WAYNE CHARLES TRETTER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 4, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00127-CR
No. 05-09-00128-CR
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WAYNE CHARLES TRETTER, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F07-60196-N and F07-74015-N
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MEMORANDUM OPINION
 
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion By Justice Lang-Miers
 
 
        Appellant Wayne Charles Tretter waived a jury and pleaded guilty to burglary of a habitation and burglary of a building and true to two enhancement paragraphs in each case. The trial court sentenced appellant to sixty years in prison in the burglary of a habitation case and ten years in prison in the burglary of a building case. In this consolidated appeal, appellant contends that the trial court violated his right to due process and article 46B.004 of the Texas Code of Criminal Procedure by not conducting an inquiry into his competency to stand trial. We affirm.
        We review a trial court's decision not to conduct a competency inquiry for an abuse of discretion. Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999).         A trial court cannot accept a plea of guilty unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2009); McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003) (noting that due process right not to be convicted if legally incompetent incorporated into code of criminal procedure). A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Id. art. 46B.003(b) (Vernon 2006). A defendant is incompetent to stand trial if he lacks (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational, as well as factual, understanding of the proceedings against him. Id. art. 46B.003(a) (Vernon 2006).
        A party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial. Id. art. 46B.004(a) (Vernon 2006). 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. art. 46B.004(c) (Vernon 2006). An informal inquiry is not required, however, unless the evidence is sufficient to create a bona fide doubt in the mind of the trial court about whether the defendant is legally competent. Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009); McDaniel, 98 S.W.3d at 710.
        On appeal, appellant contends that he “took pains to explain” his recent treatment for mental illness and argues that the trial court should have inquired into his competency. To support his argument, he refers to four documents he filed in the trial court. The first document was a letter to the trial court in which appellant stated that he had been a “Psyc. Patient” prior to his arrest. He gave the name of the program in which he was enrolled, the name of his treating physician, and a list of the medications he took (“Thorzine, Lithium, Celaxis”). He also asked for a lawyer with “MHMR training” because his current lawyer “has no knowledge of anything . . . no knowledge that [he] is housed in Psysc. Floor of Jail and is on Pysc. medication.” The second document that appellant filed was styled a “Motion for Substitution of Attorney.” In that motion, appellant again asked for a lawyer with “MHMR training” because his current attorney “has no knowledge of defendant's Psyc. History . . . or what medicene's [sic] defendant is using.” Appellant stated that the relationship with his attorney “has broken down to the extent that [the attorney] is no longer capable of rendering the effective assistance of counsel to the defendant.” The third document was styled “Psychiatrist Evaluation Motion,” in which appellant asked the trial court to order a psychiatric evaluation because he was “under care of a Pysc. Program.” Finally, in another letter to the trial court, appellant again asked for a “MHMR attorney” because he believed “a new attorney could help me more with my medical history,” and “with the psychiatric evaluation I could receive medical help.” Appellant also stated that he was bipolar and manic depressive and was taking “Lithium - Celaxis - Doxfine - Thorzine.”
        At the guilty-plea hearing, the trial court stated that he was aware that appellant “has either been on or is presently on psychotropic medications while in the Dallas County Jail.” The court asked appellant's attorney whether he believed appellant was competent. On two separate occasions, appellant's attorney stated that he believed appellant was competent. Additionally, appellant testified at length in the guilty-plea proceedings. He testified that he understood the nature of the proceedings, the charges against him, the range of punishment, and that he had no plea bargain. He also stated that he had met with his lawyer and investigator, had discussed the case with the investigator, and was satisfied with the services of his attorney and investigator. Appellant's attorney asked him, “Are you pleading guilty because you are guilty and for no other reason?” Appellant said, “I'm guilty. Yes, sir.” The trial court then said to appellant, “It's a yes-or-no question.” Appellant said, “Yes.” In the punishment hearing, held two days later, appellant's attorney asked appellant if he wanted to testify. Appellant said, “I would like to get one quick statement -- .” A conference was held off the record, and when the hearing resumed, appellant stated he did not want to testify. Although the record does not indicate what the conference was about, we note that before appellant was asked whether he wanted to testify, the State offered testimony about appellant's alleged connection to two murders in San Antonio and then withdrew that testimony.
        Appellant contends that his pro se pleadings should have caused the trial court to inquire further into his competency. We disagree. Evidence of depression, past mental-health issues, or mental impairment does not raise the issue of incompetency where there is no indication that the defendant is incapable of consulting with his attorney or understanding the proceedings. See Moore, 999 S.W.2d at 395. In the pleadings, appellant demonstrated an understanding of the proceedings and expressed a desire to be represented by an attorney who understood mental health issues and who could get him medical help. The pleadings, along with appellant's responses to his lawyer's questions about the nature of the charges and proceedings, and his response to the trial court's question demonstrated sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational and factual understanding of the proceedings against him. The trial court was aware that appellant had been taking psychotropic medications and was in a position to observe appellant's behavior during the off-the-record conference and at all other times during the two hearings.
        There is no evidence in this case of recent severe mental illness, moderate retardation, or bizarre behavior. See Montoya, 291 S.W.3d at 425. There was no suggestion by appellant's attorney, the State, or the trial court, all of whom were in a position to observe appellant's behavior at the hearings, that appellant was not presently able to consult with his lawyer with a reasonable degree of rational understanding and understand the nature of the proceedings. See id. at 425-26; Moore, 999 S.W.2d at 395-96. In fact, the record demonstrates just the opposite.         We conclude that the evidence was not sufficient to create a bona fide doubt in the mind of the trial court that appellant was legally incompetent to stand trial, and the trial court did not violate appellant's right to due process or article 46B.004 by not sua sponte inquiring into appellant's competency. We resolve appellant's two issues against him.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
090127F.U05