                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00098-CR



      WAYNETTA MARIA JACKSON, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 188th District Court
                 Gregg County, Texas
               Trial Court No. 41210-A




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                       OPINION
       Waynetta Maria Jackson entered an open plea of guilty to theft of property valued at less

than $1,500.00 with two previous theft convictions. The charge was a state jail felony; Jackson

was sentenced to twenty-two months’ incarceration in state jail. Jackson’s point of error on

appeal complains that the trial court erred in failing to conduct, sua sponte, an informal inquiry

into her competency. We affirm the trial court’s judgment, as modified.

       It is a fundamental principle of this nation’s system of criminal justice “that a person

whose mental condition is such that he lacks the capacity to understand the nature and object of

the proceedings against him, to consult with counsel, and to assist in preparing his defense may

not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975). Due process prohibits

convictions of mentally incompetent persons. Corley v. State, 582 S.W.2d 815, 818 (Tex. Crim.

App. 1979) (citing Bishop v. United States, 350 U.S. 961 (1956)). For this reason, “[n]o plea of

guilty or plea of nolo contendere shall be accepted by the court 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) (West Supp. 2012). “This constitutional right cannot be waived by the

incompetent—by guilty plea or otherwise.” Bouchillon v. Collins, 907 F.2d 589, 592 (5th Cir.

1990) (cited in Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)). While a guilty plea

may only be attacked on the basis that it was not knowing and voluntary, “it is contradictory to

argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his

right[s] . . . .” Pate v. Robinson, 383 U.S. 375, 384 (1966). Also, a defendant must also be




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mentally competent to be sentenced. See Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App.

1996) (per curiam).

         A defendant is presumed competent to stand trial. TEX. CODE CRIM. PROC. ANN. art.

46B.003(b) (West 2006). However, “[i]f evidence suggesting the defendant may be incompetent

to stand trial comes to the attention of the court, the court on its own motion shall suggest that

the defendant may be incompetent to stand trial.” TEX. CODE CRIM. PROC. ANN. art. 46B.004(b)

(West Supp. 2012). “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.” TEX. CODE CRIM.

PROC. ANN. art. 46B.004(c) (West Supp. 2012).                    This suggestion of incompetency “is the

threshold requirement for an informal inquiry . . . and may consist solely of a representation from

any credible source that the defendant may be incompetent.” TEX. CODE CRIM. PROC. ANN. art.

46B.004(c-1) (West Supp. 2012). “A further evidentiary showing is not required to initiate the

inquiry, and the court is not required to have a bona fide doubt about the competency of the

defendant.” Id. 1

         We review a complaint that the trial court erred in not conducting an informal

competency inquiry for an abuse of discretion. Montoya, 291 S.W.3d 420, 426 (Tex. Crim. App.

2009). Under this standard, we do not substitute our judgment for that of the trial court, but

1
 Effective September 1, 2011, Section c-1 was added to Article 46B.004. Before that time, the Texas Court of
Criminal Appeals had determined that the requirement of conducting an informal hearing on competency was
necessitated “[i]f a trial judge has a bona fide doubt about the competency of the defendant . . . .” Montoya v. State,
291 S.W.3d 420, 425 (Tex. Crim. App. 2009). Truly bizarre behavior or a recent history of severe mental illness or
moderate mental retardation was sufficient to create a bona fide doubt. Id. This procedure has now been changed,
and the statute requires the trial judge to conduct the informal hearing if any credible source suggests incompetency,
regardless of whether the trial judge has a bona fide doubt about the defendant’s competency.
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determine whether the trial court’s decision was arbitrary or unreasonable. Id. 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.” TEX. CODE CRIM. PROC.

ANN. art. 46B.003(a) (West 2006).

         Prior to accepting Jackson’s plea, the trial court questioned Jackson, who stated that

(1) she wished to waive her right to a jury trial, (2) her attorney explained the plea papers to her,

(3) she understood the documents, and (4) she made the decision to plead guilty on her own

because she had committed the crime. Jackson informed the court that she “went to the 11th

grade” in school and understood that “[a]t this time I’m pleading guilty to a theft charge.” At

this point, the trial court asked Jackson’s counsel to “talk to [him] about [Jackson’s] mental

competency, please.” Jackson’s counsel stated, “Your Honor, Ms. Jackson and I have had

numerous conversations, and based upon those conversations I have no doubt about her mental

competency.” Thereafter, Jackson claimed to understand the remainder of the trial court’s

admonishments. The trial court found that Jackson made her “plea freely and voluntarily, [and]

that [she was] mentally competent.”

         This exchange supports the trial court’s determination that Jackson fully understood the

charges pending and was able to communicate with her attorney in a rational manner. We find

there is no evidence from any source indicating that Jackson was mentally incompetent to stand

trial.




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       Even so, the trial court specifically gave defense counsel an opportunity to raise any

concerns about Jackson’s competency and was advised of none. Under these circumstances, we

find the trial court’s own observations coupled with the inquiry to counsel regarding competency

was a sufficient informal inquiry into Jackson’s competence. See Gray v. State, 257 S.W.3d 825,

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

       Next, Jackson’s brief cites to testimony which occurred at the punishment hearing to

suggest that the trial court should have also conducted an informal inquiry into Jackson’s

competence at this stage. During the hearing, Jackson asked for community supervision because

she felt “like probation would be structured for me because state jail, I’ve been there and it’s not

helping me, and I feel like I need help rather than prison.” She asked the judge to “have mercy

on [her] and to consider [her] for Healthcore counseling.” Her “grandmother died in [her] arms,”

and her “mother killed [her] father.” Jackson’s aunt, a mental health counselor, had previously

assisted her when she “had a nervous breakdown back in 2006” and attempted to commit suicide.

Jackson was previously diagnosed with “ADHD,” “a compulsive disorder, a learning disability

. . . PTSD . . . [a]nd . . . bipolar, schizophrenia.” She testified that she was taking “Depakote and

Prozac and Thorazine” at one time and would “be a better person in society to be able to become

a productive citizen” if she could “get[] back on medication.” Jackson said that she could not

explain why she was stealing, but that she knew it was wrong.

       With respect to why she did not complete the eleventh grade, Jackson testified:

       I felt like I was a failure because I couldn’t grasp -- I come so far, and to come out
       of special education and to not be able to pass the TAAS test I just felt like I
       couldn’t pass it, grasp everything that’s on there that I’ve never seen before and
       studied before going through special education. So I dropped out of school.
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Jackson stated that she could read, had held a job as a “dishwasher and part prep cook,” and

would work if she was on community supervision. Jackson was thirty-six years old.

       The relevant time frame for determining a person’s competence is at the time of the

proceedings. Lasiter v. State, 283 S.W.3d 909 (Tex. App.—Beaumont 2009, pet. ref’d). The

law presumes Jackson’s competence. Jackson’s responses to questions were lucid, and her pleas

to the court to grant her community supervision intelligent. Although Jackson had suffered from

emotional issues in the past, there was no evidence in the form of a representation from any

credible source suggesting that she may have been incompetent in the legal sense. There was no

indication that she failed to possess the present ability to consult with her lawyer with a

reasonable degree of rational understanding or that she did not have a rational, as well as factual,

understanding of the proceedings against her. Further, the trial court had already conducted an

informal inquiry prior to accepting Jackson’s plea. Therefore, we find no abuse of discretion in

the decision not to conduct, sua sponte, another informal inquiry into Jackson’s competence

during the sentencing phase.

       However, we take an action of our own sua sponte. The Texas Rules of Appellate

Procedure give this Court authority to modify judgments and correct typographical errors to

make the record speak the truth. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609

(Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no

pet.). “Our authority to reform incorrect judgments is not dependent on the request of any party,

nor does it turn on a question of whether a party has or has not objected in trial court; we may act


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sua sponte and may have a duty to do so.” Rhoten, 299 S.W.3d at 356 (citing Asberry v. State,

813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d)).

       The statute of offense is listed in the trial court’s judgment as “31.03(f).” This section

increases the level of punishment if certain requirements, inapplicable to this case, are present.

TEX. PENAL CODE ANN. § 31.03(f) (West Supp. 2012). Rather, Jackson’s level of punishment

was increased by Section 31.03(e)(4)(D), which provides that the offense is a state jail felony if

“the value of the property stolen is less than $1,500 and the defendant has been previously

convicted two or more times of any grade of theft.” TEX. PENAL CODE ANN. § 31.03(e)(4)(D)

(West Supp. 2012). The indictment confirms that Section 31.03(e)(4)(D) is the correct statute of

offense. We modify the judgment accordingly.

       We affirm the trial court’s judgment, as modified.



                                             Jack Carter
                                             Justice

Date Submitted:       December 27, 2012
Date Decided:         December 28, 2012

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