                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00039-CR


JEREMY WICKER                                                           APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE


                                       ----------

          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                       ----------

                         MEMORANDUM OPINION1

                                       ----------

      In January 2010, pursuant to a plea bargain agreement, Appellant Jeremy

Wicker pled guilty to criminal solicitation of a minor, and the trial court placed him

on five years’ deferred adjudication community supervision. In March 2010, the

State filed a motion to proceed with adjudication. At the hearing on the State’s

motion, the trial court asked Appellant if he had ―ever had any mental health

problems.‖ Appellant informed the trial court that he has Asperger’s syndrome,

      1
       See Tex. R. App. P. 47.4.
that he should be on medication, and that he had not been able to take his

medication since being confined in jail nine months earlier. The trial court then

had a brief discussion with defense counsel about Appellant’s competence.

Defense counsel stated that Appellant understood what defense counsel told

him, that Appellant was ―able to converse with [defense counsel] in a competent

manner,‖ and that defense counsel did ―not believe there [was] an issue

regarding [Appellant’s] competence.‖ The trial court then asked Appellant if he

thought he understood ―what’s going on today,‖ to which Appellant answered,

―Yes, ma’am.‖

      The trial court accepted Appellant’s pleas of ―true‖ to all of the allegations

in the State’s motion. The trial court then proceeded with adjudication. One of

Appellant’s witnesses was Dr. Dan Creson, a psychiatrist who had evaluated

Appellant. Creson testified that Appellant has trouble with ―understanding the

social implications of what he does and how he understands the world in which

he lives.‖

      The trial court found the allegations in the State’s motion true, adjudicated

Appellant guilty, and sentenced him to ten years’ confinement and a fine of

$1,000.

      In five points, Appellant challenges the validity of his pleas of true to the

allegations in the petition, arguing that the trial court abused its discretion by

failing to conduct an adequate informal inquiry into his competence under article

46B of the Texas Code of Criminal Procedure and that this error affected his


                                         2
substantial rights; that the bona fide doubt as to his competence rendered his

pleas constitutionally invalid under both the state and federal constitutions, and

that the constitutional errors he alleges are structural and not subject to a harm

analysis. Because the trial court committed no reversible error and because

Appellant’s pleas were valid, we affirm the trial court’s judgment.

      Article 46B.003 provides,

      (a) 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.

      (b) A defendant is presumed competent to stand trial and shall be
      found competent to stand trial unless proved incompetent by a
      preponderance of the evidence.2

      Appellant relies on evidence of his Asperger’s syndrome and testimony of

Dr. Creson that Appellant has trouble understanding the social implications of his

actions and the world he lives in. Appellant argues that this is evidence that he

lacks a rational understanding of the proceedings against him. He also argues

that the trial court was obligated to make further investigation into his

competence to stand trial because Article 46B.004 provides,

      (b) If evidence suggesting the defendant may be incompetent to
      stand trial comes to the attention of the court, the court on its own


      2
       Tex. Code Crim. Proc. Ann. art. 46B.003 (West 2006).


                                          3
      motion shall suggest that the defendant may be incompetent to
      stand trial.

      (c) 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.3

      The trial court, however, inquired of Appellant and of his counsel whether

Appellant was competent to stand trial.      Appellant said that he had been in

special education and was taking medication, but he did not suggest that he was

unable to communicate with his attorney with a reasonable degree of

understanding or that he lacked either a rational or factual understanding of the

proceedings against him.      In fact, in response to the trial court’s question,

Appellant stated that he understood what was going on in court. When the trial

court specifically inquired into these matters with trial counsel, trial counsel

assured the trial court that he was able to communicate effectively with Appellant

and specifically stated that competence to stand trial was not an issue.

      We review the trial court’s actions under an abuse of discretion standard. 4

A trial court abuses its discretion when its decision is arbitrary or unreasonable. 5

Considering the record as a whole, we hold that the trial court did not abuse its

discretion by not making additional inquiry regarding Appellant’s competence to


      3
       Id. art. 46B.004(b), (c) (West Supp. 2011).
      4
       Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009).
      5
       Id.


                                         4
stand trial. Indeed, the record reflects that the conscientious trial court made

extensive and concerned inquiry into Appellant’s competence. The trial court

complied with both the letter and the spirit of both the applicable statutes and

constitutional guarantees of due process.

      We therefore overrule all of Appellant’s five points on appeal and affirm the

trial court’s judgment.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

MEIER, J., filed a dissenting opinion.

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

DELIVERED: February 23, 2012




                                         5
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00039-CR


JEREMY WICKER                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                     ----------

                DISSENTING MEMORANDUM OPINION1

                                     ----------

      I dissent from the majority opinion because the trial court conducted an

inadequate informal inquiry when it questioned Appellant Jeremy Wicker and his

court-appointed counsel about Wicker’s competency to stand trial.

      If a bona fide doubt exists about the defendant’s competency to stand trial,

the trial court must conduct an informal inquiry to determine whether some

evidence from any source supports a finding of incompetency. Tex. Code Crim.

      1
      See Tex. R. App. P. 47.4.
Proc. Ann. art. 46B.004(c) (West Supp. 2011); Montoya v. State, 291 S.W.3d

420, 425 (Tex. Crim. App. 2009); Fuller v. State, 253 S.W.3d 220, 228 (Tex.

Crim. App. 2008), cert. denied, 555 U.S. 1105 (2009). 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. 46B.003(a) (West 2006). The informal inquiry ―allows the trial

judge to . . . determine whether the behavior of the defendant during a

proceeding indicates a lack of rational understanding.‖ Montoya, 291 S.W.3d at

425.

       At the beginning of the hearing on the State’s motion to adjudicate, Wicker

informed the trial court that he has Asperger’s syndrome, that he was supposed

to be taking medication for that condition, but that he had not taken any

medication since being incarcerated sometime in March 2010.2 Dr. Dan Creson

testified that he evaluated Wicker in 2009 and that he concurred with Wicker’s

contention that he had Asperger’s syndrome.             According to Dr. Creson,

Asperger’s syndrome is part of the autistic continuum; a common symptom of the

condition includes difficulty communicating. Knowing of Wicker’s condition, the

trial court asked Wicker a single question and Wicker’s attorney a single question

about Wicker’s competency to stand trial. The trial court did not ask Wicker’s


       2
       The hearing took place in January 2011.


                                         2
attorney if he had even known that Wicker has Asperger’s syndrome, nor did the

trial court ask any questions of Wicker about his ability to communicate with his

attorney or of his Asperger’s syndrome.

      In my opinion, when the trial court learned that Wicker had Asperger’s

syndrome and that he had not taken medication for the condition since March

2010, it should have, at a minimum, posed more than just one single question to

Wicker regarding his competency to stand trial.      The trial court should have

inquired further into Wicker’s ability to communicate with his attorney and the

effects, if any, of his Asperger’s syndrome on his competency. I fail to see how—

at the outset of the hearing and before an opportunity to sufficiently observe

Wicker—the trial court could have gleaned from a single question whether

Wicker could not consult with his attorney with a reasonable degree of rational

understanding.

      The inadequacy of the inquiry is apparent when compared to the informal

inquiries made by other trial courts. In Lawrence v. State, the defendant told the

trial court that he had been treated for depression, and in addition to questioning

defense counsel, the trial court questioned the defendant if he had told his

attorney about the condition, whether he understood the charges against him,

whether he understood his conversations with his attorney, and whether he was

able to explain his side of the case to his attorney. 169 S.W.3d 319, 323–25

(Tex. App.—Fort Worth 2005, pet. ref’d). In Smallwood v. State, in addition to

questioning defense counsel, the trial court asked the defendant whether he was


                                          3
competent, of sound mind, insane, or crazy; whether he knew what ―competent‖

meant; whether he knew what the charges were against him; whether he had

ever been told that he needed any special treatment or medical care for his

condition; and whether he knew what he was doing when he committed the

charged offense.   296 S.W.3d 729, 731–32 (Tex. App.—Houston [14th Dist.]

2009, no pet.).

      In Johnson v. State, the trial court questioned the defendant about his

plea, the charges against him, the punishment range for each offense, his court-

appointed counsel, and his understanding of a guilty plea; whether he was on

medication; whether he understood defense counsel; and whether he understood

who the judge was and what his role was. Nos. 05-05-00464-CR, 05-05-00465-

CR, 05-05-00466-CR, 05-05-00467-CR, 2006 WL 1000071, at *1 (Tex. App.—

Dallas 2006, no pet.) (not designated for publication). And in Gray v. State, in

addition to questioning defense counsel, the trial court inquired of the defendant

whether he had reviewed and understood documents before signing them and

what offense he was pleading guilty to.     257 S.W.3d 825, 828 (Tex. App.—

Texarkana 2008, pet. ref’d).

      Like the adequate informal inquiries conducted by the trial courts in

Lawrence, Smallwood, Johnson, and Gray, the trial court in this case should

have asked more than merely one question of Wicker once it learned that he has

Asperger’s syndrome but that he had not taken his medication since being

incarcerated months earlier. The trial court could not have determined from the


                                        4
brief colloquy that occurred at the outset of the hearing on the motion to

adjudicate whether Wicker’s behavior indicated a lack of rational understanding.

Accordingly, I would hold that the trial court abused its discretion by performing

an inadequate informal inquiry into Wicker’s competency to stand trial. Because

the majority holds that the trial court’s inquiry was adequate, I respectfully

dissent.




                                                  BILL MEIER
                                                  JUSTICE

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

DELIVERED: February 23, 2012




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