Opinion filed September 20, 2018




                                      In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-16-00321-CR
                                    __________

                   CODY ADAM ALVAREZ, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 26411A

                     MEMORANDUM OPINION
      Appellant, Cody Adam Alvarez, was indicted for murder and entered a non-
negotiated plea of guilty.     The trial court convicted Appellant and assessed
punishment at sixty years’ confinement. In two issues, Appellant challenges the trial
court’s rulings with respect to Appellant’s competency to stand trial. We affirm the
judgment of the trial court.
                                   I. Background
      Appellant was charged with the murder of Alexis Baker by blunt force trauma
to the head allegedly caused by a claw hammer. The complaint alleged that
Appellant made a statement admitting that he killed Baker because “she was
deceitful with him and he did not want her to spread his seed.”
      On August 12, 2015, Appellant filed both a notice suggesting that he was
insane at the time of the offense and a motion seeking an examination. See TEX.
CODE CRIM. PROC. ANN. arts. 46C.051, .101 (West 2018). Appellant also filed a
“Motion Suggesting Incompetency and Request for Examination” requesting that
one or more disinterested experts be appointed to examine Appellant with regard to
his competency to stand trial. Id. art. 46B.004(a). The affidavit of Appellant’s
counsel indicated that Appellant was having difficulty communicating the details of
the case and discussing options for the presentation of the defense. Appellant’s
counsel also believed it possible that Appellant had a mental condition that was
interfering with Appellant’s ability to communicate with him and participate
meaningfully in his own defense.
      On August 28, 2015, an informal inquiry was held to examine Appellant’s
competency to stand trial. The trial court asked Appellant a number of questions,
including whether he had a recollection of the events that led up to him being in
custody, to which Appellant responded affirmatively. The trial court also asked
Appellant: “And have you been able to -- do you have the ability to tell [your
attorney] those things?” and “Well, do you have the mental ability to tell him?”
Appellant responded: “I’m sure I would at the right time and circumstances.” When
the trial court asked, “Do you think you’re incompetent to stand trial?” Appellant
answered: “I don’t know, Judge. I feel like I have a problem.”
      Appellant responded to a number of questions from the trial court indicating
that, to his knowledge, he had been charged with first-degree murder and aggravated
assault. He knew where he was and could identify the trial judge and his defense
attorney. He stated his age, education level, and place of birth and identified family
members. Appellant told the trial court that he had been with MHMR since the
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preceding year and that he was currently taking Seroquel and previously had taken
three other drugs—Cogentin, trazodone, and risperidone. Appellant had never been
in a mental hospital.
      At the hearing, Appellant’s attorney explained that previously Appellant did
not have a recollection of the events and was not able to communicate with him
effectively. Appellant’s attorney was not clear whether it was a “recall issue” or a
“focus distraction” issue and related: “There has still been the same difficulty up
until at least today of him being able to confer with me openly about the two newest
charges.” The trial court responded: “[Y]ou just heard him say he did have a
recollection of the events that led to him being in jail?” The trial court continued by
stating: “He just said he hasn’t had a chance to tell you yet because you haven’t seen
him in apparently the time span, whatever that is, I don’t know.” Appellant’s
attorney stated: “And that’s apparently different from what -- the impression I got
from him previously, so[--].” The trial court then denied the motion to have
Appellant examined for competency to stand trial.
      Despite the previous denial of an examination, on May 26, 2016, the trial court
ordered Dr. Samuel Brinkman, a psychologist, to conduct an evaluation of the sanity
of Appellant at the time of the offense. Dr. Brinkman’s examination, however,
concerned both competency to stand trial and sanity at the time of the alleged
offense.   Dr. Brinkman completed the examination on June 7, 2016, and his
conclusions were that Appellant was competent to stand trial and that Appellant was
sane at the time of the offense. Dr. Brinkman conferred with Appellant’s counsel
regarding the results of the evaluation. Appellant subsequently withdrew his notice
of intent to raise the insanity defense.

      On August 15, 2016, Appellant entered an open plea of guilty to the offense
of murder, with punishment to be assessed by the trial court. Appellant was
admonished in writing and in open court of the consequences of his plea. At that
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time, the prosecutor, the trial court, Appellant, and his attorney agreed that Appellant
was competent. After hearing testimony, including that of Dr. Brinkman, the trial
court pronounced Appellant guilty of murder and sentenced him to sixty years’
confinement.
                                  II. Legal Standard
      In two issues, Appellant argues that the trial court abused its discretion and
violated Appellant’s due process and due course of law rights by refusing to order
an examination and a formal competency trial. The State argues that the trial court
did not err as Appellant was examined for competency by an expert and the result of
the examination indicated that he was competent.
      As a matter of constitutional due process, a criminal defendant who is
incompetent may not stand trial. Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim.
App. 2018); Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013). The
legislature has codified this due-process requirement to ensure that legally
incompetent criminal defendants do not stand trial. See CRIM. PROC. arts. 46B.003–
.005. Substantively, incompetency to stand trial is shown if the defendant does not
have “(1) sufficient present ability to consult with the person’s lawyer with a
reasonable degree of rational understanding; or (2) a rational as well as factual
understanding of the proceedings against the person.”            Id. art. 46B.003(a).
Procedurally, a trial court employs two steps for making competency determinations
before it may conclude that a defendant is incompetent to stand trial. The first step
is an informal inquiry; the second step is a formal competency trial. Id. arts.
46B.004–.005.
      An informal inquiry is called for when there is a “suggestion” from any
credible source that the defendant may be incompetent. Id. art. 46B.004(a), (c), (c-
1). At the informal inquiry, there must be “some evidence from any source that
would support a finding that the defendant may be incompetent to stand trial.” Id.
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art. 46B.004(c). If that requirement is met, then the trial court must order a
competency examination, and except for certain exceptions, it must hold a formal
competency trial. Id. arts. 46B.005(a), (b), 46B.021(b). In the instant appeal, the
trial court conducted the first step in this process by conducting an informal inquiry
into appellant’s competency. The trial court also later ordered a psychological
examination but did not conduct a formal competency trial.
      With respect to the evidentiary standard that must be met at the informal
inquiry stage, a trial court must focus on three matters. First, the standard at the
informal inquiry stage is whether there is “some evidence” of incompetency to stand
trial. See id. art. 46B.004(c). The statute reads: “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.” Id. The Court of Criminal Appeals
has described the statutory “some evidence” standard as requiring “more than none
or a scintilla” of evidence that “rationally may lead to a conclusion of
incompetency.” Turner, 422 S.W.3d at 692 (quoting Ex parte LaHood, 401 S.W.3d
45, 52–53 (Tex. Crim. App. 2013)).
      Second, a trial court must consider only evidence of incompetency, and it must
not weigh evidence of competency against the evidence of incompetency. Id. In
making this determination at the informal inquiry stage, “a trial court must consider
only that evidence tending to show incompetency” and “put[ ] aside all competing
indications of competency.” Id. (quoting LaHood, 401 S.W.3d at 52). At the
informal inquiry stage, “the standard for requiring a formal competency trial is not
a particularly onerous one—whether, putting aside the evidence of competency,
there is more than a scintilla of evidence that would support a rational finding of fact
that the accused is incompetent to stand trial.” Id. at 696.


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      Third, some evidence must be presented at the informal inquiry stage to show
that a defendant’s mental illness is the source of his inability to participate in his
own defense. Id. at 691. There must be “some evidence from which it may rationally
be inferred not only 1) that the defendant suffers some degree of debilitating mental
illness, and that 2) he obstinately refuses to cooperate with counsel to his own
apparent detriment, but also that 3) his mental illness is what fuels his obstinacy.”
Id. at 696. Thus, it is not enough to present evidence of either a defendant’s mental
illness alone or his refusal to cooperate with counsel—rather, there must be some
evidence indicating that the defendant’s refusal to rationally engage with counsel is
caused by his mental illness. Id.
                                     III. Analysis
      At the informal hearing, the trial court had before it the affidavit of
Appellant’s trial counsel, swearing that “the Defendant has had difficulty
communicating with me regarding the details of the case and discussing options for
the presentation of a defense” and “a mental condition of some kind may be
interfering with [Appellant’s] ability to communicate with his counsel and
participate meaningfully in his own defense.” At this point, there was an indication
of difficulty communicating and the possibility that there may be a mental condition.
There was no specific information about the difficulties Appellant was having
communicating with his attorney. When the trial court asked Appellant if he had
talked to his lawyer about the charges, Appellant said no “[b]ecause it’s the second
time I’ve seen him.” In response to the question of whether he had a recollection of
the charges filed against him, Appellant stated, “Yes, from letters I get from
[counsel] saying that . . . .” When the trial court asked Appellant: “Do you think that
you’re incompetent to stand trial?” Appellant responded, “I don’t know Judge. I
feel like I have a problem.”


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      Considering only that evidence tending to show incompetency, the trial court
could have failed to find more than a scintilla of evidence of a debilitating mental
illness that fueled a refusal to cooperate with counsel. The trial court could have
reasonably concluded that a communication issue did not exist between Appellant
and his counsel and that Appellant was not currently suffering from a mental illness
that caused him to be uncommunicative with counsel. “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.” Turner, 422 S.W.3d at
691 (footnote omitted); see Reed v. State, 112 S.W.3d 706, 710 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) (“It is not enough for counsel to allege
unspecified difficulties in communicating with the defendant.” (citing Moore v.
State, 999 S.W.2d 385, 394 (Tex. Crim. App. 1999))). “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.” Turner, 422 S.W.3d at 691.
      Appellant’s counsel alleged unspecified difficulties in communicating with
his client. When the trial court inquired further concerning communication issues,
the trial court was informed that those issues were unconnected with any alleged
mental illness. Nothing in the record from the informal inquiry indicated that
Appellant’s failure to communicate with his counsel was related to any mental
illness. Based on the evidence presented at the initial inquiry, the trial court did not
abuse its discretion in refusing to conduct a formal competency trial. The continuing
competency of Appellant through the punishment hearing is supported by the
subsequent examination of Appellant by Dr. Brinkman.
      Although Appellant argues that Dr. Brinkman’s examination extended only to
an assessment of sanity at the time of the event, Dr. Brinkman’s report reveals that
his assessment also covered competency to stand trial. At the beginning of his
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report, Dr. Brinkman states: “This 33-year-old-Hispanic male completed
standardized neuropsychological assessment to help determine competency to
stand trial and sanity at the time of an alleged offense” (emphasis added). The
report goes on to describe the fifteen procedures and tests used to determine
intelligence, memory, personality, conceptual skills, writing skills, and language and
communication skills. The report concludes with a description of the standards
relating to competency and an opinion that Appellant is competent to stand trial.
         The parties and the trial court were aware of Dr. Brinkman’s conclusions prior
to the entry of the guilty plea. At a hearing on a motion to suppress, the attorneys
for the State and Appellant mentioned that Dr. Brinkman had performed both a
sanity and a competency assessment, and the trial court confirmed that it was aware
of Dr. Brinkman’s report. Dr. Brinkman testified during the punishment phase and
stated that he performed an evaluation of Appellant’s competency and concluded
that Appellant was competent to stand trial. In his closing argument, Appellant’s
trial counsel pointed out that Appellant had previously suffered from mental illness
but that the evidence showed a “significant change in [Appellant’s] demeanor, his
capacity, his apparent overall mental status, and that would coincide with the regular
treatment that he has finally been getting.” The trial court, the prosecutor, and
Appellant’s attorney were all in agreement that Appellant was competent to stand
trial.
                                     IV. Conclusion
         Based on the limited testimony of Appellant’s communication issue with his
counsel and possible mental illness at the initial inquiry, the trial court did not abuse
its discretion in failing to conduct a formal competency trial. Appellant’s due
process and due course of law rights were not violated because Appellant received
an initial inquiry into his competency and an appointed psychologist assessed


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Appellant’s competency and determined that Appellant was competent to stand trial.
We overrule Appellant’s issues and affirm the judgment of the trial court.




                                                                   REBECCA SIMMONS
                                                                   FORMER JUSTICE


September 20, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Simmons, F.J., 1 and Wright, S.C.J. 2

Willson, J., not participating.




        1
         Rebecca Simmons, Former Justice, Court of Appeals, 4th District of Texas at San Antonio, sitting
by assignment.
        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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