             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. PD-1723-12


                               DAVID EARL BROWN, Appellant

                                                  v.

                                     THE STATE OF TEXAS

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                      FROM THE FIRST COURT OF APPEALS
                                HARRIS COUNTY

        J OHNSON, J., delivered the opinion of the Court in which M EYERS, W OMACK,
C OCHRAN, and A LCALÁ, JJ., joined. C OCHRAN, J., filed a concurring opinion in which
M EYERS, and A LCALÁ, JJ., joined. P RICE, J., filed a dissenting opinion. K EASLER, J.,
filed a dissenting opinion in which K ELLER, P.J., and H ERVEY, J., joined.

                                           OPINION

       Appellant was on trial for murder. In the early morning hours of what would have been the

final day of trial in the guilt phase, appellant sustained a gunshot wound to the head. After a one-day

recess, the trial judge ruled that appellant’s absence from trial was voluntary because there was

evidence that the injury may have been self-inflicted. The court conducted the remainder of the guilt

trial and the entire punishment trial in appellant’s absence. Appellant appealed the trial court’s

refusal to hold a formal hearing to determine whether he was incompetent to stand trial after
                                                                                                                         2

sustaining the gunshot wound. The appellate court held that appellant should have been granted a

competence hearing before the jury made its guilt determination and remanded the cause for a new

trial.1 This decision remained unchanged after rehearing.2 We granted the state’s petition for

discretionary review on four grounds.3 Because we find that the trial court did not follow relevant

procedures set out in Texas statutes and Supreme Court precedent, we remand to that court for a

retrospective hearing to determine whether appellant was incompetent at any or all of the guilt and

punishment phases and sentencing.

                                                       I. Facts

         Appellant was charged with the murder of Whitt Bruney, his neighbor. It was undisputed

that appellant shot and killed Bruney, but appellant claimed self-defense. On March 9, 2010, during

the guilt phase, the court adjourned for the day so that the defense could call its final witnesses the

next morning. Appellant had already testified and been cross-examined.

         When the trial convened on the morning of appellant’s suicide attempt, the trial court stated

that its “understanding of the law is” that appellant had voluntarily absented himself from trial by

attempting to commit suicide, and it then recessed for the day.

         The next day, March 11, the court agreed to hear testimony on defense motions for a



         1
             State v. Brown, 393 S.W .3d 308 (Tex. App.— Houston [1 st Dist.] 2012).

         2
             State v. Brown, 393 S.W .3d 308, 315 (Tex. App.— Houston [1st Dist.] 2012) (op. on reh’g).

         3
            1. Did the trial court abuse its discretion when it determined that Appellant’s absence from his trial due
to his attempted suicide was voluntary?
            2. Is a defendant who voluntarily renders himself absent from trial entitled to a competency evaluation?
            3. Is a trial court required to immediately stay proceedings for a competency evaluation of an
unconscious defendant, or does the trial court have the discretion to order the competency evaluation at any time
before sentence is pronounced?
            4. If a trial court fails to stay proceedings and order a competency evaluation, is abatement for a
retrospective competency evaluation the proper remedy or should an appellate court conduct a harm analysis?
                                                                                                                         3

continuance and a competence hearing. Defense counsel filed a motion for continuance based on

both involuntary absence (Art. 33.03)4 and incompetence (Arts. 46B.003-005). Both the state and

appellant called witnesses.

         Officer Weller, the first police officer to respond, arrived at the scene after paramedics had

taken appellant to the hospital. He testified that, at approximately 4:45 a.m. on the morning of

March 10, John Overman, appellant’s neighbor, heard a gunshot but did not investigate. Half an

hour later, Overman went out for a walk and found appellant on the ground, bleeding from his face.

Police and EMS were called, but Officer Weller did not arrive until after appellant had been taken

to a hospital, there were no witnesses to the shooting, and there was no way to know who shot

appellant, but that, in his opinion, the gunshot wound was self-inflicted.5 He had spoken with

appellant’s roommate, Gene Eignus, who had stated that appellant “had been despondent over the

way the Court proceedings were going.”

         Officer Leos, the second officer on the scene, had gone to the hospital and had spoken with

a doctor there who had described appellant’s injuries to Officer Leos: a bullet went through

appellant’s mouth and one eye and lodged in appellant’s brain.6 The doctor said that appellant would

survive but that he could not say if the wound was self-inflicted. Officer Leos also testified that


         4
            Article 33.03 provides: “In all prosecutions for felonies, the defendant must be personally present at the
trial, and he must likewise be present in all cases of misdemeanor when . . .; provided, however, that in all cases,
when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has
been selected when trial is before a jury, the trial may proceed to its conclusion. W hen the record in the appellate
court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in
the absence of all evidence in the record to the contrary that he was present during the whole trial. . . .”

         5
            The officer testified that his opinion was based on both the opinion of Houston Fire Department members,
who arrived on the scene first, that the wound was self-inflicted and the fact that the pistol was found lying in the
grass next to appellant’s unconscious body when he was discovered.

         6
          The court of appeals mistakenly attributed Officer Leos’s testimony to Officer W eller. State v. Brown,
393 S.W .3d at 311.
                                                                                                                      4

appellant’s hands were not tested for gunshot residue and no fingerprints were lifted from the gun.

         Appellant’s psychiatrist, Dr. Root, testified7 that he had been treating appellant for depression

arising from the killing of Whitt Bruney. Dr. Root also testified that, given what he had been told

about the injuries that appellant had sustained, it was unlikely that he was able to assist his attorneys

during the remainder of the trial. Defense counsel stated for the record that appellant’s injuries

resulted from a bullet that went through appellant’s mouth and lodged in the left frontal lobe,8 that

there had been one surgery performed on appellant, and that bullet fragments remained in appellant’s

brain. The state did not object or contradict defense counsel’s statements. Dr. Root testified that the

left side of the brain performs interpretation of facts and controls language, speech, and memory of

language and speech. In addition, injuries caused by a bullet track are exacerbated by damage from

the shock wave that radiates from the bullet track. He opined that the degree of recovery from such

an injury is highly individual and agreed with defense counsel that recovery sufficient to regain

competence was possible, but Dr. Root thought it unlikely. He also said that, if appellant had, in

fact, tried to commit suicide, the attempt would “suggest” mental illness.

             In an attempt to show that appellant’s injuries may not have been self-inflicted, defense

counsel’s motion for continuance argued to the trial court that there were no witnesses, appellant had

received death threats up to the day before he suffered the gunshot wound, and the gun was not

recognized as being owned by appellant. Defense counsel also argued that a competency evaluation

was required because appellant was unable to assist in his own defense, citing Articles 46B.003,

         7
          The psychiatrist’s testimony was obtained by telephone and was given in the judge’s chambers and outside
the presence of the jury.

         8
          Appellant’s roommate testified that the injury was to the left temporal lobe, but that section of the brain is
not on the bullet track, which was consistently described as going through the mouth and eye and into the brain tissue
above the eye, which is the frontal lobe.
                                                                                                                       5

46B.004, and 46B.005. Counsel stated that he was supposed to have had at least one more meeting

with appellant to discuss their rebuttal and punishment witnesses and to discuss their strategy for the

punishment trial, if it became necessary. Appellant’s injuries prevented that meeting and prevented

him from being present and able to assist his attorneys at the remainder of the guilt phase and the

entirety of the punishment phase.

         After hearing the testimony about appellant’s injuries and current status, the trial court found

that appellant had voluntarily absented himself from trial and that he was competent, based on the

trial judge’s understanding of the law and appellant’s prior testimony. It denied the defense motion

for a continuance and a competence evaluation and then continued the guilt phase with the closing

arguments of the parties. After appellant was found guilty, the trial court began the punishment

phase. The record reflects that appellant was not present. Witnesses for both the state and appellant

testified. Appellant’s roommate testified that appellant was in Ben Taub Hospital and on life

support. The jury assessed a sentence of ten years’ imprisonment.

         One month later, on April 15, 2010, the trial court held the sentencing hearing. Appellant

was present.9 Defense counsel again asked for a continuance so that appellant could be evaluated

for competence, noting that, if at any time during trial, the defendant’s competence to stand trial is

brought into question, there must be an inquiry into whether there is some evidence from any source

that would support a finding that the defendant may be incompetent. Art. 46B.004(c).10 Counsel

argued that, even though appellant had recovered sufficiently to be present in court, his lawyers did

         9
            Appellant was physically recovered enough to be “wheeled in from the hospital to be sentenced.” Brown
v. State, 393 S.W .3d 308, 318 (Tex. App.— Houston [1st Dist.] 2012) (op. on reh’g). There is no discussion by the
court of appeals of the level of appellant’s neurological recovery.

        10
            Defense counsel cited Art. 4602, §2(b), an article that seems not to exist. Counsel’s argument indicates
that he was referring to Art. 46B.004(c).
                                                                                                      6

not think that appellant was able “to understand the nature of the proceedings against him and unable

. . . to consult with” his lawyers. The trial court denied the motion and proceeded to sentencing.

During that hearing, the following colloquy occurred between appellant and the trial court.

        THE COURT: Okay. Mr. Brown, will you please stand.

        THE DEFENDANT: Yes, ma’am.

        THE COURT: All right. Mr. Brown, at this time in accordance with the verdict of
        the jury having assessed your punishment at ten years, it’s my duty at this time to
        follow through with that. So, at this time I am–a jury having found you guilty of the
        offense of murder, I am assessing punishment at ten years in the Institutional
        Division of the Texas Department of Corrections. I’ll give you credit for your back
        time. Good luck to you, sir.

        THE DEFENDANT: Thank you, ma’am.

        The record thus reflects that appellant was able to stand and to respond verbally to requests

from the trial court. As the court of appeals noted, there was no inquiry into whether appellant could

assist his attorneys and had a rational as well as factual understanding of the proceedings. Pursuant

to the jury’s verdict on punishment, the trial court sentenced appellant to ten years’ imprisonment.

                                     II. Court of Appeals’s Opinion

        In its original opinion,11 the court of appeals summarized the record testimony about

appellant’s gunshot wound and then addressed appellant’s claim that the trial court abused its

discretion when it denied the requested continuance and found that appellant had voluntarily

absented himself from trial. The court of appeals held that, because appellant was in the intensive

care unit of a hospital at the time of the hearing, all the evidence from the informal hearing held by

the trial court “supported a finding that [appellant] did not have sufficient present ability to consult



       11
            Brown, 393 S.W .3d 308 (Tex. App.—Houston [1 st Dist.] 2012) .
                                                                                                     7

with his lawyer as a result of the gunshot wound.” Brown, 393 S.W.3d at 313. “At that point, the

trial court was required to stay all proceedings in the case pending a competency examination and

incompetency trial.” Id. at 313. The court of appeals also noted that appellant was present at the

sentencing hearing but that “[n]othing in that record indicates anyone attempted to communicate

with Brown or that he had a rational as well as factual understanding of the proceedings.” Id. at 312.

“Because the issue of [appellant’s] incompetence was raised before the jury determined his guilt and

the trial court erred in finding him competent,” the court of appeals reversed the trial court’s

judgment and remanded the case for a new trial. Brown, 393 S.W.3d at 315.

       On the state’s motion for rehearing, which argued that a person who voluntarily absents

himself from a trial is not entitled to a competency evaluation, the court of appeals reaffirmed its

initial holding12 that appellant “did not voluntarily absent himself from trial because under article

46B.005 the trial court was required to stay the proceedings and conduct a formal competence

examination.” Id. at 315-16 (op. on reh’g). The court of appeals noted that the state supported its

position with cases decided under a now-amended law and that the only case cited by the state that

applied current law was an unpublished court-of-appeals case in which the defendant attempted

suicide by overdosing on pills and defense counsel did not object to continuing the punishment

phase. Grizzard v. State, No. 01-06-00930-CR, 2008 WL 2611865 (Tex. App.—Houston [1st Dist.]

July 3, 2008, no pet.) (mem. op., not designated for publication). The court of appeals noted that a

head injury produces injuries that are unlike the consequences of overdosing on medication. Brown

at 316 (op. on reh’g). The existence of more than a scintilla of evidence suggesting appellant’s

incompetence—he was on life support in a Houston hospital––should have triggered a competence


       12
            Brown, 393 S.W .3d at 315 (op. on reh’g).
                                                                                                                      8

hearing, rather than a voluntary-absence determination. Id. at 317. The appellate court also

conducted a harm analysis and, without determining whether the error was structural, held that

appellant had suffered harm. Id.

                                                   III. Analysis

         In its first ground for review, the state asks whether the trial court abused its discretion in

concluding that appellant’s absence from trial was voluntary.13 In its second and third grounds for

review, which the state argues together, the state asks, “Is a defendant who voluntarily renders

himself absent from trial entitled to a competency evaluation?” and “Is a trial court required to

immediately stay proceedings for a competency evaluation of an unconscious defendant, or does the

trial court have the discretion to order the competency evaluation at any time before sentence is

pronounced?” In its fourth ground for review, the state asks, “If a trial court fails to stay proceedings

and order a competency evaluation, is abatement for a retrospective competency evaluation the

proper remedy or should an appellate court conduct a harm analysis?”

         “A defendant has the right to be competent throughout his or her entire trial.” Garay v. State,

No. 01-11-00595-CR, 2012 WL 2159296, at *2 (Tex. App.—Houston [1st Dist.] June 14, 2012)

(mem. op., not designated for publication) (citing Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim.

App. 1996)). The “entire trial” includes the punishment stage. See Illinois v. Allen, 397 U.S. 337,

338 (1970) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the

accused’s right to be present in the courtroom at every stage of his trial.”); Adeleye v. State, Nos.


         13
            Texas Rule of Appellate Procedure 66.3 provides six situations in which this Court is authorized to
review a case, all of which require an action by a court of appeals. On its face, this ground is subject to refusal
pursuant to DeGrate v. State, 712 S.W .2d 755, 756 (Tex. Crim. App. 1986). However, the argument is based on
objections to actions by the court of appeals.
                                                                                                    9

01-10-00881-CR, 01-10-00882-CR, 2013 WL 485766, at *6 (Tex. App.—Houston [1st Dist.] Feb.

07, 2013) (mem. op., not designated for publication) (reviewing trial court’s finding that appellant

was competent at the punishment stage); Gonzales v. State, Nos. 05-08-00524-CR, 05-08-00525-CR,

2009 WL 242531, at *3-*4 (Tex. App.—Dallas Feb. 03, 2009, pet. ref’d) (mem. op., not designated

for publication) (reviewing trial court’s competence determination after informal inquiry at

punishment stage); Baldwin v. State, 227 S.W.3d 251, 254-55 (Tex. App.—San Antonio 2007)

(reviewing appellant’s claim of incompetence at the punishment stage). Article 46B codifies this

constitutional due-process right: A defendant is incompetent if he lacks the ability to reasonably

communicate with his attorney or if he lacks a rational and factual understanding of the proceedings

against him. Art. 46B.003(a); see also Ex parte LaHood, 401 S.W.3d 45, 56 (Tex. Crim. App. 2013)

(“Although an attempted suicide is disturbing, it does not necessarily prove that a person lost the

ability to meaningfully consult with his attorney or that he lacked a rational and factual

understanding of the charged offense and trial proceedings.”).

       Pursuant to Texas statutes, either party may suggest that a defendant might be incompetent

to stand trial, or the trial court may raise the issue sua sponte. Art. 46B.004(a). Once a defendant’s

incompetence has been suggested, the process for making that evaluation occurs in two steps. First,

the trial court must hold an informal inquiry to determine “whether there is some evidence from any

source” supporting the defendant’s incompetence. Art. 46B.004(c). “Some evidence” is a low bar;

it requires a showing of only a quantity more than none or a scintilla. Turner v. State, No. AP-

76,580, 2013 WL 5808250, at *11 (Tex. Crim. App. Oct. 30, 2013) (quoting Ex parte LaHood, 401

S.W.3d at 52-53). If the informal inquiry yields a determination by the court that there is evidence
                                                                                                                     10

to support the defendant’s incompetence, the court must empanel a jury14 and conduct a trial to

determine whether the defendant is competent. See Arts. 46B.004(d), 46B.005(d). In general, once

the trial court conducts an informal inquiry and determines that there is at least a scintilla of evidence

that supports holding a competence trial, the court must “stay all other proceedings in the case”

pending a jury finding on competence. Art. 46B.004(d). However, when the competence issue is

not raised until after the trial on the merits has begun, the trial court has the discretion to postpone

the competence evaluation until any time before sentencing, but the trial court “shall make the

determination as soon as reasonably possible” after a verdict is returned. Art. 46B.005(d).

         It is fundamental that a defendant has the right to be competent for the duration of his trial.

Art. 46B.005(d) (allowing the competence issue to be raised before or during trial); Ex parte

LaHood, supra, at 57 (citing Drope v. Missouri, 420 U.S. 162, 181 (1975) (“Even when a defendant

is competent at the commencement of his trial, a trial court must always be alert to circumstances

suggesting a change that would render the accused unable to meet the standards of competence to

stand trial.”)).

         In Drope, the United States Supreme Court considered circumstances similar to those

presented here. On the second day of his trial, Drope shot himself in the abdomen and did not appear




         14
              Such a jury must be separate from that empaneled for the trial on the merits. Art. 46B.051(c). However,
a jury trial is not now always required, as it was under the old version of the statute. The new version of the statute
now states,
          (b) Except as provided by Subsection (c), the court shall hold a trial under Subchapter C before
          determining whether the defendant is incompetent to stand trial on the merits.
          (c) A trial under this chapter is not required if: Neither party’s counsel requests a trial on the issue
          of incompetency; (2) neither party’s counsel opposes a finding of incompetency; and (3) the court
          does not, on its own motion, determine incompetency.
Art. 46B.005(b), (c).
          Here, we remand for a jury trial on competence because appellant requested one and the provisions in
subsection (c) are inapplicable.
                                                                                                     11

for trial. He remained hospitalized during the remainder of the trial, which continued through

punishment without Drope’s presence. Drope filed a motion for new trial, alleging that the trial

court had erred in continuing the trial without evidence that his absence from the trial was voluntary.

At the hearing on Drope’s motion, the record reflected that Drope “woke up in the hospital” and that

he had told a police officer that he had shot himself. Id. at 167. The trial court found, based on the

evidence, that Drope’s absence “was due to his own voluntary act in shooting himself; . . ..” Id. at

168.

        Almost two years after his trial ended, Drope filed a motion to vacate the conviction and

sentence, alleging that his constitutional rights had been violated because the trial court had failed

to order a psychiatric examination before trial and had continued the trial in Drope’s absence. Id.

When the hearing on the motion was held, a psychiatrist who had examined Drope before his trial

testified that, in his opinion, “There was reasonable cause to believe that a person who attempted to

commit suicide in the midst of a trial might not be mentally competent to understand the proceedings

against him” and that a competence evaluation should be done. Id. at 169.

        On appeal, the appellate court held that “petitioner’s suicide attempt did not create a

reasonable doubt of his competence as a matter of law, that petitioner had failed to demonstrate the

inadequacy of the procedures employed for protecting his rights, and that the finding of the trial court

was not clearly erroneous.” Id. at 170. The Missouri Supreme Court affirmed the lower appellate

court’s decision. Id. at 171.

        The United States Supreme Court granted certiorari on two claims: petitioner was deprived

of due process of law by the failure of the trial court to order a psychiatric examination with respect

to his competence to stand trial; and by the conduct, in his absence, of a portion of his trial on an
                                                                                                                12

indictment charging a capital offense.

        Citing Blackstone,15 the United States Supreme Court stated that the prohibition against

trying a mentally incompetent defendant “is fundamental to an adversary system of justice.” Id. at

172. “In Pate v. Robinson, 383 U.S. 375 (1966), we held that the failure to observe procedures

adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial

deprives him of his due process right to a fair trial.” Id. It continued,

        In the present case there is no dispute as to the evidence possibly relevant to
        petitioner’s mental condition that was before the trial court prior to trial and
        thereafter. Rather, the dispute concerns the inferences that were to be drawn from
        the undisputed evidence and whether, in light of what was then known, the failure to
        make further inquiry into petitioner’s competence to stand trial, denied him a fair
        trial. In such circumstances we believe it is “incumbent upon us to analyze the facts
        in order that the appropriate enforcement of the federal right may be assured.” Norris
        v. Alabama, 294 U.S. 587, 590 (1935).

Id. at 174-75.

        The Supreme Court’s opinion discussed voluntary absence only in the context of the

pleadings and the positions of the parties that were argued in trial and on appeal. The entirety of its

analysis of the law was a discussion of competence to stand trial, and its holding was on that basis.

        Our resolution of the first issue raised by petitioner [failure to order a psychiatric
        examination] makes it unnecessary to decide whether, as he contends, it was
        constitutionally impermissible to conduct the remainder of his trial on a capital
        offense in his enforced absence from a self-inflicted wound.

Drope, at 182.

The Supreme Court went on.

                The Missouri Court of Appeals concluded that, had further inquiry into
        petitioner’s competence to stand trial been constitutionally mandated in this case, it


        15
            If a person became “mad” after pleading, he should not be tried, “for how can he make his defense?” 4
W . Blackstone, Commentaries *24.
                                                                                                    13

       would have been permissible to defer it until the trial had been completed. Such a
       procedure may have advantages, at least where the defendant is present at the trial
       and the appropriate inquiry is implemented with dispatch. See Note, 81 Harv. L.
       Rev., at 469; Hansford v. United States, 127 U. S. App. D. C. 359, 360, 384 F.2d
       311, 312 (1966) (rehearing en banc denied) (statement of Leventhal, J.); Jackson v.
       Indiana, 406 U.S., at 741. However, because of petitioner’s absence during a critical
       stage of his trial, neither the judge nor counsel was able to observe him, and the
       hearing on his motion for a new trial, held approximately three months after the trial,
       was not informed by an inquiry into either his competence to stand trial or his
       capacity effectively to waive his right to be present.
               The question remains whether petitioner’s due process rights would be
       adequately protected by remanding the case now for a psychiatric examination aimed
       at establishing whether petitioner was in fact competent to stand trial in 1969. Given
       the inherent difficulties of such a nunc pro tunc determination under the most
       favorable circumstances, see Pate v. Robinson, 383 U.S., at 386-387; Dusky v. United
       States, 362 U.S., at 403, we cannot conclude that such a procedure would be
       adequate here. Cf. Conner v. Wingo, 429 F.2d, at 639-640. The State is free to retry
       petitioner, assuming, of course, that at the time of such trial he is competent to be
       tried.

Id. at 182-83.

       The Supreme Court clearly made competence to stand trial the first issue to be resolved. If

this appellant was not competent, the issue of the voluntariness of appellant’s physical absence from

the trial is immaterial as to whether the trial court’s judgment must be reversed. A determination

on the voluntariness of the absence of the defendant would not resolve this appeal. It is true that the

Code provides that, if a defendant’s absence from the trial was voluntary, Article 33.03 permits the

trial to continue until its conclusion in the defendant’s absence. Ordinarily, this provision applies

when a defendant jumps bail and absconds, but applying the concept of voluntary absence to a

person who is incompetent is problematic. We agree with the United States Supreme Court that,

under such circumstances, logic compels us to first decide whether a defendant is competent and,

only if he is found to be competent, to decide whether his absence was voluntary. To do otherwise

would deny a defendant the statutory right to have a jury decide whether he is competent. Only after
                                                                                                     14

a determination of competence is made should a court consider the question of the voluntariness of

a competent defendant’s absence.

        Unlike the appellant in Drope, some evidence about appellant’s competence immediately

after his gunshot wound was introduced at a hearing on that issue. During that hearing, the trial court

decided this case on the basis of the voluntariness of appellant's absence. “Some evidence” is a low

bar; it requires a showing of only a quantity more than none or a scintilla. Turner v. State, No. AP-

76,580, 2013 WL 5808250, at *11 (Tex. Crim. App. Oct. 30, 2013) (quoting Ex parte LaHood, 401

S.W.3d at 52-53). Appellant’s psychiatrist, who had treated appellant in the period between the

shooting and the suicide attempt, testified that, from what he had been told about appellant’s injuries,

appellant could not assist his attorneys. We are unpersuaded that the lapse of time alone is an

adequate reason to reverse for a new trial rather than for a retrospective competency evaluation. The

court of appeals, therefore, erred by determining that a reversal for a new trial was the appropriate

remedy rather than abating for a retrospective competency evaluation. We note that, as the Supreme

Court determined in Drope, there are circumstances in which a retrospective competency evaluation

may not be appropriate due to the lapse of time or other circumstances that would indicate that it

cannot reliably be done, but we are unpersuaded that those circumstances preclude a retrospective

competency evaluation in this case, where “some evidence” about appellant’s competence is

available for a jury’s consideration. Given the record, we find that a retrospective competence

hearing as to both guilt and punishment phases is the appropriate remedy.

                                           IV. Conclusion

        Neither the trial court nor the court of appeals followed the analysis structures set out in

Texas statutes and Supreme Court precedent. We remand this cause to the trial court for a
                                                                                                    15

retrospective competence hearing, using procedures that are in accord with our state statutes and the

Supreme Court’s ruling in Drope, to determine whether appellant was competent. Upon remand,

a jury must determine whether appellant was competent to stand trial by assessing whether he did

not have sufficient present ability to consult with his lawyers with a reasonable degree of rational

understanding or a rational as well as factual understanding of the proceedings against him. See Art.

46B.003.

       If the jury determines that appellant was competent, then the trial court shall consider whether

the appellant’s physical absence may properly be characterized as a voluntary absence under Article

33.03. If, however, the jury determines that appellant was incompetent, the trial court need not reach

the question of whether his physical absence from the trial during the remainder of the guilt phase

and at the punishment phase was voluntary under Article 33.03; under Texas law, the necessary

consequence of a determination of incompetence is that the trial should not have proceeded beyond

the point of appellant’s incompetence except as permitted by Texas law. In this case, the trial court

shall proceed pursuant to the dictates of Article 46B.003.



Delivered: March 19, 2014
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