Affirmed and Opinion filed October 31, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00784-CR

                       ARTHUR JOHNSON, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1257323

                                OPINION
      Appellant Arthur Johnson appeals his conviction for aggregate theft by a
government contractor of between one hundred thousand dollars and two hundred
thousand dollars. He asserts the trial court erred in failing to grant a motion to
reconsider his motion in arrest of judgment and in failing to order a second
competency examination on the court’s own motion. We affirm.
                   I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellant and his wife, who is not a party to this appeal, each were charged
by indictment with the offense of aggregate theft by a government contractor of
between one hundred thousand dollars and two hundred thousand dollars.
Appellant’s trial counsel became concerned about appellant’s competency to stand
trial, after appellant appeared in court on a day he was not scheduled to appear and
demanded the judge ―release‖ him.          Counsel moved for an examination to
determine whether appellant was incompetent to stand trial, and the trial court
granted this motion. The psychologist who performed the examination concluded,
in May 2011, that appellant was competent to stand trial.

      Appellant first attempted to plead ―guilty‖ in February 2012, pursuant to a
plea agreement in which the State agreed to dismiss charges against his wife. The
trial court refused to accept the plea, however, because appellant continued to
maintain his innocence. Appellant attempted to plead ―guilty‖ a second time in
July 2012, but the trial court rejected appellant’s plea after concluding that
appellant was arguing with the trial court over the manner in which he would pay
restitution. After further proceedings, described in more detail below, the trial
court stated that the case would be set for a jury trial the following day.

      The next day, appellant entered a ―guilty‖ plea without an agreed
recommendation from the State. Before accepting the plea, the trial court queried
appellant’s counsel regarding appellant’s competency. Appellant’s counsel stated
that appellant was competent. The trial court accepted the plea and sentenced
appellant to ten years’ confinement, suspended the sentence, and placed appellant
on community supervision for ten years.

      Appellant, acting pro se, filed a document entitled, ―Motion for New Trial
and Motion in Arrest of Judgment,‖ asserting that he was not in his ―right mental
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state of mind‖ and that a new trial would be in the interest of justice. The trial
court denied the motion. In September 2012, seventy days after the trial court
signed the judgment, appellant’s new counsel filed two motions: (1) a motion to
reconsider the motion for new trial, and (2) a ―Motion for Reconsideration of
Motion in Arrest of Judgment‖ (hereinafter, ―Motion to Reconsider‖), in which
appellant, for the first time, asked the trial court to quash the indictment against
him because the State’s prosecution of him under the Texas theft statute is
preempted by a federal statute governing health-care fraud.           The trial court
overruled both motions. This appeal followed.

                               II. ISSUES AND ANALYSIS

         Appellant challenges the trial court’s denial of the Motion to Reconsider and
also asserts the trial court abused its discretion in failing to order a second
competency examination before accepting appellant’s ―guilty‖ plea because of
evidence supporting a finding of appellant’s incompetency to stand trial.

A.       Did the trial court err in denying the Motion to Reconsider?
         In his first issue, appellant contends the trial court erred in denying his
Motion to Reconsider. In this motion, appellant argued that the State’s prosecution
of him under the Texas Penal Code is preempted by federal law; therefore, he
argues, the trial court should have quashed the indictment against him. For the
purposes of our analysis, we presume, without deciding, that the Motion to
Reconsider and the arguments contained therein were timely presented to the trial
court.

         To support his preemption claim, appellant alleges a defect in the substance
of the indictment against him. If a defendant does not object to a defect, error, or
irregularity of form or substance in an indictment before the date on which the trial
on the merits begins, he waives and forfeits the right to object to the defect, error,
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or irregularity, unless the defendant objects that there is no indictment at all, which
is a jurisdictional defect. See Tex. Code Crim. Proc. art. 1.14(b) (West 2006); Teal
v. State, 230 S.W.3d 172, 176–77 (Tex. Crim. App. 2007).

      Appellant failed to tender any objection to the indictment before the date of
trial, and his objection was not that there was no indictment at all. By failing to
object to the indictment before trial, appellant waived and forfeited his right to
raise this objection. See art. 1.14(b); Teal, 230 S.W.3d at 180–82. Therefore, the
trial court did not err in denying appellant’s Motion to Reconsider. Accordingly,
we overrule appellant’s first issue.

B.    Did the trial court err in failing to order a second competency
      examination on its own motion?
      In his second issue, appellant asserts that the trial court erred in failing to
order a second competency examination on its own motion after he exhibited
before the court behavior suggesting he was incompetent to stand trial. Appellant
asserts that, before accepting appellant’s ―guilty‖ plea, the trial court conducted an
informal inquiry under article 46B.004(c) of the Texas Code of Criminal
Procedure.    See Tex. Code Crim. Proc. Ann. art. 46B.004(c) (West 2013).
Appellant argues that the trial court erred by failing to determine that there was
evidence to support a finding of incompetency, which would have required a
competency examination. See Tex. Code Crim. Proc. Ann. art. 46B.005(a) (West
2013).

      We review the trial court’s decision not to order a competency examination
under an abuse-of-discretion standard. Young v. State, 177 S.W.3d 136, 139 (Tex.
App.—Houston [1st Dist.] 2005, pet. dism’d). Under this standard, we view the
evidence in the light most favorable to the trial court’s ruling and uphold the ruling
if it falls within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d

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109, 112 (Tex. Crim. App. 2007).          A reviewing court cannot substitute its
judgment for that of the trial court, but instead determines whether the trial court’s
decision was arbitrary or unreasonable. Id. A trial court abuses its discretion when
no reasonable view of the record could support the trial court’s ruling. See id.

      The conviction of an accused person while he is legally incompetent to stand
trial violates due process. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim.
App. 2003). A person is incompetent to stand trial if the person 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 and factual understanding of the
proceedings against the person. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West
2013).   A person is presumed competent to stand trial and shall be found
competent to stand trial unless proven incompetent by a preponderance of the
evidence. Id. art. 46B.003(b) (West 2013). If evidence suggesting the defendant
may be incompetent to stand trial comes to the attention of the trial court, the court,
on its own motion, shall suggest that the defendant may be incompetent to stand
trial. Id. art. 46B.004(b). Upon 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. Id. art. 46B.004(c). After an informal inquiry, if the
trial court determines that evidence exists to support a finding of incompetency, the
court shall order an examination to determine whether the defendant is
incompetent to stand trial in a criminal case. Id. arts. 46B.005(a); 46B.021.

      Appellant’s trial counsel initially questioned appellant’s competency, and
the trial court ordered an examination to determine whether appellant was
incompetent to stand trial in a criminal case. See id. arts. 46B.005(a); 46B.021.
The psychologist who performed the examination concluded, in May 2011, that

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appellant was competent to stand trial.

      Appellant attempted to plead ―guilty‖ on July 9, 2012, but the trial court
rejected appellant’s plea after concluding that appellant was arguing with the trial
court over the manner in which he would pay restitution. The trial court then
began making preparations for trial and asked counsel if they wanted to start the
trial that day. Appellant’s counsel stated he preferred not to do so. The parties
then began working out the timing for the beginning of trial the following day.
During this colloquy regarding timing, appellant, who had been outside the
courtroom, apparently entered the courtroom. The trial court asked, ―What is it?
Does he have trouble remembering his name?‖ Appellant’s counsel answered
―[n]o, your honor,‖ and appellant then stated ―I want to represent my church.‖ The
court then asked, ―Does he need to wear that for some reason?‖ Appellant’s
counsel answered in the negative. Then, there is a gap in the record which the
reporter’s record shows to have lasted for no longer than ten minutes. When the
record resumes, the trial judge starts by declaring that she ―just had to declare a
mistrial, because [appellant] continued to talk to the Court when I asked [him] not
to; and the jury heard that conversation.‖ The trial court then cautioned appellant
that his action was contemptuous, but that she would not hold him in contempt
because she did not think he was trying to be rude. The trial judge stated that she
would give appellant the benefit of the doubt that he ―jabber[s] when [he is]
nervous.‖ The trial court stated that the case would be set for a jury trial the
following day.

      On the following day, appellant entered a ―guilty‖ plea without an agreed
recommendation from the State. Before accepting the plea, the trial judge
questioned appellant’s trial counsel, asking whether he had an opportunity to talk
with appellant, whether appellant was competent to enter a plea, and whether trial

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counsel was waiving an insanity defense. Counsel responded affirmatively to all
questions.

      Appellant and the State both assert that, before accepting appellant’s plea on
July 10, 2012, the trial court conducted an informal inquiry under article
46B.004(c) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc.
Ann. art. 46B.004(c). We presume, without deciding, that the trial court conducted
such an informal inquiry.

      Appellant asserts that the trial court abused its discretion by failing to
determine that there was evidence to support a finding of incompetency, which
would have required a second competency examination. See Tex. Code Crim.
Proc. Ann. art. 46B.005(a). Appellant asserts that there was evidence to support a
finding of incompetency based upon (1) appellant’s bizarre behavior when he
appeared before the trial court on July 9, 2012; (2) appellant’s alleged trouble
understanding the proceedings based on his continuing to argue with the trial court
on that day regarding the terms of his probation. Appellant also argues that the
trial court’s failure to hold appellant in contempt for his behavior on July 9, 2012,
shows that the trial court suspected that appellant had a mental disorder. Appellant
asserts that the trial court’s questions about appellant’s competency on the
following day show that the trial court had doubts about appellant’s competency.

      Bizarre, obscene, or disruptive comments by a defendant during court
proceedings do not necessarily constitute evidence supporting a finding of
incompetency. See Moore v. State, 999 S.W.2d 385, 393–95 (Tex. Crim. App.
1999); Burks v. State, 792 S.W.2d 835, 840 (Tex. App.—Houston [1st Dist.] 1990,
pet. ref’d). Appellant’s inappropriate court behavior does not show that he could
not consult with his attorney with a reasonable degree of rational understanding or
that he lacked a rational and factual understanding of the proceedings against him.

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Any failure of appellant to understand how he would be making restitution
payments does not show a lack of rational and factual understanding of the
proceedings against appellant. It is not clear why the trial court asked whether
appellant had trouble remembering his name, but his counsel responded that he did
not. Likewise, the record does not reflect what appellant was wearing that caught
the trial court’s attention or why appellant said he wanted to represent his church.
In any event, as reflected in our record, these matters do not support a finding that
appellant was incompetent to stand trial.

      The trial court’s decision not to hold appellant in contempt for his behavior
on July 9, 2012, could have been based on a variety of considerations and does not
necessarily show that the trial court suspected appellant had a mental disorder. In
any event, this failure to hold appellant in contempt is not evidence supporting a
finding that appellant was incompetent. Likewise, the trial court’s questions about
appellant’s competency on July 10, 2012, are not evidence supporting a finding
that appellant was incompetent. And, the responses the trial court received to these
questions were not evidence of incompetency either.

      On this record, we conclude that the trial court did not abuse its discretion by
failing to determine that there was evidence to support a finding of incompetency.
See Lawrence v. State, 169 S.W.3d 319, 324–25 (Tex. App.—Fort Worth 2005,
pet. ref’d). Therefore, the trial court did not err in failing to order a second
competency examination on its own motion. See Tex. Code Crim. Proc. Ann. art.
46B.005(a). Accordingly, we overrule the appellant’s second issue.

                                  III. CONCLUSION

      By failing to object to the indictment before trial, appellant waived and
forfeited his right to raise the objection he asserts in his first issue. Therefore, the
trial court did not err in denying appellant’s Motion to Reconsider. The trial court
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did not abuse its discretion by failing to determine that there was evidence to
support a finding of incompetency or by failing to order a second competency
examination on its own motion. Finding no merit in appellant’s issues, we affirm
the trial court’s judgment.



                                     /s/       Kem Thompson Frost
                                               Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Donovan.
Publish — TEX. R. APP. P. 47.2(b).




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