Malcolm Donald Brown, Jr. v. The State of Texas--Appeal from 2nd District Court of Cherokee County

NO. 12-05-00237-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MALCOLM DONALD BROWN, APPEAL FROM THE 2ND

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Malcolm Donald Brown appeals his conviction for indecency with a child and aggravated sexual assault. In two issues, Appellant complains that the trial court erred when it did not initiate an evaluation of his competency and that the trial court should have granted his motion for a new trial. We affirm.

Background

Appellant pleaded guilty to the offenses of indecency with a child and aggravated sexual assault. A determination of guilt was deferred, and he was placed on community supervision. The following year, the State filed a motion to adjudicate guilt alleging that Appellant had violated the terms of his community supervision.

A hearing was held, and Appellant pleaded true to several of the allegations, including that he had failed to perform community service, failed to attend and participate in a sex offender treatment program, and failed to report a change of address. After a hearing, the trial court found Appellant guilty and assessed punishment at twenty years of imprisonment for the indecency with a child offense and twenty five years of imprisonment for the aggravated sexual assault offense.

Appellant filed a motion for a new trial alleging that at the time during which [Appellant] is alleged to have been lax in his participation in the sexual offenders treatment class, Defendant was being treated for depression and was taking the anit-depressant [sic] Wellbutrin. The trial court held a hearing and denied the motion for a new trial. This appeal followed.

Competency

In his first issue, Appellant contends that the trial court should have, sua sponte, ordered a competency examination when he alleged that he had been suffering from depression and had been taking medication. Even if no party requests it, a court must conduct an informal inquiry into a defendant s competency if information comes to its attention raising a bona fide doubt as to the defendant s competency. Tex. Code Crim. Proc. Ann. art. 46B.004(c) (Vernon 2005); McDaniel v. State, 98 S.W.3d 704, 710-11 (Tex. Crim. App. 2003). We review a trial court s failure to conduct that inquiry for an abuse of discretion. Moorev. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A defendant is presumed competent to stand trial. Tex Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2005). A defendant is incompetent to stand trial if he does not have a sufficient present ability to consult with his attorney with a reasonable degree of rational understanding, or a rational as well as a factual understanding of the proceedings against him. Id. art. 46B.003(a).

Evidence that creates a bona fide doubt about a defendant's competency may come from the trial court s own observations, known facts, evidence presented, motions, affidavits, or any other claim or credible source. Brown v. State, 129 S.W.3d 762, 765 (Tex. App. Houston [1st Dist.] 2004, no pet.). Evidence of recent, severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant is usually sufficient to raise a bona fide doubt as to a defendant s competence. McDaniel, 98 S.W.3d at 710.

There is no evidence in this case that should have raised a bona fide doubt that Appellant was competent. There was no complaint to the trial court that Appellant was incompetent, and the issue was not raised in the motion for a new trial.1 Appellant offered the evidence about his depression to explain why he had difficulty maintaining his focus on therapy, not to suggest that he could not understand the proceedings or assist his attorney. The trial court had ample opportunity to see and hear Appellant as he testified, and Appellant did not engage in any outbursts or display any unusual

thought patterns. Cf., e.g., Lawrence v. State, 169 S.W.3d 319, 322 23 (Tex. App. Fort Worth 2005, pet. ref d). While depression can be a serious condition, we think that it overstates the matter to suggest that a trial court must inquire into a defendant s competency each time a person mentions that he has been diagnosed with depression or given a prescription. Aside from the mention of depression, there was no evidence, from any source, that should have prompted the trial court to conduct an informal inquiry into Appellant s competence. The trial court did not abuse its discretion when it did not conduct a informal inquiry to determine if Appellant was competent at the hearing on the motion for a new trial. We overrule Appellant s first issue.

Motion for New Trial

In his second issue, Appellant complains that the trial court should have granted his motion for a new trial to allow evidence in mitigation to be presented and that the failure to do so violated his due process rights.

Motions for new trial may be granted for a number of reasons, including in the interest of justice. Tex. R. App. P. 21.3; State v. Aguilera, 165 S.W.3d 695, 698-99 n.9 (Tex. Crim. App. 2005) (citing State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993)). We review a trial court s ruling on a defendant s motion for new trial for an abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). The trial court did not abuse its discretion, and Appellant s due process rights were not violated. Appellant was permitted to present all the evidence he wished at the hearing on his motion for new trial. While a trial court has wide discretion to grant a motion for a new trial, it need not do so merely to allow evidence to be more fully presented and considered. If Appellant wished to present additional evidence to be considered by the trial court, he could have done so at the hearing on the motion for a new trial. We overrule Appellant s second issue.

Disposition

We affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered July 12, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

1 Prior to trial, Appellant filed a motion for the appointment of an expert witness to assist with the defense and to determine and assess the precise significance of [Appellant s] psychological condition. The motion did not suggest that Appellant was incompetent, although it did recite that he had not been previously evaluated for competency or sanity.