                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-13-00171-CR


                                WESLEY GARZA, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 100th District Court
                                    Childress County, Texas
                    Trial Court No. 5454, Honorable Stuart Messer, Presiding

                                        August 29, 2014

                               MEMORANDUM OPINION
                     Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant Wesley Garza appeals from the trial court’s judgment adjudicating him

guilty of the offense of possession of a controlled substance,1 revoking his deferred

adjudication community supervision, and sentencing him to ten years of imprisonment.

Appellant challenges the judgment through four issues. We will affirm.




      1
          TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2012).
                                        Background


       Appellant plead guilty in September 2012 to the third degree felony offense of

possession of a controlled substance. The court deferred a finding of guilt and placed

appellant on community supervision for a period of three years.


       Two months later, the State filed a motion to adjudicate appellant’s guilt, alleging

violations of the terms of his community supervision. In January 2013, appellant’s

counsel filed a motion requesting an examination of appellant regarding his

competency, and advising the court appellant was being treated at a state hospital. In

February 2013, the State filed an amended motion to adjudicate, alleging additional

failures to report and additional violations of his community supervision terms arising

from his drug use and possession.


       Philip J. Davis, Ph.D., examined appellant. After his examination but before the

court heard the report, appellant filed a motion for a jury trial to determine his

competency. Davis was the only witness to testify at a hearing held immediately before

the hearing on the motion to adjudicate. Davis’s report also is in evidence. He testified

to his opinion that, while appellant had a history of mental illness and treatment for such

illness, he satisfied the criteria to be considered competent to stand trial. The trial court

found appellant competent for the adjudication proceeding.


       Appellant plead “not true” to the allegations in the State’s motion to adjudicate.

He more than once interrupted the hearing on the motion. The hearing nonetheless was

completed, and the trial court found appellant violated terms of his community

supervision. Punishment was assessed as noted. This appeal followed.

                                             2
                                                 Analysis


Failure to Conduct Formal Competency Hearing


        We begin with appellant’s last issue by which he contends he was entitled to a

jury trial on the issue of competency and his due process rights were violated when he

was denied the jury trial he requested. The State argues the trial court did not abuse its

discretion in failing to conduct a jury trial as to appellant’s competence because the

court's informal inquiry did not reveal evidence that rationally could lead to a

determination of incompetency. We agree with the State.


        The Texas Legislature has adopted the constitutional standard for competency to

stand trial in Article 46B.003(a) of the Texas Code of Criminal Procedure.2 Turner v.

State, 422 S.W.3d 676, 690 (Tex. Crim. App. 2013).                       Under our current statutory

scheme, any "suggestion" of incompetency to stand trial calls for an "informal inquiry" to

determine whether evidence exists to justify a formal competency trial. Id., citing TEX.

CODE CRIM. PROC. ANN. art. 46B.004(c) (West Supp. 2014) ("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").


        The trial court here conducted an informal inquiry following the motion by

appellant and the examination by the appointed expert. See TEX. CODE CRIM. PROC.

ANN. art. 46B.021 (authorizing appointment of expert when suggestion of incompetence
        2
            Tex. Code Crim. Proc. art. 46B.003(a)(1) & (2) (West 2006) ("A person is incompetent to stand
trial if the person does not have . . . sufficient present ability to consult with the person's lawyer with a
reasonable degree of rational understanding; or . . . a rational as well as factual understanding of the
proceedings against the person.").

                                                     3
exists). The question, then, is whether, “in light of what became known to the trial court

by the conclusion of the informal inquiry, it should have conducted a formal competency

trial.” Turner, 422 S.W.3d at 692. The answer depends on whether "some evidence

from any source" had arisen by that time "that would support a finding that [the

appellant] may be incompetent to stand trial." Id. In making this determination, a trial

court must consider only that evidence tending to show incompetency, "putting aside all

competing indications of competency, to find whether there is some evidence, a quantity

more than none or a scintilla, that rationally may lead to a conclusion of incompetency."

Id. If so, then evidence exists to support a finding of incompetency, and the statutory

scheme requires the trial court to conduct a formal competency trial. Id.


       Searching for evidence supporting a finding of incompetence, we begin with Dr.

Davis’s report, which reflects a diagnosis of “bipolar disorder with psychotic features,”

and reflects appellant’s report to him of “an extensive history of treatment for mental

illness.” Appellant also reported he had been prescribed psychotropic medication for

“serious mental illness” and was taking the prescribed medication at the time of the

evaluation. Davis agreed appellant met the criteria to be considered seriously mentally

ill and that if he discontinued his medication, “his mental status and behavior will

deteriorate significantly.” However, Davis also testified that while “[m]ental illness can

affect competency to stand trial, and there are circumstances in which the individual

meets the criteria to be considered seriously mentally ill and still meets the criteria to be

considered competent to stand trial. They are -- they are not mutually exclusive.” See

Turner, 422 S.W.3d at 691 (the fact a defendant is mentally ill does not by itself mean

he is incompetent). Therefore, Davis continued, if appellant were to discontinue his


                                             4
medication, “[t]here is a possibility he might not meet the criteria [for competency] . . . .”

Davis further stated, “Again, I'd have to evaluate him without the medication, but that

level of history of the diagnosis of serious mental illness can certainly bring into question

an individual's competency.”


        Other than his testimony regarding the effect of a discontinuance of his

medication, Davis’s testimony contains no suggestion appellant was incompetent at the

adjudication hearing. Davis expressed the opinion appellant satisfied the criteria for

competency to stand trial. Davis testified appellant was aware of the charges against

him and had a rational and factual understanding of the proceedings against him. He

also opined appellant had the sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding.                 Appellant’s counsel expressed no

contrary opinion at the hearing.


        Reacting to Davis’s testimony of the potential for incompetency if appellant were

to discontinue his medication, the trial court inquired of appellant’s counsel whether

appellant had been administered his medication. His counsel stated, “I believe Mr.

Garza has been administered his medication. I have concerns of whether it's the right

amounts, but I believe he has been administered his prescribed medication.” Counsel

confirmed for the court that the administration of appellant’s medication was “not an

issue.” The court then concluded, “All right. I find that there is not evidence to raise --

there is not evidence to raise a bona fide doubt [3] in my mind regarding the Defendant's


        3
          Before an amendment to article 46B.004 effective September 1, 2011, the Court of Criminal
Appeals held that the “bona fide doubt” standard under a previous statute was the same as a suggestion
of incompetency sufficient to trigger an informal inquiry under the current statute. In Turner, the court
stated the legislative amendment “rejected the bona fide doubt standard for purposes of Article 46B.004.”

                                                   5
competency to stand trial based upon the testimony of the expert, Dr. Phillip Davis. I do

not find. I have no doubt.”


        We agree the record does not show any evidence that would support a finding

that appellant was incompetent to stand trial at the time the court conducted the

informal inquiry into appellant’s competency and heard the State’s motion to adjudicate.

See Grider v. State, 69 S.W.3d 681, 685 (Tex. App.—Texarkana 2002, no pet.) (holding

evidence that defendant was paranoid schizophrenic, taking medication, hearing voices,

and seeing visions was not evidence that defendant lacked ability to consult with lawyer

or understand the proceedings); Rice v. State, 991 S.W.2d 953, 957 (Tex. App.—Fort

Worth 1999, pet. ref'd) (holding that competency test is not whether someone labored

under mental, behavioral, or psychological impairment). The case is in the category of

those “in which there is some evidence of mental illness but no evidence from which it

may reasonably be inferred that the defendant’s mental illness renders him incapable of

consulting rationally with counsel.” Turner, 422 S.W.3d at 696.


        There is no contention on appeal that the court erred by failing to reconsider

appellant’s competency because of his disruptive actions during the adjudication

hearing. His counsel once requested a continuance during the hearing after appellant

apparently inflicted superficial injuries on himself with a razor blade. Denial of that

request is not at issue on appeal. Appellant’s fourth issue is overruled.




____________________________
Turner, 422 S.W.3d at 692. Nonetheless, we read the trial court’s conclusion in this case to be that the
court had heard no evidence supporting a finding appellant was incompetent to stand trial.

                                                   6
Sufficiency of Evidence Supporting Revocation


       In his third issue, appellant challenges the sufficiency of the evidence to support

the revocation of his deferred adjudication community supervision. The decision to

proceed to an adjudication of guilt and revoke deferred adjudication community

supervision is reviewable in the same manner as a revocation of ordinary community

supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West 2010). We review an

order revoking community supervision under an abuse of discretion standard. Rickels v.

State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492,

493 (Tex. Crim. App. 1984); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort

Worth 2007, pet. ref'd).     In a revocation proceeding, the State must prove by a

preponderance of the evidence that the defendant violated the terms and conditions of

community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993);

Cherry, 215 S.W.3d at 919. The trial court is the sole judge of the credibility of the

witnesses and the weight to be given their testimony, and we review the evidence in the

light most favorable to the trial court's ruling. Cardona, 665 S.W.2d at 493; Garrett v.

State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981) (panel op.); Cherry, 215 S.W.3d at

919. If the State fails to meet its burden of proof, the trial court abuses its discretion in

revoking the community supervision. Cardona, 665 S.W.2d at 493-94. Proof by a

preponderance of the evidence of any one of the alleged violations of the conditions of

community supervision is sufficient to support a revocation order. Cantu v. State, 339

S.W.3d 688, 691-92 (Tex. App.—Fort Worth 2011, no pet.).


       The State submitted violations of three terms of appellant’s community

supervision at the hearing. On appeal, appellant’s issues focus on the violations

                                              7
surrounding the commission of a new offense and a subsequent positive drug test.

However, the court also found appellant violated two additional terms of his community

supervision.


      Appellant’s community supervision officer testified to the two additional violations.

She testified appellant performed “poorly” under his community supervision.

Specifically, she testified appellant failed to report in January 2013 as required. She

also testified appellant failed to submit to a random drug test in November 2012 as

required.   Either of these grounds would support the trial court’s order adjudicating

appellant’s guilt and revoking his community supervision. Cantu, 339 S.W.3d at 691-92.

Accordingly, we resolve appellant’s third issue against him.


Remaining Issues


      Appellant’s remaining issues challenge the admission of drug test results.

Because we have found the evidence sufficient to support the trial court’s judgment on

two additional and unrelated grounds, it is unnecessary for us to address appellant’s

first and second issues.    TEX. R. APP. P. 47.1.    The judgment of the trial court is

affirmed.


                                                James T. Campbell
                                                   Justice


Do not publish.




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