Opinion issued February 27, 2014.




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-13-00326-CR
                             ———————————
                     JULIO CESAR CASTILLO, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Case No. 1194971


                           MEMORANDUM OPINION

      A grand jury indicted Julio Castillo for aggravated sexual assault of a child. 1

After waiving his right to a jury trial, a trial court convicted Castillo of aggravated

sexual assault of a child and sentenced him to 60 years’ confinement. In his sole


1
      See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2013).
issue, Castillo contends the trial court abused its discretion by not making a

competency inquiry before finding that he voluntarily waived his right to a jury

trial. We affirm.

                                    Background

      After a grand jury indicted Castillo for aggravated sexual assault of a child,

the trial court issued an order for psychiatric review, noting that Castillo claimed to

hear voices, that he last resided at a Mental Health and Mental Retardation

Authority of Harris County (MHMRA) facility, and that he might be a danger to

himself. A few weeks later, Castillo’s attorney filed a motion for a competency

examination and noted that Castillo was taking psychotropic prescription

medications and that he still claimed to hear voices. The trial court granted the

motion, and an MHMRA doctor evaluated Castillo’s competency to stand trial.

      The MHMRA doctor reported that Castillo was not competent to stand trial

because he was unable to differentiate between guilty and not-guilty pleas, could

not engage in a reasoned choice of legal strategies, and was unable to exhibit

appropriate courtroom behavior. He also opined that Castillo’s competency could

be restored.

      Castillo was committed to the Vernon Campus of North Texas State

Hospital for competency restoration. After his hospitalization, Castillo returned to

Harris County where a doctor reviewed his competency and concluded that


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Castillo remained incompetent to stand trial. Following this determination, the trial

court twice recommitted Castillo to state psychiatric hospitals to regain his

competency.

       After more than two years of treatment, multiple doctor evaluations, and

three hospital stays, a MHMRA hospital doctor re-evaluated Castillo’s condition.

He determined that Castillo had a “well-established pattern of malingering,” that

he exaggerated or fabricated psychiatric symptoms, and that he was competent to

stand trial.

       Based on the doctor’s medical evaluation, the trial court signed an order

finding that both parties agreed that Castillo was competent to stand trial. Before

trial, Castillo provided oral and written waivers of his right to a trial by jury. The

trial court found Castillo guilty of aggravated assault of a child less than 14 years

of age and sentenced him to 60 years’ confinement.

       Castillo timely appealed.

                               Competency Inquiry

       Castillo contends that his behavior at a pretrial hearing presented “new

evidence” that he was incompetent to stand trial and that the trial court abused its

discretion “by failing to make a new inquiry into his competency to waive his right

to a jury and to stand trial.” The State responds that a competency inquiry was




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unnecessary because there was “overwhelming evidence” that Castillo was

malingering.

A.     Standard of review

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

inquiry for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex.

Crim. App. 2009). We will not substitute our judgment for that of the trial court;

we will uphold the trial court’s decision unless it was arbitrary or unreasonable.

Id.; see also McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003)

(stating trial court’s factual findings “are entitled to great deference by the

reviewing court.”).

B.     The trial court had no duty to conduct an informal competency inquiry

       Castillo complains that the trial court should have conducted an informal

competency inquiry because his behavior was “simply too bizarre” in waiving his

right to a jury trial.

       A trial court has a duty to conduct an informal inquiry into a defendant’s

competency when “any credible source” suggests the defendant may be

incompetent. TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West Supp. 2013).2

To overcome the presumption that a defendant is competent, his incompetence
2
       Castillo mistakenly relies upon a previously enacted version of this statute that
       required the trial court to “have a bona fide doubt about the competency of the
       defendant.” See TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West Supp.
       2013) (noting bona fide doubt no longer required to warrant informal competency
       inquiry).
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must be proven by the preponderance of the evidence. TEX. CODE CRIM. PROC.

ANN. art. 46B.003(b) (West 2006). A defendant is incompetent when he lacks (1)

the ability to consult with his lawyer with a reasonable degree of rational

understanding or (2) a rational and factual understanding of the proceedings

against him. Id. art. 46B.003(a)(1)–(2); Montoya, 291 S.W.3d at 425. Any credible

source may suggest that the defendant is incompetent to stand trial. TEX. CODE

CRIM. PROC. ANN. art. 46B.004(c-1). When there is a suggestion that the defendant

is incompetent to stand trial, the trial court must conduct an informal inquiry to

determine whether evidence exists that would support a finding of incompetence.

Id. art. 46B.004(c); see also Montoya, 291 S.W.3d at 425 (noting that formal

hearing not required to determine defendant’s competency to stand trial). If the

trial court determines that there is evidence to support an incompetency finding,

the court must stay proceedings in the case. TEX. CODE CRIM. PROC. ANN.

art. 46B.004(d).

      Castillo argues that his behavior should have triggered a competency inquiry

because after signing a written waiver of his right to a jury trial, he initially

“alarmingly” responded “yes, sir” when the trial court asked him whether anyone

had “forced [him] to do this or threatened [him] in any way to make [him waive his

rights].” When the trial court asked again whether anyone had threatened to harm

or hurt him, Castillo replied “no.” Castillo argues that this behavior signaled his


                                        5
incompetency. He argues that the trial court should have held a competency

hearing because the trial court knew of his past incompetence and because the

court’s legal terminology confused him.

      We first consider whether Castillo was unable to consult with his lawyer

with a reasonable degree of rational understanding, which is the first of two bases

for finding incompetency. See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a)(1).

The record shows that after Castillo’s initial answer, the trial court asked him a

series of questions to determine whether he voluntarily waived his rights. In

response to these questions, Castillo answered that no one had threatened to harm

or injure him. Castillo was not only able to confer with his attorney, but he also

discussed with his attorney his decision to waive his right to a jury trial.

Additionally, Castillo’s attorney did not complain that he was unable to

communicate with his client. We conclude that Castillo’s momentary confusion

about the legal proceedings did not trigger the need for a competency inquiry. Cf.

Montoya, 291 S.W.3d at 426 (holding “isolated instances of momentary confusion”

were insufficient to require a competency inquiry).

      Second, we consider whether Castillo lacked a rational and factual

understanding of the proceedings. See TEX. CODE CRIM. PROC. ANN. art.

46B.003(a)(2). The trial court’s knowledge of a defendant’s past mental health

issues, alone, does not require a hearing. See Montoya, 291 S.W.3d at 425. There


                                          6
must also be evidence of recent “severe” mental illness or bizarre acts by the

defendant. Id. (stating that defendant must demonstrate “truly bizarre behavior

or . . . recent history of severe mental illness or at least moderate mental

retardation.”).

      Before trial, Castillo received a psychiatric evaluation and the reviewing

doctor determined that Castillo was competent to stand trial. The trial court took

judicial notice of the clerk’s file, including Castillo’s mental health history and past

incompetency determinations. Nothing in the record demonstrates that any credible

source suggested Castillo was incompetent to stand trial. See TEX. CODE CRIM.

PROC. ANN. art. 46B.004(a). In its order affirming Castillo’s competency, the trial

court noted that both the State and Castillo’s attorney agreed that Castillo was fit

for trial. After reviewing Castillo’s file, the trial court found that Castillo was

competent to waive his right to a jury trial and that he did so intelligently and

voluntarily. We defer to the trial court’s determination that Castillo had a rational

and factual understanding of the proceedings against him.

      Based on this record, it was neither arbitrary nor unreasonable for the trial

court to find that Castillo was competent to stand trial. Accordingly, we conclude

that the trial court did not abuse its discretion by not conducting an informal

inquiry regarding Castillo’s competency. See McDaniel v. State, 98 S.W.3d 704,

713 (Tex. Crim. App. 2003) (“We cannot ignore the trial court’s first-hand factual


                                           7
assessment of appellant’s mental competency. His factual findings, that appellant

understood the nature of the proceedings and assisted his counsel in his defense,

are entitled to great deference by the reviewing court.”) (citation omitted).

      We overrule Castillo’s sole issue.

                                     Conclusion

      We affirm.



                                               Harvey Brown
                                               Justice

Panel consists of Justices Keyes, Bland, and Brown.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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