                                             NO. 07-02-0382-CR
                                             NO. 07-02-0383-CR
                                             NO. 07-02-0384-CR
                                             NO. 07-02-0385-CR

                                      IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                                AT AMARILLO

                                                    PANEL E

                                         MARCH 10, 2004
                                 ______________________________

                                          TOMMY WAYNE ROE,

                                                                                 Appellant

                                                         v.

                                         THE STATE OF TEXAS,

                                                            Appellee
                              _________________________________

                 FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

  NOS. 43,628-B,43,629-B, 44,852-B, 45,396-B; HON. JOHN B. BOARD, PRESIDING
                      _______________________________

                                      Memorandum Opinion
                                _______________________________

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

         In these four companion cases, appellant Tommy Wayne Roe appeals from his

convictions based upon his guilty pleas to criminal mischief, aggravated assault against a

public servant, and two charges of assault against a public servant. The two issues



         1
          John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T EX . G O V ’T
C ODE A N N . §75.002 (a)(1 ) (Vernon Sup p. 2004).
asserted by him are common to each appeal. So, we consider them together, and through

them, he contends 1) the evidence was factually insufficient to support the trial court’s

finding that he was competent to stand trial, and 2) the trial court erred in failing to empanel

a jury to determine his competency. We affirm the judgments.

                                        Background

       Appellant was originally indicted for the offenses of criminal mischief and aggravated

assault on a public servant. His indictment for the additional two assaults arose from

incidents occurring while he was in jail pending trial for the original charges.

       Questions as to appellant’s competency arose prior to trial. A jury was convened

to determine them and, on November 19, 2001, it found him competent to stand trial.

Thereafter, he was tried for aggravated assault and found guilty. However, the trial court

delayed sentencing due to appellant’s behavior at trial as well as his counsel’s statements

regarding her inability to communicate with appellant. This resulted in the trial court

empaneling another jury to assess his competency on March 28, 2002. The jury, however,

was unable to reach a verdict, and a mistrial was declared.

       A third competency hearing was held on July 9, 2002. There, both appellant and

the State requested the jury to find him incompetent to stand trial. The jury did so but also

found that there existed a substantial probability that appellant would regain his

competency in the foreseeable future. Thus, he was committed to Vernon State Hospital

(Vernon).

       On July 26, 2002, the staff at Vernon certified appellant as competent to stand trial.

Within 19 days of the certification, that is, on August 14, 2002, appellant appeared in the

trial court and pled guilty to all four offenses without a recommended punishment. During

                                               2
that proceeding, the report from Vernon certifying appellant as competent was received

into evidence. So too did the trial court question appellant about his knowledge and

understanding of the charges levied against him, his understanding of his rights, his pleas

to the various charges, the waiver of his rights attendant to a trial by jury, the effect of his

guilty pleas, the voluntariness of his pleas, his admission into Vernon, and Vernon’s

finding of competency, among other things.

       Though many of the questions asked by the trial court at the plea hearing required

a simple “yes” or “no” answer and appellant’s initial replies were not always responsive to

the questions, appellant did ultimately answer each question in a way indicating that he

understood the question. So too did he respond in a manner illustrating that he understood

the charges against him, wished to plead guilty to them, was aware of the effect of his

pleas and waivers, and was aware of the nature of the proceeding in which he was then

involved. Given this, the trial court found appellant competent to stand trial, accepted the

guilty pleas, found him guilty for the offenses charged and, once a punishment hearing was

concluded, levied sentence.

                    Issue One - Factual Sufficiency of the Evidence

       In his first issue, appellant contends that the evidence presented to the court during

the plea hearing was factually insufficient to find him competent to stand trial. We overrule

the issue.

       The standard by which we review the factual sufficiency of the evidence is well

established and fully discussed in Zuliani v. State, 97 S.W.3d 589, 593-95 (Tex. Crim. App.




                                               3
2003) and King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We refer the

litigants to them for their discussion.2

        Next, a person is incompetent to stand trial if he lacks 1) sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding or 2) a rational

and factual understanding of the proceedings against him. TEX . CODE CRIM . PROC . ANN .

art. 46.02 §1A(a) (Vernon Supp. 2004) (Emphasis added). Furthermore, one is presumed

competent unless proved incompetent by a preponderance of the evidence. Id. §1A(b).

        Additionally, when an accused is found incompetent and sent to a mental health

facility, as appellant was here, the head of the facility must notify the trial court when “he

is of the opinion that the defendant has attained competency . . . .” Id. §5(f)(1). And, when

the accused is discharged, “a final report shall be filed with the court documenting the

applicable reason for the discharge . . . .” Id. §5(i). Moreover, the trial court

        is authorized to make a determination based solely on the report with regard
        to the defendant’s competency to stand trial, unless the prosecuting attorney
        or the defense counsel objects in writing or in open court to the findings of
        the report within 15 days from the time the report is served on the parties.

Id. Finally, if the accused is found competent to stand trial, criminal proceedings against

him may be resumed. Id. §5(k). With this said, we turn to the record before us.

        As previously mentioned, appellant was found incompetent and sent to a mental

health facility, i.e. Vernon. Thereafter, he was discharged and, in the ensuing report,

categorized as “competent to stand trial” by the chief psychiatrist at Vernon. So too was



        2
           Appellant asks that we either modify or deviate from the standard of review discussed in the cases
we c ite due to recent writings of the Texas Suprem e Cou rt. However, the Tex as Co urt of C rim inal Appeals
has fina l say in things crim inal, not the Texas Suprem e C ourt. And, since it has prescribed a particular
standard of review, we must follow it as prescribed.

                                                      4
he described, in the report, as 1) demonstrating “a factual and rational understanding of

the court personnel and proceedings,” 2) having “an appreciation of the charges and legal

strategy” and “an awareness of the consequences and penalties if convicted,” 3) having

“the capacity to disclose facts and testify relevantly,” 4) having the ability “to assist his

attorney in preparing his defense” and to “conform his behavior to the acceptable decorum

of the court,” 5) having “adequate memory, attention, intellectual functioning,” 6) having the

“ability to engage in a logical and coherent discussion,” 7) “functioning in the average range

of intelligence,” and 8) demonstrating “adequate decision-making ability to select a

reasonable strategy on his case.” The chief psychiatrist also stated in the report that

appellant “has been diagnosed with malingering and has a strong potential for

exaggerating symptoms which might include bizarre acting out behaviors . . . .” The

possibility that appellant “will become extremely desperate while in jail and exaggerate

symptoms in a desperate bid to appear mentally ill . . . to try and avoid the consequences

of the current charges,” was further noted. Nothing of record indicates that either party

objected to this report. This is of import given that statute authorizes the trial court to

determine his competency solely from it. TEX . CODE CRIM . PROC . ANN . art. 46.02 §5(i)

(Vernon Supp. 2004). So, at the very least, it provides more than ample evidence to

support the trial court’s finding of competency.

       That the trial court may have voiced some disagreement with the allusion to

appellant “malingering” does not render the report bereft of weight or the finding of

competency factually insufficient. That aspect of the report was one of many observations

uttered therein. And, at no time did the trial court state that it disagreed with any other

observation in it, including those involving the accused’s ability to engage in legal strategy,

                                              5
demonstrate adequate decision-making ability, function within an average range of

intelligence, factually and rationally understand the criminal proceedings in which he was

involved, appreciate the charges and consequences if convicted, disclose facts and testify

relevantly, or conform his conduct and assist his attorney in preparing his defense. To this,

we also add the trial court’s observations of appellant, his demeanor, and his answers to

the court’s questions during the plea hearing. Indeed, the trial court expressly stated that

those observations influenced its decision. Consequently, we are unable to say that the

evidence of appellant’s competency to stand trial at the time of the plea hearing was too

weak to support the trial court’s finding or that the proof of his competency was against the

great weight and preponderance of the evidence.

                            Issue Two - Sua Sponte Hearing

       In his second issue, appellant faults the trial court for failing to empanel another jury

to consider his competency as a result of his responses at the plea hearing. We overrule

the issue.

       Whether the trial court erred in failing to empanel a jury depends upon whether it

abused its discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999), cert.

denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000). And, whether it abused

its discretion depends upon whether its decision fell outside the zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

       Next, a trial court need not sua sponte empanel a jury to determine competency

unless evidence brought to the trial court’s attention is sufficient to raise a bona fide doubt

in the mind of the judge as to the defendant’s competency to stand trial. Alcott v. State,



                                               6
51 S.W.3d 596, 601 (Tex. Crim. App. 2001); Moore v. State, 999 S.W.2d at 393.

Generally, such a doubt exists only if the evidence indicates recent severe mental illness,

moderate mental retardation, or truly bizarre acts by the defendant. McDaniel v. State, 98

S.W.3d 704, 710 (Tex. Crim. 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). And, again, it

must support the inference that the accused lacked the present ability to consult with his

attorney or a rational and factual understanding of the proceedings against him. TEX . CODE

CRIM . PROC . ANN . art. 46.02 §1A(a) (Vernon Supp. 2004); see Rodriguez v. State, 899

S.W.2d 658, 665 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 946, 116 S.Ct. 385, 133

L.Ed.2d 307 (1995) (stating that competency considerations involve an individual’s present

ability to consult with his attorney or understand the proceedings against him).

        Here, the trial court had a report from Vernon wherein appellant was found to be

competent. That report was issued within three weeks before the plea hearing, and statute

authorized the trial court to rely exclusively on it when considering appellant’s competency.

        As to appellant’s answers at the plea hearing, some of the initial ones were indeed

unresponsive to various questions propounded. Yet, his ultimate replies proved highly

responsive. Those answers also evinced appellant’s understanding of the proceedings

against him and the voluntariness of his actions, or the trial court could have so reasonably

held.

        Furthermore, the plea hearing was bereft of outbursts or bizarre actions on the part

of appellant. So too did defense counsel refrain from suggesting that her client was unable

to communicate with her or was unaware of either the nature of the proceedings against



                                             7
him or his situation. This is telling for that same counsel was not only aware of appellant’s

prior condition but also instrumental in having him previously declared incompetent by a

jury. Yet, at the plea hearing, she said nothing about appellant being incompetent at the

time.

        Given the record before us, we cannot say that the evidence created a bona fide

doubt of appellant’s competency. Thus, we cannot say that the failure to empanel another

jury to address appellant’s competency at the time of the plea hearing fell outside the zone

of reasonable disagreement or that the trial court abused its discretion.

        Accordingly, the judgments of the trial court are affirmed.



                                                  Brian Quinn
                                                    Justice

Do not publish.




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