
Opinion issued July 18, 2002








 
 


In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-02-00487-CR
____________

ERNEST ORTEGA, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 860864



O P I N I O N
	Appellant, Ernest Ortega, was charged by indictment with the offense of
murder.  The trial court granted motions for psychiatric examinations to determine
appellant's sanity and his competency.  At the conclusion of a contested competency
hearing, a jury found appellant competent to stand trial.  Appellant's counsel filed
notice of appeal from the competency order.  The murder charge remains pending in
the district court.  We hold that we have no jurisdiction over the appeal.
	When the issue of a criminal defendant's competency to stand trial is raised
in advance of the trial on the merits, and the trial court determines there is evidence
to support a finding of incompetency, a jury is impaneled to make this determination. 
Tex. Code Crim. P. Ann. art. 46.02 (Vernon 1979 & Pamph. 2002).  This preliminary
hearing is ancillary to prosecution of the criminal charge, which remains pending
until the competency issue is resolved.  The trial court's order of competency to stand
trial is not a final, appealable judgment.  Lowe v. State, 999 S.W.2d 537, 537 (Tex.
App.--Houston [14th Dist.] 1999, no pet.).
	More than 70 years ago, the Court of Criminal Appeals held that it had no
jurisdiction over an attempted direct appeal from a jury finding that the appellant was
"competent to make a rational defense" because such was not authorized by the Texas
Constitution or statute.  Griffin v. State, 29 S.W.2d 349, 350 (Tex. Crim. App. 1930). 
In Jackson v. State, 548 S.W.2d 685, 688-90 (Tex. Crim. App. 1977), the court again
held that no appeal lies from a judgment of competency to stand trial rendered in a
preliminary proceeding.  However, the court found the issue, like pretrial suppression
rulings, to be reviewable in an appeal from a full trial on the merits.  Id. at 690.
	Like a finding of competency, a finding that a criminal defendant is 
incompetent to stand trial is also not directly appealable.  See Morales v. State, 830
S.W.2d 139, 140 (Tex. Crim. App. 1992); Hardin v. State, 248 S.W.2d 487, 487 (Tex.
Crim. App. 1952); Lowe, 999 S.W.2d at 537-38.
	The Texas Legislature has chosen not to authorize an interlocutory direct
appeal from a jury's determination that a criminal defendant is competent to stand
trial.  According to Article 46.02 of the Code of Criminal Procedure,
	[I]f the defendant is found competent to stand trial, the court shall
dismiss the jury that decided the issue and may continue the trial
on the merits before the court or with the jury selected for that
purpose.

Tex. Code Crim. P. Ann. art. 46.02, § 4(f) (Vernon 1979). 
	In the present case, appellant has not been finally convicted and sentenced,
and there is no statutory authorization for this appeal.  We therefore dismiss the
appeal for lack of jurisdiction.


							Terry Jennings
							Justice

Panel consists of Justices Hedges, Jennings, and Keyes.
Publish.  Tex. R. App. P. 47.
