COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00039-CR

JEREMY WICKER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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In January 2010, pursuant to a plea bargain agreement, Appellant Jeremy 

Wicker pled guilty to criminal solicitation of a minor, and the trial court placed him 

on five years’ deferred adjudication community supervision. In March 2010, the 

State filed a motion to proceed with adjudication. At the hearing on the State’s 

motion, the trial court asked Appellant if he had ―ever had any mental health 

problems.‖ Appellant informed the trial court that he has Asperger’s syndrome, 

 

1See Tex. R. App. P. 47.4.
2

that he should be on medication, and that he had not been able to take his 

medication since being confined in jail nine months earlier. The trial court then 

had a brief discussion with defense counsel about Appellant’s competence. 

Defense counsel stated that Appellant understood what defense counsel told 

him, that Appellant was ―able to converse with [defense counsel] in a competent 

manner,‖ and that defense counsel did ―not believe there [was] an issue 

regarding [Appellant’s] competence.‖ The trial court then asked Appellant if he 

thought he understood ―what’s going on today,‖ to which Appellant answered, 

―Yes, ma’am.‖

The trial court accepted Appellant’s pleas of ―true‖ to all of the allegations 

in the State’s motion. The trial court then proceeded with adjudication. One of 

Appellant’s witnesses was Dr. Dan Creson, a psychiatrist who had evaluated 

Appellant. Creson testified that Appellant has trouble with ―understanding the 

social implications of what he does and how he understands the world in which 

he lives.‖

The trial court found the allegations in the State’s motion true, adjudicated 

Appellant guilty, and sentenced him to ten years’ confinement and a fine of 

$1,000.

In five points, Appellant challenges the validity of his pleas of true to the 

allegations in the petition, arguing that the trial court abused its discretion by 

failing to conduct an adequate informal inquiry into his competence under article 

46B of the Texas Code of Criminal Procedure and that this error affected his 
3

substantial rights; that the bona fide doubt as to his competence rendered his 

pleas constitutionally invalid under both the state and federal constitutions, and 

that the constitutional errors he alleges are structural and not subject to a harm 

analysis. Because the trial court committed no reversible error and because 

Appellant’s pleas were valid, we affirm the trial court’s judgment.

Article 46B.003 provides,

(a) A person is incompetent to stand trial if the person 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.

(b) A defendant is presumed competent to stand trial and shall be 

found competent to stand trial unless proved incompetent by a 

preponderance of the evidence.2

Appellant relies on evidence of his Asperger’s syndrome and testimony of 

Dr. Creson that Appellant has trouble understanding the social implications of his 

actions and the world he lives in. Appellant argues that this is evidence that he 

lacks a rational understanding of the proceedings against him. He also argues 

that the trial court was obligated to make further investigation into his

competence to stand trial because Article 46B.004 provides,

(b) If evidence suggesting the defendant may be incompetent to 

stand trial comes to the attention of the court, the court on its own 

 

2

Tex. Code Crim. Proc. Ann. art. 46B.003 (West 2006).
4

motion shall suggest that the defendant may be incompetent to 

stand trial.

(c) On suggestion that the defendant may be incompetent to stand 

trial, the court shall determine by informal inquiry whether there is 

some evidence from any source that would support a finding that the 

defendant may be incompetent to stand trial.3

The trial court, however, inquired of Appellant and of his counsel whether 

Appellant was competent to stand trial. Appellant said that he had been in 

special education and was taking medication, but he did not suggest that he was 

unable to communicate with his attorney with a reasonable degree of 

understanding or that he lacked either a rational or factual understanding of the 

proceedings against him. In fact, in response to the trial court’s question, 

Appellant stated that he understood what was going on in court. When the trial 

court specifically inquired into these matters with trial counsel, trial counsel 

assured the trial court that he was able to communicate effectively with Appellant 

and specifically stated that competence to stand trial was not an issue.

We review the trial court’s actions under an abuse of discretion standard.4 

A trial court abuses its discretion when its decision is arbitrary or unreasonable.5 

Considering the record as a whole, we hold that the trial court did not abuse its 

discretion by not making additional inquiry regarding Appellant’s competence to 

 

3

Id. art. 46B.004(b), (c) (West Supp. 2011).

4Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009).

5

Id.
5

stand trial. Indeed, the record reflects that the conscientious trial court made 

extensive and concerned inquiry into Appellant’s competence. The trial court

complied with both the letter and the spirit of both the applicable statutes and 

constitutional guarantees of due process.

We therefore overrule all of Appellant’s five points on appeal and affirm the 

trial court’s judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

MEIER, J., filed a dissenting opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: February 23, 2012
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00039-CR

JEREMY WICKER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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DISSENTING MEMORANDUM OPINION1

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I dissent from the majority opinion because the trial court conducted an 

inadequate informal inquiry when it questioned Appellant Jeremy Wicker and his 

court-appointed counsel about Wicker’s competency to stand trial.

If a bona fide doubt exists about the defendant’s competency to stand trial, 

the trial court must conduct an informal inquiry to determine whether some 

evidence from any source supports a finding of incompetency. Tex. Code Crim. 

 

1See Tex. R. App. P. 47.4.
2

Proc. Ann. art. 46B.004(c) (West Supp. 2011); Montoya v. State, 291 S.W.3d 

420, 425 (Tex. Crim. App. 2009); Fuller v. State, 253 S.W.3d 220, 228 (Tex. 

Crim. App. 2008), cert. denied, 555 U.S. 1105 (2009). A person is incompetent 

to stand trial if he does not have (1) sufficient present ability to consult with his 

lawyer with a reasonable degree of rational understanding or (2) a rational as 

well as factual understanding of the proceedings against him. Tex. Code Crim. 

Proc. Ann. art. 46B.003(a) (West 2006). The informal inquiry ―allows the trial 

judge to . . . determine whether the behavior of the defendant during a 

proceeding indicates a lack of rational understanding.‖ Montoya, 291 S.W.3d at 

425.

At the beginning of the hearing on the State’s motion to adjudicate, Wicker 

informed the trial court that he has Asperger’s syndrome, that he was supposed 

to be taking medication for that condition, but that he had not taken any 

medication since being incarcerated sometime in March 2010.2 Dr. Dan Creson 

testified that he evaluated Wicker in 2009 and that he concurred with Wicker’s 

contention that he had Asperger’s syndrome. According to Dr. Creson, 

Asperger’s syndrome is part of the autistic continuum; a common symptom of the 

condition includes difficulty communicating. Knowing of Wicker’s condition, the 

trial court asked Wicker a single question and Wicker’s attorney a single question 

about Wicker’s competency to stand trial. The trial court did not ask Wicker’s 

 

2

The hearing took place in January 2011.
3

attorney if he had even known that Wicker has Asperger’s syndrome, nor did the 

trial court ask any questions of Wicker about his ability to communicate with his 

attorney or of his Asperger’s syndrome.

In my opinion, when the trial court learned that Wicker had Asperger’s 

syndrome and that he had not taken medication for the condition since March 

2010, it should have, at a minimum, posed more than just one single question to 

Wicker regarding his competency to stand trial. The trial court should have 

inquired further into Wicker’s ability to communicate with his attorney and the 

effects, if any, of his Asperger’s syndrome on his competency. I fail to see how—

at the outset of the hearing and before an opportunity to sufficiently observe 

Wicker—the trial court could have gleaned from a single question whether 

Wicker could not consult with his attorney with a reasonable degree of rational 

understanding.

The inadequacy of the inquiry is apparent when compared to the informal 

inquiries made by other trial courts. In Lawrence v. State, the defendant told the 

trial court that he had been treated for depression, and in addition to questioning 

defense counsel, the trial court questioned the defendant if he had told his 

attorney about the condition, whether he understood the charges against him, 

whether he understood his conversations with his attorney, and whether he was 

able to explain his side of the case to his attorney. 169 S.W.3d 319, 323–25 

(Tex. App.—Fort Worth 2005, pet. ref’d). In Smallwood v. State, in addition to 

questioning defense counsel, the trial court asked the defendant whether he was 
4

competent, of sound mind, insane, or crazy; whether he knew what ―competent‖ 

meant; whether he knew what the charges were against him; whether he had 

ever been told that he needed any special treatment or medical care for his 

condition; and whether he knew what he was doing when he committed the 

charged offense. 296 S.W.3d 729, 731–32 (Tex. App.—Houston [14th Dist.] 

2009, no pet.).

In Johnson v. State, the trial court questioned the defendant about his 

plea, the charges against him, the punishment range for each offense, his courtappointed counsel, and his understanding of a guilty plea; whether he was on 

medication; whether he understood defense counsel; and whether he understood 

who the judge was and what his role was. Nos. 05-05-00464-CR, 05-05-00465-

CR, 05-05-00466-CR, 05-05-00467-CR, 2006 WL 1000071, at *1 (Tex. App.—

Dallas 2006, no pet.) (not designated for publication). And in Gray v. State, in 

addition to questioning defense counsel, the trial court inquired of the defendant 

whether he had reviewed and understood documents before signing them and 

what offense he was pleading guilty to. 257 S.W.3d 825, 828 (Tex. App.—

Texarkana 2008, pet. ref’d).

Like the adequate informal inquiries conducted by the trial courts in 

Lawrence, Smallwood, Johnson, and Gray, the trial court in this case should 

have asked more than merely one question of Wicker once it learned that he has 

Asperger’s syndrome but that he had not taken his medication since being 

incarcerated months earlier. The trial court could not have determined from the 
5

brief colloquy that occurred at the outset of the hearing on the motion to 

adjudicate whether Wicker’s behavior indicated a lack of rational understanding. 

Accordingly, I would hold that the trial court abused its discretion by performing 

an inadequate informal inquiry into Wicker’s competency to stand trial. Because 

the majority holds that the trial court’s inquiry was adequate, I respectfully 

dissent.

BILL MEIER

JUSTICE

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: February 23, 2012