                           NUMBER 13-13-00013-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

NICHOLAS GARCIA,                                                         Appellant,

                                         v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.


                       MEMORANDUM OPINION
            Before Justices Rodriguez, Garza, and Benavides
            Memorandum Opinion by Justice Benavides

      Appellant Nicholas Garcia was convicted of aggravated assault, enhanced to a

first-degree offense because of a prior felony, see TEX. PENAL CODE ANN. § 22.02 (West,

Westlaw through 2013 3d C.S.), and felony family violence assault, enhanced to a

second-degree felony because of a prior felony.   See id. § 22.01(b)(2) (West, Westlaw
through 2013 3d C.S.).     Garcia was sentenced to twenty-five years in prison for the

aggravated assault charge and twenty years for the felony family violence assault charge,

with the sentences ordered to run concurrently.    By two issues, Garcia contends the trial

court erred:   (1) by failing to order a jury trial on his competency after trial had begun,

and (2) in assessing punishment that was allegedly disproportionate to the seriousness

of the offenses. We affirm.

                                      I. BACKGROUND

      Garcia was indicted for aggravated assault for striking and choking his ex-girlfriend

when he believed she was unfaithful.     See id. § 22.02.   On October 17, 2011, Garcia’s

attorney, Irma Sanjines, filed an “Unopposed Motion Suggesting Incompetency and

Request for Examination.”       The motion represented that Garcia had previously been

found incompetent to stand trial in a separate February 2010 criminal case. The motion

also asserted the following:

      In conversations with counsel, Nicholas Garcia appears not to understand
      common principles of law regarding jurisdiction and the course and
      procedure of a case in court.          He speaks of concepts that are
      incomprehensible to this attorney. Moreover, he has given counsel a
      narrative of his beliefs which appears to be rambling and incoherent.

The trial court granted this motion and ordered Garcia to be examined for competency.

According to notes on the court’s docket sheet, Dr. Troy Martinez evaluated Garcia for

competency on November 17, 2011.        A March 3, 2012 docket entry reveals that Garcia

was “found competent.”         Although Dr. Martinez’s competency report is not in the

appellate record, there are several instances in the record where all parties acknowledge

that Garcia was found competent to stand trial.   For example, during one pretrial hearing,

the trial court asked, “Okay. We’re still waiting for a competency report?,” and the court

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clerk responded, “Your honor, that came back, and he is competent to stand trial.” No

objections were made.

       On February 23, 2012, Sanjines filed a motion to withdraw as counsel. In her

motion, Sanjines represented that good cause existed for her removal because Garcia

“refuse[d] to discuss the facts of the case” with her and did not seem “to get past his

constitutional law arguments to counsel.” Sanjines also reported that Garcia “[did] not

trust counsel.”    The trial court granted Sanjines’s motion and on March 1, 2012,

appointed Stephen Giovannini to represent Garcia.

       Despite having an appointed attorney, Garcia filed several pro se pretrial motions

on his own behalf.        These motions included a Motion for Discovery, Motion for

Continuance, Motion for Discovery and Inspection, Motion for Payment of Records,

Motion to Withdraw Insanity Defense 1 , and Waiver of Counsel.               A review of these

motions reveals that they are boilerplate, typical pretrial motions. However, Garcia filed

several other pro se motions that advanced unusual legal theories, such as:

       1.      Motion for Incarceration. In this motion, Garcia argued that he had the
               right to assault his girlfriend because she signed a contract with him
               allowing him to punish her for any alleged “defiance” on her part.

       2.      Motion Suggesting Criminal Courts Incompetency to Make Trial and
               Request for Examining Trial to Evaluate the Competence of the Courts.
               Here, Garcia appeared to argue that the State’s inability to “understand
               truth” would infringe on his Due Process and First Amendment rights under
               the U.S. Constitution.

       3.      Motion for Personal Recognition Bond. Here, Garcia reasserted the same
               arguments set forth in his previous “Criminal Courts Incompetency” motion.




       1This motion was filed in response to Giovannini’s Motion for Examination Regarding Insanity
Defense. The trial court granted the motion for examination on June 7, 2012.

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       4.     First Amended Motion Suggesting Criminal Courts Incompetency to Make
              Trial and Request for Examining Trial to Evaluate the Competence of the
              Courts, reasserting the same arguments as above but including more case
              citations.

       5.     First Amended Motion for Incarceration. Here, Garcia re-urged that his
              assault on his girlfriend was authorized by contract because his girlfriend
              “violate[d] a direct instruction from Nicholas Garcia . . . by practicing
              unauthorized vengeance and . . . Harlotry. . . .”

       6.     Motion to Subject Punishment to Death Sentence. In this motion, Garcia
              offered his own life in support of his arguments against the competence of
              the court.

       7.     Motion to Dismiss. This motion contended that his indictment infringed on
              his contractual rights.

       At an April 30, 2012 hearing, Garcia testified that he wanted to represent himself

to continue to file motions that his attorney Giovannini was unwilling to file on his behalf.

Garcia testified that although he trusted his lawyer, he felt strongly about advancing

certain alleged defenses that his lawyer refused to argue.            For example, Garcia

reiterated to the court that he had a contract with the victim that allowed him to “punish”

her for any violations of the contract.   Garcia explained that he had “a notarized contract

between [himself] and the victim stating the conditions between our relationship. It’s

more of a practice of our constitutional rights, which I understand that State law cannot

intervene in . . . .” The trial court granted Garcia’s request to proceed pro se, but had

attorney Giovannini remain on the case in an advisory capacity only. The court made it

clear that Giovannini was not Garcia’s counsel.

       Thereafter, Garcia represented himself at pretrial hearings.         He again urged

through his motions that the State should not prosecute him for the assault because he

had the contractual right to punish his ex-girlfriend for her violation of their contract. The


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trial court denied his motions. At voir dire, Garcia questioned the venire panel on several

topics, including their prior military service and whether any venire persons believed they

would allow emotion to cloud their judgment.

       At the guilt-innocence phase of trial, Garcia cross-examined his victim thoroughly.

He challenged the extent of her injuries and adduced testimony that she willingly signed

the contract allowing him to “punish” her for any infidelity. When Garcia testified on his

own behalf, he readily admitted that he hit the victim but denied that it was out of anger.

Instead, he stated he was merely exercising his rights under the terms of the contract.

During the punishment phase of the trial, Garcia cross-examined all of the State’s

witnesses, including two police officers, two former girlfriends, and an assistant district

attorney.     Further, he called several members of his own family—two sisters and his

mother—to testify as his defense witnesses, although they did not provide helpful

testimony to his cause.         The jury ultimately convicted Garcia of aggravated assault and

felony family violence assault.         See id. § 22.02, § 22.01(b)(2). The trial court postponed

sentencing for a presentence investigation.

       At sentencing, Garcia requested that Giovannini be re-appointed as his court-

appointed attorney.        The trial court granted his request.          Giovannini, during argument,

mentioned a psychological report from Dr. Martinez2 wherein he diagnosed Garcia as a

“narcissistic delusional” person. There was also a remark that Garcia had previously

been committed to mental health institutions at three different times in his life.

Giovannini urged the court to consider probation in light of Garcia’s obvious mental health



       2    It is unclear from the record when Dr. Martinez wrote this report.

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issues. The trial court disagreed and sentenced Garcia to twenty-five years in prison for

the aggravated assault charge and twenty years for the felony family violence assault

charge.   The sentences were ordered to run concurrently.       This appeal ensued.

                       II. FAILURE TO CALL A COMPETENCY HEARING

       By his first issue, Garcia contends the trial court erred when it failed to call a

competency hearing after trial had begun.

A.     Applicable Law

       “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, Westlaw through 2013 3d C.S.). Under

Texas Code of Criminal Procedure article 46B.004, any “suggestion” of incompetency to

stand trial calls for an “informal inquiry” to determine whether a formal competency trial is

warranted.   See Turner v. State, 422 S.W.3d 676, 692 (Tex. Crim. App. 2013); see TEX.

CODE CRIM. PROC. ANN. art. 46B.004 (West, Westlaw through 2013 3d C.S.). A person

can be considered incompetent if:       (1) they do not have sufficient present ability to

consult with their lawyer with a reasonable degree of understanding or (2) they do not

have a rational and factual understanding of the proceedings.      Id. art. 46B.003(a).

       The Texas Court of Criminal Appeals explained that there is a difference between

one who is incompetent as opposed to mentally ill:

       The fact that a defendant is mentally ill does not by itself mean he is
       incompetent. Nor does the simple fact that he obstinately refuses to
       cooperate with his trial counsel. Indeed, even a mentally ill defendant who
       resists cooperating with his counsel may nevertheless be found competent
       if the manifestations of his particular mental illness are not shown to be the
       engine of his obstinacy. But when a defendant's mental illness operates
       in such a way as to prevent him from rationally understanding the

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       proceedings against him or engaging rationally with counsel in the pursuit
       of his own best interests, he cannot be made to stand trial consistent with
       due process. Evidence that raises this possibility necessitates an informal
       inquiry, and if that inquiry reveals that the possibility is substantial, a formal
       competency trial is required.

Turner, 422 S.W.3d at 691.

       A trial court’s decision to conduct an incompetency trial is reviewed under an abuse

of discretion standard.    See Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App.

1999). A trial court abuses its discretion if its decision is arbitrary or unreasonable.    Id.

B.     Discussion

       The trial court did not conduct an informal inquiry into Garcia’s competency after

trial began.   However, prior to trial, the court ordered that Dr. Martinez evaluate Garcia

for competency.    Although Dr. Martinez’s report is not in the appellate record before us,

there are references in the record’s docket sheet that indicate that Garcia was “found

competent.” No party objected to this finding.

       Further, we find nothing in the record that suggests the trial court abused its

discretion in not ordering a competency hearing after trial began.     Throughout the course

of the proceedings, Garcia appeared to have “a rational and factual understanding of the

proceedings.”    See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a). For example, in voir

dire, Garcia showed that he understood the mechanics of jury selection by asking

questions which might reveal jury biases, such as whether jurors might be inclined to let

their emotions sway their rational judgment during trial.         During the guilt-innocence

phase of trial, although Garcia made several unconventional and ultimately unsuccessful

arguments, he adhered to the rules of court by calling, questioning, and cross-examining

witnesses.     He also responded appropriately whenever the trial court sustained or

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overruled objections to testimony.    While the record showed that Garcia had mental

health issues—Giovannini mentioned a report that found Garcia to be “a narcissistic

delusional”—this fact is not dispositive of the competency analysis.       See Turner, 422

S.W.3d at 691.     Garcia’s actions representing himself pro se showed that he understood

what was at stake at his trial.

       Garcia also argues on appeal that he was not competent to conduct his own pro

se defense because of his mental health illness.       There is a “mental-illness-related

limitation on the scope of the self-representation right.”   Indiana v. Edwards, 554 U.S.

164, 171 (2008); Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010). In

Edwards, the United States Supreme Court held that “the Constitution permits States to

insist upon representation by counsel for those competent enough to stand trial . . . but

who still suffer from severe mental illness to the point where they are not competent to

conduct trial proceedings by themselves.” 554 U.S. at 178.         “The trial judge is in the

best position to make the decision of whether a mentally ill defendant is competent to

proceed pro se.”    Chadwick, 309 S.W.3d at 561. Appellate courts have upheld a trial

court’s decision to allow self-representation when the defendant

       showed an ability to communicate clearly and conduct himself appropriately
       in court. Appellant was respectful to the trial court, the prosecutors, the
       witnesses, for the most part, and the jury; he proceeded in an orderly
       fashion as guided by the trial court; he asked coherent questions, for the
       most part, when he cross examined the State's witnesses and presented
       himself as a witness; he objected to several questions and comments by
       the prosecutors; and he clearly presented and articulated defenses of self[-
       ]defense and lack of motive.

Cudjo v. State, 345 S.W.3d 177, 186 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).




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         Here, at the pretrial hearing on the motion to withdraw, the trial court made it clear

to Garcia the risks he undertook in not having an attorney represent him. Out of an

abundance of caution, the trial court ordered Giovannini, Garcia’s previous counsel, to

serve as an “advisor” to Garcia throughout the voir dire and trial proceedings. We again

note, though, that Garcia’s conduct throughout his trial indicated that he understood the

nature and severity of the proceedings against him.            Although the substance of his

defense was outlandish at times, he demonstrated an appreciation for the judicial system

and its procedures. The trial court’s determination did not violate Edwards or Chadwick.

See Edwards, 554 U.S. at 171; Chadwick, 309 S.W.3d at 561.

         In light of the foregoing, we conclude that the trial court did not abuse its discretion

when it did not call a competency hearing after trial began. We overrule Garcia’s first

issue.

                           III. THE PROPORTIONALITY OF PUNISHMENT

         By his second issue, Garcia contends that his sentence was disproportionate to

the seriousness of the offenses for which he was found guilty. Garcia asserts that the trial

court’s assessment of twenty-five years’ incarceration for aggravated assault and twenty

years’ incarceration for felony family violence assault is cruel and unusual punishment

pursuant to the Eighth Amendment of the United States Constitution, see U.S. CONST.

amend. VIII; Article 1, Section 13 of the Texas Constitution, see TEX. CONST. art. I, § 13;

and “well established case law” by the Texas and federal courts.

         As a threshold matter, the State argues that Garcia did not preserve his

constitutional challenge to the trial court’s sentence.     See Wilson v. State, 311 S.W.3d

452, 473–74 (Tex. Crim. App. 2010) (“Preservation of error is a systemic requirement on

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appeal.”). We agree. To preserve an error for appellate review, a party must present

a timely objection to the trial court, state the specific grounds for the objection, and obtain

a ruling.    See TEX. R. APP. P. 33.1(a).      This rule applies to complaints about the

disproportionality of a sentence imposed by the trial court.       See Smith v. State, 821

S.W.2d 844, 855 (Tex. Crim. App. 1986) (“It is well settled that almost every right,

constitutional and statutory, may be waived by the failure to object.”); Solis v. State, 945

S.W.2d 300, 301 (Tex. App.—Houston 1997 [1st Dist.], pet. ref’d) (finding that appellant

failed to object to the alleged disproportionality of the sentences thereby waived error for

review).

       Here, no objection was made to the trial court’s sentence nor was it raised in a

post-trial motion. As a result, we hold that Garcia’s issue is unpreserved for our review.

See TEX. R. APP. P. 33.1(a); Wilson, 311 S.W.3d at 473–74.          Garcia’s second issue is

overruled.

                                       IV. CONCLUSION

       Having overruled both of Garcia’s issues, we affirm the trial court’s judgment.




                                                          __________________________
                                                          GINA M. BENAVIDES,
                                                          Justice


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

Delivered and filed the
16th day of October, 2014.



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