                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-454-CR


WILLIAM EMANUEL GLEN                                                APPELLANT
HARTFIELD

                                        V.

THE STATE OF TEXAS                                                       STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      In two issues, appellant William E.G. Hartfield appeals his conviction for

arson, asserting that the trial court abused its discretion by failing to conduct

a competency hearing and committed reversible error by failing to include a jury

instruction on attempted arson as a lesser included offense. We will affirm.




      1
          … See Tex. R. App. P. 47.4.
                                 II. B ACKGROUND

      Residents of the Shadow Creek Apartments noticed a strong chemical

odor in their apartments and called 911. Firefighters noticed liquid leaking from

the ceiling in an upstairs unit and found a gasoline-filled balloon in the attic.

Apartment 2009, which was leased to Hartfield, was the only apartment with

access to the attic. Firefighters obtained a search warrant to search that unit

and saw some insulation and ceiling material on the carpet by the entrance to

the attic. They also found more insulation and ceiling material and a package

for balloons in Hartfield’s trash can. Inside the attic, firefighters found another

gasoline-filled balloon, a charred, partially burned sock, and charred insulation

material. Ultimately, Hartfield was charged with arson.

                         III. C OMPETENCY TO S TAND T RIAL

      In his first issue, Hartfield contends that the trial court abused its

discretion by failing to conduct a formal competency hearing under article 46B

of the code of criminal procedure and as required to satisfy due process. The

parties agree that the trial court conducted an informal inquiry into Hartfield’s

competency.

      Prior to trial, Hartfield’s first attorney filed a motion suggesting

incompetency and request for examination. The trial court granted the motion

and appointed Dr. Barry Norman to conduct an examination of Hartfield to

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determine his competency.        Dr. Norman reported that Hartfield had a

“diagnosable mental illness/emotional disturbance” and that his impression of

the illness was “[d]epression, mild, situational in nature” and “Mixed Personality

Disorder.” The doctor found that Hartfield was competent to stand trial. 2

      Under the Texas Code of Criminal Procedure, a defendant is presumed

competent to stand trial and shall be found competent unless proved

incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann.

art. 46B.003(b) (Vernon 2006). A defendant is incompetent to stand trial if he

lacks: (1) sufficient present ability to consult with counsel with a reasonable

degree of rational understanding, or (2) a rational as well as factual

understanding of the proceedings against him. Id. art. 46B.003(a)(2); McDaniel

v. State, 98 S.W.3d 704, 709–10 (Tex. Crim. App. 2003).

      Because the parties agree that the trial court conducted an informal

competency inquiry, and because Hartfield’s appellate complaint concerns the

trial court’s failure to conduct a formal incompetency hearing, our analysis




      2
       … The report included findings that Hartfield “appears to have a rational
and factual understanding of the charges and the potential consequences and
penalties”; “provided a reasonably accurate rendition of the penalty range for
the alleged offense”; “appears to have a good understanding of basic legal
concepts”; and “possesses the capacity to testify in a relevant manner[,] . . .
was able to converse logically and remain on topic[, and] . . . conversed with
this examiner in a goal-directed manner without significant problems.”

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begins with the statutory requirements of a formal competency hearing.3 If,

after an informal inquiry into a defendant’s competency to stand trial, the court

determines that evidence exists to support a finding of incompetency, the court

must order an examination to determine whether the defendant is incompetent

to stand trial in a criminal case.4 Tex. Code Crim. Proc. Ann. art. 46B.005(a);

Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.—Fort Worth 2005, pet.

ref’d). And generally, if the court determines that evidence exists to support

a finding of incompetency, the court shall hold a hearing to determine whether

the defendant is incompetent to stand trial, and, on the request of either party

or on the court’s motion, a jury shall make the determination as to whether the

defendant is incompetent. Tex. Code Crim. Proc. Ann. arts. 46B.005(b),

46B.051; Lawrence, 169 S.W.3d at 322. In determining whether evidence

requires a hearing on competency, the trial court is to consider only the

evidence tending to show        incompetency, and      not evidence showing

competency, in order to find whether there is some evidence, a quantity more




      3
       … Thus, we make no determination regarding the trial court’s informal
inquiry process and address only whether the trial court was required to hold
a formal competency hearing.
      4
       … A court also may appoint one or more disinterested experts to examine
the defendant upon a suggestion that the defendant may be incompetent to
stand trial. Tex. Code Crim. Proc. Ann. art. 46B.021.

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than none or a scintilla, that rationally could lead to a determination of

incompetency. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999),

cert. denied, 530 U.S. 1216 (2000) (citing Sisco v. State, 599 S.W.2d 607

(Tex. Crim. App. 1980) and applying former version of incompetency statute).

      We review a trial court’s decision not to conduct a formal competency

hearing for an abuse of discretion. Id. A trial court abuses its discretion if its

decision is arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex.

Crim. App. 1995).

      On appeal, Hartfield argues that Dr. Norman’s report, as well as motions

to withdraw filed by two of Hartfield’s defense counsel, were evidence of his

incompetency, requiring the trial court to conduct a formal hearing concerning

his competency to stand trial.5 Hartfield argues that Dr. Norman’s opinion that

Hartfield had “a diagnosable mental illness/emotional disturbance” was some

evidence of his incompetency, but we hold that this diagnosis did not compel

the trial court to hold a formal hearing when no evidence indicated that Hartfield


      5
       … Hartfield also contends that an inference can be made that the trial
court “determined that evidence existed to support a finding of incompetency
as a threshold matter” because it granted his first attorney’s Motion Suggesting
Incompetency and Request for Examination, but the fact that a court grants a
motion for a competency evaluation does not constitute evidence that the
defendant is incompetent to stand trial. See Johnson v. State, 564 S.W.2d
707, 710 (Tex. Crim. App. 1977) (op. on reh’g), overruled on other grounds by
Williams v. State, 663 S.W.2d 832, 834 (Tex. Crim. App. 1984).

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was incapable of consulting with counsel or understand the proceedings against

him. See Moore, 999 S.W.2d at 395–96; see also McDaniel, 98 S.W.3d at

710 (noting that evidence of severe mental illness or moderate retardation or

that defendant engaged in bizarre acts is usually sufficient to create a bona fide

doubt about defendant’s competency and necessitate a competency inquiry

under former version of competency statute).

      Hartfield also points to Dr. Norman’s finding that medications were

“necessary to attain or maintain competency.”        The State argues, and we

agree, that this statement must be viewed in the context of the entire report.

Cf. Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993) (holding

that in deciding whether there was any evidence entitling defendant to a lesser

included offense jury instruction, statement allegedly raising issue must be

viewed in context). The “Medication” section of Dr. Norman’s report contained

the following:

      C.    Are medications necessary to attain or maintain competency
            1. Yes

      D.    Are medications likely to help restore the defendant to
            competency in the foreseeable future
            1. Not applicable

The report then stated Dr. Norman’s opinion that psychotropic medications

were “[p]rospective treatment options appropriate for defendant.”        Reading


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these sections of the report together, Dr. Norman’s determination that Hartfield

needed medication “to attain or maintain competency” was not some evidence

of his incompetency and did not mandate a formal competency hearing absent

evidence of a present inability to communicate with his attorney or to

understand the proceedings. See Moore, 999 S.W.2d at 395–96. Dr. Norman

made clear that his ultimate professional opinion was that Hartfield was

competent to stand trial, and the report demonstrates that Dr. Norman did not

determine that medication was necessary to attain competency, but rather

would be a prospective treatment option appropriate to ensure Hartfield

maintained competency in the future. In the doctor’s professional opinion,

Hartfield’s lack of medication did not render him incompetent at that time.

      The issue of Hartfield’s competency is not mentioned in the reporter’s

record. Hartfield did not request that a jury determine his competency to stand

trial, and he did not present the trial court with any evidence, such as the

opinion of another expert, of his incompetency. The record does not include

any discussions regarding Hartfield’s competency other than the motion

suggesting incompetency and Dr. Norman’s examination. We cannot conclude

that the trial court’s decision not to conduct a formal competency hearing was

arbitrary and unreasonable; to the contrary, there was no evidence of Hartfield’s

incompetency to warrant such a hearing. See Tex. Code Crim. Proc. Ann. art.

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46B.004(c); McDaniel, 98 S.W.3d at 711; Lewis, 911 S.W.2d at 7. Thus, we

hold that the trial court did not abuse its discretion by not conducting a formal

hearing concerning Hartfield’s competency to stand trial.             We overrule

Hartfield’s first issue.

                IV. J URY INSTRUCTION ON L ESSER INCLUDED O FFENSE

      In his second issue, Hartfield argues that the trial court committed

reversible error by failing to include a jury instruction on attempted arson as a

lesser included offense.     Hartfield concedes that he did not request the

instruction at trial but argues that we should review this matter for egregious

harm pursuant to Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984) (op. on reh’g).

      But Almanza does not relate to the failure to give a lesser included

offense instruction, and the decision whether to request such an instruction is

a strategic decision for the parties and is separate from the trial court’s

obligation to instruct the jury on the law. See Delgado v. State, 235 S.W.3d

244, 250 (Tex. Crim. App. 2007); Middleton v. State, No. 12-07-00066-CR,

2008 WL 787567, at *3 (Tex. App.—Tyler Mar. 26, 2008, pet. ref’d) (mem.

op., not designated for publication). If neither side requests a lesser included

instruction, the trial court need not submit one sua sponte.         Delgado, 235

S.W.3d at 249–50; Mashburn v. State, No. 02-07-00256-CR, 2008 WL

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3186642, at *13 (Tex. App.—Fort Worth Aug. 7, 2008, no pet. h.).

Consequently, we conclude that it was not error for the trial court not to give

an unrequested lesser included offense jury instruction. We overrule Hartfield’s

second issue.

                                V. C ONCLUSION

      Having overruled Hartfield’s two issues, we affirm the trial court’s

judgment.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 23, 2008




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