NO. 07-01-0494 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A SEPTE MBE R 9, 2003

______________________________ DENNIS W. LOVE, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-435334; HON ORABLEJIM B OB DAR NELL, JUD GE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ. MEM ORANDU M OPIN ION Dennis W . Love, appellant, appeals his conviction for aggravated sex ual assault. H e presents five issues for our review . The first three involve his com pe tency to stan d tria l. The fourth alleges that the evidence w as not lega lly o r fa ctu ally

sufficient

to sup port a finding of aggravated sexual assault. Appellant’s fifth issue asserts there was insufficient2

evidence to support a finding of the lesser included offense of indecency with a child. We affi rm. COMPETENCY TO STAN D TRIAL In his first t hree issu es, app ellant alleges t he trial cour terred (1) in not conducting a hearing on his competency to s tan d tr ial in accordance w ith article 46.02 section 2(a) or (b) of the Texas

Code of Crim inal Procedure, (2) in not impaneling a j ury to d ete rm ine h is competency

in accordance w ith article 46.02, s ection 4 of the Texas C ode of Crim inal Procedure, and (3) in violating his f ederal and state d ue proce ss rightsby failing to inquire into his competen cy to stand trial. A person is incom petentto stand trial if he does not have suff icient present ability to con sult

w ith h is lawyer w ith a reasonable degree of rational understanding, or a rational as well as factual understanding of the proceedi ngs against h im. Tex. Code Crim. Proc. Ann. a rt. 46. 02, § 1A

(Verno n Supp . 2003). Section 2 of article 46.02 of the Code of Criminal Procedure describes the procedure for raisi ng the issue i n the trial court, as foll ows: (a) The issue of the d efendan t’s incom petency to stand t rial shall be determ ined in advance of the trial on the m erits if the court determ ines there is evidence to suppor

t a f in di ng of

in co mpet en cy t o st an d t ri al on it s own mot ion or on written m otion by the defendant or his counsel filed prior to the date set for

trial on the me rits asserting that the defendant is incom petent to sta nd t rial.1 In this opinion, we w ill use the language used by the parties and oth errecent

opini ons, referring to a preliminary determ ination under section 2 as a “com petenc y inqui ry” and the j ury hearing unde r section 4 as a “ com petenc y hearing. ” See Alcott v. State , 51 S .W.3d 596, 600-01 (Tex .Crim .App. 2001).

2 The Court of Crim inal Appeals has used o the r similar phrases to describe the evidentiary

standard. See, e.g. A lcott , 51 S.W.3d at 599 n.10 (“[evidence] sufficient to 3 (b) If during the trial evidence of the defendant’s incom petency is brought to the attention of the court from any source, the court m ust conduct a hearing outof the presence of the jury to determine whether or not ther e is evid ence to s upp ort

a fi ndin g of

inco m pet enc

y tosta nd t rial. Tex. Code C rim. Proc. Ann. art. 46. 02, § 2 (Vernon Supp. 2003). We review

the trial co urt’s actions u nder sec tion 2 und er a n abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim .App. 1999); Means v. State , 955 S.W.2d 686, 689-90 (Tex.App.–A marillo 1997, pet. ref’d, unt imely filed). A trial court abuses its discretion if its decision was arbitrary or unreason able, Brown v. State , 960 S.W.2d 772, 778 (Tex.A pp.--Dallas 1997, pet. ref ’d) , or fell outsidethezon e of rea son able disagreement. Benit

ez v. State , 5 S.W.3d 915, 918 (Tex.App.--A marillo 1999, pet. re f’d). Since thepar

tiessub m itte d th eir b rief s in thiscase, the Cou rt o f C rim inal A ppe als has issued its opinion in McDaniel v. State , 98 S.W.3d 70 4 (Tex.Crim .App. 2003). The opinion clarifies therespons ibilities of a trial cou rtunder sections 2 and 4 of art icle 46.02. The trial court must conducta “competency inquir y” 1 under sectio n 2 if (1) the competency issue is raised by the defendant, any party or the cour t, and (2) evi dence of inco mpetency is brought to the attention of th e court, w hich evidence (3) is of the type to raise a bona fide doubtin the judge’s

mind 2 regarding the defendant’s com petency to stand t rial. McDaniel ,create a bona fide doubt” ); Coll

ier v . State , 959 S.W.2d 621, 625 (Tex.Crim .App. 1997) (“[evidence] such as to raise a bona fide doubt”). 4 98 S.W.3d at 710-11. The requirements of each step m ust be fulfilled before moving on to the next. Id. at 711. Regardless whe ther the issue is raised before trial (under section 2(a) ) or during trial (under secti on 2(b)), the n, the obli gation to con duct a competency inquiryaris es on ly if evidence of the type to raise the bona fide doubt is brought to the attention of the trial court. See also Collier v. State , 959 S.W.2d 621, 625 (Tex.Crim .App. 1997). Only when the requirements of the first three stepshave be en m et and t he court (following the com petency inquiry) determ ines that there is som e evidence sufficient to support a finding of incompetence m ust the court conduct a competency hearing be fore a jury unde r section 4. McDaniel , 98 S.W.3d at 711. The court also affirme d that the filin g of a m otio n by

thedef end ant or h is counsel under section 2(a) is not suffi cient, without evidence of t he type to raise the bona fide doubtregardi ng com petency, to require a com petency inquiry. McDaniel , 98 S.W.3d at 711. Restating the issu es, app ellant contends th at the t rial court erred in notconducting a com petency inquiry under section 2 and in not conducting a com petency hearing under section 4, an d c ontends his federal and state due proces s rights were thereby violated. Our initial inquiry , the n, is whether ev idence of the type to raise a bona fide doubt regarding app ella nt’s com petency to stand t rial was brought to the attention of the trial court. We fi nd that it wasnot.5

A. Before tri

al Beforetrial, appellant’s counsel filed a motion requesting a psychiatric exam ination, bywhich counsel ass erted that appellant did not m eet the section 1A requirem ents for competency

to stand tria l. Tex. Co d e Crim . Proc . art. 4 6.02, §1A (Vernon S upp. 200 3). The mo tion was supporte d by an attached affidavit stating that, base d on conversations with app ella nt and observations of his behavior, it was counsel’s personal belief that appellant w as n ot com pet ent to s tan d tr ial. The trial cou rtappointed an indepen dent ex pert to perform an exam ination. After exam ining appell ant, the ex pert su bm itted his re port to thecou rt. Therep ort

con clud ed t hat

app ellan t was com pet ent to s tan d tr ial. The mo tion filed by appellant’s trial counsel di d not bring to the court’ s at tention evidence of the type to raise a bona fide doubtregarding appellant’s com petency to stand tria l. Unlike the mot ion discussed in McDaniel , 98 S.W.3d at 711, appell ant’s counsel’s mot ion did assert that appellantlacked competency. Bu t co uns el’s sw orn sta tem ent

of h is personal belief is not evidence of the type required, nor are the statem ents that counsel’s belief is based on conversations w ith his client and observing his client’s behavior. See id

. at 7 10 n .19 (giv ing, as exam ple of sufficient evidence, attorn ey’ s re cita tion of “ spe cifi c pr ob l ems he h as h ad in com m unicating with his client”); Moore , 999 S.W.2d at 394 (holding insufficient counsel’s allegation of “unspecified difficul ties in com municating” w ith client; information mustbe “specific and illustrative of a prese nt inability to com m unicate”).6

Neither did the expert’s

report bring to the attent ion of thecourt evidence sufficient t o raise the bona fide

doubt. The ex pert’s report stated his opinion that ther e was n o indication that appellant was m entally retarded. The exp ert found indications that appellant suffered from a m ajor depressive disorder and chem ical dependency, and m ade reference to appe llant’s pre scri ptions for antidepressant and other m ood-stabilizing medications, but fou nd “no i ndication at the time of the interview and ex amination that appellant was

suffer ing froma seve rely abnorm al m ental con dition w hich would gro s sly and dem ons tra bly i m pair his perception and understanding of reality.” The opinion of the exp ertwas, in part, tha t ap pella nt’ s “a bility to cons ult with h is attorn ey with area son able degree o f rational un derstan ding is not im paired.” A defendant’s propensity tow ard depression does not necess arily indi cate that he is incompeten t to stand trial under the requirements of s ection 1A. Moore , 999 S.W.2d at 395. Ev iden ce of de pre ssi on o r pr io r ho spitalization, without an adequate indication of severe m ental illness or recent impairm ent, does not preclude a trial court from finding a defendant

com petent without

a com petency inquiry under section 2. Id . In Colli er, evidence thatthe defendant suffered from maj or depression disorder

was not sufficient to raise the bona fide

doubt. 959 S.W.2d at 625. The exp ert ’s report also m akes reference to other a spects of appellant’s m ental health history that could have had a bearing on his competency to stand trial. The report, though, does not contain descriptions of recent s evere m ental ill ness or bizarre acts or of moderate retardat ion, w hich gener ally are held to be re qu ired to raise the issue of7

competency

through a defendant’s m ental health history. Moore , 999 S.W.2d at 395; see Alcott , 51 S.W.3d at 599 n10. B. During tri

al Appellant also argues that evidence brought to the attention of the court during trial required the initiation of a competency inquiry. Appella nt references i nformation in State’s Ex hibit 8, which contains appe llan t’s MHMR records, as evidence of appe llan t’s incompetency. W e agree w ith the S tate, t hough, t hat the re is noth ing to show t hat any part of Exhibit 8 ever w

as reviewed by the court. The exhibit, consisting of som e 500 pages of records, was m arked and the records w ere identified during the punishment phase of the trial (which w

as conducted before t he court), but never adm itted into evidence. W hen the State attem pted to introduce the ex hibit, appellant’s counsel objected to por tions of it. Those obj ections w

ere susta ined. Be cause t he docu m ents contained in t he ex hibit we re notin numerical order, the court requested that briefs be filed as to w hat pages were or werenot adm issible, to aid the court in determining which pageswould be allowed into evidence. The record is silent concerning whether the requested briefs w

ere subm itted by eitherside, but the record does not reflect that the ex hibit everwas adm itted into evidence. Later during the prosecutio n’s case on punishm ent, Skipper Ford, appell ant’s case manag er with the parole divisi on of the Texas D epartm ent of Criminal Justice, test ified abouta m eeting she attended at w hich appellant made sta tem ents ab out his prior sexual contacts with anim als and other sexua l misdeeds and abou t his thoughts of suicide. Ford8

further testified thatappellant’s statem ents concerning his “plan of action” for com mitting suicide caused Ford to initiate a “crisi s intervent ion,” re sulti ng in appel lant’s placem ent in a m ental health facility. The prosecutor had Ford identify thr ee o f th e pa gesfro m Ex hibit 8 as containing references to the m atters about w hich she had testified. Ford’s testi mony, tho ugh , did not

des crib e th e co nte ntsof t he t hre e pa gessuf fici ent lyto say that thecourt was made aware of th eir contents except in the m ost general sense. Again, th e thre e pages were not offered into evidence, and the record doesnot ref lect that the co urtever re ad th em. Appellant cites Hatten v. S tate , 978 S.W.2d 608 (Tex.App.–Corpus Christi 1998, no pet.) and Brown v. State , 871 S.W. 2d 852 (Tex.A pp.–Co rpus Ch risti 1994 w rit ref’d)

. Circumstances pre sen t in both those casesdistinguish them from this case. In Hatten , the defendant ceased com municating w ith his lawyers during the trial, and in Brown , on the trial court’s own m otion, the defendant w as exam ined by an expert pursua nt to section 3 before trial but, despite the court’s order, no e valuation report was filed with the court. The trial court did not abuse its discretion in faili ng to initi ate a competency inqui ry, before or during t rial. Based on the inform ation brought to its attention concerning appell ant’s capability at that time of consulting with counsel or understanding the proceedings against him, w e cannot say that the court’s fail ure to ini tiate a competency inquiry was arbitrary or fell outside the zone of reasonable disagreem ent.9

There is another r eason appel lant’s fi rst issue mustbe overrul ed. After the expert’s report was f

iled, the issue of com petency was not raised again. The court held a pretrial hearing to address pending m otions, but there was no request for a co mpetency hearing, and no a tte m pt m adeto r efu te t he e xp ert ’s opin ion. Asapp ellan t ca ndid lypoints out in hi s brief, this court has held that the issue of incompetenc y to stand trial m aybe waive d. Means , 955 S.W.2d at 689. The McDaniel opinion validates the application of waiver to the issue of incompetenc y to stand trial. McDaniel , 98 S.W.3d at 711-12 n.23. In the absence of a tim ely request, obje c tion or m otion to the trial court asking fo r an inqui ry, appell ant’s com plaint under his first iss ue is not preserv ed for ou r review . Te x. R. App. Proc. 33.1. For these rea sons, we overrule app ella nt’s first is su e. Si nc e we have determ ined thatthe court acted withi n its discr etion not to conduct a com petency inquiry, it follows that failing to convene a competency hearin g was not an abuse of its discretion. McDaniel , 98 S.W.3d at 711. W e therefore overrule appellant’s second issue. Appella nt’s third i ssue, by which he asserts that hi s due process rights were violated bythe court’s failure to conduct the com petency inquiry and hearing, is presented and briefed w ith h is first two issues. He does not cite additional authority or present additional argument

in support of

the due process argum ent. Having overruled his first and second issues, and finding that the th ir d i ssu e p re se nt s no th in g a dd it io na l f or ou r r ev ie w, we overrule it as well.10 SUFFICIENCY OF EVIDENCE Appella nt’s remaining i ssues concern the l egal and fa ct u al sufficiency of the evidence. Ap pella nt a rgu es s pec ific ally in his fourth issue tha t thereis n o ev iden ce, or in the a lterna tive, insufficient evidence, in the record to support the j ury’s verdict that appellant was guilty of aggravated sex ual assault. The re co rd sh ow s t ha t a pp el l an t wa s l i vi ng wi th th e v i ct i m, her m other and he r t wo sisters. At the tim e of the offense, t he victim w as 11 years old. She slept in a bedroomwith her tw o sis ter s, a nd h er m oth er s lept

in an oth er b edr

oom sha red w ith a ppe llant . Th e vic tim testified that one evening she w as sleeping in the living room because one of her siste rs had a friend over. According to the victim’s te stimony, appe llan t raised up th e victim’s nightgown, pulled down her panties and m oved his finger around in her vag ina. Thevictim madehim stopand went into the bedroom where her sister and the friend were staying. Two days later, in the m orning, afterthe victim’ s m other went to work, the victim w as awakened by appellant, who w as touching her vaginal area with his finger. At this tim e she was as leep in the top bed of a bunk bed, in her bedroom

. We first consider the legal sufficiency of the eviden ce. See Clewi s v. State , 922 S.W.2d 126 , 13 3 (T ex .Cr im .A pp. 199 6). In con duc ting a le ga l s uffi ci en cy r ev ie w, we exam ine thever

dict , af ter viewing t he e vid ence i n the light most favorable to the prosecution, to determ ine whether any rational trier of fact could have found the essential11

elementsof the crim e beyond a re aso nab le doubt. Ja cks on v. V irg inia , 443 U.S. 30 7, 319, 99 S. Ct. 278 1, 2789, 61 L. Ed . 2d 560, 573 (1979); Clewi s, 922 S.W.2d at 132-33. If w e fin d th e ev id enc e leg all y sufficient, we consider its factual sufficiency. See Cle wis , 922 S.W .2d at 133. We evaluate the factual sufficiency by viewing all the evidence, not considering it in the light most f avo rab le to the prosecution. It is the exclusive province of the j ury to determ ine the credibili ty of the witnesses a nd the weight to be g i ven their te stimony. Accordingl y, we defer to the jury’s determination on tho se mat ters. Johnson v. St

ate , 23 S.W.3d 1, 8 (Tex.C rim.App. 2000). The verdict w ill be set aside on factual sufficiency grounds only if it is so contrary to the o verwhelm ing weight of the evidence as to be clearly w rong and unjus t. Id . at 7. A person com mits aggravated sexua l as s ault if t he p ers on in ten tion ally or k now ingly causes thepen etr

atio n of theanu s or

fem ale s ex ual o rga n of a c hild by any m eans and the victim is young er than 1 4 yearsof age. Tex. P en. Code Ann. §22.021(a)(1)(B)(i) and (a)( 2)(B) (Vernon 2003). Appellan t ch alle nges the legal and factual sufficiency of the evidence to support any finding, beyond a reaso nable doubt, that he penetrated the victim’s f emale sex ual organ w ith h is finge r. T he r eco rd containstes tim ony of t he v icti m respondi ng to questio ns asked by the prosecut or as foll ows: Q: What did he do w ith his finger? A: He w as m oving it around.12

Q: W here was hemoving it around, B.? A: In m y private part. Q: Your private part, is that–do you also call that your vagina? A: Yes. The state was required to prove that appellantpenetrated the fem ale sexual organ ofth e v i ct i m. Thiselem ent is satisfied by proof of any penetration, no m atter how s light. Cowan v. S tate , 562 S.W.2d 236, 238 (Tex.Crim .App. 1978); Murphy v. State , 4 S.W.3d 926, 929 ( Tex.A pp.–W aco 1999, pet. ref’d). Contact w ith the fem ale sexual organ in a manne r a reasonabl e person would consi der more intrusi ve than co ntact w ith the outer vaginal lips constitutes penetration. Vernon v. St ate , 841 S.W.2d 407, 409 (Tex.Crim .App. 1992). There wasdirect testimo ny that appellant’s finger entered the victim ’s vagina. The vi ct i m’ s medica l record s s how thevictimtold m edical pe rso nne l tha t ap pella nt “ put his fingers in her vagina.” Testimony from the victi m’s m other and offi cers who first interviewed thevictimarecon sis ten t w ith t he v icti m ’s tes tim ony at t rial. The S ta te presented testim ony from the victim’ s treating physician, Elaine Maldonado, M.D., and evidence i n the form of m edical records, documenting the victim’s treatm entat a local emergenc y room . The m other of t he victim had taken her to be evaluated in re gar

d tothealleg ed s ex ual a ssa ult by appellant. Appellant points out that Dr. Maldonado testified she found nothing abnorm al in her exam ination of the vict im. Dr.13

Maldonado’s notes in the victim ’s m edical records state there was “no physical evidence of penetration.” In addition, the m edical records contained a rem ark indicating the victim stated she had not b een penetrated. This evidence is not persuasive when rev iewed in the context of Dr. Maldonado’s com plete tes tim ony . S he test ified tha t it was not unu sual for t here to be no physical signs of injury in cases of “ digital penetr atio n” o r im pro per tou chin g. S he s tated t hat it w ould take “a lot of traum a to that area” tocause a change that w ould be evident on a physical exam . A jury consideri ng all the evidence cou ld rat iona lly c onc lude , be yon d a r eas ona ble d o ubt, that appellant penetrated the victim ’s sex ual organ with his finger. When tested against the ent ire record , th e fin ding w ould not be u nj ust

or c lear lywrong. B ecause the verdict was s upported by legally and factually sufficient evidence, we overrul e appell ant’s fourth issue. Our disagreem ent w ith appellant’ s fourt h issue re nders it u nneces sary to address his fifth issue, as to whether evidence was insufficient to find appellant guilty of a lesser included offense of indecency w ith a child. W e affirm thejudgm ent of the trial court.

Jam es T . C am pbe ll Justice14

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