                                         NUMBER 13-06-205-CR

                                       COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


BRUCE WAYNE GERARD,                                                                                   Appellant,

                                                          v.

THE STATE OF TEXAS,                                                                                   Appellee.


   On appeal from the 214th District Court of Nueces County, Texas.


                                   MEMORANDUM OPINION

                       Before Justices Yañez, Rodriguez, and Garza
                         Memorandum Opinion by Justice Yañez

       A jury found appellant, Bruce Wayne Gerard, guilty of aggravated assault1 and

assessed punishment at twenty years’ imprisonment and a $10,000 fine. In his sole issue

on appeal, appellant argues that the trial court, after engaging in an informal inquiry into

appellant’s competency, erred by not staying all proceedings and ordering an examination.2

       1
       T    EX .   P EN AL C OD E A N N . § 22.02 (Vernon Supp. 2008).

       2
           See T EX . C OD E C R IM . P R O C . A N N . arts. 46B.004(d), 46B.005(a) (Vernon 2006).
We affirm.

                                                      Applicable Law

       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 as well as factual understanding of the proceedings against

the person.3 The trial court or either party may suggest that “the defendant may be

incompetent to stand trial.”4 “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.”5 An informal inquiry “is required only if the evidence brought to the judge’s

attention raises a bona fide doubt in the judge’s mind about the defendant’s competency

to stand trial.”6 The court of criminal appeals has stated that “[e]vidence is usually

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.”7 If after an informal inquiry,

the trial court determines there is evidence to support a finding of incompetency, the trial

court shall “stay all other proceedings in the case”8 and “order an examination to determine




       3
           Id. art. 46B.003(a) (Vernon 2006).

       4
           Id. art. 46B.004(a).

       5
           Id. art. 46B.004(c).

       6
           McDaniel v. State, 98 S.W .3d 704, 710 (Tex. Crim . App. 2003).

       7
           Id. (internal quotations om itted).

       8
           T EX . C OD E C R IM . P R O C . A N N . art. 46B.004(d).

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whether the defendant is incompetent to stand trial in a criminal case.”9

                                        Discussion

       Dr. Jose Pagan, a psychiatrist, testified that he had recently interviewed appellant

on two occasions. Dr. Pagan stated that these interviews led him to formulate opinions

about appellant’s mental health; but in order to make a comprehensive evaluation of his

health, he needed appellant to take tests that would evaluate his intelligence level. Dr.

Pagan was concerned that appellant was not competent to stand trial because he exhibited

a low intelligence level. According to Dr. Pagan, appellant was “somewhat anxious,

nervous,” and “guarded” during their first meeting because he feared that Dr. Pagan was

there to send him to a psychiatric hospital for treatment. Dr. Pagan further testified that

appellant was not taking his medication for depression; as a result, appellant was “clinically

depressed, and his depression [was] complicated by a psychotic component, hallucinatios

[sic] and delusional thoughts, paranoia.” In response to Dr. Pagan’s testimony, the trial

court had appellant evaluated by Dr. Troy Martinez, a forensic psychologist. Dr. Martinez

concluded that appellant’s intelligence level was low, but he was not mentally retarded.

Appellant’s counsel also made remarks about appellant’s intelligence. Counsel stated he

was concerned that appellant had been unable to make an intelligent decision when he

rejected a plea bargain from the State.

       This Court is not being asked to assess whether there should have been a bona fide

doubt in the trial judge’s mind about the defendant’s competency to stand trial, which is the

evidentiary requirement that must be satisfied to compel an informal inquiry. Rather, the

Court is being asked to assess whether the trial court had some evidence to support a

       9
           Id. at 46B.005(a).

                                              3
finding of incompetency, thus compelling the trial court to hold an evidentiary hearing.10

The above stated facts do not demonstrate that appellant lacked the ability to consult with

his counsel with a reasonable degree of rational understanding, nor do they demonstrate

that appellant lacked a factual understanding of the proceedings against him.11 Dr.

Martinez did not specifically address these matters. As for Dr. Pagan, he stated that

appellant appeared to understand “the judicial process, that lawyers represent him, that

there’s a state lawyer that prosecutes him, that the judge is the one that mediates over the

case.” He also stated that appellant knew the consequences of being found guilty. At the

conclusion of Dr. Pagan’s testimony, the following exchange occurred between him and

the trial court:

       THE COURT:                    Doctor, you say you think that it would be very helpful
                                     [to commit appellant for thirty days for additional
                                     evaluation], but you’re not sure that it’s gonna make any
                                     difference one way or the other. You’ve already told us
                                     he’s competent to stand trial. You told us that he
                                     understands right from wrong. He understands the
                                     actions that he committed were wrong. Am I correct?

       [DR. PAGAN]:                  Based on my evaluation, yes.

                  ....

       [DR. PAGAN]:                  . . . I’ll say I’m not 100 percent sure whether or not
                                     [appellant] is fully competent. Okay? I have serious
                                     concern—question about his intelligence level.

       THE COURT:                    Well, intelligence level and competence and knowing
                                     right from wrong are two different things.

       [DR. PAGAN]:                  Yes.



       10
            See id. at 46B.005(b), (c).

       11
            See id. at 46B.003(a).

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        Dr. Pagan’s concerns about appellant’s intelligence were addressed by Dr.

Martinez’s conclusion that appellant was not mentally retarded.12 Moreover, Dr. Pagan’s

concerns did not constitute evidence supporting a finding of incompetency; the relevance

of his concerns was negated by his own testimony that appellant understood the judicial

process and appreciated the consequences that came with conviction. Finally, appellant’s

refusal to accept the State’s plea bargain, by itself, does not constitute evidence supporting

a finding of incompetency. It is conceivable that appellant rejected the plea bargain

because he believed in the strength of his case, and/or because he appreciated and

wished to avoid the consequences that came with accepting the bargain, which would have

required appellant to plead guilty in exchange for the State recommending a 45-year

sentence.13 Accordingly, there was no evidence supporting a finding of incompetency.

                                               Conclusion

        The trial court’s judgment is affirmed.




                                                           LINDA REYNA YAÑEZ,
                                                           Justice



Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed
this the 23rd day of October, 2008.

        12
           Dr. Martinez’s written evaluation of appellant lends support to a finding of com petency. The report
states the following: “[Gerard] had no significant problem s understanding instructions or questions. . . .
General quality of thinking was slow and dull but thought processes were logical, coherent, relevant and goal-
directed.”

        13
         W e note that appellant was better off having rejected the State’s recom m ended 45-year sentence,
because the jury ultim ately gave appellant a 20-year sentence.

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