Rene Nava v. The State of Texas--Appeal from 292nd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Rene Nava

Appellant

Vs. Nos. 11-02-00219-CR & 11-02-00220-CR B Appeals from Dallas County

State of Texas

Appellee

In a consolidated trial, Rene Nava pleaded guilty to two offenses of aggravated assault with a deadly weapon. Negotiated plea agreements were reached, and the trial court placed appellant on deferred adjudication community supervision for 10 years and assessed a $2,000 fine in each case.

Thereafter, the State moved to adjudicate appellant=s guilt. Appellant pleaded true to violating the conditions of his community supervision, and the trial court adjudicated appellant=s guilt and assessed his punishment at confinement for 15 years in each case. Appellant appeals the judgments adjudicating his guilt in each case. We will dismiss the appeals in both cases because we have no jurisdiction.

In a single point of error in each case, appellant contends that the trial court erred in failing to sua sponte Ainquire@ into appellant=s competency to stand trial after the issue was raised. Appellant relies upon the testimony of appellant that he went to ACATS@ for a psychiatric evaluation and that CATS made an appointment for him for a second appointment that he did not keep because he did not have transportation.

TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 5(b) (Vernon Supp. 2003) states that on violation of a condition of deferred adjudication community supervision:

The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

Appellant cites the majority opinion in Marbut v. State, 76 S.W.3d 742 (Tex.App. - Waco 2002, pet=n ref=d), to support his argument that we have jurisdiction to decide the issue. The court in Marbut, when confronted with the issue before us, relied upon TEX. CODE CRIM. PRO. ANN. art. 46.02, ' 4(a) (Vernon Pamph Supp. 2003) (Incompetency to stand trial) and TEX. CODE CRIM. PRO. ANN. art. 42.07 (Vernon Supp. 2003) (Preventing pronouncement of sentence if defendant is incompetent to stand trial). The court in Marbut also relied upon Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App. - Amarillo 1993, no pet=n).[1] The Marbut court held that the question of competency to stand trial pertained to the validity of the Aproceedings@ whereby the defendant=s guilt was adjudicated and the defendant was sentenced to prison. The court held that the competency issue did not pertain to the trial court=s decision (determination) to adjudicate the defendant=s guilt. Therefore, the Marbut court held it had jurisdiction to determine the issue. The court then reviewed the evidence and held that the evidence was insufficient to create a bona fide doubt as to the defendant=s competency to stand trial.

When confronted with the issue presented in our case and in Marbut, the court in Arista v. State, supra, declined to follow Gilbert and held that, under Article 42.12, section 5(b), the court had no jurisdiction to hear a complaint that the trial court erred by failing to hold a competency hearing.

We conclude that Arista is the correct holding, and we decline to follow Marbut. The court in McDaniel v. State, 98 S.W.3d 704, 706, 710 (Tex.Cr.App.2003), recently stated that a trial judge:

[N]eed not perform a Acompetency inquiry@ unless evidence is presented that raises a bona fide doubt in the judge=s mind regarding the defendant=s Apresent ability to consult with [his] lawyer with a reasonable degree of rational understanding@ or his Arational as well as factual understanding of the proceedings against [him].@

The court added:

A Section 2 or Acompetency inquiry@ is required only if the evidence brought to the judge=s attention raises a bona fide doubt in the judge=s mind about the defendant=s competency to stand trial.

We hold that the prohibition in Article 42.12, section 5(b) that there be ANo appeal@ taken from the determination by the trial Acourt of whether it proceeds with an adjudication of guilt on the original charge@ does not permit an appellate court to review the evidence to determine if the evidence Abrought to the judge=s attention@ raises a Abona fide doubt@ as to a defendant=s competency to stand trial. See Connolly v. State, supra.

We dismiss the appeals for lack of jurisdiction.

AUSTIN McCLOUD

SENIOR JUSTICE

May 15, 2003

Publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, J., and

McCall, J., and McCloud, S.J.[2]

[1]We note that the Amarillo Court in Sanders v. State, No. 07-00-0519-CR, 2001 Tex. App. LEXIS 6882 (Tex.App. - Amarillo 2001, no pet=n)(not designated for publication), citing Connolly v. State, 983, S.W.2d 738, 741 (Tex.Cr.App.1999), and Arista v. State, 2 S.W.3d 444, 445-46 (Tex.App. - San Antonio 1999, no pet=n), expressly disapproved of the earlier holding in Gilbert.

[2]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.