Opinion issued June 28, 2018




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-17-00085-CR
                            NO. 01-17-00086-CR
                          ———————————
              DOMINIQUE DONTRAY GIDDENS, Appellant

                                     V.

                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 268th District Court
                         Fort Bend County, Texas
         Trial Court Case Nos. 12-DCR-060594 and 10-DCR-055931


                        MEMORANDUM OPINION

     Appellant, Dominique Dontray Giddens, pleaded guilty, with an agreed

punishment recommendation from the State, to the offenses of aggravated sexual
assault of a child1 and indecency with a child.2 The trial court deferred adjudication

of his guilt and placed him on community supervision for ten years in each offense.

The State, alleging numerous violations of the conditions of his community

supervision, subsequently moved to adjudicate appellant’s guilt in each offense.

After a hearing, the trial court found several allegations true, found appellant guilty

of both offenses, and assessed his punishment at confinement for ten years for the

offense of aggravated sexual assault of a child and for five years for the offense of

indecency with a child. In two issues, appellant contends that the trial court erred in

not ordering an examination of his competence to stand trial and omitting from the

judgment certain statutorily required recitations.3

      We affirm.

                                    Background

      In 2012, at commencement of the plea proceedings in the underlying cases,

appellant’s counsel filed motions suggesting that appellant may be incompetent to

stand trial and a request for examination. The following discussion took place:

      [Defense Counsel]:      In these recent days, I’ve noticed that [appellant
                              has] become more irrational. He has these
                              tendencies to engage in what I would describe

1
      See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2017); trial court case number
      12-DCR-060594; appellate cause number 01-17-00085-CR.
2
      See id. § 21.11(a)(1) (West Supp. 2017); trial court case number 10-DCR-055931;
      appellate cause number 01-17-00086-CR.
3
      See TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1(19), (26) (West 2018).
                                          2
                     [as] irrational thinking. I don’t think he
                     understands the consequences of his decisions,
                     and I think he lacks the capacity to make
                     reasoned choices.
                     Furthermore, there’s a—a barrier with him
                     remembering certain details, which I think is
                     necessary in order to adequately prepare his
                     defense. And I think that based on yesterday’s
                     events, I think that there’s a strong likelihood the
                     defendant may be incompetent.
THE COURT:           Could you further explain these barriers that
                     you’re talking about? And when did they first
                     appear?
[Defense Counsel]: Well, this weekend at the jail when we were
                   discussing different events, I provided him with
                   an outline, trying to narrow down specific dates.
                   He could not recall dates. He could not recall the
                   order of the events in which things transpired.
                   He was in and out of the household. Could not
                   recall the dates in which he was in and out, which
                   is very relevant to this case.
                     Furthermore, there have been some attempts
                     prior to him being in custody where we were to
                     meet at our office, and I was unable to meet with
                     him, and I think that’s more evidence that he
                     may not be fully competent.
THE COURT:           Explain, please.
[Defense Counsel]:   Well, I think that, you know, if he were fully
                     comprehending the gravity of the situation, that
                     he would be vigilant in his attempts to try to
                     prepare his defense, and I think that’s what I
                     have noticed is that the defendant has always had
                     sort of a flat affect, very stoic, not very talkative.
                     I initially just attributed that to personality, but
                     after yesterday, I think that that may be
                     consistent with a mental illness.


                                  3
THE COURT:           [Counsel], there are two cases involving
                     [appellant]. The first case was filed on
                     November 22nd, 2010; the second one, on June
                     18th, 2012. You have been representing him
                     throughout the entirety of the time. Have you
                     been able to communicate with him through that
                     period?
[Defense Counsel]:   I would say partially. . . . For a long time, I had
                     no way of communicating with him because he
                     did not have a phone, did not have an address, so
                     my ability to speak to him was limited to when
                     we came to court, so a lot of that time, I did not
                     have sufficient communication with him. Since
                     he’s been in jail, I’ve spent more time with him,
                     and I’ve noticed this pattern.
....
THE COURT:           The most recent events you referred to occurred
                     yesterday, am I correct?
[Defense Counsel]:   Correct.
THE COURT:           And that’s when you and the State and
                     [appellant] were discussing a resolution of this
                     case; and the State had made an offer; and at
                     least when the docket began in the morning, the
                     announcement was he was going to take the
                     offer. As the day wore on, a lot of—more
                     discussions ensued, resulting in, at 4:00 o’clock
                     that afternoon, he rejected the offer; is that
                     correct?
[Defense Counsel]:   And that’s correct, your Honor.
THE COURT:           But prior to that time, you were ready to go
                     forward with entering a plea for him and were
                     confident that he was competent enough to
                     understand what he was entering into and the
                     ability to take a plea in this case; is that correct?
[Defense Counsel]:   I had some reservations, and I had discussed that
                     with the State prior to that. You know, I wanted
                     to attribute it—some of it to typical defendant
                                  4
                             behavior; but after the State’s offer, which what
                             I thought was exceedingly lenient, and his
                             vacillation with it, I thought that that was quite
                             bizarre and inconsistent with someone who
                             really understood the gravity of the situation.
      THE COURT:             You’ve been practicing a long time, [Counsel].
                             This is not the first defendant who’s had rather
                             bizarre responses to plea offers, is it?
      [Defense Counsel]:     Well, this is the most bizarre I’ve ever seen. . . .
      ...
                             And if I may add, your Honor, the defendant’s
                             appearance—I’ve requested that he cut his
                             hair. . . . The other thing is that his behavior, his
                             lifestyle of being in and out, homeless from time
                             to time, I think is also consistent with behavior
                             of people with mental illness.
      THE COURT:             [Appellant], you’ve listened to everything that’s
                             happened this morning concerning your mental
                             capacity, and the concern your lawyer has and I
                             have is whether you fully understand what’s
                             going on today. What’s your response?
      [Appellant]:           I understand, and I—I believe I’m competent.
                             He’s just—I don’t know. I’m not taking a plea
                             because I didn’t do it. That’s—That’s the basic
                             reason I’m not taking it.
      THE COURT:             All right. Motion denied.

      After a recess, appellant pleaded guilty to each offense, in exchange for the

State’s recommendation as to punishment. During the plea proceedings, appellant

affirmed, in response to the trial court’s questions, that he understood the charges

against him and the range of punishment for each; that he had reviewed the written

admonishments with his counsel and understood them; that he understood the


                                          5
proceedings and accepted the State’s recommendations as to punishment; and that

he had voluntarily chosen to enter his pleas. In each case, the trial court deferred

adjudication of appellant’s guilt and placed him on community supervision for a

period of ten years, subject to certain terms and conditions. Appellant did not appeal.

      In 2017, the State filed motions to adjudicate appellant’s guilt in both offenses.

At the hearing on the motions, appellant stated that he understood the State’s

allegations and waived the reading of those allegations into the record. He further

stated that he understood the range of punishment for each offense. He pleaded

“true” to the State’s allegations that he violated the terms of his community

supervision in each case. Appellant testified that he committed a new offense and

did not report to his community supervision officer, did not register as a sex offender,

did not maintain employment, and did not complete his court-ordered community

service. The State asked the trial court to consider the pre-sentence investigation

(“PSI”) report in its file, as amended that morning. Appellant stated that he had no

objection.

      After the hearing, the trial court found that appellant had committed

approximately 18 violations of the terms and conditions of his community

supervision in each case, adjudicated appellant guilty of each offense, and sentenced

him to confinement for ten years for the offense of aggravated sexual assault of a

child and five years for the offense of indecency with a child.

                                           6
                                     Competency

      In his first issue, appellant argues that the trial erred in not ordering an

examination of his competency in the original trial because the record “raised some

evidence that [he] may have been incompetent to stand trial.” See TEX. CODE CRIM.

PROC. ANN. art. 46B.005(a) (West 2018).

      “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 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 trial.’” Id. at

688–89 (quoting Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903 (1975)).

Thus, a defendant is incompetent to stand trial if he does not have a sufficient present

ability to consult with his lawyer with a reasonable degree of rational understanding

or a rational, as well as factual, understanding of the proceedings against him. TEX.

CODE CRIM. PROC. ANN. art. 46B.003(a).

      Either party may suggest by motion, or a trial court may suggest on its own

motion, that a defendant may be incompetent to stand trial. Id. art. 46B.004(a). A

suggestion of incompetence “may consist solely of a representation from any

credible source.” Id. art. 46B.004(c-1). “A further evidentiary showing is not

required to initiate the inquiry, and [a] court is not required to have a bona fide doubt

                                           7
about the competency of [a] defendant.” Id. “Evidence suggesting the need for an

informal inquiry may be based on observations made in relation to one or more of

the factors described by Article 46B.024 or on any other indication that the defendant

is incompetent within the meaning of Article 46B.003.” Id. The factors include

whether the defendant can: “(A) rationally understand the charges against [him] and

the potential consequences of the pending criminal proceedings; (B) disclose to

counsel pertinent facts, events, and states of mind; (C) engage in a reasoned choice

of legal strategies and options; (D) understand the adversarial nature of criminal

proceedings; (E) exhibit appropriate courtroom behavior; and (F) testify.” Id. art.

46B.024(1).

      If, after its informal inquiry, the trial court determines that evidence exists to

support a finding of incompetency, then the trial court shall appoint an expert to

examine the defendant and shall hold a formal competency trial to determine

whether the defendant is incompetent to stand trial.          See id. arts. 46B.005,

46B.021(b); Turner, 422 S.W.3d at 692.

      We review challenges to a trial court’s finding following an informal

competency inquiry for an abuse of discretion. See Luna v. State, 268 S.W.3d 594,

600 (Tex. Crim. App. 2008); Thomas v. State, 312 S.W.3d 732, 736–37 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d). A trial court’s first-hand factual




                                           8
assessment of a defendant’s competency is entitled to great deference on appeal.

Ross v. State, 133 S.W.3d 618, 627 (Tex. Crim. App. 2004).

Jurisdiction

      As a preliminary matter, the State asserts that this Court lacks jurisdiction to

consider appellant’s competency in the 2012 trial because this appeal is limited to

issues arising from the 2017 revocation and adjudication proceeding.

      It is well-established that a defendant placed on deferred adjudication

community supervision may raise issues relating to the original plea proceeding only

in an appeal taken when deferred adjudication probation is first imposed. Manuel v.

State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999). Such issues may not be

raised in an appeal from an order revoking probation and adjudicating guilt. Id.; see

also Riles v. State, 452 S.W.3d 333, 338 (Tex. Crim. App. 2015) (“We made clear

in Manuel . . . that those issues that an appellant can raise in a direct appeal from the

initial judgment must be raised, and that failing to do so results in procedural

default.”).

      There are two exceptions: the “void judgment exception” and the “habeas

corpus exception.” See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001);

see also Bell v. State, 515 S.W.3d 900, 901 (Tex. Crim. App. 2017) (applying Nix).

The void judgment exception applies in “rare situations” in which the trial court

lacked power to render the judgment. Nix, 65 S.W.3d at 667. A judgment of

                                           9
conviction is void if: (1) the charging instrument did not satisfy the constitutional

requisites; (2) the trial court did not have subject matter jurisdiction over the offense;

(3) there was no evidence to support the conviction; or (4) counsel was not appointed

for an indigent defendant who had not waived the right to counsel. Id. at 668. The

Court of Criminal Appeals has stated, “While we hesitate to call this an exclusive

list, it is very nearly so.” Id. Pursuant to the habeas corpus exception, an appellate

court must consider the merits of issues raised in a petition for writ of habeas corpus

before community supervision was revoked if the issues are cognizable by a writ of

habeas corpus and if the defendant attempted to litigate the issues at the revocation

hearing. Id. at 669–70. Appellant has not established that either of these exceptions

apply. Notably, even a meritorious claim that a defendant’s plea was involuntary

does not render a judgment void. Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim.

App. 2001).

      Here, appellant was required to raise his challenge to the trial court’s ruling

on his suggestion of incompetency in an appeal from the orders of deferred

adjudication.    See, e.g., Vasbinder v. State, No. 04-16-00696-CR, 2017 WL

3880108, at *2 (Tex. App.—San Antonio Sept. 6, 2017, no pet.) (holding defendant

could not, in appeal from judgment revoking community supervision and

adjudicating guilt, raise issue that trial court erred in not conducting formal

competency trial in underlying proceeding). We hold that we are without jurisdiction

                                           10
to consider issues related to the original plea proceedings in this appeal from the

judgments adjudicating guilt. See Bell, 515 S.W.3d at 901; Riles, 452 S.W.3d at

338; Manuel, 994 S.W.2d at 661–62; see also Vasbinder, 2017 WL 3880108, at *2.

                               Article 42.01 Recitals

      In his second issue, appellant argues that the trial court’s judgments

adjudicating his guilt are “voidable” because they do not contain the recitals required

by Texas Code of Criminal Procedure article 42.01, section 1, (19) and (26). See

TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1(19), (26) (West 2018). He complains

that the trial court’s judgment does not include whether his sentences are to run

consecutively or concurrently and does not include that the PSI “was done according

to ‘the applicable provision’ in the Code.”

      Article 42.01, section 1 (19), provides that a trial court’s judgment must

contain:

      The terms of any order entered pursuant to Article 42.08 that the
      defendant’s sentence is to run cumulatively or concurrently with
      another sentence or sentences[.]

Id. art. 42.01 § 1(19) (emphasis added). Article 42.08 provides that when the same

defendant is convicted in two or more cases, a trial court may order that his sentences

run either cumulatively (consecutively) or concurrently:

      When the same defendant has been convicted in two or more cases,
      judgment and sentence shall be pronounced in each case in the same
      manner as if there had been but one conviction. [With inapplicable
      exceptions], in the discretion of the court, the judgment in the second
                                          11
      and subsequent convictions may either be that the sentence imposed or
      suspended shall begin when the judgment and the sentence imposed or
      suspended in the preceding conviction has ceased to operate, or that the
      sentence imposed or suspended shall run concurrently with the other
      case or cases, and sentence and execution shall be accordingly;
      provided, however, that the cumulative total of suspended sentences in
      felony cases shall not exceed 10 years . . . .

Id. art. 42.08 (West 2018). The Texas Court of Criminal Appeals has “long held that

‘[w]here the court does not order that two or more sentences in different prosecutions

shall be cumulative as permitted by Article 42.08[ ], the terms of imprisonment

automatically run concurrently.” Moore v. State, 371 S.W.3d 221, 228 (Tex. Crim.

App. 2012) (quoting Ex parte Reynolds, 462 S.W.2d 605, 606 n.1 (Tex. Crim. App.

1970)); see also Jagaroo v. State, 180 S.W.3d 793, 801 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref’d) (“When a defendant is sentenced on the same day in several

causes, the sentences run concurrently unless the trial court, by order, expressly

makes cumulative the several punishments.”).

      Here, the record does not show, and appellant does not assert, that the trial

court entered an order making his sentences cumulative. It is undisputed that the

trial court’s oral pronouncements are consistent with the written judgments. Because

nothing suggests that the trial court entered a cumulation order, there is nothing for

this Court to address or reform. See Jagaroo, 180 S.W.3d at 802. Rather, the terms

of appellant’s imprisonment “automatically run concurrently.” See Moore, 371

S.W.3d at 228.

                                         12
       Next, article 42.01, section 1 (26), provides that a trial court’s judgment must

reflect:

       In the event that a [PSI] is required by Subchapter F, Chapter 42A, a
       statement that the [PSI] was done according to the applicable provision.

TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1(26) (emphasis added). Chapter 42A,

Subchapter F, “Presentence and Postsentence Reports and Evaluations,” provides in

pertinent part:

       (a) Except as provided by Subsection[] . . . (c), before the imposition of
       the sentence by a judge, the judge shall direct a supervision officer to
       prepare a presentence report for the judge.
       ....
       (c) The judge is not required to direct a supervision officer to prepare
       a presentence report in a felony case if:
             ....
             (3) the only available punishment is imprisonment; . . .
             ....

Id. art. 42A.252 (emphasis added).

       Here, the trial court adjudicated appellant guilty of the offenses of indecency

with a child and aggravated sexual assault of a child. See TEX. PENAL CODE. ANN.

§§ 21.11(a)(1), 22.021 (West Supp. 2017). A trial court may not place a defendant

adjudged guilty of the offenses of indecency with a child or aggravated sexual assault

of a child, under Penal Code sections 21.11(a)(1) or 22.021, on community

supervision. TEX. CODE CRIM. PROC. ANN. art. 42A.054(a)(6), (8) (West 2018); see

also Jimenez v. State, 446 S.W.3d 544, 550–51 (Tex. App.—Houston [1st Dist.]


                                          13
2014, no pet.). Because, here, imprisonment was the only punishment option with

respect to both offenses, a PSI was not “required by Subchapter F, Chapter 42A.”

See TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1(26). Accordingly, the trial court

was not required, under article 42.01, to include a statement in its judgments that the

PSI “was done according to the applicable provision.” See id.

      We overrule appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




                                          14
