                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-18-00202-CR
                               NO. 09-18-00203-CR
                            _______________________

                     RACHEL ANN PREVOST, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee



                   On Appeal from the 163rd District Court
                            Orange County, Texas
                   Trial Cause Nos. B180068-R & B180071-R


                          MEMORANDUM OPINION

      Rachel Ann Prevost pleaded guilty to continuous sexual abuse of a child

younger than fourteen years of age, and the trial court assessed punishment at thirty-

five years of confinement. See Tex. Penal Code Ann. § 21.02 (West Supp. 2018).1




      1
      We cite the current version of statutes herein because subsequent
amendments do not affect our analysis.
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In a single issue in both causes, Prevost challenges the trial court’s denial of her

motion for a competency examination. We affirm.

                                     Background

      A grand jury indicted Prevost for continuous sexual abuse of a child younger

than fourteen years of age, for conduct occurring from on or about November 22,

2012 through September 1, 2013. Prior to trial, Prevost filed a Motion to Examine

the Defendant Regarding Competency and Sanity, and the trial court set a hearing

on the motion. At the hearing, defense counsel argued as follows:

             Your Honor, I’ve visited with Rachel several times -- I would say
      four or five times -- at the jail. I don’t think she understands the -- the
      severity of the nature of what -- what’s going on with her case, the
      ramifications of it and the ramifications of what she’s allegedly done
      and, you know, consider -- as I said, consider the severity of it. I would
      like to have a doctor, be it Gripon or whoever, substantiate the fact that
      she understands the nature of the consequences of her actions when they
      occur and she understands what’s going on in the courtroom. . . . I think
      she needs to have -- be checked by a psychiatrist . . .

In denying the motion from the bench, the trial court explained “I just don’t hear any

evidence she’s incompetent.” At the same hearing, the trial court explained to

Prevost the consequences of pleading guilty and waiving a jury trial and asked

whether she understood, and she indicated that she did.




                                          2
      Thereafter, Prevost pleaded guilty in both cause numbers. After a

presentencing report was prepared, the trial court held a hearing on sentencing and

assessed punishment at thirty-five years of confinement.

                                        Issue

      In a single issue, Prevost argues that the trial court failed to follow statutory

requirements    “when    it   disregarded       defense   counsel’s representation   of

incompetency and failed to proceed with an informal inquiry[.]” According to

Prevost, “instead of holding an informal inquiry, the trial court instead found that

there was no evidence, halted any further steps toward determining competency, and

then denied the motion for a psychiatric evaluation.” See Tex. Code Crim. Proc.

Ann. art. 46B.004(b), (c) (West 2018). Prevost argues that the trial court was

required by statute to consider her attorney’s representation of incompetency as

sufficient grounds to find a suggestion of incompetency and then hold an informal

inquiry. See id. Prevost further argues that “[h]ad the trial court correctly followed

the statute,” she would have been entitled to an informal inquiry and psychiatric

evaluation.

                                      Analysis

      We review challenges to the adequacy of a trial court’s informal competency

inquiry for an abuse of discretion. See George v. State, 446 S.W.3d 490, 499 (Tex.

                                            3
App.—Houston [1st Dist.] 2014, pet. ref’d). Under this standard, we do not

substitute our judgment for that of the trial court, but we determine whether the trial

court’s decision was arbitrary or unreasonable. Montoya v. State, 291 S.W.3d 420,

426 (Tex. Crim. App. 2009), superseded by statute on other grounds, Tex. Code

Crim. Proc. Ann. art. 46B.004(c-1) (West 2018), as stated in Turner v. State, 422

S.W.3d 676, 692 (Tex. Crim. App. 2013).

      A criminal defendant who is incompetent may not stand trial without violating

due process. See Turner, 422 S.W.3d at 688. The Legislature has codified the

constitutional due-process requirement and the statute includes a framework for

making competency determinations to ensure that legally incompetent criminal

defendants do not stand trial. See Tex. Code Crim. Proc. arts. 46B.003, 46B.004,

46B.005 (West 2018). Incompetency to stand trial is shown if the defendant 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.” Id. art. 46B.003(a).

      A trial court employs two steps for making competency determinations before

it may ultimately conclude that a defendant is incompetent to stand trial. Boyett v.

State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). The first step is an informal

inquiry, and the second step is a formal competency trial. Id. An informal inquiry is

                                          4
called for upon a “‘suggestion’” from any credible source that the defendant may be

incompetent. Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.004(a), (c), (c-1)). To

move to the next step, a formal inquiry, there must be “‘some evidence from any

source that would support a finding that the defendant may be incompetent to stand

trial.’” Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.004(c)).

      The “suggestion” of incompetency required to trigger the mandatory informal

inquiry can be made by either party or the trial court may sua sponte suggest that a

defendant may be incompetent to stand trial. Tex. Code of Crim. Proc. Ann. art.

46B.004(a). A suggestion of incompetence “may consist solely of a representation

from any credible source.” Id. art. 46B.004(c-1). “A further evidentiary showing is

not required to initiate the inquiry, and [a] court is not required to have a bona fide

doubt about the competency of [a] defendant.” Id; see also Turner, 422 S.W.3d at

691-92 (explaining that the Legislature rejected the bona fide doubt standard when

it amended Article 46B.004).

      The Court of Criminal Appeals recently examined the application of the two-

step process in Boyett, explaining that during the informal inquiry, if “some

evidence” of incompetency is presented, then the trial court must order a psychiatric

or psychological competency examination, and except for certain exceptions, it must



                                          5
then hold a formal competency hearing. Boyett, 545 S.W.3d at 563 (citing Tex. Code

Crim. Proc. Ann. arts. 46B.005(a), (b), 46B.021(b)).

      During the informal inquiry, the trial court is not required to follow a specific

protocol. George, 446 S.W.3d at 501. As suggested by its title, an “informal inquiry”

is just that—informal. No specific formal procedure must be followed by the trial

court in making the informal inquiry. Id. During the informal inquiry, a court should

focus on whether there is “some evidence” of incompetency to stand trial. Boyett,

545 S.W.3d at 563 (citing Tex. Code Crim. Proc. Ann. art. 46B.004(c)). The statute

reads as follows: “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.” Tex. Code Crim. Proc. Ann. art. 46B.004(c).

      The statutory “‘some evidence’” standard requires “‘more than none or a

scintilla’” of evidence that “‘rationally may lead to a conclusion of incompetency.’”

Boyett, 545 S.W.3d at 564 (quoting Turner, 422 S.W.3d at 692). However, a mere

allegation by defense counsel that a defendant may be incompetent or that she may

not understand the ramifications of what she has done, does not by itself warrant a

formal competency examination. See Hobbs v. State, 359 S.W.3d 919, 925 (Tex.

App.—Houston [14th Dist.] 2012, no pet.) (“A naked assertion of incompetency is

                                          6
not sufficient without supporting evidence to trigger an inquiry.”) (citing LaHood v.

State, 171 S.W.3d 613, 618 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)).

      During the informal inquiry, a trial court must consider only evidence of

incompetency, and it must not weigh evidence of competency against the evidence

of incompetency. Boyett, 545 S.W.3d at 564. Accordingly, at the informal inquiry

stage, “‘the standard for requiring a formal competency trial is not a particularly

onerous one—whether putting aside the evidence of competency, there is more than

a scintilla of evidence that would support a rational finding of fact that the accused

is incompetent to stand trial.’” Id. at 564 (quoting Turner, 422 S.W.3d at 696).

      Some evidence must be presented at the informal inquiry stage to show that a

defendant’s mental illness is the source of his inability to participate in his own

defense. Id. There must be “‘some evidence from which it may rationally be inferred

not only 1) that the defendant suffers some degree of debilitating mental illness, and

that 2) he obstinately refuses to cooperate with counsel to his own apparent

detriment, but also that 3) his mental illness is what fuels his obstinacy.’” Id.

(quoting Turner, 422 S.W.3d at 696) (emphasis original). Thus, it is not enough to

present evidence of either a defendant’s mental illness alone or refusal to cooperate

with counsel—rather, there must be some evidence indicating that the defendant’s

refusal to rationally engage with counsel is caused by mental illness. Id.

                                          7
      Prevost alleges that the trial court failed to conduct an informal inquiry. We

disagree. Prevost filed a Motion to Examine the Defendant Regarding Competency

and Sanity, which included no specific factual assertions and was not supported by

an affidavit. See Tex. Code Crim. Proc. art. 46B.004(a) (“A motion suggesting that

the defendant may be incompetent to stand trial may be supported by affidavits

setting out the facts on which the suggestion is made.”). After the motion was filed,

the trial court held a hearing on the motion. At the hearing on the motion, the trial

court allowed the defense attorney to present the motion and then noted on the record

“I just don’t hear any evidence she’s incompetent.” The trial court also observed the

defendant at the hearing and asked the defendant questions at the hearing.

      On the record before us, we conclude that the trial court conducted an informal

inquiry, and we cannot say the trial court abused its discretion in concluding that

there was no evidence of incompetency and in finding that no further formal

competency hearing was required.

      We overrule Prevost’s sole issue and affirm the judgments of the trial court.

      AFFIRMED.



                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice

                                         8
Submitted on January 24, 2019
Opinion Delivered March 6, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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