                                    IN THE
                            TENTH COURT OF APPEALS

                                  No. 10-07-00223-CR

JOSEPH SEAN WILLIFORD,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                             From the 66th District Court
                                 Hill County, Texas
                                Trial Court No. 31,846


                            MEMORANDUM OPINION


          The trial court revoked Joseph Williford’s community supervision for aggravated

assault and sentenced him to eight years in prison. In two issues, Williford contends

that the trial court abused its discretion by failing to allow an investigation into his

competency to stand trial and by sentencing him to eight years in prison. We will

affirm.

                                       Competency

          At the hearing on the State’s motion to revoke, defense counsel expressed
“serious concerns about [Williford’s] competency level” on whether Williford could

understand their conversations or fully participate in his own defense.                Counsel

requested a continuance so a psychiatrist could review Williford’s competency.

         On the suggestion that the defendant is incompetent to stand trial, “the court

shall 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.”

TEX. CODE CRIM. PROC. ANN. art. 46B.003(c) (Vernon 2006). “If after an informal inquiry

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

court shall order an examination under Subchapter B to determine whether the

defendant is incompetent to stand trial in a criminal case.” Id. art. 46B.005(a).

         In this case, the trial court did conduct an informal inquiry, on the suggestion of

defense counsel, into Williford’s competency. Williford’s first issue complains that the

trial court abused its discretion in finding that no evidence existed to support a finding

of incompetency to stand trial and in failing to order an examination into Williford’s

competence.

                 In Pate v. Robinson, [383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)]
         Illinois conceded that “the conviction of an accused person while he is
         legally incompetent violates due process, and that state procedures must
         be adequate to protect this right.” [Id. at 378, 86 S.Ct. 836.] The Supreme
         Court went on to determine that “where the evidence raises a ‘bona fide
         doubt’ as to a defendant’s competence to stand trial, the judge on his own
         motion must impanel a jury and conduct a sanity hearing.” [Id. at 385, 86
         S.Ct. 836.] Under Texas law, a defendant is incompetent to stand trial if he
         does not have “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. [Art. 46B.003.] A
         bona fide doubt is “a real doubt in the judge’s mind as to the defendant’s
         competency.” Alcott v. State, 51 S.W.3d 596, 599, n. 10 (Tex. Crim. App.

Williford v. State                                                                          Page 2
         2001).] Evidence raising a bona fide doubt “need not be sufficient to
         support a finding of incompetence and is qualitatively different from such
         evidence.” [Id.] Evidence is sufficient to create a bona fide doubt if it
         shows “recent severe mental illness, at least moderate retardation, or truly
         bizarre acts by the defendant.” [McDaniel v. State, 98 S.W.3d 704, 710 (Tex.
         Crim. App. 2003).] If any evidence that suggests the defendant may be
         incompetent to stand trial comes to the trial court’s attention, the trial
         court shall sua sponte “suggest that the defendant may be incompetent to
         stand trial” and then “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.” [Art. 46B.004.]

Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008) (citations in footnotes in

original).

         If the evidence raises a bona-fide doubt about a defendant’s competence, the trial

court must conduct a competency inquiry or hearing. See id. at 228. We review a trial

court’s decision not to conduct a competency inquiry or hearing for an abuse of

discretion. See Moore v. State, 999 S.W.2d 385, 395-96 (Tex. Crim. App. 1999).

         Community supervision officer Kari Price testified that Williford understood his

duties and participated in conversations about his situation. He had even asked about

avoiding the Substance Abuse Felony Punishment Facility (SAFPF). He completed

eight sessions with Dr. Sean McCarthy, a psychiatrist, who sent a note to Price: “Mr.

Williford is beginning to make progress in treatment and understands the need for

compliance in obtaining the recovery he is now motivated for.” McCarthy diagnosed

Williford with “bipolar disorder mixed,” but mentioned no “psychotic features.” Price

testified that Williford “always appeared well oriented.” She was unaware of whether

Williford had any recent psychological episodes. She could give no opinion as to

whether he could currently communicate with his attorney. The trial court found this

Williford v. State                                                                      Page 3
evidence insufficient to support an incompetency hearing and proceeded with the

revocation hearing. Defense counsel’s request for a continuance and an examination of

Williford was denied, and counsel announced not ready.

         Several witnesses testified during the remainder of the hearing. Tony Williford

testified that he obtained a copy of the community supervision order so that he could

help his son comply with the conditions. He testified that Williford has a problem,

sometimes acts withdrawn and moody, and was on medication. His condition had

deteriorated in jail such that Tony can no longer read Williford’s letters or have a

conversation with him. Williford’s step-mother testified that he has “ups and downs,”

but is intelligent and has a high IQ. Price testified that Williford had been taking

lithium for mania and bipolar disorder, Cymbalta for depression, and Klonopin for

anxiety. According to Price, these medications are commonly used together, but are

“designed to modify personalities.” She admitted that Williford was being treated for a

mental disease or defect and drugs would impact his personality and daily functions.

Williford had told Price that the medication was helping. Price was unaware that

Williford had attempted suicide and was on suicide watch.

         During the hearing, Williford appeared to have difficulty responding to

questions from the trial court.1        But during his testimony, Williford appeared to

understand and properly respond to questions from both defense counsel and the State.

He understood that he was at the hearing for violating community supervision, namely


1Williford appeared confused when asked whether he wanted the State to read the charging instrument
aloud. When asked whether he understood that he could not be compelled to testify and that anything
he said “can and will be used against you,” Williford responded, “I’ll try.”

Williford v. State                                                                           Page 4
failing to report to SAFPF, and that he was found guilty of the offense by failing to

comply. He understood that the trial court had already given him several opportunities

and admitted that committing the assault and violating community supervision were

wrong. He also described hearing voices, which cause him difficulty understanding his

attorney, and complained that his medication “messes [him] up.” He thought SAFPF

would have helped him and believed that he needed treatment from MHMR.

         The record does not demonstrate that Williford suffers from an impairment that

prevented him from having the “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); see Grider v. State, 69 S.W.3d 681, 684-85 (Tex. App.—Texarkana 2002, no

pet.) (evidence did not show that paranoid schizophrenic taking medication, hearing

voices, and seeing visions was incompetent); see also Reeves v. State, 46 S.W.3d 397, 400

(Tex. App.—Texarkana 2001, pet. dism’d) (evidence of suicide attempt did not reflect on

the defendant’s “ability to understand or participate in the proceedings”); Townsend v.

State, 949 S.W.2d 24, 27 (Tex. App.—San Antonio 1997, no pet.) (“A determination that a

person is mentally ill does not constitute a finding that the person is incompetent to

stand trial.”). The record contains no evidence of any recent severe mental illness,

bizarre acts, or moderate retardation. See Fuller, 253 S.W.3d at 228. Accordingly, the

trial court did not abuse its discretion by failing to order an examination and to conduct

a competency hearing. See Grider, 69 S.W.3d at 685. We overrule Williford’s first issue.




Williford v. State                                                                  Page 5
                                                Sentence

         Williford’s second issue contends that the trial court abused its discretion by

sentencing him to prison instead of sending him to SAFPF.                          To preserve such a

complaint for appellate review, the complaining party must make a timely request,

objection, or motion and obtain an adverse ruling. TEX. R. APP. P. 33.1; see Hawkins v.

State, 112 S.W.3d 340, 344 (Tex. App.—Corpus Christi 2003, no pet.) (complaint that trial

court abused its discretion by sending defendant to prison instead of to SAFPF was not

preserved in absence of objection to sentence). Williford made no objection to the trial

court’s sentence. His second issue is not preserved for appellate review.2

         We affirm the trial court’s judgment.



                                                                   REX D. DAVIS
                                                                   Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed May 27, 2009
Do not publish
[CR25]


2If Williford had preserved his complaint, the trial court did not abuse its discretion by sentencing him to
prison instead of SAFPF. The eight-year sentence imposed by the trial court is within the applicable
punishment range, in fact being on the lesser end of that range. See TEX. PEN. CODE ANN. § 22.02 (Vernon
Supp. 2008); see also id. § 12.33 (Vernon 2003); Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.
1984) (“It is [] the general rule that as long as a sentence is within the proper range of punishment it will
not be disturbed on appeal.”); Hawkins v. State, 112 S.W.3d 340, 344-45 (Tex. App.—Corpus Christi 2003,
no pet.) (though complaint was not preserved, trial court did not abuse its discretion by sending Hawkins
to prison instead of SAFPF, as sentence was within applicable punishment range); Aleman v. State, 2006
WL 2327750 (Tex. App.—Corpus Christi Aug. 10, 2006, no pet.) (mem. op.) (not designated for
publication) (trial court did not abuse its discretion by sentencing defendant to prison instead of SAFPF;
sentence was within applicable range).

Williford v. State                                                                                    Page 6
