      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00124-CR



                                    Lee Roy Bara, Appellant

                                                v.

                                  The State of Texas, Appellee


 FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT
         NO. 4866, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Lee Roy Bara pleaded guilty to committing the offense of driving while

intoxicated. Punishment was assessed at three years’ imprisonment, but the district court suspended

imposition of the sentence and placed Bara on community supervision for a period of three years.

The State subsequently filed a motion to revoke probation, which the district court granted.

Appellant was then sentenced to two years’ imprisonment. In a single point of error, Bara asserts

that the district court abused its discretion prior to the revocation hearing by not conducting an

informal inquiry into Bara’s competency to stand trial. We will affirm the judgment.


                           STANDARD AND SCOPE OF REVIEW

               A person is incompetent to stand trial if the person does not have either a

sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational

understanding or a rational as well as factual understanding of the proceedings against the person.
Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West 2006). If evidence suggesting that the defendant

may be incompetent to stand trial comes to the attention of the court, the court must raise the

competency issue on its own motion and 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. Pitonyak v. State, 253 S.W.3d 834, 855 (Tex. App.—Austin 2008, pet. ref’d) (citing

id. art. 46B.004(b), (c) (West 2006)). An informal competency inquiry is required only if the

evidence brought to the court’s attention raises a “bona fide doubt” in the court’s mind about the

defendant’s competency to stand trial. See Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App.

2009); McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003). “A bona fide doubt may

exist if the defendant exhibits truly bizarre behavior or has a recent history of severe mental illness

or at least moderate mental retardation.” Montoya, 291 S.W.3d at 425. “The considerations when

evaluating competency to stand trial include the defendant’s level of understanding of the proceeding

and ability to consult with counsel in preparation for the proceeding.” Id. at 425-26. Moreover, the

focus of the statute is on the defendant’s “present ability” to stand trial. See id. at 425. Accordingly,

past instances of depression and other mental-health issues “raise the issue of incompetency only

if there is evidence of recent severe mental illness, at least moderate retardation, or bizarre acts

by the defendant.” Id.

                We review a trial court’s decision not to conduct a competency inquiry for abuse of

discretion. Id. at 426. “An appellate court does not substitute its judgment for that of the trial court,

but rather determines whether the trial court’s decision was arbitrary or unreasonable.” Id. This




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is because the trial court, which observes first-hand the behavior of the defendant, is “in a better

position to determine whether [the defendant] was presently competent.” Id.


                                            ANALYSIS

               On January 13, 2009, the day of the revocation hearing, Bara’s counsel filed a

“motion raising competency to stand trial.” In the motion, counsel alleged the following:


       The basis for this Motion is that counsel for the Defendant was informed on
       January 12, 2009 that the mother-in-law of the Defendant had stated that day to a
       third party that the Defendant had ceased taking his psychiatric medications and that
       as a result, the Defendant’s mental status was of such a nature as to seriously raise
       a question in counsel’s mind as to the competence of the Defendant.


No additional details were provided, and no affidavit was attached to the motion.

               Before the revocation hearing began, counsel provided the district court with

additional information regarding the motion. Counsel advised the court that Bara “takes regular

medications for paranoid schizophrenia and bipolar disorder.” The day before the revocation

hearing, counsel explained, he was informed by Bara’s bail bondsman that Bara’s mother-in-law

(who, according to counsel, works for the bondsman as a housekeeper) told the bondsman that

Bara had stopped taking his medications “a couple of months ago” on advice of a relative. As a

result, counsel asserted, Bara was “just plain crazy, that he basically slept 23 out of 24 hours a day

or something along that line, very erratic behavior.” “[O]ut of an abundance of caution,” counsel

concluded, “I prepared and filed this motion this morning.”

               Counsel explained that he was unable to subpoena Bara’s mother-in-law,

Loretta Williams, in time for the hearing. However, counsel claimed that he had one witness

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available, Bert Striegler, “who . . . has known Mr. Bara for some period of time and can testify in

a general sense to his current mental status.”

               In response, the State argued that “the motion itself is based on hearsay [within]

hearsay” and claimed that Bara’s mental status had “never been an issue” during his period of

supervision. The State added that if it believed Bara’s competence “was an issue at all, then we

would, you know, agree to have it checked out,” but the State did not “see any basis for the motion.”

               The district court denied the motion, and explained its reasoning as follows:


       Well, I think the record should reflect that this Court and this Judge has been
       dealing with Mr. Bara for in excess of ten years. It’s probably closer to 18 years that
       he’s regularly appeared in Court and absolutely has never raised an issue about
       competency. Never raised an issue about any diagnosis for mental illness. Never
       said anything about taking medicine. The Court has accommodated him to let him
       have surgery when he needed surgery, and all this and every time we got ready to go
       to trial, we’ve had something come up about his physical condition and never about
       his mental condition.

       He’s been in Court as recently as last month. There was nothing brought up about
       competency to stand trial. I think the motion is a frivolous motion, and I’m going to
       deny your motion and proceed to trial this morning.


The revocation hearing then began.

               During the hearing, after the State presented evidence tending to show that Bara had

violated the terms of his community supervision, Bara called Striegler to testify on his behalf.

Striegler testified that Bara had worked for him on a construction project in 2006. The following

testimony was elicited concerning Bara’s mental status:


       Q:      How would you describe his mental status as we sit here today or stand here
               today?

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        A:      Well—

        Q:      Not as an expert, but just—

        A:      Yeah. I’m not a doctor. I don’t think he’s quite up to speed lately compared
                to the way I knew him when he worked with us down there. He was much
                quicker then and much more into what he was doing then, but then I might
                have been, too, because I’ve aged since then.

        Q:      I understand.

        A:      But I don’t think he’s quite as sharp as he was at the time.


                At the close of evidence, the district court returned to the subject of Bara’s

competence. First, the district court corrected its earlier statement concerning the absence of a

diagnosis in Bara’s medical history and took notice of hospital records from 2004 and 2005 in Bara’s

file. According to the district court, the records “showed that Mr. Bara did have manic depression

and major depression. There is no reference to paranoid schizophrenia or any kind of schizophrenia

in the medical records, and this . . . was in 2004 that the notes were dated. . . . I’m going to correct

that because I previously said it had not been raised, but apparently [prior counsel] . . . released the

medical records and they’ve been presented.” The district court also observed that Bara had been

prescribed “Antabuse and antidepressants” at the time of his diagnosis. The district court then

proceeded to inquire into Bara’s medical history and his competence:


        The Court:              What do you have surgery for? You said you had surgery
                                scheduled.

        The Defendant:          Sinus surgery. . . .

        The Court:              Is that at the VA?



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The Defendant:   The VA is going to have it privately done outside the VA . . . .

The Court:       Do you go to San Antonio to VA or to Kerrville?

The Defendant:   San Antonio. Kerrville. I got copies of all the medical
                 records and medication and diagnoses that are up to date. I’ve
                 been visiting Dr. Shaw. They put me on schizophrenia
                 medication, but it was too strong.

The Court:       Well, there’s nothing to show that you’ve been diagnosed
                 with paranoid schizophrenia, absolutely nothing.

The Defendant:   This was about a year ago.

The Court:       But you’ve been coming to Court.

The Defendant:   Yes, sir.

The Court:       I mean you’ve appeared every time and visited with your
                 attorney, and you understood what he advised you.

The Defendant:   Yes, sir.

The Court:       And you know what his role is?

The Defendant:   Yes, sir.

The Court:       You know what the DA’s role is?

The Defendant:   Yes, sir.

The Court:       You know what my role is?

The Defendant:   Yes, sir.

The Court:       And you understand what you’re charged with?

The Defendant:   Yes, sir. . . .




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                On this record, we cannot conclude that the district court abused its discretion in

not conducting an informal inquiry into Bara’s competence prior to the hearing. As the State

observed, Bara’s motion was based on hearsay within hearsay. See Tex. R. Evid. 802, 805. There

was no affidavit attached to the motion. The person who counsel claimed had first-hand knowledge

of Bara’s behavior, Bara’s mother-in-law, was unavailable to testify. The only witness available to

testify, according to counsel, could testify only “in a general sense” to Bara’s “current mental status.”

Counsel made no representation that this witness had any first-hand knowledge of Bara’s allegedly

“erratic behavior.”

                Citing to Mata v. State, 632 S.W.2d 355 (Tex. Crim. App. 1982), Bara asserts that

counsel’s unsworn statements to the district court are evidence of Bara’s incompetence. In Mata,

the court of criminal appeals stated, in dicta, that “the unsworn statement of the attorney could be

evidence [of incompetence] if the statement of the attorney raised a bona fide doubt as to the

defendant’s competence.” Id. at 358. However, the court also observed that “[e]vidence raising a

bona fide doubt is evidence that causes a real doubt in the judge’s mind as to the defendant’s

competency.” Id. In this case, the district court would not have abused its discretion in finding

that counsel’s statements did not rise to that level. Counsel did not claim that he had first-hand

knowledge that Bara had stopped taking his medications or that Bara was acting “erratically.”

Rather, counsel represented that this information was reported to him by Bara’s bail bondsman, who

had been told this information by Bara’s mother-in-law. Moreover, the extent of Bara’s allegedly

“erratic” behavior, according to counsel, was Bara sleeping for “23 out of 24 hours a day.” The

district court would not have abused its discretion in finding that such conduct, even if true,



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did not rise to the level of “truly bizarre behavior,” “severe mental illness,” or “moderate mental

retardation.” See Montoya, 291 S.W.3d at 425.

                We reach the same conclusion considering the additional evidence presented after the

district court denied the motion. Streigler testified that Bara was not “quite as sharp” as he used to

be, but the district court would not have abused its discretion in finding that this testimony does not

raise a “bona fide doubt” about Bara’s competence to stand trial. And, even though hospital records

revealed that Bara had been diagnosed several years earlier with manic depression and had been

prescribed antidepressants, the district court would not have abused its discretion in finding that Bara

was not currently suffering from “severe mental illness” such that he would not be competent to

stand trial. The district court asked Bara several questions concerning whether Bara understood his

attorney’s advice, the role of his attorney, the prosecutor, and the district court in the case, and the

offense for which Bara was charged. In response to each of the district court’s questions, Bara

testified that he understood.

                On this record, the district court would not have abused its discretion in finding that

Bara failed to present evidence raising a “bona fide doubt” about Bara’s competency to stand trial.

Accordingly, we cannot conclude that the district court abused its discretion in not conducting an

informal competency inquiry prior to the hearing.

                We overrule Bara’s sole point of error.




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                                       CONCLUSION

              We affirm the judgment of the district court.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: April 21, 2010

Do Not Publish




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