NO. 07-08-00150-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 8, 2010

GARY L. LINDSEY, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003-402,049; HONORABLE CECIL G. PURYEAR, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION Appellant Gary L. Lindsey appeals the revocation of his community supervision. In a single point of error, appellant contends the trial cour t abused its discretion because it failed to conduct a competency inquiry sua sponte . We affirm the judgment of the trial
court.2 Background In 2003, pursuant to a plea agreement, appellant plead guilty to a charge of delivery of cocaine. The indictment al so included a notice that the offense was committed in a drug-free zone. 1

In accordance with his plea agreement, appellant received a sentence that included confinement in the In stitutional Division of the Te xas Department of Criminal Justice for ten years and required his payment of restitution, costs and fees. The court suspended the sentence of confinemen t and placed appellant on community supervision for ten years. The terms of community supervision included appellant’s commitment to a residential treatment facility. A year later, the terms were modified to release appellant from the community corr ections facility and place him on intensive supervision. The State later filed an app lication to revoke appellant’s community supervision, alleging numerous violations of the conditions of his community supervision. The court held hearings on t he motion in November 2007 and March 2008. Appellant plead not true to each of the State = s allegations. The State presented the test imony of the probation officer assigned to appellant to show that appellant violated the terms of his probation by, among others, failing to maintain abstinence from use or possessi on of alcoholic beverages and drugs by testing positive for cocaine, failing to report, failing to make required payments, failing to

1 See Tex. Health & Safety Code Ann. ' 481.112(c), (d) (Vernon 2001) and Tex. Health & Safety Code Ann. ' 481.134 (Vernon 2003).3 avoid persons or places of disreputable or harmful char acter, and failing to work faithfully at suitable employment. The tr ial court found that app ellant violated those terms of his probation and sentenced him to impr isonment in the Institutional Division of the Texas Department of Criminal Justice fo r ten years. The tr ial court certified appellant = s right of appeal and appellant timely appealed.
Analysis
Applicable Law By his sole issue on appeal, appellant contends the trial court abused its discretion in failing to sua sponte conduct an informal inquiry into his competency to stand trial as required by the Code of Criminal Pr ocedure. We review a trial court = s failure to conduct a competency inquiry un der an abuse of discr etion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000); Gray v. State, 257 S.W.3d 825, 827 (Tex.App.

B Texarkana 2008, pet. ref = d); LaHood v. State, 171 S.W.3d 613, 617-18 (Tex.App.

B Houston [14 th Dist.] 2005, pet. ref = d). A defendant is pres umed competent to stand trial and shall be found co mpetent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. A nn. art. 46B.003(b) (Vernon 2006). A person is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his attorney with a reasonable degree of rati onal understanding; or (2) a rational as well as factual underst anding of the proceedings against him. Id. at 46B.003(a). The same standard applies to a revocation hearing. See McDaniel v.4 State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003); Rice v. State, 991 S.W.2d 953, 958 (Tex.App.—Fort Worth 1999, pet. ref’d) (each applying standard to revocation hearing). If, during court proceedings, evidence comes to the attention of the trial court from any source ra ising a bona fide doubt 2 as to the defendant = s competency, the court must conduct an informal inquiry outside the jury's presence to determine whether there is evidence to support a finding of incompetency to stand trial. See Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App. 2008); Criswell v. State, 278 S.W.3d 455, 458 (Tex.App.—Houston [14 th Dist.] 2009, no pet.); Tex. Code Crim. Proc. Ann. art. 46B.004 (Vernon 2005). In its inquiry, t he court must determine whether there is any evidence to support a finding of incompetency and, if the court finds that such evidence exists, it must order an examinat ion of the defendant. Fuller, 253 S.W.3d at 229; Tex. Code Crim. Proc. Ann. arts. 46B. 005(a), 46B.021 (Vernon 2005). Evidence capable of creating 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.

B Houston [1 st Dist.] 2004, no pet.). Evidence is usually sufficient to create a bona fide doubt if it shows recent, severe mental illness, at least moderate retardation, or truly biza rre acts by the defendant. McDaniel, 98 S.W.3d at 710. If

2 The Court of Crimin al Appeals has defined a A bona fide doubt @ as A a real doubt in the judge = s mind as to the defendant = s competency. @ Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App. 2008).5 evidence warrants a competency hearing, and t he trial court denies such a hearing, the defendant is deprived of his constitu tional right to a fair trial. LaHood, 171 S.W.3d at 618, citing Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
Application Appellant argues several facts were bef ore the trial court that should have suggested his incompetency to the court. A ppellant first points to statements made by his probation officer during te stimony at the March 2008 hear ing. The officer testified that he handled a A specialized case load, people with mental health disorders. @ He also said that appellant had reside d at treatment centers for some period of time and committed himself to a facility after having thoughts of suicid e. Appellant also contends that his “confusion” at the November 2007 hearing regar ding whether the drug-free zone allegation in his indictment had been “dropped” denoted his confused mental state. The State ar gues that, even taken together, these facts did not trigger the court = s duty to inquiry into appellant’s com petence. We agree with the State.
Initially, we note that during appellant = s original plea hearing in 2003, appellant answered affirmatively to the trial court’s ques tion asking him, “Did you sign these [plea] papers and give up those right s and enter your plea of gu ilty freely, knowingly and voluntarily?” We note also that the record of the November 200 7 hearing contains the following exchange between the court and appellant = s trial counsel: The Court: Counsel, you = ve had the opportunity to go over all these matters with your client. Are you satisfie d that he understands the nature of6 the charge against him, the rights he = s entitled to under the law, and the consequences of entering t he plea before the Court here today? Counsel: I am, Your Honor. The Court: Are you satisfied he is menta lly competent to enter the plea before the Court here today? Counsel: Yes, sir, I am.

The record reflects appellant did not s peak at the hearing held in March 2008, but it does indicate he consulted with his attorney during the proceedings. We see nothing in appellant’s conduct at any of the three hearings to cast doubt on his competence to stand trial. The records reflect no statement or action in any way inappropriate or unusual. Appellant said very little other than to express his understanding of the ques tions and admonishments directed at him by the trial court. His responses to admonishme nts and questions were timely , appropriate and logical. Neither appellant, counsel, nor anyone else in the courtroom at any time voiced concern over appellant = s ability to communicate with his counsel or understand the proceedings, nor do we see anything in the record to suggest appellant was having difficulty communicating or understandi ng the proceedings. We disagree with appellant that his one spontaneous i nquiry reflected in the record, when at the Novem ber 2007 hearing he asked w hether the drug-free zone allegation of his indictment had been “dropped,” necessarily suggests confusion on his part. As the State points out, it well can be seen as illustrating his understanding of the proceedings against him.7 Appellant urges us to fi nd importance in his supervi sion by a probation officer who testified to supervising probationers with ment al health disorders. He argues no evidence shows he was assigned to that offi cer in error or because of “some staffing problem.” We disagree that any inference r egarding appellant’s compet ency at trial is to be drawn merely from his assi gnment to that particular probat ion officer. We disagree also that the addition of appellant = s short stays at treatment facilities and his voluntary commitment for suicidal thoughts combined to r equire the trial court to inquire into his competence at the revocation hearings. The record indica tes that after appellant was placed on probation in 2003, he was initiall y sent to the Community Residential Treatment Center. Each of appellant’s voluntary commitm ents occurred in 2004, more than three years before the hear ings on the application to re voke appellant’s community supervision. None of the sta ys at treatment facilities raise questions about whether appellant had a recent seve re mental illness. Cf. Durgan v. State, 259 S.W.3d 219 (Tex.App.

B Beaumont 2008, no pet.) (fi nding defendant’s inclusion in a “special needs” SAFPF did not raise questions about whether s he had a recent severe mental illness, was moderately retarded or had ex hibited truly bizarre behavior); Reeves v. State, 46 S.W.3d 397, 399-40 (Tex.App.

B Texarkana 2001, pet. dism = d) (concluding evidence of defendant = s drug addiction and suicide attempt did not reflect on her ability to understand or participate in t he proceeding on t hat day).
Appellant relies on Greene v. State, 225 S.W.3d 324 (Tex.App.

B San Antonio 2007, no pet.) (op. on reh = g), in which the San Antonio c ourt found the language of art. 46B.004 signaled an in tention of the Legislature to depart from the bona fide doubt standard to trigger required competency inquiries. Id . at 329. A subs equent opinion of8 the court of criminal appeals, however, re iterates the bona fi de doubt standard. Fuller, 253 S.W.3d at 228-29. We agree with the Beaumont c ourt’s assessment that,

A Fuller resolves recent questions about appl ying the bona fide doubt standard to incompetency issues raised during trial. @ Durgan, 259 S.W.3d at 222. Moreover, on its facts Greene is of no help to appellant. The circumstances described in the Greene opinion bear no similarity to those present here. In Greene , the court found the defendant’s A rambling, nonresponsive @ answers to questions and testimony A of the most bizarre quality @ suggested his incompet ence and required the trial court to conduct an informal inquiry into his competence. Greene, 225 S.W.3d at 329.

Courts have found no abuse of discretion in the presence of much stronger evidence suggesting incompeten ce than was pr esent here. See, e.g., Salahud-Din v. State, 206 S.W.3d 203, 208 (Tex.App.

B Corpus Christi 2006, pet. ref = d) (no abuse of discretion in failing to conduct sua sponte inquiry even though three pretrial psychological examinations were ordered by the court) ; LaHood, 171 S.W.3d at 619 (no abuse of discretion in failure to sua sponte inquire into defendant = s competency despite outbursts during trial, requests fo r medicine, comments concerning A psych meds @ and claim of difficulty understanding proceedings). See also Rojas v. State, 228 S.W.3d 770 (Tex.App.

B Amarillo 2007, no pet.) (no abuse of discretion in failing to conduct further informal inquiry or to appoint an expert to evaluate def endant when he made comments during voir dire and throughout trial, engag ed in non-responsive answers on the stand and expressed view that police conspired to frame him).9 Finding no abuse of discr etion here in the trial court’s failure to initiate an informal inquiry, we overrule appellant ’s sole point of error, and a ffirm the trial court’s judgment. James T. Campbell Justice Publish.