CLARENCE DWIGHT WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

ABATE and REMAND and Opinion Filed December 31, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-94-01693-CR
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CLARENCE DWIGHT WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F94-19104-KU
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O P I N I O N
Before Justices Lagarde, Wright, and Wolfe
Opinion By Justice Wright
        Clarence Dwight Williams appeals his conviction for aggravated sexual assault. A jury found appellant guilty and sentenced him to seventy-five years' confinement. In two points of error, appellant contends (1) the trial court erred in adopting the magistrate's finding of appellant's competency, and (2) he did not receive effective assistance of counsel at trial. Because the magistrate erroneously charged the jury that appellant had the burden to prove his incompetency by a preponderance of the evidence, we abate this appeal and remand to the trial court for a hearing to determine appellant's competency at the time of his trial.
 
        On February 14, 1991, appellant was found to be incompetent to stand trial for an unrelated charge of burglary. The judgment of incompetency was never vacated, and no subsequent order of competency was entered by the trial court prior to August 11, 1994.
        On March 23, 1994, appellant was indicted for aggravated sexual assault. On August 11, 1994, a competency hearing was held before a magistrate. The magistrate charged the jury at the competency hearing that the burden was on appellant to show his incompetency by a preponderance of the evidence. Appellant did not object to the jury charge. The jury found appellant competent to stand trial for the charge of aggravated sexual assault. The trial court adopted the magistrate's findings and actions, and the case proceeded to trial. The jury found appellant guilty of aggravated sexual assault and sentenced him to seventy-five years' confinement. This appeal followed.
        Generally, a defendant has the burden of proving his incompetency to stand trial by a preponderance of the evidence. See Tex. Code Crim. Proc. Ann. art. 46.02 § 1 (Vernon 1979); Manning v. State, 730 S.W.2d 744, 748 (Tex. Crim. App. 1987). However, if there is a prior, unvacated judgment finding the defendant incompetent, the burden shifts to the State to show beyond a reasonable doubt that the defendant is competent. Manning, 730 S.W.2d at 748-49. Failure to properly charge the jury on the burden of proof when there is an existing prior adjudication of incompetency is fundamental error. See Manning, 730 S.W.2d at 750.
        Appellant was adjudicated incompetent to stand trial on February 14, 1991. The judgment of incompetency was never vacated, and no subsequent order of competency was entered by the trial court prior to August 11, 1994. Because there was a prior, unvacated adjudication of incompetency, the State had the burden to prove beyond a reasonable doubt that appellant was incompetent to stand trial. Therefore, we conclude the magistrate's charge to the jury at the competency hearing that appellant had the burden to prove his incompetency by a preponderance of the evidence was incorrect.
        Appellant did not object to the charge. Because appellant did not object to the charge, we review the case to determine whether the error was so egregious and created such harm that appellant did not receive a fair and impartial trial. See Manning, 730 S.W.2d at 750; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Failure to properly charge the jury on the burden of proof when there is an existing prior adjudication of incompetency is fundamental error. See Manning, 730 S.W.2d at 750. Accordingly, we abate this appeal and remand the cause to the trial court to impanel a jury and hold a hearing to determine appellant's competency at the time of trial. See Tex. Code Crim. Proc. Ann. art. 46.02 § 4 (Vernon Supp. 1997); Manning, 730 S.W.2d at 750; Barber v. State, 737 S.W.2d 824, 828-29 (Tex. Crim. App. 1987) (remand for retrospective determination of competency can be made within limits of due process).
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
941693F.U05
 
 
File Date[12-31-96]
File Name[941693F]