                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-285-CR


HENRY SPARKS                                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                              STATE

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            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      Appellant Henry      Sparks   appeals        the   revocation   of his   deferred

adjudication community supervision. In three points, he complains that the trial

court lacked jurisdiction to revoke his community supervision, that the trial

court erred by adjudicating his guilt and revoking his community supervision on



      1
          … See Tex. R. App. P. 47.4.
the basis that he failed to pay various fines and restitution payments, and that

the trial court should have sua sponte reviewed his mental condition and

determined whether he was competent at the time of the adjudication hearing.

We will affirm.

                                 II. B ACKGROUND

      Sparks entered into a negotiated plea agreement with the State on a

charge of robbery, and on October 20, 2006, the 367th District Court of

Denton County, with the Honorable Lee Gabriel presiding, sentenced Sparks to

eight years’ deferred adjudication community supervision and fined Sparks

$1,000. On November 16, 2006, the State filed its first motion to proceed

with an adjudication of guilt in the 367th District Court.        The State later

withdrew this motion.

      On April 5, 2007, following an incident in which Sparks punched a hole

in the wall at the courthouse during his brother’s trial—also in the 367th District

Court—the State filed another motion to proceed with adjudication. The State

amended the motion later that same day alleging that Sparks had violated eight

terms and conditions of the community supervision, including committing the

offense of criminal mischief and failing to pay the $1,000 fine and other costs

to the court.




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      Additionally, on April 5, 2007, the Honorable Bruce McFarling, an

administrative judge, signed an order transferring the suit from the 367th

District Court of Denton County to the 16th District Court of Denton County.

On July 19 and 20, 2007, the Honorable Carmen Rivera-Worley of the 16th

District Court heard the motion to adjudicate, found the allegations to be true,

adjudicated Sparks’s guilt, and sentenced Sparks to five years’ confinement.

This appeal followed.

                  III. R EVOCATION OF C OMMUNITY S UPERVISION

      A.    Transfer Order

      In his first point, Sparks argues that the 16th District Court lacked

jurisdiction to revoke his community supervision because the 367th District

Court initially sentenced him after he pleaded guilty to the robbery offense.

Sparks bases his argument on section 10(a) of the Texas Code of Criminal

Procedure, which states that only the court in which the defendant was tried

may grant community supervision, impose conditions, revoke the community

supervision, or discharge the defendant, unless the judge has transferred

jurisdiction of the case to another court with the latter’s consent. See Tex

Code Crim. Proc. Ann. art. 42.12, § 10(a) (Vernon Supp. 2008).

      The record shows that Judge McFarling signed an order transferring the

case to the 16th District Court, but nothing in the record shows that Judge

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Rivera-Worley signed or expressly consented to the transfer. Sparks argues

that the administrative judge did not have the authority to transfer the case and

that only Judge Gabriel of the 367th District Court could have transferred the

case to the 16th District Court with Judge Rivera-Worley’s consent.

      We note that regardless of the propriety of the transfer order, Sparks at

no time objected to or raised any question about the transfer order at the

adjudication hearing. Accordingly, we hold that Sparks failed to preserve his

complaint that the order did not transfer jurisdiction to the 16th District Court.

See Stephenson v. State, 500 S.W.2d 855, 857 (Tex. Crim. App. 1973)

(holding that the appellant failed to preserve error regarding the jurisdiction of

the trial court to revoke his probation when he raised the issue of the propriety

of the transfer order, which contained a clerical error, for the first time on

appeal); Madrid v. State, 751 S.W.2d 225, 225 (Tex. App.—El Paso 1988, writ

ref’d) (citing Stephenson and holding that the appellant failed to preserve error

regarding his complaint that the El Paso Criminal Law Magistrate revoked his

community supervision when the 120th District Court originally placed him on

community supervision); see also Lemasurier v. State, 91 S.W.3d 897, 899–90

(Tex. App.—Fort Worth 2002, pet. ref’d) (holding that in a case in which the

indictment was returned in a court different from the one in which the trial was

conducted, the fact that no transfer order was in the record was a procedural

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matter, not jurisdictional, and was therefore subject to preservation of error

requirements). We overrule Sparks’s first point.

      B.    Competency

      In his third point, Sparks argues in part that the trial court should have

sua sponte reviewed his mental condition and determined whether he was

competent at the time of the adjudication hearing.

      W here the evidence raises a bona fide doubt as to a defendant’s

competence to stand trial, the court is required on its own motion to conduct

a sanity hearing. Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008)

(citing Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 842 (1966). A

defendant is incompetent to stand trial if he does not have sufficient present

ability to consult with his lawyer with a reasonable degree of rational

understanding or a rational as well as factual understanding of the proceedings

against him. Id. A bona fide doubt is a real doubt in the judge’s mind as to the

defendant’s competency. Id. Evidence raising a bona fide doubt need not be

sufficient to support a finding of incompetence and is qualitatively different

from such evidence. Id. Evidence is 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. Id.




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      Here, Sparks did not present evidence to the trial court that raised a bona

fide doubt that Sparks was incompetent to stand trial. In fact, the evidence in

the Clerk’s Record, available to the trial court at the time of the adjudication

hearing, supports the opposite conclusion. Before Sparks pleaded guilty, Judge

Gabriel appointed James G. Shupe, M.D., to evaluate Sparks and determine if

he was competent to stand trial. Dr. Shupe concluded that even though Sparks

suffers from various mental disabilities, including psychotic disorder and severe

social stressors, in his medical opinion, Sparks was competent to stand trial.

In his response to the State’s motion to adjudicate, Sparks attached a letter

from Robert Williamson, M.D., stating that Sparks suffers from depression

“NOS” and paranoid personality.     Dr. Williamson did not, however, make a

determination regarding Sparks’s competency. Sparks’s mother also testified

that Sparks suffers from paranoia and that he has had these issues since he

was fourteen years old. There was no additional evidence presented to the trial

court regarding Sparks’s competency.

      In review of the record, we cannot say that there was evidence presented

to the trial court that created a bona fide doubt that Sparks did not have a

sufficient ability at the revocation hearing to consult with his lawyer with a

reasonable degree of rational understanding or a rational as well as factual

understanding of the proceedings against him. Most importantly, Dr. Shupe

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opined that Sparks was competent, and the only event that might be viewed

as raising a bona fide doubt and that occurred after Dr. Shupe declared Sparks

competent to stand trial was the incident in which Sparks punched a hole in the

wall at the courthouse. This behavior, while unusual, is insufficient to raise a

doubt as to whether he was incompetent. See Durgan v. State, 09-04-00501-

CR, 2008 WL 2522241, at *5 (Tex. App.—Beaumont June 25, 2008 no pet.).

Accordingly, we hold that the trial court was not required to evaluate Sparks’s

mental competency before the adjudication hearing.2

      C.    Adjudication of Guilt and Revocation of Community Supervision

      In his second and third points, Sparks argues that because he was

indigent and could not find proper employment, the trial court erred by

adjudicating his guilt and revoking his community supervision on the basis that

he failed to pay various fines and restitution payments. Additionally, Sparks

argues that he did not knowingly agree to be bound by financial obligations as

a part of his community supervision. However, because we conclude that the

trial court did not err by finding that Sparks committed the offense of criminal

mischief in violation of his community supervision, we need not determine


      2
       … Sparks also argues in his third point that because of his mental
condition, the trial court should have placed him on the mental health caseload.
We will not address this claim as Sparks failed to adequately brief the issue.
See Tex. R. App. P. 38.1(h).

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whether the trial court erred by finding that Sparks failed to pay the fines in

light of his alleged indigence or whether he knowingly entered into an

agreement to pay various financial obligations.

      The first condition of Sparks’s community supervision required Sparks to

commit no offense against the laws of this State or any other state or of the

United States. On April 5, 2007, Sparks attended his brother’s trial for robbery

in the 367th District Court. Angered by the prosecutor’s argument during the

trial, Sparks disrupted the court by yelling that his brother had not used a gun

during the alleged robbery. Judge Gabriel asked that Sparks leave the court

room, and Sparks loudly exited the court room and struck the wall outside the

courtroom damaging the sheet rock. The facilities director for the courthouse

testified at the hearing that the hole in the wall cost $280.75 to repair.

      The State need only prove by a preponderance of the evidence that

Sparks committed an offense in violation of the terms of his community

supervision. See Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App.1993).

The offense of criminal mischief requires proof that the person, without the

effective consent of the owner, intentionally or knowingly damages or destroys

the tangible property of the owner.     Tex. Penal Code Ann. § 28.03(a)(1)

(Vernon Supp. 2008).       Additionally, the offense is raised to a Class B




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misdemeanor if the amount of pecuniary loss is $50 or more but less than

$500. Id. § 28.03(b)(2).

        The State presented testimony of the facilities director at the courthouse

and of another individual, both of whom witnessed Sparks punch a hole in the

wall.     Together, this testimony sufficiently demonstrated that Sparks

intentionally or knowingly damaged a wall in the courthouse without the

consent of the owner, resulting in damages in the range of a Class B

misdemeanor. Despite evidence in favor of a finding that he committed the

offense of criminal mischief, Sparks vaguely argues that because of his mental

conditions he did not have the necessary mens rea to commit the offense.

        Sparks cites Jackson v. State to support his argument that his paranoia

and other mental conditions dealing with his inability to handle life “stressors”

negated mens rea. 160 S.W.3d 568, 572 (Tex. Crim. App. 2005). Jackson,

however, does not support the argument that paranoia negates mens rea;

rather, it states that such mental conditions present evidence of an excuse for

a criminal offense. Id. (stating that the appellant’s paranoia not only explained

why he killed his brother but also made it more apparent that he intended to

cause serious bodily injury or death to his brother).        We agree with the

reasoning in Jackson and hold that Sparks’s mental conditions did not negate

mens rea and, at a minimum, provided only an excuse for such aggressive

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behavior. See id. Thus, because the State proved by a preponderance of the

evidence that Sparks committed the offense of criminal mischief, the trial court

did not err by adjudicating Sparks’s guilt and revoking his community

supervision. We overrule Sparks’s second and third points.

                                IV. C ONCLUSION

      Having overruled all of Sparks’s points, we affirm the trial court’s

judgment.




                                           PER CURIAM

PANEL: HOLMAN, J.; CAYCE, C.J.; and MCCOY, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 11, 2008




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