                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION
                                          No. 04-16-00584-CV

                                        IN THE MATTER OF J.P.

                     From the 289th Judicial District Court, Bexar County, Texas
                                Trial Court No. CM2010JUV02006
                         Honorable Daphne Previti Austin, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: July 26, 2017

AFFIRMED

           Appellant J.P. appeals from the trial court’s order revoking his community supervision and

sentencing him to eight years’ imprisonment. J.P. contends the trial court erred by failing to sua

sponte hold an informal competency hearing. The trial court’s judgment is affirmed.

                                             BACKGROUND

           In December 2010, the juvenile court found J.P. engaged in delinquent conduct by

committing the offense of indecency with a child, and following a disposition hearing, the juvenile

court placed J.P. on juvenile community supervision for eight years. In June 2012, the juvenile

court transferred J.P.’s juvenile community supervision to the district court, and J.P. continued

community supervision as an adult. In February 2015, the State filed a Motion to Revoke (MTR)
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J.P.’s community supervision, and in November 2015, filed an amended MTR, alleging J.P.

violated several conditions of his community supervision. The trial court held a hearing on the

amended MTR in January 2016, during which J.P. pleaded true to three violations. During the

June 9, 2016, sentencing hearing, the trial court revoked J.P.’s community supervision and

sentenced J.P. to eight years’ imprisonment.

       Thereafter, J.P. perfected this appeal.

                         STANDARD OF REVIEW AND APPLICABLE LAW

       A 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) (West 2015). A defendant is not competent to stand trial if he lacks (1) a sufficient

present ability to consult with his attorney with a reasonable degree of rational understanding or

(2) a rational as well as factual understanding of the proceedings against him. Id. art. 46B003(a).

       “These legislative criteria for competency contemplate a defendant who is at least

minimally able to interact with his trial counsel in a ‘reasonable and rational’ way (even if they do

not necessarily agree) in formulating decisions how most effectively to pursue, his defense.”

Turner v. State, 422 S.W.3d 676, 689-90 (Tex. Crim. App. 2013). “Under our current statutory

scheme, any ‘suggestion’ of incompetency to stand trial calls for an ‘informal inquiry’ to determine

whether evidence exists to justify a formal competency trial.” Id. at 691-92 (footnote omitted);

see TEX. CODE CRIM. PROC. ANN. art. 46B.004(c), (c-1) (West 2015). The issue of a defendant’s

competency can be raised by any party by filing a motion or by the trial court on its own motion.

See id. art. 46B.004.

       A suggestion of incompetency may be based on the trial court’s observations related to the

defendant’s capacity to: rationally understand the charges against him and the potential


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consequences of the pending criminal proceedings; disclose to counsel pertinent facts, events, and

states of mind; engage in a reasoned choice of legal strategies and options; understand the

adversarial nature of criminal proceedings; exhibit appropriate courtroom behavior; and testify.

Id. art. 46B.024(1) (West Supp. 2015), or “on any other indication that the defendant is

incompetent [to stand trial] within the meaning of Article 46B.003.” Id. art 46B.004(c-1).

         “In making this determination, a trial court must consider only that evidence tending to

show incompetency, ‘putting aside all competing indications of competency, to find whether there

is some evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion

of incompetency.’” Turner, 422 S.W.3d at 692 (quoting Ex parte LaHood, 401 S.W.3d 45, 52-53

(Tex. Crim. App. 2013)). “If so, then ‘evidence exists to support a finding of incompetency,’ and

the statutory scheme requires the trial court to conduct a formal competency trial.” Id. at 692-93

(quoting TEX. CODE CRIM. PROC. ANN. art. 46B.005(a) (West 2006)).

         We review a trial court’s decision not to sua sponte hold an informal inquiry into a

defendant’s competency for an abuse of discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex.

Crim. App. 1999). A trial court abuses its discretion if its decision is arbitrary or unreasonable.

Id.

                                                   APPLICATION

         J.P. complains the trial court abused its discretion by failing to sua sponte hold an informal

hearing regarding his competency. J.P. argues there was evidence before the trial court suggesting

J.P.’s incompetency, specifically pointing to J.P.’s counsel’s indication he had difficulty

communicating with J.P. and required help from J.P.’s mother to do so. 1



1
  J.P. states in his brief that the trial court indicated it wanted to have J.P. reevaluated but, because of J.P.’s work
schedule, that reevaluation did not occur. Our review of the record shows the only time this possible reevaluation is
mentioned in the appellate record is during counsel’s argument. Counsel’s argument is not evidence, and we will not

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        During the hearing on the State’s MTR, defense counsel informed the trial court he required

assistance communicating with J.P., but ultimately stated he believed J.P. was competent to

proceed, as shown in the following exchange:

        The Court:       Okay. Are you confident that he is competent?

        [Counsel]:     Well, even though he does have the mind of a child, I think that and
        with the help of his mother, I’ve been able to communicate with him. And I believe
        that his mentality isn’t — doesn’t correspond to his age. But still he — I believe
        that he knows what we’re here for.

        The Court:   Okay. And you’re confident that he meets the legal requirements
        for competency to proceed?

        [Counsel]:       Well, not being a psychologist I — but I can’t — I would say yes.

Additionally, the trial court sought to make certain J.P. understood the conditions he was alleged

to have violated. As the State read each allegation against J.P., the trial court questioned J.P.

whether he understood each violation. J.P. acknowledged he understood the violations, and before

closing the MTR hearing, the trial court verified J.P. understood the consequences of his “true”

plea. The trial court observed that although J.P. might “have a diagnosis,” that diagnosis did not

hinder his ability to understand the proceedings and communicate with counsel. Additionally, the

trial court acknowledged the suggestions of J.P.’s immaturity and admonished J.P. that, “You’re

an adult, and I expect you to act like one.”

        During the sentencing hearing, J.P. was able to answer the questions posed to him by both

the State and his own counsel. J.P. expressed his understanding of the consequences for violating

the terms of his probation. J.P.’s mother testified she had to remind J.P. to brush his teeth and

shower, explaining that a 21 year-old-man should not have to be reminded to complete basic self-

care. Finally, during closing remarks, defense counsel told the trial court that J.P. “thinks like a


consider it as such. See Texas Dep’t of Pub. Safety v. Mendoza, 952 S.W.2d 560, 564 (Tex. App.—San Antonio 1997,
no writ).

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child” and described J.P. as “responsible in a way” but still taking part in activities such as

skateboarding. When the trial court pronounced sentence, it noted J.P. had testified he didn’t

charge his GPS monitor because he did not want to be on GPS, had been dishonest in the past, and

went to a park despite knowing that doing so was a violation of his terms of probation. Relying

on the evidence before it relating to J.P.’s competency, as well as its own observations and

interactions with J.P., the trial court did not express any further concern with regard to J.P.’s

competency.

       After reviewing the record, conclude that the trial court’s duty to conduct an informal

inquiry on a suggestion of incompetence was not triggered. The record does not suggest J.P. was

incompetent at the time of the adjudication or sentencing hearing and supports the trial court’s

decision not to delve further into J.P.’s competency.

       We conclude the trial court did not abuse its discretion by not sua sponte holding an

informal competency hearing. Accordingly, J.P.’s sole issue on appeal is overruled.

                                          CONCLUSION

       The judgment of the trial court is affirmed.


                                                 Irene Rios, Justice




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