct a formal competency hearing. “In

both Texas and the federal system, it has long been accepted that a person whose mental

condition is such that he lacks the capacity to understand the nature and object to the proceedings

against him, to consult with counsel, and to assist in preparing his defense may not be subjected

to a trial.” McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003) (quotation omitted).

“The conviction of an accused person while he is legally incompetent violates due process.” Id.

“Thus, to protect a criminal defendant’s constitutional rights, a trial court must inquire into the

accused’s mental competence once the issue is sufficiently raised.” Id.

       “These due process standards are built into” the Texas Code of Criminal Procedure. Id.

Under the code, an accused is presumed competent to stand trial and shall be found competent to

stand trial unless proved 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



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

proceedings against the person.” Id. art. 46B.003(a). This standard focuses on “the defendant’s

present ability.” Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009) (emphasis in

original). “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) (West Supp. 2011). “On suggestion that the defendant may be incompetent to stand

trial, the court shall determine by informal inquiry 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). “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.” Id. art. 46B.005(a) (West

2006). Here, Rodgers concedes that the trial court conducted an informal inquiry into his

competency during the hearing on Rodgers’s motion for continuance. Rodgers’s complaint on

appeal is that the trial court did not appoint a mental health expert to examine him or conduct a

subsequent formal competency hearing.

       Because the trial court observes the behavior of the defendant at the hearing, the trial

court is in a better position to determine whether the defendant is presently competent. Montoya,

291 S.W.3d at 426. Therefore, we review the trial court’s decision not to appoint a mental health

expert and conduct a formal competency hearing under an abuse of discretion standard. See

Montoya, 291 S.W.3d at 426; Brown v. State, No. 01-10-00431-CR, 2012 WL 580013, at *3

(Tex. App.—Houston [1st Dist.] 2012, no pet. h.); Grizzard v. State, No. 01-06-00930-CR, 2008

WL 2611865, at *5-*6 (Tex. App.—Houston [1st Dist.] 2008, no pet.). In determining whether




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the trial court abused its discretion, we may not focus on evidence of past impairment or isolated

instances of momentary hesitation or confusion. See Montoya, 291 S.W.3d at 426.

          At the hearing, both Rodgers and his wife testified that because of his back surgery and

related back problems, Rodgers took prescription pain medication in excess of what was

prescribed by his doctor. Rodgers testified that his pain medication has caused him to have

hallucinations and has made him tired. When asked by the State whether he was currently having

hallucinations as he testified, Rodgers testified that he was not. The trial court asked Rodgers the

following:

          Q: I’m saying if you took [the medication] as it’s prescribed, one pill every twelve
          hours instead of three pills when you feel like it that you would be more alert and
          in tune with what’s going on even though you might not be as comfortable.

          A: That’s correct.

Rodgers’s wife testified that his medication can cause Rodgers to “see things that aren’t there.”

After hearing the testimony of both Rodgers and his wife, the trial court made the following

ruling:

          But you did twenty minutes of direct and another ten minutes of cross and
          [Rodgers] seemed focused, he seemed to answer the questions, and his responses
          were not inappropriate. They were related to what he was asked and he seemed in
          full grasp of these proceedings, which seems to me what is required. I would
          suggest that he should medicate himself as per the doctor’s instructions and not as
          he feels like it and that would probably be helpful. We will accommodate him in
          any way, shape, or form that we can.

In reviewing the record before us, we find no abuse of discretion by the trial court.

                                      ADMISSION OF EVIDENCE

          In his second issue, Rodgers argues that “the trial court erred in admitting State’s

Exhibits 7 and 8 to prove the enhancement allegation at the punishment phase of trial that he had

been previously convicted of an offense relating to the operation of a motor vehicle while



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intoxicated.” We review a trial court’s ruling on the admissibility of evidence under an abuse of

discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990).

       With regard to State’s Exhibit 8, Rodgers argues that it was improperly admitted because

it was not authenticated. The State responds that State’s Exhibit 8 was admissible because it

contained certified copies of public records, which are self-authenticating pursuant to Texas Rule

of Evidence 902(4):

       Extrinsic evidence of authenticity as a condition precedent to admissibility is not
       required with respect to the following: . . . (4) Certified Copies of Public
       Records. A copy of an official record or report or entry therein, or of a document
       authorized by law to be recorded or filed and actually recorded or filed in a public
       office, including data compilations in any form certified as correct by the
       custodian or other person authorized to make the certification, by certificate
       complying with paragraph (1), (2), or (3) of this rule or complying with any
       statute or other rule prescribed pursuant to statutory authority.

TEX. R. EVID. 902(4). State’s Exhibit 8 contains copies of the following documents:

   (1) the criminal docket sheet in The State of Texas v. Billy Henderson Rodgers, Cause No.
       360196, relating to a February 1, 1986, arrest for driving while intoxicated, pending in
       County Court at Law No. 4, Bexar County, Texas;

   (2) the Commitment signed by a magistrate judge on February 1, 1986, ordering Billy H.
       Rodgers, who was charged with driving while intoxicated, to be committed to jail;

   (3) a Surety Bail Bond signed February 2, 1986, relating to Billy Henderson Rodgers’s arrest
       for driving while intoxicated;

   (4) a Case Setting Form in The State of Texas v. Billy Henderson Rodgers, Cause No.
       360196, County Court at Law No. 4, Bexar County, Texas;

   (5) a Motion to Terminate Probation Supervision Unsatisfactory in The State of Texas v. Billy
       Rodgers, Cause No. 360196, Bexar County, Texas;

   (6) Affidavit for Warrant of Arrest relating to Billy Rodgers driving while intoxicated on
       February 1, 1986;

   (7) Waiver of Constitutional Rights, signed by Billy Rodgers on June 6, 1986, in The State of
       Texas v. Billy Rodgers, Cause No. 360196, County Court at Law No. 4, Bexar County,
       Texas; and



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   (8) Judgment in The State of Texas v. Billy Rodgers, Cause No. 360196, County Court at
       Law No. 4, Bexar County, Texas.

The record reflects that each of the above public documents was certified by the Office of Gerard

Rickhoff, County Clerk, Bexar County, Texas, and bears the Office’s seal. See TEX. R. EVID.

902(1). Because State’s Exhibit 8 was properly admissible pursuant to Rule 902(4), the trial

court did not err in overruling Rodgers’s objection.

       With regard to State’s Exhibit 7, Rogers argues that it was improperly admitted in

evidence during the punishment phase over his hearsay objection. State’s Exhibit 7 is a “drop

card,” which contained information about Rodgers and his fingerprints. Assuming, without

deciding, that State’s Exhibit 7 was improperly admitted, any error was harmless. See TEX. R.

APP. P. 44.2(b). Rodgers claims that the admission of State’s Exhibit 7 was harmful because

without it, the State did not prove he was the person previously convicted of DWI in Cause No.

360196. We disagree that the admission of State’s Exhibit 7 was harmful because the State

proved Rodgers’s prior conviction through other exhibits and testimony. Specifically, the State

proved Rodgers’s previous conviction through State’s Exhibits 6 and 8, and through testimony

by a fingerprint examiner. State’s Exhibit 8 contained a certified copy of the trial court’s

judgment in Cause No. 360196. That judgment reflected the fingerprints of Billy Rodgers, the

man convicted in Cause No. 360196 of DWI. Gina Martinez, a fingerprint examiner for Bexar

County, matched the fingerprints taken of Rodgers on the first day of the punishment phase of

trial in the instant case with the fingerprints reflected on the trial court’s judgment in Cause No.

360196. Thus, the State proved that the Billy Rodgers, who was found guilty in the instant case,

was the same Billy Rodgers who was convicted in Cause No. 360196.




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                                         CONCLUSION

       We affirm the judgment of the trial court.


                                                Karen Angelini, Justice

Do not publish




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