                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00063-CR

BRIAN KEITH LOUD,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 10-02171-CRF-361


                          MEMORANDUM OPINION


      The jury convicted Brian Loud of the offense of robbery, found the enhancement

paragraphs to be true, and assessed his punishment at confinement for life. We affirm.

                                  Background Facts

      There is no challenge to the sufficiency of the evidence. Cassie Bailey, a bank

teller at Wells Fargo Bank, testified at trial that on the morning of February 2, 2010 a

man came into the bank and handed her a note that said:
          I have a gun, I don’t want to hurt you, keep your hands where I can see
          them put the money in here. Anything goes wrong before I’m out the
          door. I’ll kill you!

Bailey gave the man all of the money out of her drawer, and the man left the bank.

Bailey identified Loud at trial as the person who robbed the bank.

          Detective Lance Matthews testified that he received information naming Loud as

a possible suspect in the robbery and giving an address where Loud could be located.

Detective Matthews went to the residence, and Loud’s brother answered the door.

Detective Matthews stated that upon entering the residence, he saw Loud down on his

knees with his hands in the air. Loud voluntarily talked to Detective Matthews and

denied being involved in the robbery. Detective Matthews received consent to search

the residence. He found a black hoodie, black knit cap, and black pants matching those

worn by the suspect as seen on surveillance video from the bank.

          Detective Matthews obtained an arrest warrant, and Loud was placed under

arrest.    In an interview the following day, Loud admitted robbing the bank, but

indicated that he did so at the request of another individual. Loud told the detective

that they planned to use the money to buy drugs and then sell the drugs to “double” or

“triple” the amount of money.

                                 Competency to Stand Trial

          In his first issue, Loud complains that the trial court erred in not conducting a

sua sponte informal inquiry into his competency. A person is incompetent to stand trial

if the person does not have sufficient present ability to consult with counsel with a

reasonable degree of rational understanding; or a rational as well as factual

Loud v. State                                                                        Page 2
understanding of the proceedings against him. TEX. CODE CRIM. PRO. ANN. art. 46B.003

(West 2006). Either party may suggest by motion, or the trial court may suggest on its

own motion, that the defendant may be incompetent to stand trial. TEX. CODE CRIM.

PRO. ANN. art. 46B.004 (a) (West Supp. 2011).1 If evidence suggesting the defendant

may be incompetent to stand trial comes to the attention of the court, the court on its

own motion shall suggest that the defendant may be incompetent to stand trial. TEX.

CODE CRIM. PRO. ANN. art. 46B.004 (b) (West Supp. 2011). On suggestion that the

defendant may be 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. PRO. ANN. art.

46B.004 (c) (West Supp. 2011).

        An inquiry into competency must be conducted when there is evidence

sufficient to raise a bona fide doubt in the mind of the judge whether the defendant is

legally competent. Gonzales v. State, 313 S.W.3d 840, 842 (Tex. Crim. App. 2010). A bona

fide doubt may exist if the defendant exhibits truly bizarre behavior or has a recent

history of severe mental illness or at least moderate mental retardation. Id. We review

a trial court's failure to conduct a competency inquiry under an abuse of discretion

standard. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999).

        Loud first argues that his behavior when the police arrived at his brother’s

residence to investigate the offense is evidence of bizarre behavior. Loud was on his


1TEX. CODE CRIM. PRO. ANN. art. 46B.004 was amended effective September 1, 2011. The changes apply
only to proceedings conducted after September 1, 2011. Because Loud was tried in February 2011, the
new provisions are not applicable in this case.

Loud v. State                                                                               Page 3
knees with his hands in the air. We do not find Loud’s apparent submission to police

authority to be an exhibition of truly bizarre behavior.

        Loud next argues that his confession indicates that he is easily influenced by

others and demonstrates incompetence.        We do not find that the circumstances of

Loud’s confession are sufficient to raise a bona fide doubt as to his competency.

        Loud further argues that the evidence of his mental health issues is sufficient

evidence for the trial court to conduct a sua sponte inquiry into his competence. Loud

presented evidence that he was housed in the medical section of the Brazos County Jail

and that he was taking medicine for mental health issues. Evidence that Loud was on

psychiatric medication and had a history of mental problems did not mandate a

competency inquiry absent evidence of a present inability to communicate or

understand the proceedings. Moore v. State, 999 S.W.2d at 395-96; LaHood v. State, 171

S.W.3d 613, 619 (Tex. App.─Houston [14th Dist.] 2005, pet. ref’d).

        The record does not support a finding that Loud was unable to communicate or

understand the proceedings. The record shows that Loud and his counsel discussed

whether Loud should testify at trial and that Loud decided against testifying. The

record further shows that Loud and his counsel discussed trial strategy on a possible

defense. Loud responded appropriately when questioned by counsel. The trial court

did not abuse its discretion in failing to conduct a sua sponte informal inquiry into

Loud’s competency. We overrule the first issue.




Loud v. State                                                                       Page 4
                                    Batson Challenge

        In his second issue, Loud argues that the State used its peremptory challenges to

eliminate all African-Americans from the jury and did not give a racially neutral

explanation for the challenges pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,

90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court held that, while a

prosecutor ordinarily may exercise peremptory strikes for any reason related to his

views concerning the outcome of the trial, "the Equal Protection Clause forbids the

prosecutor to challenge potential jurors solely on account of their race." Grant v. State,

325 S.W.3d 655, 657 (Tex. Crim. App. 2010). A Batson challenge to a peremptory strike

consists of three steps: 1) the opponent of the strike must establish a prima facie

showing of racial discrimination; 2) the proponent of the strike must articulate a race-

neutral explanation; and 3) the trial court must decide whether the opponent has

proven purposeful racial discrimination. Id.

        The trial court's ruling in the third step must be sustained on appeal unless it is

clearly erroneous. Id. Because the trial court's ruling requires an evaluation of the

credibility and demeanor of prosecutors and venire members, and because this

evaluation lies within the trial court's province, we defer to the trial court in the absence

of exceptional circumstances. Id.

        After the parties submitted their peremptory strikes, Loud informed the trial

court that the State used peremptory strikes to remove the two African-American venire

members within the strike zone. The trial court asked for an explanation. The State

responded that it struck Juror 23 because she is a secretary for the Texas Department of

Loud v. State                                                                          Page 5
Criminal Justice and that it struck Juror 33 because he was formerly a parole officer for a

member of Loud’s family.

        Loud’s counsel disputed the State’s explanation as to Juror 23.2 Loud’s counsel

stated that in his experience it is defense attorneys who do not want TDCJ employees

on the jury. The State explained that people affiliated with TDCJ sometimes have a

close relationship with inmates and that can affect their decision on punishment. The

State further explained that it often strikes employees of TDCJ. The trial court found

the State’s explanations for Jurors 23 and 33 to be race neutral.

        Loud did not dispute the State’s explanation for striking Juror 33.                      Loud

disagreed with the State’s explanation for striking Juror 23, but did not further cross-

examine the prosecutor on his motives. The record shows that Loud was in custody at

the Brazos County Jail prior to trial. Employees of the Brazos County Jail testified on

Loud’s behalf during the punishment phase of the trial. The trial court’s finding that

the State offered race neutral explanations for the strikes was not clearly erroneous. We

overrule the second issue.

                                             Conclusion

        We affirm the trial court’s judgment.



                                                                AL SCOGGINS
                                                                Justice




2Loud’s counsel initially referred to Juror 33 as being employed by TDCJ; however, the record shows that
Juror 23 was the TDCJ employee.

Loud v. State                                                                                    Page 6
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 8, 2012
Do not publish
[CRPM]




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