                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00403-CR
                              NO. 02-13-00404-CR
                              NO. 02-13-00405-CR


JOSHUA CLAXTON                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Joshua Claxton appeals from his two convictions for aggravated

sexual assault of a child and one conviction for indecency with a child by contact.

We affirm.




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       See Tex. R. App. P. 47.4.
                                I. BACKGROUND

      Appellant was charged with various sexual-assault, indecency, and

delivery-of-a-controlled-substance offenses involving three children, A.D., K.D.,

and E.R. On May 25 and August 14, 2012, Appellant was declared incompetent

to stand trial by agreement and was committed to a mental-health facility until he

could attain competency to stand trial. See Tex. Code Crim. Proc. Ann. arts.

46B.005(c), 46B.054 (West 2006), art. 46B.073 (West Supp. 2013).

      In February 2013, a facility psychologist submitted a report to the trial court

concluding that, although Appellant was bipolar and had borderline intellectual

functioning, he was competent to stand trial because he had the capacity to

(1) rationally understand the charges and potential consequences of the pending

charges against him; (2) disclose to counsel pertinent facts, pertinent events, and

his state of mind; (3) engage in a reasoned choice of legal strategies and

options; (4) understand the adversarial nature of criminal proceedings; (5) exhibit

appropriate courtroom behavior; and (6) testify:

      [Appellant’s] current mental status indicates that he has adequate
      memory, attention, and communication skills to assist his attorney in
      preparing his defense. He demonstrates the ability to disclose
      relevant details and discuss what preceded and followed his arrest,
      thus suggesting that he has the ability to do the same with his
      attorney in preparation for court.         Although he is able to
      communicate effectively, it is recommended that court personnel
      accommodate any limitations . . . . Likewise, he appears to be
      capable of testifying relevantly, if he chooses to take the stand. He
      has an appreciation of his charge[s] and understands basic legal
      strategies and options, as well as an awareness of the
      consequences and penalties, if convicted. He demonstrates both
      factual and rational understanding of court proceedings, the


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      functions of court personnel, as well as clear appreciation of the
      adversarial nature of criminal proceedings. Furthermore, [Appellant]
      demonstrates the ability to conform his behavior to what is
      acceptable decorum in the court. In sum, he meets each of the
      criteria for competency to stand trial.

See id. art. 46B.024(1) (West Supp. 2013).       The trial court determined that

Appellant was competent to stand trial on March 5, 2013. See id. art. 46B.0755

(West Supp. 2013).

      On April 17, 2013, pursuant to a plea-bargain agreement, Appellant waived

his right to a jury, stipulated to the evidence against him, and pleaded guilty to

one count of aggravated sexual assault of A.D., one count of aggravated sexual

assault of K.D., and one count of indecency with a child as to E.R. See id. art.

1.13 (West Supp. 2013), art. 1.15 (West 2005), art. 26.14 (West 2009). The

State waived all other counts alleged in the indictments, but a sentence

recommendation was not a part of the plea-bargain agreement.              After a

presentence-investigation report (the report) was prepared, the trial court held a

punishment hearing on August 6, 2013. See id. arts. 37.07(d), 42.12, § 9 (West

Supp. 2013).

      The report revealed that Appellant previously had been hospitalized

between November 2000 and January 2005 for juvenile sex offenses against two

other children. The report also detailed Appellant’s mental-health status and

behavioral issues occurring between July 2000 and November 2011. The report

noted that after Appellant was examined in November 2011, the examining

psychologist stated that Appellant “might be restored to competency at some


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point . . . [but] his intellectual functioning will undoubtedly continue to be

problematic toward participation in his defense.” Appellant was not interviewed

for the report so no facts regarding Appellant’s mental state after the November

2011 examination were included.           Appellant’s stepfather testified at the

punishment hearing that Appellant required medication and that allowing

Appellant to have contact with children was “just like giving cocaine to a cocaine

addict.” Appellant did not testify at the punishment hearing.

       The trial court sentenced Appellant to forty years’ confinement for each

aggravated-sexual-assault-of-a-child conviction and twenty years’ confinement

for   the   indecency-with-a-child-by-contact    conviction,    all   to   be   served

concurrently. The trial court certified that Appellant had the right to appeal from

his guilty pleas, and Appellant filed notices of appeal. See Tex. R. App. P. 25.2.

                                 II. DISCUSSION

 A. LAW REGARDING INFORMAL COMPETENCY INQUIRY AND STANDARD OF REVIEW

       Appellant argues in one point that the trial court erred by failing to inquire

into his competency sua sponte before or during the punishment hearing

because the court “received indication of . . . Appellant’s incompetence to stand

trial.” Indeed, a defendant must be mentally competent to be sentenced. Tex.

Code Crim. Proc. Ann. art. 42.07(2) (West 2006); Casey v. State, 924 S.W.2d

946, 949 (Tex. Crim. App. 1996).          If a “suggestion” that a defendant is

incompetent “comes to the attention of the court, the court on its own motion

shall suggest that the defendant may be incompetent to stand trial” and “shall


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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.” Tex. Code Crim. Proc. Ann. art. 46B.004(b)–(c) (West Supp. 2013). Article

46B.004(c–1) governs when an informal competency inquiry is required:

      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. Evidence suggesting the
      need for an informal inquiry may be based on observations made in
      relation to one or more of the factors described by Article 46B.024 or
      on any other indication that the defendant is incompetent within the
      meaning of Article 46B.003.

Id. art. 46B.004(c–1); see also Turner v. State, No. AP-76580, 2013 WL

5808250, at *11 & n.32 (Tex. Crim. App. Oct. 30, 2013) (recognizing article

46B.004(c–1), effective September 1, 2011, abrogated requirement that trial

court needed bona-fide doubt as to defendant’s competency before conducting

informal inquiry). Although a defendant is presumed competent to stand trial, he

is incompetent if he does not have (1) sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding or (2) a rational as

well as factual understanding of the proceedings against him. Id. art. 46B.003

(West 2006).

      We review a trial court’s decision regarding an informal competency inquiry

for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim.

App. 2009); Luna v. State, 268 S.W.3d 594, 600 (Tex. Crim. App. 2008), cert.



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denied, 558 U.S. 833 (2009). Thus, our inquiry is whether the trial court abused

its discretion by failing to conduct an informal competency inquiry in light of the

evidence introduced at punishment. See Gray v. State, 257 S.W.3d 825, 829

(Tex. App.—Texarkana 2008, pet. ref’d).

B. APPLICATION

      Here, the evidence Appellant relies on to suggest Appellant was

incompetent—the report—merely recounted Appellant’s past behaviors and

mental state occurring as much as fifteen months before the trial court declared

Appellant competent. Further, Appellant’s stepfather testified at the punishment

hearing that Appellant should be considered for a community-supervision

sentence because Appellant does not believe that he needs to be hospitalized

and he “minds” his stepfather “as long as he’s on his medication.”

      At the time of the punishment hearing, the February 2013 competency

evaluation clearly indicated that Appellant had sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding and had a

rational as well as factual understanding of the proceedings against him; thus, he

was presumed competent.        See Tex. Code Crim. Proc. Ann. art. 46B.003.

Appellant’s stepfather’s testimony that Appellant could serve a community-

supervision sentence and that he did not need to be hospitalized did not suggest

that Appellant’s circumstances had materially changed since the February 2013

competency evaluation.      Nothing in the record before the trial court at the

punishment hearing suggested that Appellant’s mental status had materially


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changed in the five months after its prior competency determination such that a

sua sponte, informal competency hearing was required. See Turner, 2013 WL

5808250, at *11 (“Should the formal competency trial result in a finding of

competency, the trial court is not obliged to revisit the issue later absent a

material change of circumstances suggesting that the defendant’s mental status

has deteriorated.”).   We conclude that the facts before the trial court at the

sentencing hearing did not suggest that Appellant’s competency had materially

changed after the trial court’s prior order determining Appellant to be competent.

Therefore, the trial court did not abuse its discretion by not conducting an

informal competency inquiry under article 46B.004(c). We overrule Appellant’s

point.

                               III. CONCLUSION

         Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.

                                                  /s/ Lee Gabriel
                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 13, 2014




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