                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-267-CR


JAN MICHAEL CASAS                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Jan Michael Casas entered an open plea of guilty to the offense

of unlawful possession of a firearm, and the trial court sentenced him to nine

years’ confinement. In two issues, Appellant argues that the trial court erred




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          … See Tex. R. App. P. 47.4.
by failing to sua sponte conduct a competency hearing and that he did not

voluntarily and knowingly enter his plea of guilty. We will affirm.

                     II. P ROCEEDING B EFORE THE T RIAL C OURT

      At the beginning of the reporter’s record, the trial court indicated that

Appellant’s case was set for trial and that his counsel wanted to question him

to put a few matters on the record. Appellant agreed that he had denied the

State’s plea-bargain offer of eight years’ confinement, that he spoke with his

attorney in jail four days ago, and that his attorney had told him that the range

of punishment was enhanced up to twenty years. Appellant acknowledged that

he told his attorney that he was fired and that he did not want to talk about any

“witnesses that [he] had.” Appellant’s attorney asked whether Appellant had

told him for the first time this morning that he has “MHMR issues.” Appellant

said that he had told him about those issues “three times before that.”

Appellant then said he had no witness available to testify at punishment and

that he was trying to “get another lawyer.”

      The trial court then recommended that Appellant be arraigned and asked

Appellant if he understood what was occurring. Appellant replied, “No, sir.”

The trial court explained to Appellant that it had to arraign him both outside the

presence of the jury and in front of the jury. Appellant was then arraigned, and

he pleaded guilty instead of not guilty.     The trial court recommended that

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Appellant talk to his attorney because “then we come to just an issue of

punishment.” The record indicates that a break was then taken.

      After the break, the trial court stated that Appellant evidently had a

change of heart about his plea, that Appellant would not talk to his attorney

about the case, and that this was a “difficult lawsuit” because apparently there

was a video showing Appellant with a gun. The court admonished Appellant

that he could either plead not guilty or guilty. The State confirmed that the

offer of eight years had been rejected and that there was no offer “on the

table.”   To that, Appellant questioned, “Well, would the eight years be

aggravated, 3g offense.” After the State once again explained that there were

no outstanding plea offers, the trial court asked Appellant if he wanted to “talk

to [his] attorney a minute.”    Appellant nodded his head up and down, and

another break was taken.

      After the break, the trial court stated that Appellant had signed paperwork

indicating that he desired to enter a plea of guilty. The trial court confirmed

that, according to the paperwork, Appellant had no questions of the court nor

of his attorney and that he was entering his plea freely and voluntarily.

Appellant indicated that he was a United States citizen, that he was pleading

guilty, and that he understood that it was an open plea of guilty. The trial court

accepted Appellant’s plea and found him guilty.

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      The case proceeded to the punishment phase, and Appellant testified that

he is engaged, has one child, is from Puerto Rico, and was twelve years old

when his father died.       Appellant testified that he was on “cocaine,

methamphetamine, bombing fluid, marijuana and alcohol” when he was arrested

for possessing a weapon and that he has been addicted to methamphetamine

since 2001. Appellant agreed that he has a history of “mental and mental

retardation.” In response to the question of whether the mental retardation was

“Dallas or Tarrant County,” Appellant said, “It’s both.” Appellant testified that

he has had a history of “that” since his father died and that he hears two

voices:   his father’s voice and his uncle’s voice.   Appellant’s counsel then

asked, “Do you feel like you understand everything that’s going on in court?”

Appellant responded, “Yes, sir.” Appellant explained his understanding of an

open plea, and he confirmed his understanding that the range of punishment

was two to twenty years. When given an opportunity to address the trial court,

Appellant apologized for committing the crime and acknowledged that his

actions hurt others besides himself.

      On cross-examination, Appellant agreed that he has previously been

convicted of sexually assaulting a child, indecency with a child under age

seventeen, and assaulting an invalid. The trial court sentenced Appellant to

nine years’ confinement, and it asked him, “[Are] there any questions about

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what happened here today?” Appellant responded, “No, sir.” The trial court

then said the following to Appellant:

      When you get out, if you’ve got mental health problems - - first off,
      you’ve got a drug problem. You need to volunteer for every
      program they got down there to get yourself straight so when you
      get out, if you have mental health problems, then you can get on
      medication. They can probably start you some if you’re having
      mental health problems when you’re there. When you get out,
      then go to MHMR, get yourself on a mental health program where
      you’re not up in the criminal justice system. Otherwise, next time
      the minimum is going to be 25 years. It’s up to you.

                                III. INCOMPETENCY

      In his first issue, Appellant argues that the trial court erred by failing to

sua sponte conduct an informal inquiry into his competency.             Appellant

contends that the trial court should have ordered a competency exam because

he could not adequately consult with his court-appointed attorney, he has a

history of mental retardation and mental health issues, and he could not

understand the proceedings against him.

      A trial court cannot accept a plea of guilty “unless it appears that the

defendant is mentally competent and the plea is free and voluntary.” Tex. Code

Crim. Proc. Ann. art. 26.13(b) (Vernon 2009).         A defendant is presumed

competent to stand trial and shall be found competent to stand trial unless

proved incompetent by a preponderance of the evidence. Id. art. 46B.003(b)

(Vernon 2006). A defendant is incompetent to stand trial if he does not have

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“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. art. 46B.003(a). If evidence suggesting that 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). On the suggestion that the

defendant may be incompetent to stand trial, the trial 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).

      An informal inquiry is not required, however, unless the evidence is

sufficient to create a bona fide doubt in the mind of the trial court about the

defendant’s competency. McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim.

App. 2003); see Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 904 (2009). A bona fide doubt is a real doubt in the

judge’s mind as to the defendant’s competency. Fuller, 253 S.W.3d at 228.

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.   We review a trial court’s implied decision not to hold an

informal competency inquiry for an abuse of discretion. Moore v. State, 999

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S.W.2d 385, 393 (Tex. Crim. App. 1999); Gray v. State, 257 S.W.3d 825,

827 (Tex. App.—Texarkana 2008, pet. ref’d).

      Here, Appellant testified that he attempted to fire his attorney and that

he did not want to talk to his attorney about any “witnesses that [he] had.”

Appellant also refused to communicate with his attorney during the first break

taken in the proceeding. After the first break, however, the trial court informed

Appellant of his choices and asked him if he wanted to talk to his attorney.

Appellant nodded his head up and down. When the break concluded, the trial

court indicated that Appellant had signed papers demonstrating that he desired

to plead guilty. Appellant confirmed that he did not have any questions for the

trial court or for his attorney and that he understood that he was entering an

open plea.    In light of the record, the trial court could have reasonably

concluded that before Appellant entered the open plea, he merely chose not to

communicate with his attorney, not that he did not have the ability to consult

with his attorney with a reasonable degree of rational understanding.

      As for Appellant’s understanding of the proceedings, the only portion of

the record showing that Appellant did not understand the proceedings was

when the trial court recommended that Appellant be arraigned.              After

Appellant’s proclamation, the trial court explained that Appellant had to be

arraigned both outside and in front of the jury. Appellant was then arraigned,

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and there is nothing further in the record demonstrating that Appellant did not

understand the arraignment process or any other part of the proceeding.

Indeed, Appellant indicated that he understood he was entering an open plea

of guilty, confirmed that he understood “everything that’s going on in court,”

explained his understanding of an open plea, confirmed his understanding that

the range of punishment was two to twenty years, and affirmed for the trial

court that he did not have any questions “about what happened here today.” 2

Thus, the trial court could have reasonably concluded that Appellant had a

rational and factual understanding of the proceedings.

      Although Appellant testified that he told his attorney about “MHMR

issues,” that he has a history of “mental and mental retardation,” and that he

hears his father’s and uncle’s voices, this scant testimony does not

demonstrate that Appellant suffers or has suffered from recent severe mental

illness, that Appellant is at least moderately retarded, or that Appellant has

engaged in any truly bizarre acts. See Fuller, 253 S.W.3d at 228. Nor does

the evidence demonstrate that Appellant had previously been adjudicated

incompetent to stand trial.   See Bradford v. State, 172 S.W.3d 1, 4 (Tex.



      2
        … Appellant even questioned whether the offense was a “3g offense,”
likely referencing a particular provision of the code of criminal procedure. See
Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (Vernon Supp. 2008) (enumerating
offenses for which trial judge cannot grant community supervision).

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App.—Fort Worth 2005, no pet.) (stating the law requires that after a

defendant has been adjudicated incompetent to stand trial and has been

criminally committed to a mental hospital, the trial court must make a judicial

determination that the defendant has regained competency before the criminal

proceedings against him may be resumed).

      Having considered the entire record, we cannot conclude that the

evidence raised a bona fide doubt as to whether Appellant had (1) a sufficient

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

understanding or (2) a rational as well as factual understanding of the

proceedings against him. See McDaniel, 98 S.W.3d at 710. Accordingly, we

hold that the trial court did not abuse its discretion by failing to sua sponte

conduct an informal inquiry into Appellant’s competency. See Tex. Code Crim.

Proc. Ann. art. 46B.004(c), (d). We overrule Appellant’s first issue.

                          IV. V OLUNTARINESS OF P LEA

      In his second issue, Appellant argues that his plea was not voluntarily and

knowingly entered because he “was suffering from mental health issues and

refused to discuss his case with his attorney,” he “was not aware of the

ramifications of his actions,” he did not “understand the gravity of his decision

to enter a plea of guilty,” and he “was not able to comprehend the gravity of

his actions.” Appellant’s argument—which contains no record references—is

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centered entirely on his first issue, which we have already overruled. Moreover,

Appellant confirmed both before the trial court and in the written plea

admonishments that he was entering his plea freely and voluntarily.

Accordingly, we overrule Appellant’s second issue.

                                V. C ONCLUSION

      Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.

                                           PER CURIAM

PANEL: MEIER, J.; CAYCE, C.J.; and DAUPHINOT, J.

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

DELIVERED: June 25, 2009




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