AFFIRM; and Opinion Filed October 5, 2016.




                                           Court of Appeals
                                                            S     In The


                                    Fifth District of Texas at Dallas
                                                       No. 05-15-01139-CR

                                OLATUNDE ANTONIO ADEPEGBA, Appellant
                                                V.
                                    THE STATE OF TEXAS, Appellee

                                On Appeal from the 416th Judicial District Court
                                             Collin County, Texas
                                    Trial Court Cause No. 416-80446-2015

                                          MEMORANDUM OPINION
                       Before Chief Justice Wright, Justice Fillmore, and Justice Brown
                                         Opinion by Justice Fillmore
           A jury convicted Olatunde Antonio Adepegba of aggravated assault with a deadly

weapon and assessed punishment of five years’ imprisonment.                                             In two issues, Adepegba

contends the punishment violates the objectives of the penal code, and the trial court erred by

commencing trial without following the procedures for determining he had regained competency

to stand trial set out in article 46B.084 of the code of criminal procedure. We affirm the trial

court’s judgment.

                                                             Background 1

           On January 25, 2015, Adepegba was involved in an altercation with Jeffrey Davidson in a

restaurant, and was subsequently indicted for aggravated assault with a deadly weapon.


     1
       Adepegba has not challenged the sufficiency of the evidence to support the conviction. Therefore, we recite only those facts necessary to
address his complaints on appeal.
Although there are no orders in the clerk’s record regarding the proceedings relating to

Adepegba’s competency to stand trial, the trial court’s docket sheet indicates it signed a “Mental

Competency Order” on March 16, 2015. The trial court’s docket sheet also contains a “General

Docket Entry” on April 15, 2015, that states, “Competency motion and order of incompetency

filed in 416-00379-2015.” In another “General Docket Entry” on June 24, 2015, the trial court

noted it had:

          [R]eceived oral report that defendant has been found competent by Dr. Compton,
          with written report to follow. After consultation with the State and defense
          counsel, the Order of commitment previously signed after a finding of
          incompetency is hereby RESCINDED, and the cause is set for JT July 7, 2015.

          The case was ultimately called to trial on August 10, 2015. Prior to voir dire, both the

State and Adepegba waived the right to a jury finding on whether Adepegba was competent to

stand trial, and the trial court held a hearing on the issue. The trial court inquired of “Ms.

Ferguson” as to why there were no “CMEs” in the file. 2 Ms. Ferguson stated:

          Judge, he didn’t have a CME because he was ordered by the Court to be
          rehospitalized, and he was waiting hospitalization when it was determined that he
          might have regained competency. So Dr. Compton saw him to see if he had
          regained competency prior to transfer, and found that he had, so it would just be
          Dr. Compton’s report.

The trial court admitted Dr. Kristi Compton’s report into evidence.

          In her report, Dr. Compton stated that, pursuant to an order from the trial court, she

evaluated Adepegba on June 24, 2015, to determine whether he was competent to stand trial. Dr.

Compton noted she had previously examined Adepegba on August 14, 2013, and opined he was

competent to stand trial; Dr. Michael Pittman examined Adepegba in Dallas County on April 2,

2014, and determined he was not competent to stand trial; and on February 15, 2015, she


     2
       “Ms. Ferguson” is not identified. However, during the punishment phase of the trial, Alyse Ferguson, a private attorney who contracted
with Collin County to be the managing attorney for the mental health managed case load, testified for the defense about Adepegba receiving
psychotropic medications while in jail that had stabilized his behavior and the services available to him if he was placed on community
supervision.



                                                                   –2–
examined Adepegba and opined he was not competent to stand trial. 3 Dr. Compton stated

Adepegba had been diagnosed with Psychotic Disorder, NOS; Schizoaffective Disorder; Bipolar

Disorder with Psychotic Features; and substance abuse. She also set out a history of Adepegba’s

hospitalizations for mental health issues beginning in December of 2007, and noted he had last

been hospitalized from March to April of 2014.

          Dr. Compton observed that, during the June 24, 2015 evaluation, Adepegba was “not

exhibiting overt signs of psychosis or mood instability, most likely as a result of taking

psychotropic medication.”                 Her diagnostic impressions were that Adepegba suffered from

Schizoaffective Disorder, which was in remission, Conduct Disorder, and Cannabis Use

Disorder. In Dr. Compton’s opinion, Adepegba had a “factual and rational understanding of the

parties and proceedings and appear[ed] capable of communicating with his attorney and assisting

in his defense.” Dr. Compton also believed Adepegba understood the charge against him and

had the ability to testify. In Dr. Compton’s opinion, Adepegba was competent to stand trial, but

psychotropic medication was necessary for him to sustain a competent state.

          Adepegba’s attorney represented to the trial court that he had been able to effectively

communicate with Adepegba, and Adepegba had been able to assist counsel in his defense.

Defense counsel also believed Adepegba understood the nature of the proceedings and the

charge against him. Based on Dr. Compton’s report and the representations of defense counsel,

the trial court found Adepegba was competent to stand trial.

          After hearing evidence about the altercation at the restaurant during which Adepegba

pinned Davidson to the wall and threatened him with a pair of scissors, the jury found Adepegba

guilty of aggravated assault with a deadly weapon. The jury heard additional evidence during

     3
      Based on the dates of the examinations, the first two competency evaluations were not performed in connection with this case. Because
Adepegba was arrested on this offense on January 25, 2015, and held in jail following his arrest, the February 15, 2015 evaluation by Dr.
Compton appears to have been performed in connection with this case.



                                                                  –3–
the punishment phase, including evidence of Adepegba’s criminal history and misconduct while

in jail on the current charge, as well as evidence of his mental health issues, treatment with

psychotropic medications while in jail, improvement when taking the medications, and the

services available to him if he was placed on community supervision.                                     The jury assessed

punishment of five years’ imprisonment. Adepegba brought this appeal.

                                            Objectives of the Penal Code

          In his first issue, Adepegba contends the trial court abused its discretion by sentencing

him to a term of imprisonment because that punishment “violates the objective of the system of

prohibitions, penalties, and correctional measures in the penal code.” Adepegba contends the

sentence is merely punitive and neither meets the objective of rehabilitation nor addresses his

mental health issues.

          Adepegba did not complain about the sentence either at the time it was imposed or in a

motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723

(Tex. App.—Dallas 2003, no pet.) (to preserve error, appellant must make a timely request,

objection, or motion). As a result, Adepegba has not preserved this issue for our review. Id. 4

          Additionally, as a general rule, punishment that is assessed within the statutory range for

an offense is not excessive or unconstitutionally cruel or unusual. See Kirk v. State, 949 S.W.2d

769, 772 (Tex. App.—Dallas 1997, pet. ref’d). As charged in this case, aggravated assault is a

second degree felony offense. See TEX. PENAL CODE ANN. §§ 22.01(a)(2) (West Supp. 2015),

22.02(a)(2), (b) (West 2011). The punishment range for a second degree felony is imprisonment

for a term of not more than twenty years or less than two years with an optional fine not to




     4
       See also Davis v. State, No. 05-15-00826-CR, 2016 WL 335626, at *1 (Tex. App.—Dallas, Jan. 27, 2016, no pet.) (mem. op., not
designated for publication).



                                                              –4–
exceed $10,000. Id. § 12.33 (West 2011). Adepegba’s five-year sentence is on the lower end of

the statutory range for the offense.

       We conclude the trial court did not abuse its discretion by sentencing Adepegba to

imprisonment. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (sentence

within proper punishment range will not be disturbed on appeal). We resolve Adepegba’s first

issue against him.

                                  Compliance With Article 46B

       Adepegba asserts in his second issue that the trial court improperly proceeded with the

trial without following the procedures set out in article 46B.084 of the code of criminal

procedure for determining whether he had regained competency to stand trial.              Adepegba

specifically argues the trial court failed to make a determination of competency within twenty

days of receiving notification that he was competent to stand trial. Adepegba concedes the trial

court found he had regained competency, but complains the trial court failed to do so until forty-

seven days after it received notice that he was no longer incompetent.

        “A criminal defendant who is incompetent may not be put to trial without violating due

process.”   Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013).               A person is

incompetent to stand trial if he lacks either sufficient present ability to consult with his attorney

“with a reasonable degree of rational understanding” or a rational and factual understanding of

the proceedings against him. TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West 2006); see

also Turner, 422 S.W.3d at 689. A criminal defendant is presumed competent to stand trial and

shall be found competent to stand trial unless proved incompetent by a preponderance of the

evidence. TEX. CODE CRIM. PROC. ANN. art. 46B.003(b); Schaffer v. State, 583 S.W.2d 627, 630

(Tex. Crim. App. 1979). Once a defendant is found to be incompetent, however, he is presumed




                                                –5–
to be incompetent until it has been lawfully determined that he is competent to stand trial.

Schaffer, 583 S.W.2d at 630.

          Under article 46B of the code of criminal procedure, a trial court may determine a

defendant is incompetent, either through a hearing or by agreement of the parties. See TEX.

CODE CRIM. PROC. ANN. arts. 46B.005(b), (c) (West 2006).                                            Upon finding a defendant

incompetent to stand trial, the trial court may commit the defendant to a mental health facility or

residential care facility for “further examination and treatment toward the specific objective of

the defendant attaining competency to stand trial.” TEX. CODE CRIM. PROC. ANN. art. 46B.073(b)

(West Supp. 2015); see also id. art. 46B.071(a)(1) (West Supp. 2015). 5 If the defendant attains

competency to stand trial while at the facility, the head of the facility must notify the trial court

and file a report stating the reason for the proposed discharge of the defendant.                                                  Id. art.

46B.079(b)(1), (c). The trial court, in turn, must provide copies of the report to the attorneys for

the defendant and the State. Id. art 46B.079(c). Either party may object to the findings of the

report within fifteen days of the trial court’s receiving notification of the defendant’s

competency. Id. art. 46B.084(a-1)(1). The trial court is required to make a determination of the

defendant’s competency to stand trial not later than the twentieth day after the date on which it

received notification of the defendant’s competency, or not later than the fifth day after the

defendant’s return to court, whichever occurs first. Id. The record must contain a judgment,

order, docket sheet entry, or other evidence indicating the trial court made a judicial

determination of regained competence. See Schaffer, 583 S.W.2d at 631; Fuller v. State, 11

S.W.3d 393, 395 (Tex. App.—Texarkana 2000, no pet.). 6



     5
        Under certain circumstances, the trial court also has the option to release the defendant on bail. See TEX. CODE CRIM. PROC. ANN.
arts.46B.071(a)(2), 46B.072 (West Supp. 2015).
     6
      See also Martinez v. State, Nos. 05-12-00209-CR & 05-12-00210-CR, 2013 WL 3389050, at *2 (Tex. App.—Dallas July 3, 2013, no. pet.)
(mem. op., not designated for publication) (“A judicial determination of competency prior to resuming criminal proceedings may be evidenced in


                                                                    –6–
           The procedure set out in article 46B.084 is not, however, the only procedure pursuant to

which the trial court may make a determination a defendant has regained competency to stand

trial. Notwithstanding any other provision of article 46B, if the trial court receives credible

evidence that a criminal defendant has been restored to competency following the competency

hearing but before the defendant is transported to a mental health facility, the trial court may

appoint a disinterested expert to reexamine the defendant. TEX. CODE CRIM. PROC. ANN. art.

46B.0755(a) (West Supp. 2015). If, after a reexamination, the expert opines the defendant has

been restored to competency, the trial court must withdraw its order of commitment. Id. art.

46B.0755(b). If both parties agree the defendant is competent to stand trial, and the trial court

concurs, the court is required to find the defendant competent to stand trial. Id. art. 46B.0755(c).

However, if any party fails to agree, or the trial court fails to concur, that the defendant is

competent to stand trial, the court is required to hold a hearing to determine whether the

defendant has been restored to competence. Id. art. 46B.0755(d). The defendant is presumed to

be incompetent, and competency must be proved a preponderance of the evidence. Id. At the

request of either party or on the court’s own motion, the issue of competency must be determined

by a jury. Id.

           In this case, Adepegba was never confined to a mental health facility after he was found

incompetent, and consequently the trial court did not receive notification from the head of a

facility that Adepegba had regained competency. Accordingly, the procedure set out in article

46B.084 for determining whether a defendant has regained competency to stand trial was not

applicable.




a judgment, order, docket-sheet entry, or any other evidence that the court made a determination of competency after the defendant’s return from
a state hospital.”).



                                                                     –7–
       Rather, evidently after learning Adepegba had possibly regained competency while being

held in jail, the trial court ordered Dr. Compton to perform another competency evaluation.

After examining Adepegba, Dr. Compton opined that he was competent to stand trial, and the

trial court rescinded the order of commitment. Before trial commenced, the trial court held a

hearing on the issue of Adepegba’s competence and, considering Dr. Compton’s report and the

representations of Adepegba’s counsel, determined Adepegba was competent to stand trial. The

trial court, therefore, complied with the procedures set out in article 46B.0755 of the code of

criminal procedure pertaining to the immediate restoration of competency.          We resolve

Adepegba’s second issue against him.

       We affirm the trial court’s judgment.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47

151139F.U05




                                               –8–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

OLATUNDE ANTONIO ADEPEGBA,                         On Appeal from the 416th Judicial District
Appellant                                          Court, Collin County, Texas,
                                                   Trial Court Cause No. 416-80446-2015.
No. 05-15-01139-CR        V.                       Opinion delivered by Justice Fillmore, Chief
                                                   Justice Wright and Justice Brown
THE STATE OF TEXAS, Appellee                       participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of October, 2016.




                                             –9–
