Steve Frank Galvan v. State of Texas--Appeal from 259th District Court of Jones County

11th Court of Appeals

Eastland, Texas

Opinion

Steve Frank Galvan

Appellant

Vs. No. 11-01-00201-CR -- Appeal from Jones County

State of Texas

Appellee

Steve Frank Galvan was placed on community supervision for ten years by an AOrder of Deferred Adjudication@ dated September 19, 1996. After the State filed its motion to adjudicate, the trial court appointed a disinterested mental health expert to examine appellant Awith regard to his competency to stand trial.@ The sanity hearing was held on January 6, 1999, and the jury found that appellant was not competent to stand trial; consequently, the trial court entered an order that appellant be Acommitted to and confined at the maximum security unit of Vernon State Hospital.@ On February 25, 1999, Barry Mills, M.D., Competency Unit Psychiatrist, filed a report with the trial court which stated:

After a period of observation and treatment, the defendant has been evaluated and competency determined. It is my opinion that the defendant is NOW MENTALLY COMPETENT to stand trial.

The trial court heard the State=s motion to adjudicate appellant=s guilt on April 8, 1999. Appellant admitted that he had violated the terms of probation, and the trial court sentenced him to confinement for 40 years. The Court of Criminal Appeals granted appellant=s pro se application for writ of habeas corpus, allowing him to perfect an out-of-time appeal. This court abated the appeal to permit the trial court to make a judicial determination of whether appellant was competent to stand trial on April 8, 1999. The trial court has now made that finding, and it is supported by the record. The judgment of the trial court is affirmed.

Points of Error

Appellant=s court-appointed lawyer presented two points of error in his original brief. Appellant argued in his first point of error that the trial court abused its discretion in moving to adjudicate Abefore there was a judicial determination@ that he was competent to stand trial. On April 18, 2002, this court abated the appeal and ordered the trial court to Amake a judicial determination of whether appellant was competent to stand trial@ on April 8, 1999, when the trial court adjudicated appellant=s guilt and assessed punishment. That hearing has been held, and the trial court has furnished this court with a supplemental reporter=s record and a supplemental clerk=s record. The appellate record now contains an order from the trial court which is dated May 30, 2002, and which reads in relevant part as shown:

It is, therefore, ORDERED, ADJUDGED AND DECREED that Defendant was competent at the hearing on April 8, 1999, time of sentencing and that the written opinion of Barry Mills, M.D., Competency Unit Psychiatrist, Vernon State Hospital, was sufficient to sustain said finding.

Appellant=s first point of error is overruled.

Appellant argued in his second point of error that the trial court abused its discretion in granting the motion to adjudicate Abecause there was no evidence@ that he was competent to stand trial. This point of error is overruled because the report from Dr. Mills was sufficient to sustain that finding. See TEX. CODE CRIM. PRO. ANN. art. 46.02, ' 5(i) (Vernon Pamph. Supp. 2002) which provides in pertinent part:

When the head of a facility to which the defendant is committed discharges the defendant and the defendant is returned to court, a final report shall be filed with the court...and the court shall furnish copies to the defense counsel and the prosecuting attorney....When the report is filed with the court, the court is authorized to make a determination based solely on the report with regard to the defendant=s competency to stand trial, unless the prosecuting attorney or the defense counsel objects in writing or in open court to the findings of the report within 15 days from the time the report is served on the parties. In the event of objection, the issue shall be set for a hearing before the court or, on motion by the defendant, the defense counsel, the prosecuting attorney, or the court, the hearing shall be held before a jury. (Emphasis added)

Supplemental Points of Error

Appellant presents three additional points of error in the supplemental brief which he filed after the trial court=s order dated May 30, 2002. In those points, he argues that the trial court erred (1) in adjudicating appellant=s guilt Aover timely objection@ to the medical report; (2) in overruling his Atimely motion for a jury determination@ of his competency; and (3) in overruling his Atimely request for an independent psychological examination.@

There is no showing that appellant=s original lawyer did not receive his copy of the medical report when it was sent to the District Judge on February 25, 1999. A copy of this report was filed with the District Clerk on March 1, 1999, and it shows that the original was sent to the District Judge with copies to the District Attorney, the Defense Attorney, the District Clerk, the Sheriff, and the Court Coordinator. The testimony from the adjudication hearing on April 8, 1999, does not show any claim by appellant=s attorney that he did not receive his copy of that letter. That attorney did not testify at the hearing on May 30, 2002; consequently, there is no showing that appellant made a Atimely objection@ to the medical report, no showing that appellant made a Atimely motion@ for a jury determination of competency, and no showing that appellant made a Atimely request@ for an independent psychological examination. The record before us supports the trial court=s ruling. See Fuller v. State, 30 S.W.3d 441, 444 (Tex.App. - Texarkana 2000, pet=n ref=d). The three supplemental points of error are overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

October 31, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Wright, J., and

McCall, J., and Dickenson, S.J.[1]

[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.