                                  NO. 07-08-00150-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                      APRIL 8, 2010


                            GARY L. LINDSEY, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2003-402,049; HONORABLE CECIL G. PURYEAR, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                         OPINION


         Appellant Gary L. Lindsey appeals the revocation of his community supervision.

In a single point of error, appellant contends the trial court abused its discretion because

it failed to conduct a competency inquiry sua sponte. We affirm the judgment of the trial

court.
                                        Background


       In 2003, pursuant to a plea agreement, appellant plead guilty to a charge of

delivery of cocaine. The indictment also included a notice that the offense was

committed in a drug-free zone.1


       In accordance with his plea agreement, appellant received a sentence that

included confinement in the Institutional Division of the Texas Department of Criminal

Justice for ten years and required his payment of restitution, costs and fees. The court

suspended the sentence of confinement and placed appellant on community

supervision for ten years. The terms of community supervision included appellant’s

commitment to a residential treatment facility. A year later, the terms were modified to

release appellant from the community corrections facility and place him on intensive

supervision.   The State later filed an application to revoke appellant’s community

supervision, alleging numerous violations of the conditions of his community

supervision. The court held hearings on the motion in November 2007 and March 2008.

Appellant plead not true to each of the State=s allegations.


       The State presented the testimony of the probation officer assigned to appellant

to show that appellant violated the terms of his probation by, among others, failing to

maintain abstinence from use or possession of alcoholic beverages and drugs by

testing positive for cocaine, failing to report, failing to make required payments, failing to

       1
         See Tex. Health & Safety Code Ann. ' 481.112(c), (d) (Vernon 2001) and Tex. Health
& Safety Code Ann. ' 481.134 (Vernon 2003).

                                              2
avoid persons or places of disreputable or harmful character, and failing to work

faithfully at suitable employment. The trial court found that appellant violated those

terms of his probation and sentenced him to imprisonment in the Institutional Division of

the Texas Department of Criminal Justice for ten years.          The trial court certified

appellant=s right of appeal and appellant timely appealed.


                                         Analysis


Applicable Law


      By his sole issue on appeal, appellant contends the trial court abused its

discretion in failing to sua sponte conduct an informal inquiry into his competency to

stand trial as required by the Code of Criminal Procedure. We review a trial court=s

failure to conduct a competency inquiry under an abuse of discretion standard. 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); Gray v. State, 257 S.W.3d 825, 827

(Tex.App.BTexarkana 2008, pet. ref=d); LaHood v. State, 171 S.W.3d 613, 617-18

(Tex.App.BHouston [14th Dist.] 2005, pet. ref=d). 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. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon

2006). A person is incompetent to stand trial if he does not have (1) sufficient present

ability to consult with his attorney with a reasonable degree of rational understanding; or

(2) a rational as well as factual understanding of the proceedings against him. Id. at

46B.003(a). The same standard applies to a revocation hearing.          See McDaniel v.
                                            3
State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003); Rice v. State, 991 S.W.2d 953, 958

(Tex.App.—Fort Worth 1999, pet. ref’d) (each applying standard to revocation hearing).


      If, during court proceedings, evidence comes to the attention of the trial court

from any source raising a bona fide doubt2 as to the defendant=s competency, the court

must conduct an informal inquiry outside the jury's presence to determine whether there

is evidence to support a finding of incompetency to stand trial. See Fuller v. State, 253

S.W.3d 220, 228 (Tex.Crim.App. 2008); Criswell v. State, 278 S.W.3d 455, 458

(Tex.App.—Houston [14th Dist.] 2009, no pet.); Tex. Code Crim. Proc. Ann. art. 46B.004

(Vernon 2005). In its inquiry, the court must determine whether there is any evidence to

support a finding of incompetency and, if the court finds that such evidence exists, it

must order an examination of the defendant. Fuller, 253 S.W.3d at 229; Tex. Code

Crim. Proc. Ann. arts. 46B.005(a), 46B.021 (Vernon 2005).


      Evidence capable of creating a bona fide doubt about a defendant=s competency

may come from the trial court=s own observations, known facts, evidence presented,

motions, affidavits, or any other claim or credible source. Brown v. State, 129 S.W.3d

762, 765 (Tex.App.BHouston [1st Dist.] 2004, no pet.). Evidence is usually sufficient to

create a bona fide doubt if it shows recent, severe mental illness, at least moderate

retardation, or truly bizarre acts by the defendant. McDaniel, 98 S.W.3d at 710.       If


      2
          The Court of Criminal Appeals has defined a Abona fide doubt@ as Aa real doubt
in the judge=s mind as to the defendant=s competency.@ Fuller v. State, 253 S.W.3d 220,
228 (Tex.Crim.App. 2008).

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evidence warrants a competency hearing, and the trial court denies such a hearing, the

defendant is deprived of his constitutional right to a fair trial. LaHood, 171 S.W.3d at

618, citing Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).


Application


       Appellant argues several facts were before the trial court that should have

suggested his incompetency to the court. Appellant first points to statements made by

his probation officer during testimony at the March 2008 hearing. The officer testified

that he handled a Aspecialized case load, people with mental health disorders.@ He also

said that appellant had resided at treatment centers for some period of time and

committed himself to a facility after having thoughts of suicide. Appellant also contends

that his “confusion” at the November 2007 hearing regarding whether the drug-free

zone allegation in his indictment had been “dropped” denoted his confused mental

state. The State argues that, even taken together, these facts did not trigger the court=s

duty to inquiry into appellant’s competence. We agree with the State.


       Initially, we note that during appellant=s original plea hearing in 2003, appellant

answered affirmatively to the trial court’s question asking him, “Did you sign these [plea]

papers and give up those rights and enter your plea of guilty freely, knowingly and

voluntarily?” We note also that the record of the November 2007 hearing contains the

following exchange between the court and appellant=s trial counsel:


The Court:    Counsel, you=ve had the opportunity to go over all these matters
              with your client. Are you satisfied that he understands the nature of
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              the charge against him, the rights he=s entitled to under the law,
              and the consequences of entering the plea before the Court here
              today?
Counsel:      I am, Your Honor.
The Court:    Are you satisfied he is mentally competent to enter the plea before
              the Court here today?
Counsel:      Yes, sir, I am.


       The record reflects appellant did not speak at the hearing held in March 2008,

but it does indicate he consulted with his attorney during the proceedings.


       We see nothing in appellant’s conduct at any of the three hearings to cast doubt

on his competence to stand trial. The records reflect no statement or action in any way

inappropriate or unusual.       Appellant said very little other than to express his

understanding of the questions and admonishments directed at him by the trial court.

His responses to admonishments and questions were timely, appropriate and logical.

Neither appellant, counsel, nor anyone else in the courtroom at any time voiced concern

over appellant=s ability to communicate with his counsel or understand the proceedings,

nor do we see anything in the record to suggest appellant was having difficulty

communicating or understanding the proceedings.


       We disagree with appellant that his one spontaneous inquiry reflected in the

record, when at the November 2007 hearing he asked whether the drug-free zone

allegation of his indictment had been “dropped,” necessarily suggests confusion on his

part. As the State points out, it well can be seen as illustrating his understanding of the

proceedings against him.


                                            6
       Appellant urges us to find importance in his supervision by a probation officer

who testified to supervising probationers with mental health disorders. He argues no

evidence shows he was assigned to that officer in error or because of “some staffing

problem.” We disagree that any inference regarding appellant’s competency at trial is to

be drawn merely from his assignment to that particular probation officer. We disagree

also that the addition of appellant=s short stays at treatment facilities and his voluntary

commitment for suicidal thoughts combined to require the trial court to inquire into his

competence at the revocation hearings. The record indicates that after appellant was

placed on probation in 2003, he was initially sent to the Community Residential

Treatment Center. Each of appellant’s voluntary commitments occurred in 2004, more

than three years before the hearings on the application to revoke appellant’s community

supervision. None of the stays at treatment facilities raise questions about whether

appellant had a recent severe mental illness. Cf. Durgan v. State, 259 S.W.3d 219

(Tex.App.BBeaumont 2008, no pet.) (finding defendant’s inclusion in a “special needs”

SAFPF did not raise questions about whether she had a recent severe mental illness,

was moderately retarded or had exhibited truly bizarre behavior); Reeves v. State, 46

S.W.3d 397, 399-40 (Tex.App.BTexarkana 2001, pet. dism=d) (concluding evidence of

defendant=s drug addiction and suicide attempt did not reflect on her ability to

understand or participate in the proceeding on that day).


       Appellant relies on Greene v. State, 225 S.W.3d 324 (Tex.App.BSan Antonio

2007, no pet.) (op. on reh=g), in which the San Antonio court found the language of art.

46B.004 signaled an intention of the Legislature to depart from the bona fide doubt

standard to trigger required competency inquiries. Id. at 329. A subsequent opinion of
                                            7
the court of criminal appeals, however, reiterates the bona fide doubt standard.

Fuller, 253 S.W.3d at 228-29. We agree with the Beaumont court’s assessment that,

AFuller resolves recent questions about applying the bona fide doubt standard to

incompetency issues raised during trial.@ Durgan, 259 S.W.3d at 222. Moreover, on its

facts Greene is of no help to appellant. The circumstances described in the Greene

opinion bear no similarity to those present here.     In Greene, the court found the

defendant’s Arambling, nonresponsive@ answers to questions and testimony Aof the most

bizarre quality@ suggested his incompetence and required the trial court to conduct an

informal inquiry into his competence. Greene, 225 S.W.3d at 329.


      Courts have found no abuse of discretion in the presence of much stronger

evidence suggesting incompetence than was present here. See, e.g., Salahud-Din v.

State, 206 S.W.3d 203, 208 (Tex.App.BCorpus Christi 2006, pet. ref=d) (no abuse of

discretion in failing to conduct sua sponte inquiry even though three pretrial

psychological examinations were ordered by the court); LaHood, 171 S.W.3d at 619 (no

abuse of discretion in failure to sua sponte inquire into defendant=s competency despite

outbursts during trial, requests for medicine, comments concerning Apsych meds@ and

claim of difficulty understanding proceedings). See also Rojas v. State, 228 S.W.3d 770

(Tex.App.BAmarillo 2007, no pet.) (no abuse of discretion in failing to conduct further

informal inquiry or to appoint an expert to evaluate defendant when he made comments

during voir dire and throughout trial, engaged in non-responsive answers on the stand

and expressed view that police conspired to frame him).




                                           8
       Finding no abuse of discretion here in the trial court’s failure to initiate an informal

inquiry, we overrule appellant’s sole point of error, and affirm the trial court’s judgment.


                                                          James T. Campbell
                                                               Justice
Publish.




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