MODIFY and AFFIRM; and Opinion Filed August 17, 2015.




                                          S In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-00379-CR

                             PEDRO RANGEL JR., Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 7
                                  Dallas County, Texas
                          Trial Court Cause No. F-1231321-Y

                            MEMORANDUM OPINION
                         Before Justices Bridges, Fillmore, and Brown
                                  Opinion by Justice Brown
       Appellant Pedro Rangel Jr. waived a jury and pleaded no contest to aggravated assault

with a deadly weapon. The trial court found appellant guilty and assessed his punishment at

fifteen years’ imprisonment. Appellant raises three issues on appeal, arguing (1) the trial court

signed an order restoring appellant’s competency to stand trial without any evidence his

competency had been restored, (2) the trial court violated appellant’s due process rights by

resuming criminal proceedings before making a judicial determination of his restored

competency, and (3) the trial court’s judgment does not reflect appellant’s correct plea to the

offense charged in the indictment. We modify the judgment to reflect appellant’s correct plea,

and we affirm the judgment as modified.
                                            Background

       Simon Rodriguez, the complaining witness in this case, testified that appellant lived in

the same apartment complex he did, but the two men knew each other only by sight. On the day

of the assault, Rodriguez was watching a football game in his apartment with his young son and

a group of friends. Appellant entered Rodriguez’s apartment uninvited, and Rodriguez had to

push him out. Appellant returned, and when Rodriguez opened his apartment door, appellant

stabbed him in the arm and chest. An ambulance took Rodriguez to the hospital, and police

officers arrived at the complex. Appellant retreated to his own apartment and eventually set the

balcony on fire and leapt headfirst to the ground. Evidence established appellant had been

drinking alcohol that day and that he had not taken his medication for a diagnosed mental health

disorder for a number of days.

       Appellant was charged with aggravated assault with a deadly weapon. The trial court

ordered Dr. Michael Pittman to examine appellant to determine if appellant was competent to

stand trial. Dr. Pittman concluded appellant was not competent to stand trial, but he expressed

his belief that appellant “will regain competency in the foreseeable future.” On March 30, 2013,

the trial court held a competency hearing. The judge agreed with Pittman that appellant was

incompetent to stand trial, but the judge also stated his belief that, with treatment, appellant “will

regain or recover his competency in the near or foreseeable future.” The court ordered appellant

committed to North Texas State Hospital’s Vernon campus (the State Hospital), for a period of

120 days “toward the specific objective of attaining competency to stand trial.” At the end of the

120 days, the trial court issued a bench warrant for appellant’s return, and appellant remained in

jail while his case was being resolved.

       On October 28, 2013, the trial court ordered a second examination of appellant, this time

by Dr. Lisa Clayton. Although the judge employed a similar form to the one he had used to

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order the Pittman examination, the Clayton order included handwritten notes saying “comp eval

— Insanity eval.” Clayton’s report focused on the latter instruction, analyzing appellant’s status

at the time of the assault and concluding that, because he was intoxicated at the time, he did not

meet the legal criteria for being insane at the time of the offense. In listing the materials she

reviewed for her examination, Clayton identified appellant’s State Hospital discharge summary.

While she did not specifically address the issue of competency, she stated appellant’s

Schizoaffective Disorder was in remission due to his psychiatric medication, and she remarked

that he had been “stable on his medication.” Under the heading of “Mental Status Examination,”

Clayton described appellant’s appearance and demeanor and then offered the following opinions:

       Mr. Pedro Rangel had concrete, simplistic but goal directed thought processes.
       There was no evidence of any delusions. Mr. Rangel denied any auditory or
       visual hallucinations. He also denied any suicidal or homicidal ideation. Mr.
       Rangel had below average intelligence. His memory, concentration and attention
       span were appropriate for his I.Q. level. He had some insight into his mental
       illness. His judgement is currently intact.

       The record indicates that the parties were participating in plea discussions from the time

appellant returned to jail. A plea agreement was reached, and its elements were reduced to

writing on February 7, 2014. That same day the parties appeared before the trial court, and the

court admonished appellant. Pursuant to the plea agreement, appellant pleaded no contest and

agreed to be sentenced by the trial court. The State offered appellant’s judicial confession, and it

was admitted in evidence. The trial court then recessed the proceedings and set a date for

sentencing.

       The sentencing hearing was held on March 13, 2014. Along with testimony from the

complaining witness, which is summarized above, the trial court heard testimony from appellant.

He testified he did not remember any of the events around the assault, including setting fire to his

balcony or jumping from it. He explained he had been diagnosed with his mental disorder as a

teenager, but that with his medication he had been married for twenty years and successfully held
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a job. He also acknowledged his alcohol problem. However, he testified he was currently taking

his medications faithfully and he was sorry for the harm he had caused Rodriguez. In the end,

the trial court found appellant guilty, sentenced him to fifteen years in prison, and signed the

judgment in this case.

       On the same day, the judge signed the Judgment Restoring Competency Based on Report

(Judgment Restoring Competency). That document refers to the report from the head of the

State Hospital, which notified the trial court that appellant was competent to stand trial. The

Judgment Restoring Competency recited that there was no objection to the report and that it

appeared to the court that appellant was presently competent.           The Judgment Restoring

Competency then decreed that appellant was competent to stand trial and that the criminal

proceedings against him were to be resumed. This appeal followed.

                             Restoring Competency to Stand Trial
       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 Supp. 2014). When a defendant has been found incompetent to stand trial, he

may be committed to a state hospital for treatment. Id. arts. 46B.071, 46B.073. If the defendant

attains competency to stand trial while at the state hospital, the head of the facility must notify

the committing court. Id. art. 46B.079(b)(1). When giving notice, the head of the facility must

file a report with the court stating the reason for the defendant’s discharge; the 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

court’s receiving notification of the defendant’s competency. Id. If a party objects to the report,

the court must set the competency issue for a hearing. Id. art. 46B.084(b).


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       Whether a hearing is required or not, the trial court must make a judicial determination of

the defendant’s competency to stand trial.       Id. art. 46B.084(a).   The court may make the

determination based on the hospital report and on other medical information or personal history

information relating to the defendant. Id. The determination may be evidenced by a recitation in

a judgment, an order, a docket sheet entry, or any “other evidence that the court ever made a

determination of competency after the appellant’s return from the State hospital.” Schaffer v.

State, 583 S.W.2d 627, 631 (Tex. Crim. App. 1979) (op. on reh’g).

       We review issues involving competency determinations for an abuse of discretion.

Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other

grounds, as stated in Turner v. State, 422 S.W.3d 676, 692 n.3 (Tex. Crim. App. 2013). We may

not substitute our judgment for that of the trial court; instead we determine whether the trial

court’s decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426.

                            Challenges to Competency Restoration

       In his first issue, appellant argues the trial court made its determination of his restored

competency without any evidence to support that determination. He acknowledges the Judgment

Restoring Competency recites that the trial judge made his determination based upon the report

of the head of the State Hospital where appellant was confined. But, appellant points out, that

report is not part of the record.     Appellant also notes the trial court made no remarks during

either of the 2014 hearings concerning restoration of appellant’s competency. He contends this

absence of remarks “reflects the absence of proof” that appellant’s competency had been restored

at that point in time. We disagree.

       The Judgment Restoring Competency states:

       The Defendant having previously been found to be mentally incompetent to stand
       trial and having been committed for treatment pursuant to Article 46.02 or
       Chapter 468 of the Code of Criminal Procedure; and the head of the facility
       having notified the Court that the Defendant is now competent to stand trial; came
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       on for consideration before this Court the issue of the [D]efendant’s competency
       to stand trial. There being no objection to the report filed by the State Hospital,
       and it appearing to the Court that the [D]efendant is presently competent;

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court
       that the Defendant is now competent to stand trial and that the criminal
       proceedings against said [D]efendant be resumed in the above-numbered and
       styled cause.

We understand these recitals to say the trial court based its determination of appellant’s

competency on the State Hospital report and the court’s own observations of appellant.

       We apply a presumption of regularity to proceedings in the trial court. Kelley v. State,

676 S.W.2d 104, 108 (Tex. Crim. App. 1984). In this case, we presume the head of the State

Hospital made the report required by statute and transmitted the report to the trial court. We

likewise presume the trial judge distributed the report to the parties as he was required by statute

to do and that parties were given the opportunity to object to the report. The burden is on

appellant to overcome these presumptions of regularity. Wright v. State, 873 S.W.2d 77, 80

(Tex. App.—Dallas 1994, pet. ref’d). But appellant has not identified any evidence to the

contrary. Instead, he relies on the absence of a report in the record and the absence of a record of

its distribution. A silent record, however, will not overcome the presumption of regularity in

trial court proceedings. See Kelley, 676 S.W.2d at 108.

       Appellant argues the Clayton report (which is in the record) does not address his

competency. We agree, and we do not rely upon it as a basis for the trial court’s determination

of competency. We agree with appellant that the Clayton report addresses his mental disposition

at the time of the assault and not his competency to stand trial. That said, we note that Dr.

Clayton does state she reviewed the State Hospital’s discharge summary. We note further that

Dr. Clayton’s discussion of appellant’s then-current mental status—which ends with the

conclusion that appellant’s “judgment is currently intact”—does not refute the trial court’s

determination that appellant was competent to enter his plea.

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       Recitations in a formal judgment are binding in the absence of direct proof of their

falsity. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). The record before us

contains no such proof that the trial court’s recitations are false. Accordingly, we are bound by

the trial court’s recitations that its determination of competency was based upon (a) the report

from the head of the State Hospital finding appellant competent, and (b) the court’s own

observations that appellant appeared “presently competent.” See id. We conclude the trial court

did not abuse its discretion. Instead, the court made its determination of appellant’s restored

competency based on sufficient and appropriate evidence of that fact.

       We overrule appellant’s first issue.

       In his second issue, appellant contends his due process rights were violated because the

trial court resumed his plea proceedings before making the judicial determination that his

competency to stand trial had been restored. Appellant points to the trial court’s Judgment

Restoring Competency, which is dated March 13, 2014, the same date as the sentencing hearing

and the court’s final judgment. Appellant argues that the present-tense language of the Judgment

Restoring Competency—which ordered “that the Defendant is now competent to stand trial and

that the criminal proceedings against said [D]efendant be resumed”—indicates the trial court did

not make its determination of competency until after appellant made his plea.

       The prosecution and conviction of a defendant while he is legally incompetent violates

due process. Pate v. Robinson, 383 U.S. 375, 378 (1966). Accordingly, when a defendant has

been found incompetent to stand trial, the statute requires the trial court to make a judicial

determination of competency prior to resuming criminal proceedings. See TEX. CODE CRIM.

PROC. ANN. art. 46B.084(d) (“If the defendant is found competent to stand trial, criminal

proceedings against the defendant may be resumed.”). But the documentation of a judicial

determination of competency can be made after the proceedings have been completed. See, e.g.,

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Schaffer v. State, 583 S.W.2d 627, 631 (Tex. Crim. App. 1979) (abating appeal for trial court to

make retrospective judicial determination of competency); see also Bell v. State, 814 S.W.2d

229, 233 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d) (competency finding recited in

judgments entered after conviction); Booker v. State, No. 05-06-01184-CR, 2007 WL 3227544,

at *2 (Tex. App. Nov. 2, 2007) (competency finding recited in docket sheet entry after trial).

       We discern no abuse of discretion in the timing of the trial court’s judicial determination

of appellant’s restored competency. We overrule his second issue.

       In his third issue, appellant asks this Court to correct the trial court’s judgment. At the

February 7, 2014 hearing, appellant entered a plea of no contest to the indictment, and the trial

court accepted his plea. Appellant’s written plea agreement confirms that he agreed to plead

nolo contendere, i.e., no contest. The trial court’s judgment, however, states that appellant

pleaded guilty to the charged offense. Because the necessary information is available in the

record, we modify the trial court’s judgment to show that appellant pleaded no contest to the

indictment’s charged offense. See Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—

Dallas 1991, pet. ref’d). We sustain appellant’s third issue and modify the trial court’s judgment

to reflect appellant’s correct plea of no contest to the indictment.

       As modified, we affirm the trial court’s judgment.




                                                       /Ada Brown/
                                                       ADA BROWN
                                                       JUSTICE
Do Not Publish
TEX. R. APP. P. 47

140379F.U05




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

PEDRO RANGEL JR, Appellant                          On Appeal from the Criminal District Court
                                                    No. 7, Dallas County, Texas
No. 05-14-00379-CR         V.                       Trial Court Cause No. F-1231321-Y.
                                                    Opinion delivered by Justice Brown. Justices
THE STATE OF TEXAS, Appellee                        Bridges and Fillmore participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect appellant pleaded “no contest” to the allegations in the indictment.

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 17th day of August, 2015.




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