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### CAUSE NO. 12

- 21

- 00124

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BILLY RAY PEGUES,

APPELLANT } APPEALED FROM 217TH

V. } DISTRICT COURT IN AND FOR

THE STATE OF TEXAS,

APPELLEE } ANGELINA COUNTY, TEXAS

ORDER

Billy Ray Pegues appeals his conviction for aggravated robbery. He raises seven issues

for our consideration. We abate the appeal and remand the case to the trial court with

instructions.

B ACKGROUND

Appellant was indicted for aggravated robbery, a first

- degree felony. 1 Thereafter, the trial

court appointed Appellant counsel and referred Appellant to Joseph Kartye , a licensed

psychologist, for a competency evaluation. 2 Dr. Kartye’s evaluation was filed with the court on

December 10, 2019.

According to Dr. Kartye’s report, he informed Appellant of the purpose, scope, and

possible outcomes of the competency examinati on. Dr. Kartye told Appellant that he was

required to relay his findings to the trial court, and that Appellant could refuse to answer any

questions. At this point in the examination, Appellant told Dr. Kartye that he would not answer

1 T EX

. P ENAL C ODE A NN . §§ 12.32(a) (West 2019) (“An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.”), 29.03(a)(2) (West 2019) (“A person commits an offense if he commits robbery...and he...uses or exhibits a deadly weapon.”).

2 There is no motion from either Appellant or the State suggesting Appellant was in competent, nor did the court note on its docket sheet why Appellant was sent for a competency evaluation.FILE COPY

any questions. Dr. Kartye noted that Appellant was “defensive but also belligerent and

confrontive.” Appellant returned to his c ell.

Dr. Kartye interviewed the lieutenant at the Angelina County jail, who informed Dr.

Kartye that Appellant was housed in a cell with other inmates, interacted appropriately with

other inmates and staff, exhibited no unusual behavior, and was not taking any medications. Dr.

Kartye reviewed Appellant’s jail medical records but found no medical or psychiatric history to

reference. He also reviewed two letters Appellant wrote to the district attorney. Ultimately, Dr.

Kartye opined that Appellant had signifi cant psychiatric issues, including paranoid delusions and

grandiosity, which would interfere with his ability to assist his attorney. Dr. Kartye listed

paranoid schizophrenia as his diagnostic impression and found Appellant incompetent to stand

trial. He r ecommended that Appellant be transferred to a psychiatric facility for additional

evaluation, diagnosis, and treatment.

On January 15, 2020, Appellant appeared before the trial court with his counsel and

State’s counsel for a pretrial hearing. At the heari ng, Appellant’s counsel told the court that

Appellant disagreed with Dr. Kartye’s findings and believed himself competent to stand trial.

The court asked Appellant several questions about his competency. After questioning Appellant,

the trial court declared him competent to stand trial.

On September 16, Appellant’ s counsel filed a subsequent motion for a psychiatric

evaluation of Appellant to determine his competency to stand trial. On September 17, the trial

court appointed Dr. Kartye to conduct a second competency evaluation of Appellant. However,

the record cont ains no report, nor is there any indication from the record that Appellant was ever

evaluated a second time prior to trial. 3

Appellant’s trial began on July 19, 2021. The jury convicted Appellant of aggravated

robbery and sentenced him to life in prison. A ppellant filed a motion for new trial, which was

denied. This appeal followed.

C OMPETENCY TO S TAND T RIAL

In his first issue, Appellant argues that the trial court abused its discretion by determining

Appellant competent to stand trial without holding a fo rmal competency trial. The State elected

not to file a brief.

Standard of Review and Applicable Law

3 The trial court noted the motion and order on the docket sheet, but there is no notation as to why an evaluation was not performed.FILE COPY

As a matter of constitutional due process, a criminal defendant who is incompetent may

not stand trial. Boyett v. State , 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). The Legislature

has codified this due

- process requirement by setting forth a substantive and procedural

framework for making competency determinations to ensure that legally incompetent criminal

defendants do not stand trial. See T EX . C ODE C RIM . P ROC . A NN . arts. 46B.003, 46B.004,

46B.005 (West 2018). Substantively, incompetency to stand trial is shown if the defendant does

not have: “(1) sufficient present ability to consult with the person’s lawyer with a reasonable

degree of rational understanding; or (2 ) a rational as well as factual understanding of the

proceedings against the person.” Id. art. 46B.003(a).

Procedurally, a trial court employs a two

- step process for making competency

determinations before it may ultimately conclude a defendant is incompet ent to stand trial.

Boyett , 545 SW.3d at 563. The first step is an informal inquiry, and the second step is a formal

competency trial. Id. An informal inquiry is called for upon a “suggestion” from any credible

source that the defendant may be incompetent. Id. ; T EX . C ODE C RIM . P ROC . A NN . art.

46B.004(a),(c),(c

- 1). At the informal inquiry stage there must be “some evidence from any

source that would support a finding that the defendant may be incompetent to stand trial.” T EX

.

C ODE C RIM . P ROC . A NN . art. 46B.0 04(c). If that requirement is met, then the trial court must

order a psychiatric or psychological competency examination, and with some certain exceptions,

it must hold a formal competency trial. Id. arts. 46B.005(a), (b), 46B.021(b) (West 2018).

Although a defendant is presumed competent and bears the ultimate burden of proving

incompetence to stand trial, Article 46B does not allow a “trial court to stand by and wait for a

defendant to raise the issue.” Clark v. State

, 592 S.W.3d 919, 925 (Tex. App.

— Texarkana 2019,

pet. ref’d). Instead, Article 46B places certain responsibilities on the trial court to inquire into

the matter independently and force the parties to litigate the issue, if necessary. Id. ; see also

T EX

. C ODE C RIM

. P ROC

. A NN

. art s. 46B.003(b), 46B.004(a), 46B005(a). We review the trial

court’s decision on the issue of competency for abuse of discretion. Stine v. State , 300 S.W.3d

52, 60 (Tex. App.

— Texarkana 2009, pet. ref’d, untimely filed).

Analysis

As previously discussed, unde r the current statutory scheme, any “suggestion” of

incompetency to stand trial requires the trial court to conduct an informal inquiry to determine

whether evidence exists to justify a formal competency trial. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 46B.004(c). Generally, the trial court conducts an informal inquiry after any “suggestion”

that Appellant is incompetent. See id. If after an informal inquiry, the court determines that

evidence exists to support a finding of incompetency, the court shall order a competencyFILE COPY

examination under Subchapter B to determine whether the defendant is incompetent to stand trial

in a criminal case. Id. art. 46B.005. The trial court may appoint one or more disinterested

experts to examine the defendant and report to the court on the competency or incompetency of

the defendant; and testify as to the issue of incompetency of the defendant at any trial or hearing

involvin g that issue. Id. art. 46B.021(a)(1)

- (2).

If, during the informal inquiry, the trial court finds “there is more than a scintilla of

evidence that would support a rational finding of fact that the accused is incompetent to stand

trial,” then the trial court is required to (1) stay all other proceedings in the case; (2) appoint an

expert to conduct a competency examination; and (3) move forward with a formal competency

trial. Clark

, 592 S.W.3d at 926; T EX

. C ODE C RIM

. P ROC

. A NN

. arts. 46B.004(d), 46B.005(a)

- (b ),

46B.021(b). The trial court’s requirement to “hold a formal competency trial” is mandatory,

unless “(1) neither party’s counsel requests a trial on the issue of incompetency, (2) neither

party’s counsel opposes a finding of incompetency, and (3) the cou rt does not, on its own

motion, determine that a trial is necessary to determine incompetency.” T EX

. C ODE C RIM

. P ROC

.

A NN . art. 46B.005(c).

Notably, the statute’ s plain language indicates the exception in Article 46B.005(c) only

applies when the parties and the trial court agree that the defendant is incompetent, not when

they agree that he is competent. Id. ; Clark , 592 S.W.3d at 926. Accordingly, the statute allo ws

the trial court to forego a competency trial only when all parties and the court agree the

defendant is incompetent. Clark , 592 S.W.3d at 926. Absent this exception, the trial court must

conduct a competency trial when there is some evidence that the de fendant may be incompetent

to stand trial. Id. Thus, while the parties and the trial court may agree that the defendant is

incompetent without a formal competency trial, where “there is more than a scintilla of evidence

that would support a rational findin g of fact that the accused is incompetent to stand trial,” the

trial court may not find that he is competent without holding a formal competency trial. Id.

In this case, the trial court did not follow the procedures outlined in the statutory

framework. Ins tead, the trial court referred Appellant to Dr. Kartye for a competency evaluation,

presumably at a credible suggestion of incompetency. Thereafter, Dr. Kartye made a report to

the court in which Dr. Kartye opined that Appellant was incompetent to stand tr ial and should be

transferred to a psychiatric facility for competency restoration. The trial court essentially

ignored Dr. Kartye’s findings, questioned Appellant, and deemed him competent. This is not an

acceptable process under the law. See T EX . C ODE C RIM . P ROC . A NN . art. 46B.005 (c)(1)

- (3);

Clark , 592 S.W.3d at 926. Dr. Kartye’s report certainly provided “more than a scintilla” of

evidence that would support a rational finding of fact that Appellant was incompetent to standFILE COPY

tr ial. Therefore, a formal competency trial was required. See Clark

, 592 S.W.3d at 926. We

sustain Appellant’s first issue.

C ONCLUSION

Having sustained Appellant’s first issue, we abate the appeal and remand the cause to the

trial court. On remand, the trial court shall first determine whether it is presently feasible to

conduct a retrospective competency trial, given the passage of time, availability of evidence, and

any other pertinent considerations. 4 Should the trial court deem a retro spective competency trial

to be feasible, it shall proceed to conduct such a trial in accordance with Chapter 46B,

Subchapter C, of the Code of Criminal Procedure. Regardless of whether the trial court deems a

retrospective competency trial to be feasible, the record of the proceedings on remand shall then

be returned to this Court. 5

Accordingly,

It is ORDERED that (1) on or before September 28 , 2022 , the trial court shall determine

whether a retrospective competency trial is feasible and, if it is, conduct such trial; and (2)

prepare written findings on or before Octo ber 7 , 2022 as to whether a retrospective competency

trial is feasible and the results of any such trial.

It is FURTHER ORDER ED that a supplemental clerk’s record including the trial court’s

written findings, along with any supporting documentation and orders, be certified to this Court

on or before Octo ber 1 7 , 2022

. It is FURTHER ORDERED that the court reporter file a supplemen tal reporter’s record

of any proceedings associated with a retrospective competency trial on or before October 17

,

2022

.

4 See George E. Dix & John M. Schmolesky, 43 T EXAS P RACTICE : C RIMINAL P RACTICE AND P ROCEDURE § 31:81, at 89

– 90 & n.10 (3rd ed. 2011) (citing, e.g., Torres v. State

, 593 S.W.2d 717, 719 (Tex. Crim. App. 1980)) (remanding to trial court to decide, inter alia, whether “a nunc pro tunc determination of appellant’s competency is not possible”); Ex parte McKenzie

, 582 S.W.2d 153, 155 (Tex. Crim. App. 1979) (remanding case to the trial court to “determine if it is possible to conduct a nunc pro tunc competency hearing and, if it is, to hold such a hearing”

under the then

- extant competency

- to

- stand

- trial statute); Ex par te Winfrey

, 581 S.W.2d 698, 699 (Tex. Crim. App. 1979) (holding that the original competency hearing suffered from a flawed jury instruction and remanded to trial court for a determination whether, inter alia, a retrospective competency hearing was feasibl e)).

5 This Court elects not to dispose of Appellant’s other points of error before remanding for a retrospective competency determination. A formal competency trial will address Appellant’s second and third issues, in which he makes other complaints abou t the trial court’s competency rulings. In his fourth and fifth issues, Appellant argues that the trial court abused its discretion by admitting a fingerprint report and failing to allow his alibi witness to testify remotely. In his sixth and seventh issue s he argues that the trial court erred by conducting a hearing on his motion for new trial in his absence, and by denying the motion. Pending a competency trial, the resolution of these claims may prove unnecessary. In order to avoid resolving Appellant’s points of error piecemeal, and in an effort to avoid rendering advisory opinions, we will abstain from addressing Appellant’s other issues until it should become necessary to do so in our opinion after remand. See T E X

. R. A PP

. P. 47.1.FILE COPY

WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12 th

Court of Appeals District of Texas, at Tyler.

GIVEN UNDER MY HAND AND SEAL OF SAID COURT

, at my office this the

7 th day of September 2022, A.D.

KATRINA MCCLENNY, CLERK