                                                                            ACCEPTED
                                                                        06-15-00006-CR
                                                             SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                    5/4/2015 1:00:19 PM
                                                                       DEBBIE AUTREY
                                                                                 CLERK

               No. 06-15-00006-CR

         IN THE COURT OF APPEALS
                                                       FILED IN
                                                6th COURT OF APPEALS
                   FOR THE                        TEXARKANA, TEXAS
                                                5/4/2015 1:00:19 PM
     SIXTH JUDICIAL DISTRICT OF TEXAS               DEBBIE AUTREY
                                                        Clerk


          MICHAEL DUANE HOLT,

                                    Appellant

                       V

              THE STATE OF TEXAS

                                    Appellee


  APPEALED FROM THE 71st DISTRICT COURT

         HARRISON COUNTY, TEXAS

       TRIAL COURT CAUSE #12-0381X


                BRIEF OF STATE


                           COKE SOLOMON
                           CRIMINAL DISTRICT ATTORNEY
                           HARRISON COUNTY, TEXAS
                           P.O. BOX 776
                           MARSHALL, TEXAS 75671
                           (903) 935-8408

        BY:    SHAWN ERIC CONNALLY
               ASSISTANT CRIMINAL DISTRICT ATTORNEY
               BAR #24051899
               ATTORNEY FOR THE STATE


APPELLEE DOES NOT REQUEST ORAL ARUGMENT

                       i
                                     No. 06-15-00006-CR

                                  MICHAEL DUANE HOLT
                                              Appellant

                                               V

                                   THE STATE OF TEXAS
                                               Appellee

                        __________________________________________

                        NAMES OF ALL PARTIES AND ATTORNEYS
                        __________________________________________

       The names and identifying information of all parties and attorneys were correctly stated

in Appellant’s brief.




                                               ii
                                                    TABLE OF CONTENTS


NAMES OF ALL PARTIES AND ATTORNEYS ........................................................................ ii

INDEX OF AUTHORITIES.......................................................................................................... iv

PRELIMINARY STATEMENT OF THE NATURE OF THE CASE ...........................................1

           STATE’S REPLY ISSUE ONE: …………………………………1
           The trial court did not commit reversible error because the judgment in
           Appellant’s case reflects a finding by the trial court that Appellant was mentally
           competent to stand trial and the record reflects that the trial court had the
           opportunity to consider Appellant’s competence before accepting his guilty plea


GENERAL STATEMENT OF THE FACTS ..................................................................................1

ARGUMENTS AND AUTHORITIES............................................................................................2
    SUMMARY OF THE ARGUMENT REPLY ISSUE ONE ...............................................2
         ARGUMENTS AND AUTHORITIES REPLY ISSUE ONE.................................3

PRAYER ..........................................................................................................................................5

CERTIFICATE OF SERVICE ........................................................................................................5




                                                                       iii
INDEX OF AUTHORITIES

CASES:

Cooper v State, 333 S.W. 3d 859 (Tex.App.-Fort Worth 2010, pet. ref’d)……………………....3

Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 2687, 125 L.ed.2d 321 (1993)…………3

Bradford v. State, 172 S.W.3d 1, 406 (Tex.App.-Fort Worth 2005)……………………….…….3

Schaffer v. State, 583 S.W.2d 627, 630 (Tex.Crim.App. [Panel Op.] 1979) (op. on reh’g)….….3

Montoya v State, 291 S.W.3d 420, 426 (Tex.Crim.App.2009)……………………………….…4

Balentine v. State, 09-09-00354-CR, 2011 WL 2732146 (Tex.App.-Beaumont 2011, rev’d on
other grounds)……………………………………………………………………………………4



STATUTES:


Tex. Code Crim. Proc. Ann. Art. 46B.084(a) (Vernon Supp. 2010)……………………………..3




                                             iv
            PRELIMINARY STATEMENT OF THE NATURE OF THE CASE

       Appellant’s preliminary statement of the case is correct.



                                 STATE’S REPLY POINT ONE

       The trial court did not commit reversible error because the judgment in

Appellant’s case reflects a finding by the trial court that Appellant was mentally

competent to stand trial and the record reflects that the trial court had the opportunity to

consider Appellant’s competency to stand trial before accepting his guilty plea.



                                 STATEMENT OF THE FACTS

       Appellant was indicted on a single count of aggravated sexual assault of a child (CR Vol.

I, Page 5). Prior to indictment, trial counsel for Appellant filed a motion suggesting that

Appellant was incompetent (CR. Vol IA, Page 4).

       Pursuant to an order of the 71st District Court, Dr. Thomas Allen evaluated the Appellant

on Oct 3, 2012 and based on his evaluation found Appellant to be incompetent to stand trial (CR

Vol IA, Page 15-19). On October 15, 2012, the trial court made a finding that Appellant was

mentally incompetent to stand trial, and committed the Appellant to Rusk State Hospital (CR.

Vol. IA, Pages 9-14).

       On May 14th, 2013 the North Texas State Hospital released the Appellant based on an

evaluation by Gloria Bell, Ph.D., indicating that Appellant had attained competency (CR Vol. IA

Pages 20-25).




                                                  1
       On April 15th, 2014, Appellant was re-evaluated by Dr. Thomas Allen who found

Appellant competent to stand trial (CR Vol. I, Pages 61-65).

       On October 28th, 2014 the trial court called the case and accepted the Appellant’s open

plea of guilt (RR Vol. II, Pages 3-11) and state’s exhibits 1-5 (CR. Vol. I, Pages 70-79). The trial

judge then had an opportunity to consider Appellant’s competency to stand trial and the

voluntariness of his plea. (RR. Vol II, Pages 3-11). State’s exhibit 2 reflects signatures by the

defendant and defense counsel claiming the defendant is mentally competent to stand trial. (CR.

Vol I, Page 73).

       Dr. Thomas Allen was called by the defense (RR. Vol. II, Page 65). It was Dr. Allen’s

opinion that Appellant was competent to stand trial (RR. Vol. II, Page 71).

       At the conclusion of testimony and argument the court assessed that Appellant’s

punishment at 25 years in the Texas Department of Corrections (RR Vol. II, Page 87).

       The final paragraph on page 1 in Appellant’s judgment in this case contains the following

finding by the trial court: “It appeared to the Court that Defendant was mentally competent to

stand trial, made the plea freely and voluntarily, and was aware of the consequences of this

plea.” (CR Vol. I, Page 79)



                                 ARGUMENTS AND AUTHORITIES


                   SUMMARY OF THE ARGUMENT REPLY POINT ONE

       While it is true that defendant was originally found incompetent to stand trial, in this case

the defendant was found competent to stand trial by Dr. Gloria Bell and Dr. Thomas Allen after

being revaluated subsequent to the finding of incompetency, and the trial court had the

                                                  2
opportunity to consider Appellant’s competence before trial and it admonished Appellant with

both the voluntariness of his plea and his competency to stand trial before accepting his plea (RR

Vol. II, Pages 3-11), Appellant and counsel acknowledge he was competent to stand trial in

state’s exhibit 2 (CR. Vol. I, Page 73). Furthermore, the judgment in this case reflects such a

finding of competency to stand trial. (CR Vol. I, Page 79)



                 ARGUMENTS AND AUTHORITIES REPLY POINT ONE

       While Appellant correctly states the law in his brief, the state respectfully disagrees with

the way Appellant applied to the law to the facts of this case.

       The state agrees with Appellant that the applicable law is correctly stated in Cooper v.

State, 333 S.W.3d 859 (Tex.App.-Fort Worth, pet. ref’d):

                “Under the Due Process Clause of the Fourteenth Amendment, a trial court may

       not accept a criminal defendant’s guilty plea unless that defendant is legally competent to

       make such a plea. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 2687, 125

       L.ed.2d 321 (1993). And once a defendant has been adjudicated incompetent, “on the

       return of a defendant to the court, the court shall make a determination with regard to the

       defendant’s competency to stand trial.” Tex. Code Crim. Proc. Ann. Art. 46B.084(a)

       (Vernon Supp.2010); see also Bradford v. State, 172 S.W.3d 1, 406 (Tex.App.-Fort

       Worth 2005).”

       Once a defendant is found incompetent, he is presumed to be incompetent to stand trial

“until it has been determined in accordance with the law that he is competent to stand trial.”

Schaffer v. State, 583 S.W.2d 627, 630 (Tex.Crim.App. [Panel Op.] 1979) (op. on reh’g).


                                                 3
        The record must contain a judgment, order, docket entry, or other evidence that trial court

actually made a determination of competency. Cooper at 862; Schaffer at 631.

        The standard of review for this case is correctly stated in Montoya v State, 291 S.W.3d

420, 426 (Tex.Crim.App.2009) (stating that the standard of review for a competency

determination is abuse of discretion because “those who observed the behavior of the defendant

at the hearing were in a better position to determine whether he was presently competent”)

        The Appellant would liken the facts of this case to the facts in Bradford where there was

“no judgment, order, docket sheet entry, or other statement or evidence showing the trial court

made a determination that Bradford had regained competency” Bradford at 5. However, the state

argues the facts of this care are directly on point to the facts in Cooper. As in Cooper, the trial

court in Appellant’s case inquired into Appellant’s competency to stand trial (RR. Vol II, Pages

3-11), the trial court admonished Appellant before accepting his plea (RR. Vol II, Pages 3-11),

and the judgment in Appellant’s case reflects such a find of competency (CR Vol. I, Page 79).

        The court in Balentine v. State, 09-09-00354-CR, 2011 WL 2732146 (Tex.App.-

Beaumont 2011, rev’d on other grounds) reached a similar conclusion as the court in Cooper. In

Balentine, the court concluded that based on: “the judgement and observation reflected in the

record” Balentine at 1, that the record was sufficient to show a determination of competency

before the trial judge.

        There is more than enough evidence in this case to support the trial court’s finding of

Appellant’s competency to stand trial as reflected by the record, the court’s judgment in this

case, as well as the plea paperwork in state’s exhibit 1 – 5.

        Appellant’s Issue One should be overruled.


                                                  4
                                            PRAYER

       The trial court having committed no reversible error, the state respectfully prays this

Court affirm the verdict and judgment of the court below.

                                                            Respectfully Submitted
                                                            Coke Solomon
                                                            Criminal District Attorney
                                                            Harrison County, Texas



                                                     By:       /s/ Shawn Eric Connally
                                                            ________________________
                                                            Shawn Eric Connally        Assistant
                                                            Criminal District Attorney
                                                            Bar #24051899



                                CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Brief of the Appellee has
been faxed to the attorney for Appellant, Scott Rectenwald, this 4th day of May, 2015.


                                                     /s/ Shawn Eric Connally
                                                     ____________________________
                                                     Shawn Eric Connally



                             CERTIFICATE OF COMPLIANCE

      I hereby certify compliance with T.R.A.P 9.4(i)(3), and that the number of words in this
document is 1471.
                                                  /s/ Shawn Eric Connally
                                                  ____________________________
                                                  Shawn Eric Connally




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