                                            NO. 07-02-0397-CR

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                                AT AMARILLO

                                                   PANEL E

                                             AUGUST 19, 2003

                                 ______________________________


                                  SHONQUE R. LUKE, APPELLANT

                                                        V.

                                 THE STATE OF TEXAS, APPELLEE


                              _________________________________

                 FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                        NO. 44,528-E; HONORABLE ABE LOPEZ, JUDGE

                                _______________________________

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


                                        MEMORANDUM OPINION


      After appellant Shonque R. Luke’s plea of not guilty to the offense of assault on a

public servant, a jury convicted him and, following his true plea to the enhancement

paragraph included in the indictment, assessed as punishment a sentence of confinement


      1
          Joh n T . Boyd, Chief Justice (Re t.), Seventh Court of A ppe als, sitting by ass ignm ent.
for 20 years. By a single point of error, appellant alleges “the trial court erred in failing to

conduct a competency inquiry to determine whether a competency hearing before a jury

must be held to determine whether appellant was competent to stand trial.” Based upon

the rationale expressed herein, we affirm.


       While imprisoned on a murder conviction at the Clements Unit in Amarillo, Texas,

appellant assaulted correctional officer Manuel Mendoza by striking him in the face with

a closed fist. At the time of the assault, appellant was enrolled in the PAMIO (Program for

Aggressively Mentally Ill Offenders) program at the unit. After appellant was indicted, in

the spring of 2002, he filed a Faretta2 motion indicating a desire to represent himself.

Around the same time, he filed a pro se “Motion to Quash Indictment” claiming his personal

sovereign immunity barred any prosecution against him.


       The trial court entertained appellant’s Faretta motion at a hearing on June 24, 2002.

At the hearing, the court and appellant engaged, in pertinent part, in the following colloquy:


       The Court:      Now, have you ever been treated mentally, for any type of
                       mental illness, or have you ever been institutionalized in some
                       kind of mental ward or anything of that nature?
       Defendant:      I’ve been evaluated.
       The Court:      And can you tell me what the results of that evaluation were?
       Defendant:      Normal.




       2
           See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

                                               2
The Court:   Normal? Was there some type of uh – competency exam, or
             anything of that nature done in this alleged – in this homicide
             that occurred back in Tarrant County?
Defendant:   Yes, there was. And I was competent.
The Court:   You were found competent or incompetent?
Defendant:   I was found competent.
The Court:   Competent. Okay. So, do you have uh – a rational
             understanding of the nature of the proceedings that are
             pending against you? Do you understand what you’re accused
             of, in other words?
Defendant:   Yes, I do.
The Court:   Okay. Again, you may disagree with the charges. Of course,
             you have that absolute right to do so, but I need to know that
             have an understanding of what it is that you’re accused of, and
             uh – so that you can properly defend yourself. So, you’re
             telling me that you’ve never been institutionalized in any type
             of mental institution or anything of that nature. Is that correct?
Defendant:   Not confined, no.
The Court:   Have you ever been treated by a mental health professional?
Defendant:   Yes, I have.
The Court:   For what?
Defendant:   Aggression.
The Court:   Aggression? Did you talk to a psychologist, or a psychiatrists
             (sic) or do you know?
Defendant:   All of them.
The Court:   How many individuals – how many mental health professionals
             have you – have you had – have treated you or have you
             consulted with?
Defendant:   I can’t say over the course of my whole life. I was just in the
             Bill Clements PAMIO Program. Psyches running unit uh –
             assistance of that building, but uh – it’s for aggressive
             offenders.
The Court:   Okay.


                                     3
       Defendant:    That’s why I have seen psychs all of my life for aggression,
                     violence.
       The Court:    And that’s all?
       Defendant:    Yes, sir.
       The Court:    So you’re telling me --
       Defendant:    Just evaluated before.
       The Court:    – are you telling me that you do not have any kind of mental
                     problem at this time?
       Defendant:    I mean, no psych seems to think so. I don’t think so.
                                            ***
       The Court:    Okay. Mr. Ray [defense counsel], do you find any evidence of
                     him having some type of – mental problems, other than --
       Mr. Ray:      Other than staying at the PAMIO Unit. Like he says, it’s for
                     aggressive offenders. Have you ever been to the John T.
                     Montford Unit, in Lubbock?
       Defendant:    Yes, I was at the hospital at John T. Montford for kidney
                     surgery.
       Mr. Ray:      Okay. No psychological evaluation at John T. Montford?
       Defendant:    I was never admitted to psych, sir. I was at the hospital.3


Satisfied appellant understood the pitfalls of self-representation and voluntarily, knowingly

and intelligently waived his right to counsel, the trial court granted his Faretta motion and

appointed Ray as stand-by counsel. It is clear from the record that Ray was present at

each of the subsequent proceedings and that appellant consulted with him on numerous

occasions.


       3
          We conclude the preceding exchange at a hearing a little less than a month before
trial, in fact, constituted an informal competency inquiry. However, because appellant
claims his defensive theories at trial constituted truly bizarre acts which should have raised
a bona fide doubt about his competency to stand trial, we will address his contentions.

                                               4
       On the morning of trial, the court conducted a hearing on appellant’s motion to

quash the indictment. At the hearing, the court queried whether appellant still desired to

represent himself. After appellant responded affirmatively, the trial court entertained

evidence on the motion to quash. Appellant argued the indictment should be quashed

because neither the court nor the United States military flag displayed in the courtroom

held jurisdiction over him as a sovereign. Unpersuaded by appellant’s assertions, the court

denied the motion and commenced voir dire.


       During voir dire, appellant examined prospective jurors on issues of self-defense

and explained his sovereign immunity defensive theory. He told jurors, “[a] sovereign is

a person, a body or a state invested within its independent supreme authority,” and defined

sovereign immunity as “the actual independent right to keep someone from prosecuting

you regardless of what the offense is.” Appellant committed several jurors to listening to

both sides of the story and to remaining open to his defensive theories. At the conclusion

of questioning, appellant consulted Ray, with whom he exercised his peremptory

challenges.


       Appellant argued, during the course of his opening statement, that he was the victim

of officer brutality at the unit. In that regard, he asked the jury to consider his size in

relation to the officers who would testify at trial. Finally, appellant explained, “as far as my

sovereign immunity goes, I’ve got paperwork on all of that, the flag and everything. Actual




                                               5
photograph to show you, huh, that I’m not just standing up here telling you some dream

or some theory.”


       During his cross-examination of the State’s witnesses, appellant focused on self-

defense issues. He stressed the weight differences between himself and the testifying

officers. Additionally, appellant emphasized the officers’ use of a “bean tool”4 as a weapon

against him, an unarmed inmate. Appellant questioned whether the officers exercised

excessive force in subduing him on the date of the offense in retribution for an incident

involving him and other officers the day before. Finally, appellant was successful in

obtaining an admission from one of the State’s witnesses that certain objects in the cell

block obstructed her view of the events leading up to the assault.


       Appellant called three witnesses to testify on his behalf. One witness, another

officer at the Clements Unit, testified she remembered escorting appellant to the infirmary

a few times. When asked whether she “was present to assaults in the past against

[appellant],” the officer responded “[c]orrect.” Appellant also presented two inmates who

minimized appellant’s actions during the assault and claimed the responding officer used

excessive force in subduing him. In closing arguments, appellant reiterated his sovereign

immunity defense and quoted from the Fourteenth Amendment to the United States

Constitution.



       4
       We discern from the record that a “bean tool” is a metal instrument used to open
the food tray slot in an inmate’s cell door.

                                             6
       By his sole point of error, appellant claims the trial court abused its discretion in not

conducting, sua sponte, a competency inquiry under section 2(b) of article 46.02 of the

Code of Criminal Procedure. Specifically, appellant claims his bizarre defensive theories

and the fact he participated in the PAMIO program at the Clements Unit should have

created a bona fide doubt in the mind of the trial court. We disagree.


       A person is presumed to be competent to stand trial unless proven incompetent.

Tex. Code. Crim. Proc. Ann art. 46.02, § 1A(b) (Vernon Supp. 2003). A person is

incompetent to stand trial if that person lacks “sufficient present ability to consult with [that]

person’s lawyer with a reasonable degree of rational understanding; or . . . [if that person

lacks] a rational as well as factual understanding of the proceedings against [that] person.”

Art. 46.02, § 1A(a). If evidence of the defendant’s incompetence is brought to the court’s

attention from any source, the court must conduct a hearing out of the presence of the jury

to determine whether there is evidence to support a finding of incompetency to stand trial.

Art. 46.02, § 2(b) (Vernon 1979).


       A section 2 hearing, a competency inquiry, is required only if the evidence brought

to the trial court’s attention is such as to raise a bona fide doubt in the court’s mind as to

the defendant’s competency to stand trial.           Alcott v. State, 51 S.W.3d 596, 601

(Tex.Cr.App. 2001), cert. denied, 525 U.S. 929, 119 S.Ct. 335, 142 L.Ed.2d 272 (1998).

In general, a bona fide doubt is raised only if the evidence indicates recent severe mental

illness, at least moderate mental retardation, or truly bizarre acts by the defendant. Collier


                                                7
v. State, 959 S.W.2d 621, 625 (Tex.Cr.App. 1997).           The naked assertion, “I am

incompetent,” unsupported by any facts or evidence, is not sufficient, by itself, to require

either a competency inquiry under section 2 or a jury competency hearing under section

4. McDaniel v. State, 98 S.W.3d 704, 711 (Tex.Cr.App. 2003). When a bona fide doubt

does exist, the court must conduct the section 2 competency inquiry to determine whether

there is “some evidence” to support a finding of incompetency and, if so, to commence a

section 45 competency hearing before a jury. Id. at 710.


       Having reviewed the record, we conclude that a bona fide doubt was not raised

about appellant’s competency to stand trial. First, at the Faretta hearing, appellant

steadfastly maintained that the only reason he had been assigned to the PAMIO unit was

for aggression or violence. In response to questioning by the court during that proceeding,

appellant acknowledged he had been tested for competency to stand trial in Tarrant

County when he was tried there for his underlying murder conviction. According to

appellant, however, he was found to be competent. Appellant also denied ever being

institutionalized for any mental disorder and flatly stated, no “psyche” ever found him to

suffer from mental problems. When Ray asked whether appellant had ever been treated

at the Montford Unit, apparently, a psychiatric and medical facility, appellant explained he

had kidney surgery there, but had never been admitted into the psychiatric portion of the

hospital. Ray never expressed any concern about his client’s ability to communicate with



       5
           See Tex. Code Crim. Proc. Ann. art. 46.02, § 4 (Vernon Supp. 2003).

                                             8
him or to understand the charges against him. As a result, Ray never asked the court to

examine appellant for competency to stand trial. Viewing the record as a whole, we

conclude appellant’s participation in the PAMIO program does not rise to the level of a

bona fide doubt as to his competency to stand trial. Cf. Moore v. State, 999 S.W.2d 385,

395 (Tex.Cr.App. 1999), cert denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252

(2000) (prior hospitalization and treatment for depression do not per se warrant the trial

court to conduct a hearing on competence).


       Next, appellant alleges his defensive theories rise to the level of truly bizarre acts

which should have created a bona fide doubt in the mind of the trial court. Initially, we note

that appellant’s acts do not rise to the level of the truly bizarre. Cf. Clark v. State, 47

S.W.3d 211, 218 (Tex.App.–Beaumont 2001, no pet.) (appellant’s conduct at pretrial

hearing was bizarre); Reed v. State, 14 S.W.3d 438, 442 (Tex.App.–Houston [14th Dist.]

2000, pet. ref’d) (bizarre broad daylight episode, taking a full-length aqua green fur coat

from Sak’s and stuffing it in a Lord & Taylor bag, might occasion a serious question of

appellant’s competence). Furthermore, while appellant’s sovereign immunity and flag

claims were unique, his other defensive theories reflected an understanding of the charges

against him. Appellant appropriately cross-examined the State’s witnesses and called his

own to prove up his theory of the case. He understood enough about the proceedings to

mount a reasonable defense and to present the officers’ purported motive for retaliating

against him because of an incident involving him the day before. Moreover, through the

testimony of his fellow inmates, appellant attempted to establish his theory that the officers

                                              9
exercised excessive force against an unarmed inmate. We refuse to view appellant’s

unique defensive theories in a vacuum when the totality of the record demonstrates

appellant competently, if not artfully, handled his own defense in this case with the

assistance of his stand-by counsel. McDaniel, 98 S.W.3d at 713. Under these facts, the

trial court did not err in failing to hold a formal competency inquiry. Appellant’s sole point

of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                           Don H. Reavis
                                             Justice


Do not publish.




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