                           NUMBER 13-10-00531-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

JARET ROBERSON,                                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 130th District Court
                       of Matagorda County, Texas.


                       MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez, and Benavides
            Memorandum Opinion by Justice Benavides
      Appellant, Jaret Roberson, was convicted of aggravated robbery, sentenced to

ten years‘ confinement in the Texas Department of Criminal Justice—Institutional

Division, and assessed a $1,500 fine.   See TEX. PENAL CODE ANN. § 12.32 (West Supp.

2010), §§ 29.02(a), 29.03(a) (West 2003).      By two issues, Roberson argues that:   (1)
the evidence adduced at trial was legally insufficient to support his aggravated robbery

conviction; and (2) the trial court violated the due process clause of the Fourteenth

Amendment, the Fifth Amendment, and article 46B.004 of the Texas Code of Criminal

Procedure when it failed, sua sponte, to order a mental competency evaluation on the

day of Roberson‘s jury trial. We affirm.

                                     I. BACKGROUND

A.    Facts Regarding Aggravated Robbery

      The record shows that on the afternoon of December 3, 2008, sixty-seven

year-old Diane Mesey was doing her weekly grocery shopping at the H.E.B.

Supermarket in Bay City, Matagorda County.       Mesey testified that, as she began to

place her groceries in the back of her vehicle, a young, ―dark-complected‖ man

approached her.    She recalled that the man was wearing a dark hoodie with long

sleeves and shorts. His ―head was down, like [he] was trying to be unrecognized or

hidden.‖ The man asked Mesey if she had a cigarette; she replied no.      Suddenly, the

man grabbed Mesey‘s purse, which was hung on her left shoulder. The man ―pulled the

strap around which pulled [Mesey] forward and basically body slammed [her] to the

ground.‖   Mesey testified that she was ―holding on [to her purse] for dear life

because . . . what‘s in [her] purse is [her] life.‖   Mesey released her purse after

slamming onto the asphalt of the parking lot.    The force of her fall caused numerous

serious injuries and broke the setting on her wedding ring.

      Investigator Tommy Lytle testified that, after being called, officers followed a

young black male wearing a black pullover and light-colored shorts to a house three

blocks away from the H.E.B.        The male was eventually identified as Roberson.


                                            2
Investigator Lytle stated that officers persuaded Roberson to come out from underneath

the house where he was hiding and surrender. Officers later found Mesey‘s purse and

other belongings in a storage shed behind the house where Roberson was hiding.

Officers transported Roberson back to the H.E.B. where Mesey was being treated by

emergency medical technicians. Mesey told the officers that she did not recognize

Roberson‘s face, because her assailant had hidden his face when he attacked her, but

that Roberson was wearing identical clothing to the man who snatched her purse.           At

the hospital, physicians diagnosed Mesey with a fractured cheekbone, a partially

crushed left orbital socket, a broken left shoulder, and a broken left hip.   Doctors had to

insert metal pins to help support her left hip; Mesey now walks with a permanent limp as

the pins caused her left leg to be shorter.

       After being taken to the police station, Roberson signed a statement that admitted

the following:

       On today, Wednesday, December the 3rd, 2008, me, Brian White, and
       Deandre Sardinea all went to Jack in the Box to get something to eat.
       After we ate, we walked to H.E.B. and Brian and Deandre went inside. I
       stayed outside and I watched for an old lady so I could take her purse. I
       saw an old lady come out of the store, and she was pushing a basket of
       groceries. She pushed it to her car, and she was trying to put her
       groceries up. And I walked up to her and asked her for a cigarette. She
       said she didn‘t have one. She had a purse, and she had it over her arm
       while she was putting her groceries up in her car. I grabbed the purse,
       and I think she tried to hold on to the purse. And I yanked it, and she fell
       to the ground. That‘s when I took off running with the purse to the alley.
       I ran down a little alley, and I was hiding in a little house in the alley when
       the police got me. . . .

       Roberson was indicted for aggravated robbery on June 17, 2009. He pleaded

not guilty.




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B.     Facts Regarding Mental Competency Challenge

       Prior to trial, Roberson‘s counsel filed a Motion for Psychiatric Examination of

Defendant, requesting that Roberson undergo a mental competency exam because

Roberson refused to speak, much less cooperate, with his lawyer.           The motion, in

relevant part, provided as follows:

       Counsel for the Defendant believes that the Defendant may not be
       competent to stand trial, or that the Defendant is suffering from a mental or
       psychiatric disease, disorder, or defect, in that Counsel has attempted to
       conduct interviews and discussions with the Defendant, at which time
       Defendant was unable to communicate adequately or effectively with or to
       assist counsel in the matters pertaining to the case that is the subject of
       this prosecution. Furthermore, the Defendant appeared not to have a
       rational or factual understanding of the proceeding against him. Further,
       in discussions with Defendant‘s family, Defendant has had a prolonged
       personal history of mental [in]competency.

       The trial judge granted this request and ordered Dr. Michael A. Fuller, ―a

disinterested expert experienced and qualified in mental health,‖ to examine Roberson

with regard to his ability to stand trial. Dr. Fuller eventually conducted a psychiatric

examination of Roberson and wrote a report, the contents of which were sealed.

However, based on our review of the record, it appears that Dr. Fuller proclaimed

Roberson competent to stand trial.

       The day of the trial, September 7, 2010, and prior to voir dire, a pretrial hearing

was held, in which the following exchange occurred:

       Q.     [The Court]. Okay. The record will reflect the Defendant, Mr.
                           Roberson, is present in the courtroom with counsel
                           and Mr. Reis is present for the State and the jury panel
                           has been excluded from the courtroom. Do you have
                           a matter to present?

       A.     [Mr. Faden, Counsel for Roberson]. Yes. We were here, the Court
                           may recall, we were here two weeks ago. I brought it
                           to your attention that Mr. Roberson was not

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                   communicating with me—or would not communicate
                   with me and he was brought into the courtroom and
                   you examined him and he would communicate with
                   you, I think was the determination today.

                   Today Mr. Roberson is exhibiting the same behavior.
                   He will not communicate with me, and I‘m being told
                   from the jail personnel that he‘s exhibiting some
                   bizarre behavior at the jail.

                   So, I‘m in a quandary as to how to proceed today.
                   Whether or not Mr. Roberson is not acting
                   appropriately on purpose or not, I‘m not in a position to
                   be able to make that determination. So, I‘m going to
                   defer to the Court for that determination.

Q.   [The Court.] Mr. Reis, we‘re looking at the Court‘s file; and do you
                  remember the day of the hearing we had? It wasn‘t
                  that long ago?

A.   [Mr. Faden]. It was about two weeks ago from last Thursday, I
                  think.

A.   [Mr. Reis].   Our notes show, your Honor, that we were here
                   August 18th.

Q.   [The Court]. And then the Court‘s recollection at that time was that
                  Mr. Roberson—it‘s accurate as to what you‘ve
                  reflected, that you had indicated that concern to the
                  Court. Mr. Roberson was brought out and examined
                  and he answered the Court‘s questions and, including
                  the question of why he chose not to communicate with
                  his attorney, and I‘m going to paraphrase his answer,
                  which was along the lines of ―I don‘t care.‖ And we
                  can argue the strategic quality of that answer, but it
                  was rational to the questions that the Court was asking
                  at the time.

                   So, today his behavior is consistent with what we
                   heard the other day in front of the Court. So, my
                   position is going to be, Counsel, if you want to put on
                   evidence that might indicate to the Court that he has
                   somehow lost competency since August 18th, that
                   we‘ll receive that evidence. Otherwise, he‘s been
                   examined.      I believe he‘s been examined for
                   competency; determined competent; and the Court did

                                    5
                            a further examination just a few days ago, which Mr.
                            Roberson responded appropriately to the questions,
                            meaning that he answered the questions, whether or
                            not the answers were—as far as my understanding is,
                            he is entitled not to communicate with his attorney if
                            he chooses not to.

      Roberson‘s counsel proceeded to put on evidence regarding Roberson‘s alleged

mental incompetency.    Damon Miskell, a Matagorda County deputy, testified that that

morning, officers found Roberson naked, kneeling on his knees in his bed, looking

straight up, and drooling profusely.   He refused to speak with the officers, and the

officers moved him to a padded cell.   Deputy Miskell also testified that he had not seen

Roberson speak to anyone in the last two weeks.         However, on cross-examination,

Deputy Miskell admitted that Roberson seemed fully aware of his surroundings and was

paying attention to the testimony during the hearing, although he refused to speak. The

trial court then attempted to ask Roberson questions:

      Q.     [The Court]. Mr. Roberson, you understand that you are—Mr.
                          Roberson, you understand that you‘re charged with
                          the offense of aggravated robbery?

      A.     [Roberson].    (No response).

      Q.     [The Court]. Do you understand that you‘re charged with the
                          offense of aggravated robbery?

      A.     [Roberson].    (No response).

      Q.     [The Court].    Mr. Roberson, can you identify in the courtroom your
                            attorney?

      A.     [Roberson].    (No response).

      Q.     [The Court].   Mr. Roberson, can you hear me?

      A.     [Roberson].    (No response).

      Q.     [The Court]. The record is going to reflect that Mr. Roberson is

                                             6
                                  making eye contact with the Court when the Court
                                  speaks but, otherwise, has been nonresponsive to the
                                  Court‘s questions.

        The trial court determined that Roberson was competent to stand trial, and a jury

was then selected.         Prior to opening arguments, though, counsel for Roberson again

requested a hearing outside the presence of the jury.                  This time, Roberson‘s counsel

told the trial court that Roberson refused to dress in the street clothes his attorney

provided him for trial.           This refusal, Roberson‘s counsel explained, meant that

Roberson would begin the trial wearing his standard jail uniform.1 In response, the

prosecution called the trial court‘s bailiff Bill Orton.           Bailiff Orton testified that he heard

Roberson say that ―he didn‘t care‖ about wearing jail clothing to his trial.                The court then

asked Roberson the following:

        Q.       [The Court].             Before we go into the courtroom, Mr. Roberson,
                                          I need to ask you: Do you want to be dressed
                                          out in your street clothes?

        A.       [Roberson].              No.

        Q.       [The Court].             No, you don‘t?

        A.       [Roberson].              It don‘t matter.

        A.       [Court Reporter].        It don‘t matter.

        Q.       [The Court].             Okay. Do you understand you have a right to
                                          dress in your street clothes before the jury?

        A.       [Roberson].              No.

        Q.       [The Court].             Okay. You have a right, if you choose to do
                                          so, to be dressed in your street clothes. Okay.
                                          So, if you choose to be dressed in your street

        1
         See Thompson v. State, 514 S.W.2d 275, 277 (Tex. Crim. App. 1974) (holding that defendants
should not appear for trial handcuffed or in jail clothing unless there are sufficient reasons to do so, as the
appearance of such might prejudice the defendant‘s presumption of innocence).

                                                      7
                                    clothes, the Court is allowing you to do that.
                                    Do you understand? It‘s your choice, okay?

       A.     [Roberson].           Yeah.

       Q.     [The Court].          Okay. You do want to change into your street
                                    clothes?

       A.     [Roberson].           No.

       Trial began.   From the record, it appears that Roberson did change into street

clothes for the first day of trial. However, Roberson refused to change from his prison

garb on the second day of trial. Outside the presence of the jury, Officer Wayne Dekle,

a detention officer for the Matagorda County Sheriff‘s Office, testified that he and other

officers tried to get Roberson to change clothing but that Roberson refused to

communicate with them.       In Officer Dekle‘s opinion, Roberson ―was aware of what [they

were] talking about.‖ Investigator Susan Maxwell testified next, stating that Roberson

agreed to change his clothes in exchange for a donut. She also said that he stood up

when she asked him to stand up, and that her impression was that ―he underst[ood]

what‘s going on.‖ However, Roberson did not change. The trial judge noted, ―I believe

Mr. Roberson‘s been fully admonished by his attorneys and by the Court and has chosen

to appear despite whatever consequences may fall regarding the perception of the jury

about him by virtue of his appearance. . . . [T]he Court sees no option at this point but to

proceed with the case.‖

       The jury found Roberson guilty of aggravated robbery, sentenced him to ten years

in prison, and ordered him to pay a $1,500 fine.    This appeal ensued.




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                              II. SUFFICIENCY OF THE EVIDENCE

       By his first issue, Roberson contends that the evidence adduced at trial was

insufficient to support his conviction for aggravated robbery.

A.     Standard of Review

       Our only sufficiency review should be under ―a rigorous and proper application‖ of

the Jackson v. Virginia standard of review.     Brooks v. State, 323 S.W.3d 893, 906 (Tex.

Crim. App. 2010). Under this standard, ―the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.‖            Jackson

v. Virginia, 443 U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 902 n.19.              ―[T]he

fact-finder‘s role as weigher of the evidence is preserved through a legal conclusion that

upon judicial review all of the evidence is to be considered in the light most favorable to

the prosecution.‖   Jackson, 443 U.S. at 319 (emphasis in original); see TEX. CODE CRIM.

PROC. ANN. art. 38.04 (Vernon 1979) (―The jury, in all cases, is the exclusive judge of

facts proved and the weight to be given to the testimony . . . .‖); Wesbrook v. State, 29

S.W.3d 103, 111 (Tex. Crim. App. 2000) (―The jury is the exclusive judge of the credibility

of witnesses and of the weight to be given testimony, and it is also the exclusive province

of the jury to reconcile conflicts in the evidence.‖).

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge.    Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref‘d).

Under a hypothetically correct jury charge, the State was required to prove beyond a

reasonable doubt that Roberson:       (1) in the course of committing theft; (2) with intent to


                                               9
obtain and maintain control of property; (3) intentionally or knowingly; (4) caused bodily

injury to another person; (5) who was 65 years of age or older.      See TEX. PENAL CODE

ANN. §§ 29.02, 29.03(a); Robinson v. State, 596 S.W.2d 130, 132 (Tex. Crim. App.

1980); Santos v. State, 116 S.W.3d 447, 457 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref‘d).

B.        Analysis

          The evidence showed that, shortly after the incident, Mesey identified Roberson

as the man wearing the same clothing as the attacker who snatched her purse and that

police officers found Mesey‘s purse and personal belongings near the home where

Roberson had hidden. In his written statement, Roberson admitted that he deliberately

―watched for an old lady so [he] could take her purse‖ in the H.E.B. parking lot, and

eventually followed through with his intentions when he pursued Mesey and forcefully

took her purse.      Mesey testified that she was sixty-seven years old at the time of her

assault (she was sixty-nine years old at the time of trial).     She also, in great detail,

explained the nature of her injuries after her purse was snatched: she experienced a

fractured cheekbone, a partially crushed left orbital socket, a broken left shoulder, and a

broken left hip.     Mesey explained to the jury that she walks with a limp to this day

because her left leg is shorter than the other.

          Viewing the evidence in the light most favorable to the prosecution, we find that

any rational trier of fact could have found the essential elements of aggravated robbery

beyond a reasonable doubt.       See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902

n.19; see also TEX. PENAL CODE ANN. §§ 29.02, 29.03(a). We thus conclude that the

evidence was sufficient to support Roberson‘s conviction and overrule his first issue.


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                  III.   SUA SPONTE MENTAL COMPETENCY EVALUATION

       By his second issue, Roberson argues that the trial court violated the due process

clause of the Fourteenth Amendment, the Fifth Amendment, and article 46B.004 of the

Texas Code of Criminal Procedure when it failed, sua sponte, to order a mental

competency evaluation on the day of Roberson‘s jury trial.

A.     Standard of Review and Applicable Law

       A trial court‘s decision on whether to conduct a competency inquiry is reviewed

under an abuse of discretion standard.      Moore v. State, 999 S.W.2d 385, 393 (Tex.

Crim. App. 1999); Gray v. State, 257 S.W.3d 825, 827 (Tex. App.—Texarkana 2008, pet.

ref‘d); LaHood v. State, 171 S.W.3d 613, 617–18 (Tex. App.—Houston [14th Dist.] 2005,

pet. ref‘d).   A defendant is presumed competent to stand trial and shall be found

competent to stand trial unless proved incompetent by a preponderance of the evidence.

TEX. CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2006). ―A competency hearing is

not required unless the evidence is sufficient to create a bona fide doubt in the mind of

the judge whether the defendant meets the test of legal competence.‖           Moore, 999

S.W.2d at 393.    A person is incompetent to stand trial if he does not have (1) sufficient

present ability to consult with his attorney with a reasonable degree of rational

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

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

       If evidence is brought to the trial court raising a bona fide doubt as to the

defendant‘s competency, the court must conduct an informal inquiry outside the

presence of the jury to determine whether there is evidence to support a finding of

incompetency to stand trial.   Id. art. 46B.004.   ―In the inquiry, the court must determine


                                            11
whether there is ‗some evidence‘ to support a finding of incompetency, and, if the court

so finds, it must then commence a hearing before a jury.‖    LaHood, 171 S.W.3d at 618

(quoting McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003)).         Evidence

which can create a bona fide doubt may ―come from the trial court‘s own observations,

known facts, evidence presented, motions, affidavits, or any other claim or credible

source.‖ Id. (citing Brown v. State, 129 S.W.3d 762, 765 (Tex. App.—Houston [1st

Dist.] 2004, no pet.)).   Bona fide doubt can be created if the evidence shows ―recent,

severe mental illness, at least moderate retardation, or truly bizarre acts by the

defendant.‖   McDaniel, 98 S.W.3d at 710 (quoting Alcott v. State, 51 S.W.3d 596, 602

(Tex. Crim. App. 2001)).     ―If evidence warrants a competency hearing, and the trial

court denies such hearing, the defendant is deprived of his constitutional right to a fair

trial.‖ LaHood, 171 S.W.3d at 618.

B.     Analysis

       Here, the evidence was not sufficient to create a bona fide doubt regarding

Roberson‘s mental competency on the day of trial. We note that the court previously

granted a Motion for Psychiatric Examination of Defendant and that an independent,

disinterested expert, Dr. Fuller, opined that Roberson was competent to stand trial. On

the day of trial, there was conflicting testimony regarding Roberson‘s state of mind.

Although Deputy Miskell testified that Roberson was found naked, kneeling on his knees

in his bed, looking straight up, and drooling profusely, he also testified that Roberson

appeared to be following the pretrial proceedings and was aware of his surroundings.

When the trial court attempted to speak with Roberson, Roberson refused to answer;

however, later that same day, when the trial court informed Roberson about his option to


                                           12
change his clothing, Roberson admitted that ―it didn‘t matter‖ to him.           Bailiff Orton

testified that he heard Roberson say that ―he didn‘t care‖ about wearing jail clothing to his

trial. On the second day of trial, Officer Dekle testified Roberson ―was aware‖ about the

impact of wearing prison garb to trial, and Investigator Maxwell testified that Roberson

agreed to change his clothes in exchange for a donut. She also said that he stood up

when asked, and that her impression was that ―he underst[ood] what‘s going on.‖          This

testimony reflects that Roberson had a rational as well as factual understanding of the

proceedings against him.      See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a).

         We conclude that the trial court did not abuse its discretion when it did not order a

mental competency evaluation on the day of Roberson‘s jury trial. The evidence was

not sufficient to raise a ―bona fide‖ doubt regarding Roberson‘s competence—there was

no proof of ―severe mental illness, moderate retardation, or truly bizarre acts by the

defendant.‖     Instead, it appears that Roberson made deliberate choices concerning

when he would communicate with others.             His failure to cooperate in his defense

seemed purposeful, and his failure to change out of his prisoner‘s uniform and into street

clothes reflected his stated attitude on the record that he simply ―didn‘t care.‖ As the

Texas Court of Criminal Appeals has noted, albeit under different circumstances, ―if such

actions were probative of incompetence, one could effectively avoid criminal justice

through immature behavior.‖        Moore, 999 S.W.2d at 395 (finding that defendant‘s

―unruly and disruptive courtroom demeanor‖ was ―timely, topical, and logically related‖ to

the trial court‘s proceedings).   In light of the foregoing, we overrule Roberson‘s second

issue.




                                              13
                                   IV.    CONCLUSION

         Having overruled both of Roberson‘s issues, we affirm the decision of the trial

court.




                                                       ________________________
                                                       GINA M. BENAVIDES,
                                                       Justice


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

Delivered and filed the
25th day of August, 2011.




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