Opinion filed October 13, 2016




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-15-00179-CR
                                     __________

                    JOHN ROBERT QUICK, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR23085

                      MEMORANDUM OPINION
      John Robert Quick pleaded guilty to the delivery of a controlled substance in
a drug-free zone, a third-degree felony offense, as part of a plea agreement. In
accordance with the plea agreement, the trial court adjudicated Appellant guilty of
the offense, assessed his punishment at confinement for ten years, but suspended the
imposition of the sentence and placed Appellant on community supervision for ten
years. Subsequently, the State moved to revoke Appellant’s community supervision;
Appellant pleaded “not true” to the fifteen allegations contained in the motion.1
After a hearing, the trial court found nine of the State’s allegations to be “true.” The
trial court then revoked Appellant’s community supervision and imposed a sentence
of four years.
        In a single issue, Appellant claims that the trial court abused its discretion
when it failed to sua sponte conduct an informal inquiry into his legal competence,
as required by Article 46B.004 of the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. ANN. art. 46B.004 (West Supp. 2016). We affirm.
                                       I. Standard of Review
        A trial court’s decision not to conduct a competency inquiry is reviewed under
an abuse of discretion standard. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim.
App. 2009). A trial court is required to conduct a competency inquiry if a question
as to the defendant’s competency comes to the trial court’s attention. CRIM. PROC.
art. 46B.004(c-1). Because the trial court has the ability to observe the defendant’s
mannerisms and behavior in person, it is in a “better position to determine whether
[the defendant] was presently competent.” Montoya, 291 S.W.3d at 426. Therefore,
the trial court abuses its discretion when it decides not to conduct an informal or
formal inquiry if that decision is arbitrary. White v. State, No. 11-13-00094-CR,
2015 WL 1470162, at *4 (Tex. App.—Eastland Mar. 26, 2015, pet. ref’d) (mem.
op., not designated for publication). We do not substitute our judgment for that of
the trial court; instead, we determine whether the trial court’s decision was
unreasonable. Id.




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          The State presented evidence at the revocation hearing that Appellant possessed and used a
controlled substance, which violated the terms of his community supervision. The State also offered
evidence that Appellant associated with a felon, failed to report to the community supervision and
corrections department, failed to pay court costs and victim fees, and failed to complete his court-ordered
restitution.

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                                     II. Analysis
      A defendant is presumed to be competent to stand trial.           CRIM. PROC.
art. 46B.003(b). A defendant is incompetent if he does not have (1) 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. Id.
art. 46B.003(a). A trial court must conduct a competency inquiry when there is any
suggestion that the defendant is incompetent. CRIM. PROC. art. 46B.004(c-1). If,
after an informal inquiry, the trial court determines that the defendant may be
incompetent, the trial court proceeds to the second step and orders that an expert
examine the defendant’s competency. See id. art. 46B.005(a).
      Appellant contends that the trial court abused its discretion when it did not
conduct an informal inquiry into Appellant’s competency. Appellant claims that his
diagnosed schizophrenia, his incarceration for approximately a year without mental
health services, his admission to using illegal substances, and his receipt of social
security disability income was evidence that raised the issue of his competency.
Based on this evidence, Appellant argues that the trial court was aware of his
schizophrenia and should have inquired into his competency at the revocation
hearing. As we explain below, we disagree with Appellant that the trial court abused
its discretion when it did not conduct an informal inquiry into Appellant’s
competency.
      Although a defendant’s temporary mental illness may serve as the basis for
the trial court’s informal inquiry, it does not require such an inquiry. McKenzie v.
State, No. 14-15-00723-CR, 2016 WL 5112198, at *3 (Tex. App.—Houston [14th
Dist.] Sept. 20, 2016, no pet. h.) (citing Turner v. State, 422 S.W.3d 676, 691 (Tex.
Crim. App. 2013)).      The decision to informally inquire into a defendant’s
competency turns on whether the defendant has the capacity to consult with his
attorney with a reasonable degree of understanding and whether the defendant has a
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rational, factual understanding of the proceedings.      Id.; see also CRIM. PROC.
art. 46B.003. Some defendants, despite their mental illnesses, can consult rationally
with their attorney as well as understand the judicial proceedings against them. See
Turner, 422 S.W.3d at 691.
      The trial court did not abuse its discretion when it failed to conduct an
informal inquiry into Appellant’s competency because the evidence did not raise a
suggestion that Appellant was legally incompetent. At the outset of Appellant’s
revocation hearing, the trial court directly asked Appellant if he understood the
charges against him, to which Appellant replied, “Yes, sir.”         As the hearing
proceeded, Appellant, with counsel from his attorney, on two occasions waived his
confidentiality rights so that witnesses could testify as to Appellant’s medical
condition.
      First, Appellant waived his confidentiality rights and permitted Angela Hicks,
Appellant’s caseworker at the Mental Health and Mental Retardation (MHMR)
facility to testify as to his medical condition. Subsequently, Appellant waived his
confidentiality rights a second time and permitted Kate Black, an employee of
MHMR, to testify as to Appellant’s medical history. Appellant’s attorney asked that
the witnesses be “free and open about testifying [as to Appellant’s medical history].”
Appellant conferred with his attorney prior to the hearing, and Appellant knowingly
and willingly waived his rights at the hearing as a part of that strategy. After the
trial court confirmed with Appellant that he wanted to waive his confidentiality
rights, it ordered the witnesses to testify. Appellant’s strategic decision-making
process demonstrated his understanding of the judicial proceedings.
      Additionally, throughout the hearing, Appellant’s responses to the trial court’s
questions were appropriate, responsive, and logical. In one instance, the trial court
reminded Appellant of the importance of complying with MHMR directions because
of his mental illness, to which Appellant replied: “But I did. I didn’t miss any of my
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appointments.    Even though I was hard to find sometimes, I still made that
appointment every time . . . . But I agree, I admitted to the drug use because I needed
help. I was asking for help.” Appellant’s response indicated that he understood the
gravity of the proceedings before him. His response was an attempt to rationalize to
the court the reason for his missed appointments with MHMR. Based on these
responses and the lack of any evidence or conduct on the part of Appellant to indicate
that he was legally incompetent, we hold that the trial court did not abuse its
discretion when it failed to question whether Appellant had the capacity to consult
with his attorney with a reasonable degree of understanding and had a rational,
factual understanding of the proceedings. See Lindsey v. State, 310 S.W.3d 186, 189
(Tex. App.—Amarillo 2010, no pet.) (holding that the trial court did not err by not
conducting a sua sponte informal inquiry into a defendant’s competency when the
defendant’s few responses indicated his understanding of the proceedings).
      Finally, even though the trial court did not directly ask Appellant whether he
was competent, the trial court was aware of Appellant’s illness and of his history.
During Appellant’s plea hearing in 2014, the trial court had thoroughly inquired into
Appellant’s mental illness when it asked about his medications, medical treatments,
and appointments, all in an effort to ensure that Appellant was competent. At this
same plea hearing, the trial court asked Appellant if he was “claiming to be
incompetent or insane,” to which Appellant answered, “No, sir.” The trial court
demonstrated its continued awareness of Appellant’s mental illness when the trial
court remarked at the revocation hearing:
            And I recall when you came before me and the issue of some of
      your mental problems was discussed, as I recall it was the subject of the
      Court’s inquiry. And that is the very reason, because of your
      schizophrenia, I specifically ordered that you must comply with
      MHMR directions. And it was to make sure that you got the help you
      needed and to not go down this path where you’re now at.


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The trial court was well within its discretion in determining that Appellant was
competent because Appellant indicated that he understood the charges against him;
made strategic, rational choices in his case; and communicated well with the trial
court throughout his revocation hearing. The trial court was aware of Appellant’s
mental illness; however, the trial court’s knowledge of Appellant’s mental illness
did not necessitate an informal inquiry into Appellant’s competency under the
circumstances in this case. We overrule Appellant’s single issue on appeal.
                              III. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


October 13, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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