Opinion issued November 15, 2012




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-10-00431-CR
                           ———————————
                      DAVID EARL BROWN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1233362



             OPINION ON MOTION FOR REHEARING

      The State has moved for rehearing contending that we have not (1)

addressed every issue raised and necessary to the final disposition of this appeal

and (2) performed a harm analysis. We requested a response, but none was filed.
See TEX. R. APP. P. 49.2. We grant the motion for rehearing to address the State’s

concerns, but we deny the requested relief.

                               Voluntarily Absented

       The State argues that we erred in reversing the trial court’s judgment

because in reversing we did not address the issue of whether the trial court

erroneously found that Brown had voluntarily absented himself from trial. The

State asserts that Brown was not entitled to a competency evaluation because

Brown voluntarily absented himself from trial through his failed suicide attempt.

       When the trial court denied Brown’s motion for continuance to evaluate his

competence, there was evidence that Brown’s wound was self-inflicted. Thus, the

trial court ruled Brown voluntarily absented himself and was not entitled to a stay

of proceedings for a competency evaluation.

       The State asks us to hold that the trial court did not abuse its discretion in

denying Brown’s motion for continuance based upon his assertion of

incompetency because he allegedly voluntarily brought about his own absence and

disability.   We hold that Brown did not voluntarily absent himself from trial

because under article 46B.005 the trial court was required to stay the proceedings

and conduct a formal competency examination. See TEX. CODE CRIM. PROC. ANN.

arts. 46B.004(d), .005(a), (b) (West 2006 & Supp. 2012).




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      This Court reviews a trial court’s determination that a defendant has

voluntarily absented himself from trial under an abuse-of-discretion standard. See

Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984). In urging us to

uphold the trial court’s ruling, the State relies on Code of Criminal Procedure

article 33.031 and an older line of cases and statutes that seem to suggest that a

defendant who attempts to commit suicide is absent because of his own voluntary

conduct. See, e.g., Maines v. State, 170 S.W.3d 149, 150 (Tex. App.—Eastland

2005, no pet.).2

      The only case cited by the State that applies current law is an unpublished

case in which defense counsel did not object to continuing with the punishment

phase of trial after the defendant attempted suicide by swallowing pills. Gizzard v.

State, No. 01-06-00930-CR, 2008 WL 2611865 at *4–5 (Tex. App.—Houston [1st

Dist.] July 3, 2008, no pet.) (mem. op., not designated for publication). Gizzard is

distinguishable from the case at hand.



1
      Article 33.03 states, in relevant part, “In all prosecutions for felonies, the
      defendant must be personally present at the trial . . . however, that in all
      cases, when the defendant voluntarily absents himself . . . the trial may
      proceed to its conclusion.” TEX. CODE CRIM. PROC. ANN. art. 33.03 (West
      2006).
2
      Maines relies on the former competency provisions of Code of Criminal
      Procedure article 46.02, which was repealed in 2003. Act of Apr. 30, 2003,
      78th Leg., R.S., ch. 35 § 15, 2003 Tex. Gen. Laws 57, 72 (repealing former
      TEX. CODE CRIM. PROC. art. 46.02).
                                         3
      In Gizzard, this Court held that the trial court did not abuse its discretion by

determining that the defendant had sufficient present ability to consult with his

attorney and a reasonable degree of rational understanding. Id. at *6. Here, we

hold that the trial court abused its discretion in finding Brown competent to

continue with trial. It is important to note that the evidence presented before the

trial court concerning Gizzard’s competence was also different from the evidence

presented concerning Brown. While Gizzard overdosed on medication, Brown

suffered a gunshot wound to the head, resulting in a bullet lodged in his brain.

Brown’s treating psychiatrist testified that, based on the description of Brown’s

injuries, it was unlikely that Brown could provide information to assist in the

remainder of the trial. We hold the trial court erroneously found Brown competent

to stand trial and erred in not holding a competency hearing as required by article

46B.005. TEX. CODE CRIM. PROC. ANN. arts. 46B.004(d), .005(a), (b) (West 2006

& Supp. 2012).

      We also rely on the Supreme Court case of Drope v. Missouri in holding that

Brown did not voluntarily absent himself from trial. Drope, 420 U.S. 162, 95 S.

Ct. 896 (1975).     There the Court stated that a failure to observe adequate

procedures to protect a defendant’s right not to be tried or convicted while

incompetent to stand trial deprives him of his due-process right to a fair trial. 420

U.S. at 172, 95 S. Ct. at 904. Drope suffered a self-inflicted gunshot wound to the

                                          4
abdomen. 420 U.S. at 167, 95 S. Ct. at 901. Drope’s lawyer moved for a mistrial

due to his client’s absence, but the trial court denied the motion on the basis that

Drope’s absence was voluntary. 420 U.S. at 167, 95 S. Ct. at 901–02. The

Supreme Court held that Drope’s absence “was due to an act which suggests a

rather substantial degree of mental instability contemporaneous with the trial.”

420 U.S. at 181, 95 S. Ct. at 908. The Court arrived at its decision by concluding

that, when considered together, the testimony from Drope’s psychiatrist, testimony

by his wife, and his suicide attempt created a sufficient doubt of his competence to

stand trial, thus requiring a competency evaluation. 420 U.S. at 180, 95 S. Ct. at

908.

       In the instant case the evidence of incompetence is more closely aligned

with the facts and considerations of Drope than Gizzard or Maines. Brown’s

partner reported that Brown had been “despondent” during trial.            Brown’s

psychiatrist had been treating him for depression since the original arrest, and the

psychiatrist believed the attempted suicide was evidence of mental illness, which

prevented Brown from communicating with his attorney. Applying the analysis in

Drope, there was enough evidence to raise a doubt as to whether Brown was

competent. This should have triggered a competency hearing rather than a ruling

that Brown was voluntarily absent.




                                         5
                                 Harm Analysis

      The State also argues that we erred in reversing the trial court’s judgment

because we did not perform a harm analysis, contending that nonconstitutional

error must be disregarded unless the error had a substantial and injurious effect or

influence in determining the jury’s verdict. See King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997) (citing TEX. R. APP. P. 44.2(b)). The State argues that

the trial court’s violation of Code of Criminal Procedure article 46B.004 requires a

harm analysis because the error was not structural and was merely statutory. See

Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005); Cain v. State, 947

S.W.2d 262, 264 (Tex. Crim. App. 1997). Without determining whether the error

was structural in nature, we determine there was harm.

      The State asserts that if the trial court did violate Code of Criminal

Procedure articles 46B.004 and 46B.005, then we must disregard the error unless it

is determined that the statutory violation had a substantial and injurious effect on

the jury’s verdict both at guilt and punishment. TEX. R. APP. P. 44.2(b); see e.g.,

King, 953 S.W.2d at 271. The State also argues that an immediate stay for a

competency hearing was not required based on a reading of articles 46B.004(d)3


3
      Article 46B.004(d) states that “if the court determines there is evidence to
      support a finding of incompetency, the court, except as provided by . . .
      Article 46B.005(d), shall stay all other proceedings in the case.” TEX. CODE
      CRIM. PROC. ANN. art. 46B.004(d) (West 2006 & Supp. 2012).

                                         6
and 46B.005(d).4 The State maintains that the appropriate disposition in this case

would be an abatement for a retrospective competency evaluation. We disagree.

      As noted above, the Supreme Court stated in Drope that a failure to observe

procedures adequate to protect a defendant’s right not to be tried or convicted,

while incompetent to stand trial, deprives him of his due process right to a fair trial.

420 U.S. at 172, 95 S. Ct. at 904. Brown’s attempted suicide occurred before he

was able to rest his case. If found incompetent, Brown would have been unable to

aid in his own defense.        This is a harm contemplated by both the Sixth

Amendment5 and Code of Criminal Procedure articles 46B.0046 and 33.03.7

      No sentence could have been imposed on Brown, who was wheeled in from

the hospital to be sentenced, if the trial court had found him found to be

incompetent. It follows that any sentence that was handed down was harmful to

4
      Article 46B.005(d) states that “if the issue of the defendant’s incompetency
      to stand trial is raised after the trial on the merits begins, the court may
      determine the issue at any time before the sentence is pronounced.” TEX.
      CODE CRIM. PROC. ANN. art. 46B.005(d) (West 2006 & Supp. 2012).
5
      Requiring that the accused “have the assistance of counsel for his defense.”
      U.S. CONST. amend. VI.
6
      Requiring that “if the court determines there is evidence to support a finding
      of incompetency, the court, except as provided by . . . Article 46B.005(d),
      shall stay all other proceedings in the case.” TEX. CODE CRIM. PROC. ANN.
      art. 46B.004(d) (West 2006 & Supp. 2012).
7
      Requiring that for “all prosecutions for felonies, the defendant must be
      personally present at the trial.” TEX. CODE CRIM. PROC. ANN. art. 33.03
      (West 2011).
                                           7
Brown.    Article 46.005(d) requires that the trial court determine the issue of

incompetency “before the sentence is pronounced.”8

      Because Brown’s incompetence was raised before the jury determined his

guilt, the trial court’s error in not holding a competency hearing had a substantial

and injurious effect on Brown as he may not have been able to aid in his own

defense. We are unable to grant an abatement for a retrospective competency

evaluation due to the language of article 46.005(d)’s requirement that the court

determine the issue of incompetency “before the sentence is pronounced.”

Accordingly, the appropriate disposition for this case is to remand for a new trial.

See TEX. CODE CRIM. PROC. ANN. art. 44.29(a) (West Supp. 2012).




8
      TEX. CODE CRIM. PROC. ANN. art. 46B.005(d) (West 2006 & Supp. 2012).



                                         8
                                    Conclusion

      Having addressed the State’s rehearing arguments, we deny the requested

relief. Our judgment of February 23, 2012 remains unchanged.




                                             Jim Sharp
                                             Justice

Panel consists of Justices Keyes, Bland, and Sharp.

Publish. TEX. R. APP. P. 47.2(b).




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