Opinion filed February 21, 2019




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-17-00049-CR
                                      __________

                        TONY LEE JONES, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR24776


                     MEMORANDUM OPINION
      After a bench trial, the trial court convicted Tony Lee Jones of indecency with
a child by exposure. The trial court assessed his punishment at confinement in the
Institutional Division of the Texas Department of Criminal Justice for a term of
seven years. In two related issues, Appellant challenges the trial court’s rulings with
respect to his competency to stand trial. We affirm.
                                 Background Facts
      On June 9, 2016, K.B. and her sister, D.B., were in their grandmother’s house
listening to music. Around 6:20 p.m. that evening, they heard someone howling like
a wolf outside. When they went outside, they observed Appellant in his front yard
across the street. Appellant was on his hands and knees and was howling loudly.
Appellant then went back inside his house for a short time and reappeared
completely naked. According to K.B., Appellant then proceeded to stroke his erect
penis while staring in their direction. In doing so, Appellant also shouted at them
“[t]o come ride him” and yelled other “sexual things.”
      K.B. and D.B.’s mother, Tracy B., also witnessed Appellant’s behavior that
evening. According to Tracy, Appellant was “[h]igh and naked” and “apparently
messed up.” Tracy confirmed that Appellant made lewd comments to K.B. and D.B.
Specifically, Tracy testified that Appellant was “[s]troking himself and staring at
[her] kids.” When Tracy insisted that Appellant go back inside his house, Appellant
also told Tracy: “F--k you, b---h, come ride this d--k.” Eventually, Appellant did go
back inside his house. Tracy subsequently called the police to report what had
happened.
      Appellant testified on his own behalf at the guilt/innocence phase. He testified
that he had had two shots of Jose Cuervo that day. When the police arrived, one of
the responding officers also noticed silver paint around Appellant’s lips. At trial,
Appellant denied huffing paint and, instead, explained that the officer saw paint on
his face because he was painting his house earlier that day. During the police
investigation, Appellant also initially denied being naked outside but, eventually,
admitted that he had been outside before the police arrived. After the police took
statements from the witnesses, Appellant was arrested for the offense of indecency
with a child.


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      At no point in time did Appellant file a motion suggesting that he was
incompetent to stand trial. Although the trial court broached the topic of Appellant’s
legal competence at a pretrial hearing, both Appellant and Appellant’s trial counsel
conveyed to the trial court that Appellant was competent to stand trial. Specifically,
Appellant expressed that he understood the crime for which he was charged and the
nature of the proceedings against him. Appellant further expressed that he was
satisfied with the representation he received from his attorney. When the trial court
asked whether Appellant had ever had any mental problems, Appellant answered:
“No, sir.” Additionally, Appellant’s trial counsel expressed that Appellant was
“competent and sane.”
      At Appellant’s trial, K.B. and Tracy provided their eyewitness accounts of
what happened. After the State rested, both the trial court and Appellant’s trial
counsel admonished Appellant about his Fifth Amendment right against self-
incrimination and the consequences of his decision to testify, namely being cross-
examined by the State. Appellant stated that he understood his rights and the
consequences but that he still wanted to testify in his own defense.
      On the stand, Appellant refuted the allegations against him. He testified that
on June 9, 2016, he was not on all fours and howling outside and that he did not
expose himself or say anything sexual to the children or Tracy. He urged that both
K.B. and Tracy were not telling the truth. When Appellant’s trial counsel asked why
K.B. and Tracy would lie about what happened, Appellant responded: “They’re
controlled by little almighty souls and Dat magic.” He further clarified that “Dat
magic” referred to “God Almighty’s magic. . . . The Father, Son, and Holy Spirit.”
At this point, trial counsel asked Appellant a series of questions to show that
Appellant was presently competent to stand trial. Appellant testified that he was not
confused and understood the proceedings against him and that he had had plenty of
time to consult with his attorney.
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      On cross-examination, Appellant expounded upon the meaning of “Dat
magic” and how it controlled K.B. and Tracy. He testified that Dat magic was “the
Father, the Heavenly Father” and that “Dat is everything in the whole world.”
Appellant explained that K.B. and Tracy were “controlled by the little almighty souls
within their persons,” which in turn were controlled by “[t]he people that look behind
your eyes.” He stated that K.B. and Tracy were “contracted verbally to them.”
Appellant then explained that he was not completely nude when the police arrived.
He testified that he was wearing a “see-through” dress, without any “panties on or
shoes.” According to Appellant, the police arrested Appellant for indecency because
of his lack of clothing and because he had been arrested for a “public outburst”
offense two weeks before the incident.
      After the defense rested, the trial court sua sponte conducted an informal
inquiry into Appellant’s legal competence. The informal inquiry included the
following exchange between the trial court and Appellant:
      THE COURT: Mr. Jones, you have indicated this, but I want to confirm
      with you, you and [trial counsel], y’all have gone over the facts of this
      case; is that right?
      [APPELLANT]: Uh-huh.
      THE COURT: And, you understand what you are charged with?
      [APPELLANT]: Yes, sir.
      THE COURT: Okay. And so, you have a good, factual understanding
      of the -- what these proceedings are against you; is that correct?
      [APPELLANT]: Yes.
      THE COURT: All right. And, you have been able to work with [trial
      counsel] and talk to him and -- in preparing your defense; is that
      correct?
      [APPELLANT]: Not as much as I wanted to, but yes.
      THE COURT: Not as much as you want to?

                                          4
      [APPELLANT]: Not as much as I wanted to.
      THE COURT: But, you’ve -- you’ve definitely -- you had the ability,
      and I’ve given y’all even time this morning, to consult with him, and
      you understand everything he’s telling you?
      [APPELLANT]: Yes, I do understand everything he is telling me.
      THE COURT: All right. Thank you. You can step down.
      After questioning Appellant, the trial court also questioned his trial counsel
about Appellant’s competency to stand trial. First, the trial court asked trial counsel
whether Appellant had sufficient present ability to consult with him with a
reasonable degree of rational understanding. Trial counsel responded: “Yes, Judge,
we’ve had no problems.” The trial court then asked trial counsel whether he believed
that Appellant had a rational and factual understanding of the proceedings against
him, to which trial counsel answered: “He does.” After conducting this informal
inquiry into Appellant’s legal competence, the trial court found Appellant competent
to stand trial. At no point in the proceedings did Appellant request either a
psychiatric or psychological competency examination or a formal competency
hearing.
                                       Analysis
      In Appellant’s first issue, he contends that the trial court abused its discretion
because it “misapplied the law” when it conducted an informal inquiry into
Appellant’s competency. Specifically, Appellant asserts that the questions the trial
court asked Appellant and his trial counsel during the informal inquiry were “aimed
towards and support a finding of competency.” As a result, Appellant argues that
the trial court incorrectly considered “only evidence of competency, rather than only
evidence that supported incompetency.” Therefore, Appellant argues that the trial
court violated his rights under Article 46B of the Texas Code of Criminal Procedure
and his fundamental right to due process. We disagree.

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      “As a matter of constitutional due process, a criminal defendant who is
incompetent may not stand trial.” Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim.
App. 2018); Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013). The
legislature has codified this due-process requirement to ensure that legally
incompetent criminal defendants do not stand trial. See TEX. CODE CRIM. PROC.
ANN. arts. 46B.003–.005 (West 2018). A person is presumed to be competent, and
the burden is on a criminal defendant to prove incompetency by a preponderance of
the evidence. Id. art. 46B.003(b). Substantively, incompetency to stand trial is
shown if the defendant 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 as well as factual understanding of the proceedings against the person.” Id.
art. 46B.003(a). The Texas Court of Criminal Appeals has held that mental illness,
by itself, does not equate to incompetence to stand trial. Turner, 422 S.W.3d at 691.
As explained by the court, only “when a defendant’s mental illness operates in such
a way as to prevent him from rationally understanding the proceedings against him
or engaging rationally with counsel in the pursuit of his own best interests” does
such mental illness rise to the level of incompetence to stand trial. Id.
      Procedurally, a trial court employs two steps for making competency
determinations before it may conclude that a defendant is incompetent to stand trial.
The first step is an informal inquiry; the second step is a formal competency trial.
Id. arts. 46B.004–.005.     An informal inquiry is called for when there is a
“suggestion” from any credible source that the defendant may be incompetent. Id.
art. 46B.004(a), (c), (c-1). “Either party may suggest by motion, or the trial court
may suggest on its own motion, that the defendant may be incompetent to stand
trial.” Id. art. 46B.004(a). At the informal inquiry, there must be “some evidence
from any source that would support a finding that the defendant may be incompetent
to stand trial.” Id. art. 46B.004(c). If that requirement is met, then the trial court
                                           6
must order a competency examination, and except for certain exceptions, it must
hold a formal competency trial to determine whether the defendant is incompetent
to stand trial. Id. arts. 46B.005(a), (b), 46B.021(b). In this case, the trial court
conducted the first step in this process by conducting an informal inquiry into
Appellant’s competency. But the trial court did not pursue the second step in this
analysis because it determined that Appellant was competent to stand trial after its
informal inquiry.
      We review a trial court’s decision regarding an informal competency inquiry
for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App.
2009), superseded by statute on other grounds as stated in Turner, 422 S.W.3d at
692 & n.31; see also Luna v. State, 268 S.W.3d 594, 600 (Tex. Crim. App. 2008).
In determining whether the trial court abused its discretion, we do not substitute our
own judgment for that of the trial court; instead, we determine whether the trial
court’s decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426. A trial
court’s firsthand factual assessment of a defendant’s competency is entitled to great
deference on appeal. Ross v. State, 133 S.W.3d 618, 627 (Tex. Crim. App. 2004).
      With respect to the evidentiary standard that must be met at the informal
inquiry stage, a trial court must focus on three matters. First, the standard at the
informal inquiry stage is whether there is “some evidence” of incompetency to stand
trial. See CRIM. PROC. art. 46B.004(c). The statute reads: “On 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. The Texas Court of
Criminal Appeals has described the statutory “some evidence” standard as requiring
“more than none or a scintilla” of evidence that “rationally may lead to a conclusion
of incompetency.” Turner, 422 S.W.3d at 692 (quoting Ex parte LaHood, 401
S.W.3d 45, 52–53 (Tex. Crim. App. 2013)).
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      Second, a trial court must consider only evidence of incompetency, and it must
not weigh evidence of competency against the evidence of incompetency. Id. In
making this determination at the informal inquiry stage, “a trial court must consider
only that evidence tending to show incompetency” and “put[] aside all competing
indications of competency.” Id. (quoting LaHood, 401 S.W.3d at 52). At the
informal inquiry stage, “the standard for requiring a formal competency trial is not
a particularly onerous one—whether, putting aside the evidence of competency,
there is more than a scintilla of evidence that would support a rational finding of fact
that the accused is incompetent to stand trial.” Id. at 696.
      Third, some evidence must be presented at the informal inquiry stage to show
that a defendant’s mental illness is the source of his inability to participate in his
own defense. Id. at 691. There must be “some evidence from which it may rationally
be inferred not only 1) that the defendant suffers some degree of debilitating mental
illness, and that 2) he obstinately refuses to cooperate with counsel to his own
apparent detriment, but also that 3) his mental illness is what fuels his obstinacy.”
Id. at 696. Thus, it is not enough to present evidence of either a defendant’s mental
illness alone or his refusal to cooperate with counsel—rather, there must be some
evidence indicating that the defendant’s refusal to rationally engage with counsel is
caused by his mental illness. Id.
      We conclude that the trial court properly applied the law when it conducted
an informal inquiry into Appellant’s competence to stand trial. The record shows
that, during the informal inquiry, the trial court posed a series of short and simple
questions to both Appellant and his trial counsel to gauge Appellant’s understanding
of the proceedings and his ability to consult with his attorney. The responses of both
Appellant and his trial counsel showed that Appellant was competent to stand trial.
      Contrary to Appellant’s assertions, these questions were not “aimed towards”
eliciting a response in favor of competency. Rather, the trial court’s questions were
                                           8
open-ended and neutrally crafted to determine whether or not Appellant was
competent to stand trial. Indeed, each question could have elicited the opposite
response, which would have indicated that Appellant was legally incompetent. The
fact that the trial court’s questions established that Appellant was legally competent,
however, does not render the trial court’s inquiry invalid. See generally Stevenson v.
State, No. 05-12-01668-CR, 2014 WL 3555767, at *4 (Tex. App.—Dallas 2014, pet.
ref’d) (not designated for publication) (holding that trial court did not abuse its
discretion when it conducted an informal inquiry into the defendant’s competency
in a similar fashion). We overrule Appellant’s first issue.
      In Appellant’s second issue, he contends that the trial court abused its
discretion when it failed to hold a formal competency hearing. Specifically, he
asserts that a formal hearing was required because “the evidence was more than
sufficient” to support a finding that Appellant was incompetent to stand trial.
Appellant asserts that the evidence of incompetency included: (1) evidence of his
mental illness, which was supported by his lack of medication; (2) his bizarre
behavior during the offense itself; and (3) his decision to testify against the advice
of counsel, providing delusional testimony at trial. We disagree.
      As mentioned above, a person will only be found legally incompetent “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 as well
as factual understanding of the proceedings against the person.” CRIM. PROC.
art. 46B.003(a) (emphasis added). Consequently, Appellant’s behavior at the time
of the offense, his ultimate decision to testify after consulting with his attorney, and
his subsequent testimony have no bearing on the trial court’s competency
determination and, thus, do not constitute evidence of incompetency. See id.
      As noted above, to warrant a formal competency hearing, there must be some
evidence, at the informal inquiry stage, from which it may rationally be inferred that
                                           9
(1) “the defendant suffers some degree of debilitating mental illness,” (2) “he
obstinately refuses to cooperate with counsel to his own apparent detriment,” and
(3) “his mental illness is what fuels his obstinacy.” Turner, 422 S.W.3d at 696.
Based on the evidence presented at trial, a formal competency hearing was not
required because there was no showing of an inability to confer with trial counsel or
a lack of understanding of the proceedings against him. Furthermore, we note that,
after the informal inquiry, Appellant’s trial counsel did not request a formal
competency trial. See Turner, 422 S.W.3d at 693 (noting the absence of a request
by defendant’s trial counsel for a formal competency trial). Accordingly, we cannot
conclude that the trial court abused its discretion by not conducting a formal
competency hearing. We overrule Appellant’s second issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


February 21, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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