Rudolfo Vasquez v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-01-362-CR

RUDOLFO VASQUEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 31,809

O P I N I O N

After four prior felony convictions two for driving while intoxicated, one for burglary, and one for criminal mischief Rudolfo Vasquez was indicted for driving while intoxicated. Tex. Pen. Code Ann. 49.04 (Vernon Supp. 2002). The indictment contained enhancement paragraphs alleging the four prior felonies, which resulted in a sentencing range of 25 years to 99 years or life in prison. Id. 12.42(d), 49.09(b)(2) (Vernon Supp. 2002). Vasquez pled not guilty to the offense and not true to the enhancement allegations. A jury convicted him, and after a punishment phase tried to the court, the trial judge sentenced him to twenty-five years in prison.

On appeal, Vasquez complains that (1) the trial judge, by not conducting a mental-competency inquiry hearing, did not properly follow procedures in article 46.02, section 2 of the Code of Criminal Procedure to determine if Vasquez was competent to stand trial, and (2) if section 2 was properly followed, the trial judge erred by not empaneling a jury under section 4 to determine competency. We will affirm the judgment.

Background

Before trial, Vasquez filed a Motion for Hearing on Incompetency to Stand Trial alleging that, when counsel attempted to interview him, Vasquez did not have a rational or factual understanding of the proceedings and was unable to communicate adequately with or to assist counsel. No affidavits or other proof were attached. On the first day of trial, and before voir dire, there was a pre-trial hearing in which various matters were taken up, most of which did not concern Vasquez s competency. Vasquez testified during the hearing, but not concerning his competency. At the end of the hearing, the trial judge made several rulings including one denying, under section 4(a) of 46.02, the competency motion because the Court has heard Mr. Vasquez this morning and he appears to be competent.

Chapter 46

The Code of Criminal Procedure assumes that a defendant is mentally competent to stand trial. Tex. Code Crim. Proc. Ann. art. 46.02, 1A(b) (Vernon Supp. 2002). But a defendant has constitutional and statutory rights to be competent at trial. The due process right to a fair trial requires competency. Alcott v. State, 51 S.W.3d 596, 598 (Tex. Crim. App. 2001) (citing Drope v. Missouri, 420 U.S. 162, 171-72, 95 S. Ct. 896, 903-04, 43 L. Ed. 2d 103 (1975)). In addition, article 46.02 requires that the defendant be competent to stand trial. Tex. Code Crim. Proc. Ann. art. 46.02 (Vernon Supp. 2002). Accordingly, if the issue of mental competency is sufficiently raised, the trial court must inquire into it. Alcott, 51 S.W.3d at 599 (citing Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 842, 15 L. Ed. 2d 815 (1966)).

The Court of Criminal Appeals has explained that the determination of mental competency is a two-step process. First, under section 2 of article 46.02, the threshold question the trial judge must determine is whether there is evidence to support a finding of incompetency to stand trial. Alcott, 51 S.W.3d at 600-01; Tex. Code Crim. Proc. Ann. art. 46.02, 2 (Vernon 1979). If the trial judge conducts a hearing regarding this determination, the hearing is called a competency inquiry. Alcott, 51 S.W.3d at 601. A section 2(a) competency inquiry before trial is triggered when the defendant files a written motion raising a question about competency, or the trial judge sua sponte raises the issue. Tex. Code Crim. Proc. Ann. art. 46.02, 2. A section 2(b) competency inquiry during trial is triggered when evidence is brought to the attention of the trial judge from any source that raises a bona fide doubt as to competency. // Tex. Code Crim. Proc. Ann. art. 46.02, 2(b); Alcott, 51 S.W.3d at 599. At this point, the trial court may order the defendant to be examined by a mental health or mental retardation expert. Id. 3 (Vernon 1979 & 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) (citing Mata v. State, 632 S.W.2d 355, 358-59 (Tex. Crim. App. 1982)), aff d, 51 S.W.3d 596 (Tex. Crim. App. 2001). [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, the fact, standing alone, that a defendant has been treated by a psychiatrist is insufficient to create a bona fide doubt. Alcott, 26 S.W.3d at 3.

If the trial judge conducts a competency inquiry and finds more than a scintilla of evidence that the defendant is mentally incompetent, the trial judge should find that there is evidence to support a finding of incompetency to stand trial. // Alcott, 51 S.W.3d at 600-01; Tex. Code Crim. Proc. Ann. art. 46.02, 2. In that event, the trial judge should empanel a jury, different from the trial jury, to determine in a competency hearing whether the defendant is mentally incompetent. Tex. Code Crim. Proc. Ann. art. 46.02, 4 (Vernon Supp. 2002); Alcott, 51 S.W.3d at 601. At that hearing, the defendant can prove incompetency by presenting evidence that rebuts by a preponderance of the evidence the presumption of competency. Tex. Code Crim. Proc. Ann. art. 46.02, 1A(b).

Application

Before the jury was empaneled, the trial judge conducted a hearing on several matters, one of which was Vasquez s competency. At the hearing, Vasquez had an opportunity to present evidence regarding his competency, but he did not; he did testify during the hearing but not regarding his competency. The trial judge, however, did consider his testimony and his demeanor during it, when the judge concluded: [T]he Court has heard Mr. Vasquez this morning and he appears to be competent. We find that this is a competency inquiry. We overrule issue one.

Vasquez s second issue is that the trial judge should have conducted a section 4 competency hearing. That requires more than a scintilla of evidence at the competency inquiry that Vasquez was incompetent to stand trial. Alcott, 51 S.W.3d at 600-01. We have reviewed the record and find that at the heart of the competency complaint were disagreements between Vasquez and defense counsel about (a) discovery rules applicable to witness statements and a videotape and (b) Vasquez s assertion that the videotape had been deliberately altered by the State. Defense counsel attempted to withdraw more than once, asserting that Vasquez was dissatisfied with his services and that they could not agree on pretrial preparation and strategy. From this, combined with the fact that there was no evidence at the pre-trial hearing of Vasquez s mental incompetency and that the trial judge found, after hearing Vasquez testify, that Vasquez appeared competent, we do not find more than a scintilla of evidence that Vasquez was incompetent to stand trial. Therefore, a section 4 competency hearing was not required, and the trial court did not abuse its discretion. 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)). We overrule issue two.

Conclusion

Vasquez was afforded a section 2 hearing at which there was no evidence adduced to warrant a section 4 hearing. We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed October 30, 2002

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