Donald Lynn Price v. State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-01-155-CR

DONALD LYNN PRICE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 27530

O P I N I O N

Donald Lynn Price appeals his conviction for robbery. He was sentenced to 10 years confinement. Price raises a single point of error for our review, i.e., the trial court erred by not impaneling a jury to determine whether he is competent to stand trial. Finding no error, we will affirm.

FACTUAL AND PROCEDURAL BACKGROUNDIn February 2000, Donald Lynn Price pled nolo contendere to the charge of robbery, a second degree felony. Tex. Pen. Code Ann. 29.02 (Vernon 1994). The trial court received Price s guilty plea and admitted into evidence a recitation of the facts which supported the conviction. According to that evidence, on January 7, 2000, Price assaulted Thomas Lewis while committing theft. The court sentenced him to 10 years confinement and a $1,000 fine. But the court suspended Price s imprisonment and placed him on community supervision.

In September 2000, the State filed a motion to revoke community supervision for failure to pay monthly probation fees and court costs and for not reporting to his probation officer for four consecutive months. In April 2001, the court held a hearing on the motion, and Price pled not true to the allegations. The court found the allegations to be true, revoked Price s community supervision, and sentenced him to 10 years confinement. Price then brought this appeal arguing that the trial court erred by not granting a hearing to determine his competency.

DISCUSSIONStandard of Review

The standard of review is whether the trial court abused its discretion by failing to impanel a jury for the purpose of conducting a competency hearing. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999) (citing Garcia v. State, 595 S.W.2d 538, 542 (Tex. Crim. App. [Panel Op.] 1980)).

Applicable Law

Article 46.02 contains provisions concerning a defendant s competency to stand trial. Tex. Code Crim. Proc. Ann. art. 46.02 (Vernon 1979 & Supp. 2002). There are no separate provisions for revocation hearings. A community supervision revocation hearing is neither a criminal or civil trial, but rather an administrative hearing. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Becker v. State, 33 S.W.3d 64, 65 (Tex. App. El Paso 2000, no pet. h.). Nevertheless, the courts apply the provisions of article 46.02 to revocation hearings. E.g.,Casey v. State, 924 S.W.2d 946, 947-48 (Tex. Crim. App. 1996); Reeves v. State, 46 S.W.3d 397, 399-400 (Tex. App. Texarkana 2001, pet. dism d).

A person is incompetent to participate in a revocation hearing if he does not have (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 the [him]. Tex. Code Crim. Proc. Ann. art. 46.02, 1A(a) (Vernon Supp. 2002). Section 2 of article 46.02, entitled Raising the Issue of Incompetency to Stand Trial, describes when a hearing is to be held by the trial court to determine if a hearing before a jury should be held to determine competency. It reads:

(a) The issue of the defendant s incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.

(b) If during the trial evidence of the defendant s incompetency is brought to the attentionof the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

Id. art. 46.02, 2(a), (b) (Vernon 1979) (emphasis added).

Neither Price nor his defense counsel filed a motion prior to the revocation hearing asserting that Price was incompetent to participate in the proceedings. Accordingly, the issue of Price s competency could have only been raised during the hearing itself. Thus, section 2(b) of article 46.02 controls this case.

The Court of Criminal Appeals recently discussed section 2(b) in Alcott v. State, 51 S.W.3d 596 (Tex. Crim. App. 2001). Due process precludes an incompetent person from being brought to trial. Id. at 598 (citing Drope v. Missouri, 420 U.S. 162, 171-72, 95 S. Ct. 896, 903-04, 43 L. Ed. 2d 103 (1975)). The Court drew a distinction between a competency inquiry and a competency hearing. Id. at 601. Section 2(b) refers to a competency inquiry, which is a proceeding, either sua sponte or based on a motion, conducted by the trial court, out of the presence of the jury, to determine if a competency hearing before a jury must be held to determine if the defendant is competent to stand trial. Id. The trial court must conduct a competency inquiry only if there is evidence sufficient to create a bona fide doubt in the judge s mind about the defendant s competency to stand trial. Id. If so, then in conducting the competency inquiry, the trial court must decide if there is some evidence to support a jury finding of incompetency to stand trial; if there is, the court must hold a competency hearing before a jury. Id.; Tex. Code Crim. Proc. Ann. art. 46.02, 4(a) (Vernon Supp. 2002).

A bona fide doubt is measured by whether the evidence raises a doubt that the defendant has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or . . . possesses an understanding of the proceedings against him. Alcott v. State, 26 S.W.3d 1, 3 (Tex. App. Waco 1999), aff d, 51 S.W.3d 596 (Tex. Crim. App. 2001) (citing Mata v. State, 632 S.W.2d 355, 358-59 (Tex. Crim. App. 1982)). [Evidence raising a bona fide doubt] need not be sufficient to support a [jury s] finding of incompetence and is qualitatively different from such evidence. Alcott, 51 S.W.3d at 599 n.10 (quoting Mata, 632 S.W.2d at 358). Evidence of (1) recent severe mental illness, (2) at least moderate retardation, or (3) truly bizarre acts by the defendant are generally sufficient to create a bona fide doubt. Id. However, evidence of the fact that a defendant has been treated by a psychiatrist, standing alone, is insufficient to create a bona fide doubt. Alcott, 26 S.W.3d at 3.

Analysis

As already noted, once the trial has begun, a competency inquiry is required only if evidence from any source comes to the trial court s attention which raises a bona fide doubt in the trial judge s mind about the defendant s competency. Alcott, 51 S.W.3d at 601; Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997). Evidence sufficient to create a bona fide doubt would tend to show recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. Collier, 959 S.W.2d at 625; Reeves, 46 S.W.3d at 399. Only if such a bona fide doubt exists need the [trial] court conduct [a competency] inquiry, and only after such inquiry, does the second clause of Section 2(b) operate, requiring the judge to determine whether there is evidence sufficient to support a finding of incompetency and, if so, to commence a competency hearing before a jury. Alcott, 51 S.W.3d at 601.

Price s brief relies on Sisco v. State, 599 S.W.2d 607 (Tex. Crim. App. 1980), as support for his claim that the court was required to hold a competency hearing before a jury. In Sisco, the Court of Criminal Appeals held that when an appellate court reviews a trial court s decision to not impanel a jury for a competency hearing, the proper inquiry is: does the evidence raise the issue for submission to a jury when viewed in the light most favorable to the party with the burden of securing the finding, disregarding contrary evidence and inferences? Sisco, 599 S.W.2d at 612.

Price s reliance on Sisco, however, is misplaced, and its holding is not applicable here. As the Court of Criminal Appeals made clear in Alcott, the Sisco standard applies only when the trial court has already held a competency inquiry but has refused to impanel a jury to decide the issue, because the court found no evidence sufficient to support a finding of incompetency. Alcott, 51 S.W.3d at 601; Tex. Code Crim. Proc. Ann. art. 46.02 2(b). The issue in Price s case is whether there was sufficient evidence produced during the revocation hearing which should have created a bona fide doubt in the trial judge s mind about his competency and, therefore, required the judge to conduct a competency inquiry. Alcott, 51 S.W.3d at 601.

After a review of the record, we find that Price s own testimony demonstrates his understanding of the purpose of the hearing as well as the consequences of the trial court s decision to revoke his community supervision. Both Price s defense counsel and the prosecutor asked Price a series of questions concerning his reasons for failing to pay the probation fees and court costs and about his opinion as to why the court should not grant the State s motion. Price communicated his responses to the attorneys with ease, and his answers demonstrate his knowledge of the proceedings. At the end of the hearing, the trial court expressly found that no issue of competency has been raised. Thus, we find that there was not sufficient evidence presented to the trial judge such that a bona fide doubt could have been created in his mind concerning Price s competency. Alcott, 51 S.W.3d at 601. There was evidence, however, that Price had been diagnosed with depression and had been taking medication for it, but that is not evidence of severe mental illness, moderate retardation, or truly bizarre acts which would create bona fide doubt. Collier, 959 S.W.2d at 625. Accordingly, the trial court did not abuse its discretion by not initiating a competency inquiry. Moore, 999 S.W.2d at 393. Price s sole point of error is overruled.

CONCLUSION

Having overruled Price s issue on appeal, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed May 1, 2002

Do not publish

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