                                          NO. 07-02-0234-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                         MAY 7, 2003
                               ______________________________

                                          PHILLIP COOPER,

                                                                   Appellant

                                                      v.

                                       THE STATE OF TEXAS,

                                                    Appellee
                            _________________________________

                 FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                        NO. B13279-9901; HON. ED SELF, PRESIDING
                            _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

        Phillip Cooper (appellant) appeals from a final judgment revoking his probation.

Through three issues, he asserts that 1) the trial court should have held a hearing to

determine his competency, 2) his plea was involuntary, 3) the trial court erred in calculating

the amount of fine, fees and restitution he owed, and 4) the trial court erred in calculating

his credit for time served. We modify the judgment and affirm it as modified.




        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2003 ).
                        Issue One — Competency and Involuntariness

        Appellant argues that the trial court should have conducted a competency hearing,

sua sponte, because appellant’s “overwhelming focus” upon his “medical condition” and

“its resolution” indicates that he was incompetent. This fixation also caused his pleas of

true to all but one of the allegations in the State’s motion to revoke probation to be

involuntary, according to appellant.

        Sua Sponte Competency Hearing

        A person is incompetent to stand trial 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. TEX . CODE CRIM .

PROC . ANN . art. 46.02 §1(A)(a) (Vernon Supp. 2003). If, during trial, evidence of the

defendant’s incompetency is brought to the attention of the trial court from any source, it

then must conduct a hearing to determine whether there is evidence to support a finding

of incompetency.2 Id. §2(b) (Vernon 1979). However, a sua sponte hearing is required

only if the evidence brought to the trial court’s attention raised a bona fide doubt in the

mind of the judge as to the defendant’s competency. Alcott v. State, 51 S.W.3d 596, 601

(Tex. Crim. App. 2001). Finally, a bona fide doubt arises when the evidence indicates the

accused suffered recent severe mental illness, moderate mental retardation, or truly bizarre

acts were committed by the defendant. McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim.




        2
          A prob ation re vocation h earing is a trial for purpos es o f com pete ncy iss ues . Thompson v. State,
654 S.W .2d 26, 28 (Tex. App.--Tyler 1983, no pet.) (holding that due process req uires that no person shall
have his probation revoked wh ile incom pete nt); see also Re eve s v. S tate, 46 S.W .3d 397, 399 (T ex. App.--
Texarkana 200 1, pet. dism ’d) (the court addressed the trial court’s failure to conduct a competency hearing
with respe ct to the revocation of the defe nda nt’s proba tion).

                                                        2
App. 2003); Alcott v. State, 51 S.W.3d at 599 n.10; Reeves v. State, 46 S.W.3d 397, 399

(Tex. App.--Texarkana 2001, pet. dism’d).

        Here, appellant contends that the trial court was obligated to sua sponte conduct

a hearing because he purportedly was fixated on his medical condition. Yet, a review of

the record does not bear that out. Appellant did describe his medical problems during the

hearing upon the State’s motion to revoke probation, but he generally did so in response

to questioning by either the prosecutor or his own counsel. And, though he spoke of those

conditions, he did not dwell on them, as counsel for appellant insinuates. Furthermore, the

purported maladies consisted of his having injured his leg after falling from a bunk at some

unmentioned time and his having suffered abdominal pains “two or three Wednesdays

ago.”3 Whether he felt pain at the time of the hearing is something we cannot discern from

the record for it is silent on the matter. So too does it fail to illustrate whether his condition

distracted him, in any way, from preparing for the hearing or participating in his defense.

And, while he may have rambled at times in answering questions propounded to him, the

questions asked were often quite open-ended, calling for less than a succinct response.4

Under that circumstance, one can hardly conclude that the rambling answers evinced

some mental defect or incompetence.

        We further note that during the hearing, appellant’s counsel not only stated that he

believed appellant to be competent, but appellant himself stated that: 1) the allegations

in the motion to revoke were true (save for one); 2) no one “forced him” to plead true; 3)

        3
            The pains were diagnosed as symptom s of diverticulosis.

        4
           For instance, appellant was ask ed “what is your m edical condition,” “do you want to addres s the court
on 5(A),” “what other medical problems do you have,” and “what do you want the judge to do . . . I want you
to clarify that.”

                                                        3
no one promised him anything or threatened him in return for the plea; 4) he could read,

write and understand English; 5) he has not been treated for a mental illness; 6) he

understood he had the right to hear, see and confront his accusers; 7) he understood he

had a right not to incriminate himself; 8) he understood the effect of the stipulation of

evidence he executed; 9) he understood that the trial court could revoke his probation

simply upon his pleas of true to the allegations in the motion to revoke; 10) he discussed

the stipulation of evidence and “declaration authorizing pre-sentence investigation report”

with his attorney; 11) he voluntarily and freely signed the stipulation of evidence; and, 12)

despite understanding his rights, he nevertheless wished to plead true to all but one of the

allegations in the motion to revoke.5 In providing that information to the trial court,

appellant’s answers were coherent and responsive to the corresponding questions. So too

did they lead that court to find “that the plea of true to those allegations [was] freely,

voluntarily, knowingly, and intelligently made . . . .” (Emphasis added).

        In short, the record fails to contain evidence indicative of any recent severe mental

illness, moderate mental retardation, or truly bizarre acts by appellant. Nor does it evince

an inability on the part of appellant to consult with his lawyer with a reasonable degree of

rational understanding or to rationally understand the proceedings against him.6 Moreover,

the very same evidence illustrating that appellant was quite competent also evinced that



        5
          As to the one allegation to which appellant did not plead true, he explained to the court in a coherent
manner why he though t it untrue. Simply put, he said he adm itted to using drugs every day to receive
assistance from Serenity House, even though the ad m ission was false. W e do not say that the explanation
is wise or rea son able but only that it was coh eren tly uttered.

        6
         Indeed, that appellant m ay have turned to th e State for help with his m edical conditions m ay itself
be evidence of his com pete ncy. It is well-settle d that th e State m ust provide m edical care for those it
incarcerates . Estelle v. G am ble, 429 U.S . 97, 10 3, 97 S.C t. 285, 290, 50 L.Ed.2 d 25 1 (19 76).

                                                       4
appellant’s pleas of true were voluntary and made while intelligently understanding their

potential consequences. Consequently, we overrule issue one.

                                      Issue Two — No Credit

        Next, appellant contends that the trial court erred in failing to give him “credit on his

fine and fees and in assessing too much restitution.” We sustain the issue in part and

overrule the remainder.

        As to the matter of restitution, appellant agreed, at the hearing on his initial guilty

plea, to pay the entire $875 as restitution. That was a condition of the plea bargain, a

condition to which the court accepted.

        As to the matter of credit “on his fine and fees,” appellant argues that he was

entitled to a $120 credit. The State concedes on appeal that he is entitled to a $130 credit

and that it credited the sum against the outstanding restitution, reducing the latter to $745.

                          Issue Three – Calculation of Time Served

        In his last issue, appellant contends that the trial court “erred in giving [him] only 171

days credit against his sentence.” We overrule the issue.

        Appellant contends that he is entitled to a credit of 252 days. His argument,

however, is dependent upon our consideration of an affidavit executed by appellant and

attached to his appellate brief.7 Affidavits and like documents attached to one’s brief

cannot be considered by the court. Merchandise Center, Inc. v. WNS, Inc., 85 S.W.3d




        7
          W e find it ironic that while appellant suggests in his first issue that he was incompetent he
nonetheless finds himself sufficiently competent to calculate the days of c redit to which he is purportedly
entitled and execute an affidavit containing that information.

                                                     5
389, 394 (Tex. App.--Texarkana 2002, no pet.). We must limit our consideration of

evidence to that appearing in the record before the trial court. Id.

       Accordingly, we modify the judgment below to reflect that the amount of restitution

owed by appellant is $745 rather than $875 and affirm the judgment as modified.



                                                 Brian Quinn
                                                   Justice

Do not publish.




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