                             NUMBER 13-07-739-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


RICHARD HUFF,                                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 319th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Vela

      Appellant, Richard Huff, pleaded no contest without the benefit of a plea-bargain

agreement to the offense of aggravated assault with a deadly weapon. See TEX . PENAL

CODE ANN . § 22.02(a)(2) (Vernon Supp. 2008). After finding that Huff had been previously

convicted of one felony offense, the trial court assessed punishment at fifty years’
imprisonment. Huff brings two issues for review. We affirm.

                                      I. BACKGROUND

       Huff was indicted on February 15, 2007, for committing aggravated assault by

stabbing his wife, Robin Huff, with a knife. On May 1, 2007, Huff’s defense counsel filed

a motion for a mental examination and a pretrial hearing on his competency to stand trial.

Afterward, the trial court ordered Huff to undergo a psychiatric examination with Raul

Capitaine, M.D., a forensic psychiatrist, to evaluate his competency to stand trial. On June

13, 2007, Dr. Capitaine filed a written report which showed that Huff had a mental illness

since he was fourteen years old and was hospitalized several times per year for mental

illness until age twenty-six. He was last hospitalized in January 2006. Dr. Capitaine

diagnosed Huff with “Bipolar 1 Disorder. Most Recent Episode Mixed. Severe with

Psychotic Features” and “Polysubstance Abuse, in remission in a controlled environment.”

Dr. Capitaine found Huff competent to stand trial and found no evidence of mental

retardation.

       Huff’s plea hearing occurred on November 27, 2007, at which the trial court asked

Huff, among other things, if he signed and initialed all of the plea paperwork, if he signed

the plea papers freely and voluntarily, and if he understood that by entering his plea, he

was giving up his right to a jury trial. Huff affirmatively answered these questions. Huff

pleaded “No contest” to the allegation in the indictment and pleaded “True” to the allegation

that he had a prior felony conviction. Huff affirmed that he was entering his pleas freely

and voluntarily and that he understood that the judge could find him guilty. When the trial

court asked defense counsel if he believed that Huff was mentally competent to appear in

court and enter the pleas, counsel stated, “[I]t is my opinion that he has dramatically

improved since February of this year [2007], and it is my opinion he’s been able to assist
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me in preparation for today’s hearing. I believe he is competent to stand trial at this time.”

The trial court accepted the pleas, received Huff’s judicial confession and stipulation into

evidence, and heard testimony.

       The victim testified that on the morning of February 9, 2007, while driving Huff to do

laundry, Huff asked if she wanted a divorce. Before she could reply, he told her, “I’ll end

this whole thing right here. I will slit your throat and kill you.’” He pulled out a knife and told

her to pull over. When she pulled over, Huff started stabbing and choking her. She then

heard Huff call 9-1-1. He stabbed her eleven times on her chest, neck, and back.

       Huff testified that he had been mentally ill since the age of fourteen and was

hospitalized two or three times a year until the age of twenty-six when he realized that he

needed to take his medication in order to “function.” When defense counsel asked him

about the stabbing of Robin, Huff responded that he “[J]ust got out of control.” He said that

after he saw what had happened, he called 9-1-1. He denied choking her.

       After hearing all of the testimony, the judge found Huff guilty, found the

enhancement allegation to be true, and assessed punishment at fifty years’ imprisonment.

                                         II. DISCUSSION

       By his first issue, Huff argues that the trial court violated his Due Process rights

under the Fourteenth Amendment to the United States Constitution by not holding a

hearing when evidence sufficient to raise a bona fide doubt concerning his competency to

stand trial became evident. We apply an abuse-of-discretion standard when reviewing a

trial court's failure to conduct an inquiry into a defendant’s competency to stand trial.

Montoya v. State, No. PD-0239-08, 2009 WL 1873354, at *5 (Tex. Crim. App. July 1,

2009). In applying this standard, “An appellate court does not substitute its judgment for

that of the trial court, but rather determines whether the trial court’s decision was arbitrary
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or unreasonable.” Id.

         A. Applicable Law

         The code of criminal procedure prohibits a trial court from accepting either a guilty

plea or a plea of nolo contendere “unless it appears that the defendant is mentally

competent. . . .” TEX . CODE CRIM . PROC . ANN . art. 26.13(b) (Vernon 2009). A defendant

must also be mentally competent to be sentenced. See Casey v. State, 924 S.W.2d 946,

949 (Tex. Crim. App. 1996) (stating that sentencing is part of trial and competency

considerations apply). Under article 46B.004 of the code of criminal procedure,1 a trial

court’s inquiry into a defendant’s competence may be informal. Montoya, 2009 WL

1873354, at *4. This allows the trial court to informally determine whether the defendant’s

behavior during a proceeding indicates a lack of rational understanding. Id. The Montoya

court stated that bona fide doubt is “the proper standard for determining whether a trial

court should conduct an inquiry.” Id. If a trial court has a bona fide doubt about the

defendant’s competency, it “shall conduct an informal inquiry to determine if there is

evidence that would support a finding of incompetence.” Id. “A bona fide doubt may exist

if the defendant exhibits truly bizarre behavior or has a recent history of severe mental



         1
          Article 46B.004 provides:

         (a) Either party m ay suggest by m otion, or the trial court m ay suggest on its own m otion, that
         the defendant m ay be incom petent to stand trial. A m otion suggesting that the defendant
         m ay be incom petent to stand trial m ay be supported by affidavits setting out the facts on
         which the suggestion is m ade.

         (b) If evidence suggesting the defendant m ay be incom petent to stand trial com es to the
         attention of the court, the court on its own m otion shall suggest that the defendant m ay be
         incom petent to stand trial.

         (c) On suggestion that the defendant m ay be incom petent to stand trial, the court shall
         determ ine by inform al inquiry whether there is som e evidence from any source that would
         support a finding that the defendant m ay be incom petent to stand trial.

T EX . C OD E C R IM . P R O C . A N N . art. 46B.004 (Vernon 2006).
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illness or at least moderate mental retardation.” Id.

        Article 46B.003 provides that a person is incompetent to stand trial if the person

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.” TEX . CODE CRIM . PROC . ANN . art.

46B.003(a)(1) (2) (Vernon 2006). This statute “specifies the defendant’s present ability.

. . . [P]ast mental-health issues raise the issue of incompetency only if there is evidence

of recent severe mental illness, at least moderate retardation, or bizarre acts by the

defendant.” Montoya, 2009 WL 1873354, at *4 (emphasis in original); see Moore v. State,

999 S.W.2d 385, 395 (Tex. Crim. App. 1999).2 “The considerations when evaluating

competency to stand trial include the defendant’s level of understanding of the proceeding

and ability to consult with counsel in preparation for the proceeding.” Montoya, 2009 WL

1873354, at *4. “Thus, those who observed the behavior of the defendant at the hearing

. . . [are] in a better position to determine whether . . . [the defendant is] presently

competent.” Id.; see McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003)

(stating “We cannot ignore the trial court’s first-hand factual assessment of appellant’s

mental competency. His factual findings, that appellant understood the nature of the

proceedings and assisted his counsel in his defense, are entitled to great deference by the

reviewing court.”).




        2
        In Moore, the court stated:

        Prior hospitalization . . . do[es] not per se warrant the court im paneling a separate jury to
        conduct a com petency hearing. To raise the issue of com petency by m eans of the
        defendant’s past m ental health history, there generally m ust be evidence of recent severe
        m ental illness or bizarre acts by the defendant or of m oderate retardation.

Moore v. State, 999 S.W .2d 385, 395 (Tex. Crim . App. 1999).
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       B. Analysis

       Dr. Capitaine found Huff competent to stand trial. Furthermore, the record reflects

no indication of recent severe mental illness, moderate retardation, or truly bizarre acts,

and there was no suggestion by Huff’s defense counsel, the prosecutor, or the trial court,

all of whom saw Huff’s behavior at the plea hearing, that Huff appeared unable to

understand the proceedings. The record showed that Huff had the sufficient present ability

to consult with his lawyer with a reasonable degree of rational understanding and had a

rational as well as a factual understanding of the proceedings against him. See TEX . CODE

CRIM . PROC . ANN . art. 46B.003(a)(1) (2). Giving proper deference to the trial judge’s

determination based on his ability to see Huff’s behavior, we conclude that because

evidence did not come to the trial court's attention suggesting that Huff may have been

incompetent to stand trial, the trial court did not abuse its discretion by failing to determine

by informal inquiry whether there was some evidence from any source that would support

a finding that Huff was incompetent to stand trial. See Montoya v. State, No. PD-0239-08,

2009 WL 1873354, at *5 (Tex. Crim. App. July 1, 2009). Issue one is overruled.

       By his second issue, Huff argues his right to a proper determination of his

incompetency to stand trial was violated because the trial court failed to follow the

mandatory procedures of Chapter 46B of the code of criminal procedure once evidence

suggesting he was incompetent to stand trial came to the trial court’s attention. If, after an

informal inquiry, the court determines that evidence exists to support a finding of

incompetency, the court shall order an examination to determine whether the defendant

is incompetent to stand trial. Id. art. 46B.005(a) (Vernon 2006). Generally, if the court

determines that evidence exists to support a finding of incompetency, the court shall hold

a hearing before determining whether the defendant is incompetent to stand trial, and, on
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the request of either party or on the court's motion, a jury shall make the determination with

respect to whether the defendant is incompetent. Id. arts. 46B.005(b), 46B.051. (Vernon

2006).

         Here, the trial court ordered an examination to determine whether Huff was

incompetent to stand trial. Dr. Capitaine evaluated Huff and determined that he was

competent to stand trial. Because evidence did not come to the trial court's attention

suggesting that Huff may have been incompetent to stand trial, the trial court did not violate

the mandatory procedures set forth in chapter 46B of the code of criminal procedure.

Issue two is overruled.

                                        III. CONCLUSION

         The trial court’s judgment is affirmed.




                                                   ROSE VELA
                                                   Justice


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

Memorandum Opinion delivered and
filed this 20th day of 2009.




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