Affirmed as Modified a nd Opinion Filed April 20, 2015 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-01266-CR ALIREZA DJANGHUR AZIZI, Appellant
V. THE STATE OF TEXAS, Appellee On Appeal from the Crimin al District Court No. 3 Dallas County, Texas Trial Court Cause No. F-1100270-J 

### MEMORANDUM OPINION Before Justices Fillmore and Schenck 1 and Chief Justice Thomas, Retired 2 Opinion by Chief Justice Thomas, Retired This is an appeal from the trial cour t’s judgment revoking A lireza Djanghur Azizi’s community supervision and adjudicating him guilty of aggravated assault with a deadly weapon. In two issues, Azizi asserts the tr ial court erred in faili ng to conduct an informal inquiry into his competency and admitting into evidence an impr operly authenticated photograph. In a third issue, Azizi asserts the trial cour t’s judgment should be modified to accurately reflect his plea to the State’s motion and the trial court’ s findings. We affirm as modified.

1 Justice David Schenck succeeds Justice Michael O’Neill, a member of the original panel. Justi ce Schenck has reviewed the brie fs and record in this case. See T EX
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. P. 41.1(a). 2 The Honorable Linda Thomas, Chief Justice of the Court of Appe als for the Fifth District of Texas—Dallas, Retired, sitting by assignment.–2– BACKGROUND The State moved to revoke Azizi’s community supervision and proceed with adjudication of guilt after Azizi was arrested for criminal trespass, choking his girlfriend, and sexually assaulting her twice. The State asserted Azizi committed these offenses in violation of condition (a) of the “Conditions of Commun ity Supervision.” The State fu rther asserted Azizi violated condition (g) by traveling outside Dallas County without approval from his supervising officer or the trial court; condition (h) by failing to pay his court costs; condition (k ) by failing to pay the Crime Stoppers fee; condition (l ) by failing to work his community service hours; and condition (n) by failing to pay a urinalysis fee. The State subsequently stru ck the last three allegations, and Azizi pleaded true to the allegations that he violated conditions (g) a nd (h). The remaining allegations were tried to the court. Following testimony from Azizi’s girlfriend and others, the trial court found Azizi violated conditions (g) and (h). The trial court also found Aziz violated condition (a) by committing the offenses of se xual assault and family violence–impeding breathing. The court revoked Az izi’s community supervision, adjudicated his guilt, and sentenced him to ten years’ imprisonment. INFORMAL COMPETENCY INQUIRY Azizi’s first issue, concerni ng his competency to stand tr ial, stems from the following exchange between the trial court and defense counsel: THE COURT: Do you believe your client is competent? [DEFENSE COUNSEL]: Judge, if I may – sorry to give you a qualified answer. I don’t know if you’ve had a chance to look. We’ve had him evaluated competency-wise, and the recommendati ons from Ms. Compton, Dr. Compton, is that my client has a severe mental diseas e, schizo[a]ffective di sorder and bipolar. So, in essence, he’s go t severe mental issues. THE COURT: Well, first question is – [DEFENSE COUNSEL]: Th e expert says yes.–3– THE COURT: Okay. That ’s all I need from you. [DEFENSE COUNSEL]: You asked me if I think he’s competent, and I’m not sure because I’m not a doctor. The doctor that examined him said he has severe issues, but in her opinion – THE COURT: Okay. So just so that we ’re clear, your client has been examined by a doctor, a competent psychiatrist - psychologist? I guess psychologist? [DEFENSE COUNSEL]: She is a - she is a Ph.D, Judge; I’m not sure what Dr. Compton is. THE COURT: Has been evaluated by a co mpetent doctor, and her indication is that your client is competent to proceed. Azizi contends counsel’s statement that he was “not sure” whether Azizi was competent and his “concern over [Azizi’s] ‘severe mental issues ’” amounted to a suggestion of incompetency requiring the trial court to determine, by info rmal inquiry, whether some evidence existed supporting a finding Azizi might have “los[t] legal competen cy” after being evaluated by Compton. See T EX
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. art. 46B.004(c) (West Supp. 2014). The State responds counsel’s statements did not amount to a suggestion of incompetency, and the trial court was not required to inqui re into Azizi’s competency. We agree with the State. A defendant is incompetent to stand trial if he lacks (1) a sufficient present ability to consult with his attorney with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of th e proceedings against him. Id. art. 46B.003(a) (West 2006); Luna v. State , 268 S.W.3d 594, 598 (Tex. Crim. App. 2008). The State, defendant, or the trial court may suggest the defendant is incompetent to stand trial. See T EX
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. art. 46B.004(a); Luna , 268 S.W.3d at 598. On suggestion the defendant may be incompetent, the court must conduct an informal inquiry to determ ine whether some evidence exists supporting an incompetency finding. T EX
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. art. 46B.004(c); Luna , 268 S.W.3d. 599. A suggestion of incompetency is the threshold requ irement for an informal inquiry and may consist solely of a representation from any credible so urce that the defendant ma y be incompetent. T EX
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. art. 46B.004(c-1). Evidence sugges ting the need for an informal inquiry may be based on observati ons the defendant is unable to •understand the charges against him and the potential cons equences of the pending proceedings; •disclose to counsel pertinent fact s, events, and states of mind; •engage in reasoned choice of legal strategies and options; •understand the adversarial natu re of criminal proceedings; •exhibit appropriate courtroom behavior; and, •testify. See id. art. 46B.004(c-1), 46B.024(1). It may also be based on the effect any identified mental condition and any prescribed medication has on the defendant’s appearance, demeanor, ability to participate in trial, and capaci ty to engage with c ounsel in a rational a nd reasonable manner. See id. art.46B.024(2)-(5). A defendant is presumed to be competent, and the trial court’s determination not to conduct an informal compet ency inquiry will not be disturbed on appeal absent an abuse of discreti on, that is, absent a showing the decision was arbitrary and unreasonable. See id. art. 46B.003(b); Montoya v. State , 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds as stated in Turner v. State , 422 S.W.3d 676, 692 n.31 (Tex. Crim. App. 2013). The record here reflects the trial court sign ed an order, six weeks before the revocation hearing, directing Dr. Kristi Compton to examine Azizi to determine his competency to stand trial. Dr. Compton’s report is not included in the record, but defense counsel acknowledged that despite a finding that Azizi had “severe mental issues,” Dr. Compton found him competent. Additionally, the record reflects defense counsel signed plea papers before the revocation hearing stating he believed Azizi was competent. Although defense counsel subsequently stated to the trial court that he was not sure Azizi wa s competent, counsel did not offer any explanation–5– why he thought Azizi might be incompetent, a ny evidence showing Aziz i’s mental status had materially changed since his ev aluation by Dr. Compt on, or any evidence showing what impact Azizi’s “mental issues” had on Azizi. We concl ude, on the record before us, counsel’s “qualified answer” did not constitute a s uggestion of incompetency, and th e trial court did not abuse its discretion in failing to conduct an informal competency inquiry. See , e.g. , Hobbs v. State , 359 S.W.3d 919, 925 (Tex. App.—H ouston [14th Dist.] 2012, no pet.) (history of mental illness and being on psychiatric medications in sufficient to warrant competency inquiry absent evidence of present inability to communicate with counsel or understand proceedings); Miles v. State , 688 S.W.2d 219, 224 (Tex. App.—El Paso 1985, pet. ref’ d) (concluding once competency finding is made, some evidence of subsequent change in mental condition required to warrant new competency determination). We resolve Azizi’s first issue against him. ADMISSION OF PHOTOGRAPH In his second issue, Azizi complains of th e admission of a sexually explicit picture of his girlfriend offered through the testimony of the arresting officer. The picture, found on a cell phone Azizi had in his possession at the time of his arrest, depict ed one of two ways in which Azizi’s girlfriend testified he assaulted her. Although the girlfriend testified she thought Azizi had taken a picture with a cell phone during the assa ult and the police had the picture, the picture the officer sponsored was not dated, and the of ficer could not confirm it was taken during the assault. Defense counsel objected on “predica te” grounds, but the trial court overruled the objection. Azizi now asserts the court’s ru ling was improper and the judgment should be reversed. See Huffman v. State , 746 S.W.2d 212, 222 (Tex. Cr im. App. 1988) (predicate for introduction of picture requires proof picture (1) accurately represents subject at given time and (2) is material to disputed issue). The State responds that any error in admitting the picture was harmless. Again, we agree w ith the State.–6– We disregard error in the admission of evid ence unless the error affected the appellant’s substantial rights. See Coble v. State , 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Generally, no harm results from the erroneous admission of evidence where other si milar evidence was received without objection either before or after the complained-of ruling. See Coble , 330 S.W.3d at 282 (quoting Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)). Here, as stated, the picture depicted a se xual act Azizi’s girlfri end described in her testimony. Additionally, the record reflects she described the assaults to a nurse who examined her after she was assaulted. The nurse testifie d at the hearing, and the nurse’s records were admitted into evidence without objection. Becau se the picture presented nothing new, we conclude its admission did not substa ntially affect Azizi’s rights. See , e.g. , Rene v. State , 376 S.W.3d 302, 307-08 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’ d) (any error in admission of printouts of pictures from MySpace website, admitted to show gang affiliation and signs, harmless where other pictures showing tattoos with such signs and other emblems of gang membership admitted without objection). We decide Azizi’s second issue against him. MODIFICATION OF JUDGMENT Azizi’s final issue concerns the judgment’s recitals. Specifically, he complains of the recital that he pleaded true to the allegations in the State’s motion to adjudicate and the recital that he violated the terms and conditions of co mmunity supervision as set out in the State’s motion to adjudicate. Because he pleaded true to only two of the six violations asserted by the State and because the State struck the allegations that he violated conditions (k ), (l), and (n), he asserts the judgment should be mo dified. The State agrees. We have the power to modify the trial court’s judgments when we have the necessary information before us to do so. See T EX
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. P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27-–7– 28 (Tex. Crim. App. 1993); Asberry v. State , 813 S.W.2d 526, 529 (Te x. App.-–Dallas 1991, pet. ref’d). Accordingly, we modify the judgment to show Azizi pleaded true to the allegations that he violated conditions (g) and (h) and not true to the allegation that he violated condition (a). We further modify the judgment to show the trial court found Aziz i violated conditions (a), (g), and (h) of the conditions of community supervision. As modified, we affirm the trial court’s judgment.

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. P. 47 131266F.U05 /Linda Thomas/ LINDA THOMAS CHIEF JUSTICE, Retired–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT ALIREZA DJANGHUR AZIZI, Appellant No. 05-13-01266-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3, Dallas County, Texas Trial Court Cause No. F-1100270-J. Opinion delivered by Chief Justice Thomas, Ret.; Justices Fillmore and Schenck, participating. Based on the Court’s opinion of this date, we MODIFY the trial court’s judgment to reflect, in the section entitled “Plea to Motion to Adjudicate,” as follows: True to conditions (g) and (h ); not true to condition (a). We further MODIFY the trial court’s judgment to reflect on page 2, in the paragraph concerning the trial court’s findings, as follows: (5) While on community supervision, Defe ndant violated the terms and conditions of community supervision by violating conditions (a), (g), and (h). As MODIFIED , we AFFIRM the trial court’s judgment.
Judgment entered April 20, 2015.