### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00124- CR
Lee Roy Bara, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F MCCULLO CH COUNTY , 198 TH JUDICI AL DISTRICT

NO. 486 6, H ONO RAB LE EMI L K ARL P ROH L, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant L ee Roy Ba

ra plead ed gu i l ty to committing t he offense of driving while intox icated. Punishm ent was assessed at three y ear s’ imprisonment, but the district court suspended imposit ion of the sentenc e and place d Ba ra on community supervision for a period of three y ear s. T h e State subsequently filed a motion to revoke probation, which the district court gra n t ed
. Appellant was then s entenc ed to two y ear s’ i mprisonment. I n a si ng le poi nt of error, Bar a asserts that the dist ri ct co u rt abused its discretion prior to the revoc ation hear ing by not conducting an informal inquiry

into Bar a’s c ompetency

to stand trial. We will affirm the judg ment.
STANDARD AN D SCOP E OF REVIEW A person is incompetent to stand t ri al if the person does not have either a sufficie nt prese nt ability to con s ult with the person’ s lawy er with a rea sonable deg ree of rational understanding or a rational as well as fac tual understanding of the proce eding s ag ainst the person.Tex. Code Crim. Proc. Ann. art. 46B.003( a) (West 2006). I f evidenc e sug g esting that the defe ndant

may be incompetent to stand trial comes to the attention of the cou rt , t h e court must raise the competenc y issue on its own m o t i o n an d deter mine by informal inquiry whether there is some
ev i d ence from any source that would support a finding that the defe ndant may be incom p et en t t o stand trial. Pitonyak v. State , 253 S.W .3d 834, 855 (Tex. App.—Austin 2008, pet. ref’d ) (c iting id
. art. 46B.004( b), (c) (West 2006)). An informal competenc y inquiry is require d only if the evidenc e broug ht to t h e co u rt ’s attention raises a “bona fide doubt” in the court’s mind about the defe ndant’s competenc y to stand trial. See Montoya v. State , 291 S.W .3d 420, 425 (Tex. Crim. App. 2009); McD aniel v. St a t e , 9 8 S
. W
. 3 d 704, 710 (Tex. Crim. App. 2003). “A bona fide doubt may exis t if the defe ndant exhibi ts truly bizarre behavior or has a rec ent history of sever e mental illness
or at least modera

te mental reta

rdation.” Montoya , 291 S.W .3d at 425. “The considerations when
e v a lu a ti n g competenc y to stand trial include the defe ndant’s level of understanding of the proce eding and ability to consult with counsel in prepa ration for the proce eding .” Id
. at 425-26. Moreove r, the focus of the statute is on the defe ndant’s “pre sent ability ” to stand trial. See id
. at 425. Acc ording ly , p ast instances of depre ssion and other mental-he alth issues “ra ise the issue of incompetenc y o n l y if there is evidenc e of rec ent sever e mental illness, at least modera te reta rdation, o r b i z arre acts by the def endant.” Id
. We revie w a trial court’s decision not to conduct a competenc y inquiry for abuse of discretion. Id
. at 426. “An appellate court does not substitut e its judgme nt for that of the trial court, but rathe r deter

mines whether the trial court’s decision was arbitra ry or unrea sonable.” Id
. T his

2is beca

use the trial court, which observe s fi rs t -h and the behavior of the defe ndant, is “in a better position t o deter

mine whether

[t he def endant] was pre sently

competent.” Id
. ANALYSIS On J anuary 1 3 , 2 0 0 9, the day of the revoc ation hear ing, Ba ra’ s counsel filed a “motion raising competenc y to stand trial.” I

n the motion, counsel alleg ed the f ollowing:
The basis fo r t h i s Motion is that counsel for the Def endant was informed on J anuar y 12, 2009 that the mother-in-la w o f t h e Def

endant had stated that day to a third party that the Def

endant had cea sed taking his psy chiatric medications and that as a result, t he Defenda

nt’s m en t al status was of such a nature as t o seriously raise a question in counsel’ s mind as to the competenc e of the Def endant.
No additional details we re pr ovided, and no a ffidavit wa s attache d to the motion.

Be fore the revoc ation hear ing beg an, counsel provided the district court wi t h additional information reg arding the motion. Counsel advised the court that Ba ra “take s reg ular medications for para

noid schizophrenia and bipolar disorder.” The day befor e the revoc ation hear ing, counsel explained, he was informed by Ba ra’ s bail bondsman that Ba ra ’s m o t her- in-law (who, acc ording to counsel, works for the bo n d s man as a housekee per) told the bondsman that Ba ra had stopped taking his medications “a couple of months ag o” on advice of a rela tive. As a result, counsel asser

ted, Ba ra was “just plain cra zy , that he basica lly slept 23 out of 24 hours a day
or som ething along that line, very err atic behavior.” “[O]ut of an abundanc e of caution , ” counsel conclude d, “I

prepa red a nd filed this motion t his morning.” Counsel explained that he wa s u nable to subpoena Ba ra’ s mother-in-la

w, L oretta Wil liams, in time fo r t h e hear ing. Howeve r, counsel claimed that he had one witness 3available , Be rt Strieg ler, “who
. . . has known Mr. Bara for some period of time and can t estify in

a g ener al sense to his cur

rent menta l status.” I n response , the State arg ued t h at “the motion itself is based on hear say [wit hin] hear say ” and cl ai m ed t h at Ba ra’ s mental status had “neve r been an issue” during his period of supervision. The State added that if it believed Ba ra’ s compe t en ce “w as an issue at all, then we would, y ou know, ag ree to have it chec ked out,” but the State did not “see any basis for the motion.”

The district cour

t denied the motion, and explained its reasoning as follows: Well, I think the rec ord should ref lect t h at this Court and this J udg e has been dealing with Mr. Ba

ra for in excess of ten y ear s. I t’s probably closer to 18 y ear s that he’s reg ularly appea

red in Court and ab s o l u t el y has never raised an issue about competenc y . Neve r raised an issue about any diag nosis for ment al illness. Neve r said any thing a bout taking me dicine. The Court has acc ommodated him to let him have surg ery when he neede d surg ery , and all this and ever y time we g ot rea dy to g o to trial, we’ ve had something come up about his phy sical condition and never about his mental condition. He’ s been in Court as recently as l ast month. There was nothi ng broug ht up about competenc y to stand trial. I think the motion is a frivolous motion, and I ’m g oing to deny y our motion and proce ed to trial this morning.
The re vocation hea

ring then beg an. During the hear ing, afte r the State prese nted evidenc e tending to show that Ba ra had viol ated the terms of his community supervision, Ba ra called Strieg ler to testify on his behalf
. Strieg ler testified that Ba

ra had worke d for him on a construction projec t in 2006. Th e fo l lowing testimony was e licited conce rning Ba ra’ s mental status: Q: How would y ou descr ibe his mental status as we sit here today or stand here today ? 4A: Well—

Q: Not as an e x pert, but just— A: Yea

h. I ’m not a doctor. I don’t think he’s quite up to speed lately compar ed to the way I k n ew him when he worke d with us down t here
. He was much quicker then and m u ch m ore into what he was doing t hen, but then I might have be en, too, bec ause I ’ve a g ed since then. Q: I understand. A: But I

don’t think he’s quite as sha rp as he was a t the time.
At the close of evidenc e, the district court returne d t o t h e s u b j ect of Ba

ra’ s
co mpetence
. First, the district court corr ecte d its ear lier statement conce rning the absenc e of a diag nosis in Ba

ra’ s medical history and took notice of hospital rec ords from 2004 and 2005 in Ba ra’ s file. Acc ording to the district c ourt, the rec ords “showe d that Mr. Ba ra did have manic depre ssion and major depre ssion. There is no ref ere nce to para

noid schizophrenia or any kind of schizophrenia in the medical rec ords, and this
. . . was in 2004 that the notes wer e dated.
. . . I ’m g oing to corr ect that beca use I previously said it had not been raised, but appar ently [prior counsel]
. . . rele ased the medical recor ds and they ’ve be en pre sented.” The district court also observe d that Ba ra had been presc ribed “Antabuse and antidepre ssants” at the time of his diag nosis. The district cour t t h en proce eded to inquire into Bar a’s medic al history and his compete nce:
The Court: W h at d o y ou have surg ery for? You said y ou h ad s u rge ry

schedule d. The De fenda

nt: Sinus surge ry . . . . The Court: I s that at the VA?

5The Def endant: The VA is g oing to have it privately done outside the VA
. . . . The Court: Do y ou g o to San Antonio to VA or to Kerr ville? The De fenda

nt: S an An t o n i o . Ke rrvill e. I g ot copies of all the m ed i ca l rec ords and medication and diag noses that are up to date. I ’ve been visiti ng Dr
. Shaw. They put me on schizophrenia medication, but it was too strong
. The Court: Well, t h er e’ s n o t h i n g to show that y ou’ve been dia g nosed

with para noid schizophrenia, absolutely nothing. The De fenda

nt: This was about a y ear ag o. The Court: But y ou’ve be en coming to Court. The De fenda

nt: Yes, sir. The Court: I mean y ou’ve appeare d ev er y t i m e an d visited with y our

attorney , and y ou understood wha t he advised y ou. The De fenda

nt: Yes, sir. The Court: And y ou know what his role is? The De fenda

nt: Yes, sir. The Court: You know wha t the DA’s r ole is? The De fenda

nt: Yes, sir. The Court: You know wha t my role is? The De fenda

nt: Yes, sir. The Court: And y ou understand w hat y ou’re char g ed with? The De fenda

nt: Yes, sir. . . .

6On this rec ord, we cannot conclude t h at t h e district court abused its discretion in

not cond u ct i n g an informal inquiry into Ba ra’ s competenc e prior to the hear ing. As the State observe d, Ba

ra’ s motion was based on hear say within he arsa y . See Tex. R. Evid. 802, 805. There
was no aff

idavit attache d to the motion. The person who counsel claimed had first-hand knowledg e of Ba ra’ s behavior , Ba

ra’ s mother-in-la

w, was unavailable to testify
. The only witness available to testify , acc ording to counsel, could testify only “in a g ener al sense” to Ba ra’ s “ c u r r e nt mental status.” Counsel made no repr esenta tion that this witness had any first-hand knowledg e of Ba ra’ s alleg edly “er ratic be havior.”

Citi ng to Mata v. Stat e , 632 S.W .2d 355 (Tex. Crim. App. 1982), Ba ra asserts that counsel’s unsworn statements t o the di strict court are evidence of B ara ’s incompetenc e. I n Mata , the court of criminal appea ls stated, i n dicta, that “the unsworn statement of the attorney could be
ev i d en ce [ o f incompetenc e] if the statement of the attorney raised a bona fide doubt as to th e defe ndant’s compe tence .” Id
. at 358. Howeve r, the court also observe d that “[e]vidence ra ising a b o n a fi d e d o ubt is evidenc e that cause s a rea l doubt in the judge ’s mind as to the defe ndant’s
co m p et ency .” Id
. I n this case , the district court would not have abused its discretion in find i n g that counsel’s statements did not ri s e t o t h at level. Counsel did not claim that he had first-hand knowledg e that Ba

ra had stopped taking his medications or that Ba ra was acting “er

ratica lly .” Rather, counsel repr esente d that this information was repor ted to him by Ba

ra’ s bail bondsman, who had bee n told this information by Ba ra’ s mother-in-law
. Moreove r, t he ex tent of B ara ’s alleg edly “er ratic” behavior , acc ording to counsel, was Ba ra sleeping for “23 out o f 2 4 h o u rs a d ay .” The district court would not have abused its discretion in finding that such conduct, even if true,

7did not rise to the level of “truly bizarre behavior ,” “seve re m en t al i llness,” or “moder ate mental

reta rdation.” See M

ontoya , 291 S.W .3d at 425. We rea ch the same conclusion considering the additional evidenc e pres e n te d afte r the district court denied the motion. Streig ler testified that Ba ra was not “quite as sharp” as he used to be, but the district court would not have abused its discretion in finding that this testimony does not raise a “bona fide doubt” about Ba ra’ s competenc e to stand trial. And, even though hospital rec ords
reve aled that Ba

ra had been diag nosed seve ral y ear s ear lier with manic depre ssion and had been presc ribed antidepre ssants, the district court would not have abused its discretion in finding that Ba ra
was not cu rr en t l y suffe ring from “seve re mental illness” such that he would not be competent to stand trial. The district court asked Ba ra sever al questions conce rning whether Ba ra understood his attorney ’s advice , the role of his a ttorney , the prosec utor, and the district c ourt in the case , and the offe nse fo r wh i ch Ba ra was char g ed. I n response to eac h of the district court’s questions, Ba ra testified that he unde rstood.

On this rec ord, the district court would not have abused its discretion in finding that Ba ra failed to prese nt evidenc e raising a “bona fide doubt” about Ba ra’ s competenc y to stand trial. Acc ording ly , we cannot conclude t hat t he dis trict court abused i ts discretion in not co n d u ct i n g an informal compe tency

inquiry prior to the hea

ring
. We overrule Ba

ra’ s sole point of err or.

8CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: Apr il 21, 2010 Do Not Publish

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