## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00112

- CR

XAVIER LAVAR FRENCH , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 19F0943

- 202

Before Morriss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Chief Justice Morriss

________________ *Jack Carter , Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION
Xavier Lavar French appeals his conviction for aggravated rob bery. 1 French pled guilty

to the trial court , and a jury heard punishment evidence and recommended a sentence of forty
years. On appeal, French claim s that the trial court should have conducted an informal inquiry
into his competency to stand trial. 2 Be cause the trial court did perform an informal inquiry into
French ’ s competence to s tand trial , w e overrule French ’ s point of error and affirm the judgment

. When French appeared before the trial court in September 2020 , he was sch edu led to plea d guilty to t he ind ictments for this cause and a companion case, where he was indicted for
aggra vated kidnapping. At that appearance , the trial court, counsel for the S tate, and French ’ s appointed attorney all expressed confusion at the appearance of a third attorney, Pat A llen

. Allen
told the court that she had been hired the previous Friday , “ was g ett ing the documentation from the school system , ” “ got the call to be ” t here for the hearing , and referred to some medical
records that she had “ ordered ” and been told “ w ere rea d y. ” Allen did not offer any indication
what th o se records contain ed , and sh e handed the court an unsigned affidavit and motion

. Neither of th o se documents are included in the appellate record. Regarding the unsigned motion , she “ had pla nned to file [it ] later [that day] with attachments, and

. . . the affidavit to the mot ion

.

1 See T EX

. P ENAL C ODE A NN

. § 29.03

.
2 In the same proceeding, French pled guilty to another indictment, which alleged aggravated kid napping in the same criminal episode as the aggravated robb ery. See T E X

. P E N A L C O D E A N N

. § 20.04. We address that conviction in our opinion in cause num ber 06

- 20

- 00113

- CR. At the time of those convictions , French was also on deferred adjudication commu nity supervision for two other felonies. A week afte r he was sentenced f o r t he aggravated robbery and aggravated kidnapping , the trial court adjudi cate d Frenc h guilty on those two community supervision cases and sentenced him to eight years’ imprisonment. We address the convictions for those two adjudicate d supervision cases i n o ur cause numbers 06

- 20

- 00114

- CR and 06

- 20

- 00115

- CR.3

. . ex p lain [ed] why ” she was there

. 3 The most liberal read ing of what Allen said about the
material that she had hop ed to o btain and present to the court was that she believed it “ was something that absolutely needed to be presented to the Court, and the aff ida vits indicate [d] why
it wasn ’ t

. ” Allen indicated that was the reason for her presenc e. She pres ented n o summary or suggestion of the co ntents of th e mater ial

. Haas, the p ublic defender representin g French, added,

“ [F] rom what Ms. Allen told m e, it was [to be] s o me so rt of gathering of medical evidence regarding Mr. French ’ s IQ or some form of mental defect

. ”
As the discussion cont inued, the trial court, referring to two c o mmunity supervision revocation proceedings also pending 4 against Fr ench, stated,
H is competency has been pled to. He ’ s been found competent twice by me already. He ’ s never been treated for any type o f mental illness. He ’ s never been treated for any typ e of mental defect, because I always ask that. I asked that when I pled him gui l ty to [the two community supervision cases]. So I ’ ve already found him competent twice . . . . He ’ s told me he ’ s compet ent twice. His lawyers represented twice, and I ’ m not even taking into account his other prior actions, including his juvenile record , which is lengthy, where he ’ s also been found competent twice. At that point, Haa s, Allen, and French retired from the c ourt room to discuss French ’ s wi shes. 5 When they retur n ed, French entered pleas of guilty to the two ind ictments. 6 French told the co u rt

3 In his appellate bri ef , Fren ch refers to Allen as his “retained counsel.” The State refers to her as “for mer counsel.” We disagree with those characterization s

— not hing in the record establishe s Al le n was ever hired or formally represented Frenc h. Whe n the t rial court asked Allen if she was “entering an appearance,” she answered, “Yes, for today. ” L ater, Allen retired with appointed attorney Haas and French to discuss the case. After a bout thirty m i nutes , Haas, Allen, and Fr ench re turned to the court room , and French pled guilty to the two indictments. Allen was not h eard from again and was not mentioned again in the rest of the proceedings.

4 These are the revocations referenced in foot n ote 2.

5 Ha a s told the court they wo uld discuss whether French , i n fact , had hired Allen and whether French still wanted to enter pleas of guilty

.4

that he had previously been treated for a mental illness or defect but that he was not then under treatment for any such illn ess or defect. H aas told the court,
I know the r e was some discussion about m ental defects earlier. It didn ’ t rise to the level of in c ompetency. I spoke with [French] over the last 450 days or so. I represented him on his two other charges, and at no point during all that time did I ever feel that h e was incompetent, Judge.
The trial court answered, “ Based on that, I ’ m going to fin d him competent. ”

“ As a matter of constitutional due process, a cr iminal defendant who is incompetent may
not stand trial. ” Boyett v. State , 545 S.W.3d 556, 563 (Tex. Cri m . App. 2018)

. “ A defen dant is
presu med competent to stand trial unless proved incomp e tent by a preponderance of the
evidence. ” Stine v. State , 300 S .W.3d 52, 60 (Tex. App.

— Texarkana 2009, pet. dism ’ d) (ci ting
T EX
. C ODE C RIM
. P ROC

. A NN . art. 46B.003(b) )

. A defendant is incompetent to stand trial in Texas only if it can be shown that the person lacks “ (1) sufficient present ability to consult with
the person ’ s lawyer with a reasonable degree of rational understa nding; or (2) a rational as well
as factual u nde rst anding of the proceedings against t he person. ” T EX
. C ODE C RIM
. P ROC

. A NN
. art. 46B.00 3 (a). “ We review the totality of the facts surrounding th e trial court ’ s decision on the issue of competency for abuse of discretion. ” Stine , 300 S.W.3d at 60 (c i ting G ray v. State , 257
S.W.3d 825, 827 (Tex. App.

— Texarkana 2008, pet. r e f ’ d) ; Moore v. State , 999 S.W.2d 385, 393 (Tex. Crim. App. 1999)).

6 The trial court elicited affirmative answers from French that he had signed the plea documents before the c ourt , he ha d signed those docu ments freel y and voluntarily , he had been able to ask questions of appointed attorney Haas , Allen ha d been in the room for the conference along with Haas , French understood the first

- degr ee punishment range of five to ninety

- nine y e ars o r life in prison and a potential fine of up to $10,000.00 , he was a citizen of the United States , and he was pleading guilty to aggravated robbery and aggravated kidnapping because he was in fact guilty. French also told the court that he had not consum e d any alcohol or drugs th at would impair his ability to enter his pleas freel y and voluntarily

.5

“ [A] def endant is presumed competent and bears the ultimate burden of proving incompetence to stand trial. ” Clar k v. State , 592 S.W.3d 919, 925 (Tex. App.

— Texarkana 2019 , p et. ref ’ d )

. “ [I]n order to ensure t hat no incompetent defendant is put to trial, Article 4 6B places certain responsibilities on the trial court to inqu ire into the matter independently and force t he parties to litigate the issue, if necessary. ” Id. ; s ee T EX
. C ODE C RIM
. P ROC

. A NN . arts.
46 B .003(b), 46B.004(a), 46B.005(a). “ Procedurally, a tria l court employs two steps for making competency determination s before it may ultimately conclude that a d e fendant is incompetent to
stand trial. ” Boyett , 545 S.W. 3 d at 563. “ The first step is an inf o rm al inquiry; the second step is a formal competency tr ial. ” Id.

“ The amount of information necessary to trigger an ‘ informal inquiry ’ is low. ” Clark , 592 S .W.3d at 925. “ A s uggestion of incompetency . . . may cons i st solely of a representation
from a ny credible source that the defendant may be incompete nt. ” T EX
. C ODE C RIM
. P ROC

. A NN
. art. 46B .004(c

- 1). Such a suggestion may also “ be based on observations made in relation to one

or m ore of the factors described in Article 46B.024 [ 7 ] or on any other in dication that the defendant is incompetent within th e meaning of Article 46B.003. [ 8 ] ” Id

.

7 During an examination under this subchapter and in any report based on that examin ation, an expert shall consider, in addition to other issues determi n ed rel ev a nt by the expert, the following: (1) the capacity of the de fendant during criminal proce edings to: (A) rationally understand the charges against the defendant and the potential c onsequences of the pending criminal proceedings; (B) disclose to co u n sel pe rt i ne nt facts, events, and states of mind; (C) engage in a rea soned choice of legal strateg ies and options; (D) understand the adversarial nature of criminal proceedings; (E) exhibi t appropriate courtroom behavior; and (F) testify; (2) as supported b y curr en t i ndications and the defendant ’ s personal history, whether the defendant: (A) is a perso n with mental illness; or6

In Clark , we analyze d and relied on Boyett to discuss wh at the in f ormal inquiry , required
in A rticle 46B .004(c) , should enta il

. 9 See C lark , 592 S.W.3d at 925

– 26 ( citing and quoting Boyett , 545 S.W.3d at 563

– 64 )

. First, the trial court looks for “ some evidence from any sour ce that would support a finding that the defen d ant may be incompetent to stand trial. ” Boyett , 545
S.W.3d at 564 ( quoting T EX
. C ODE C RIM
. P R O C

. A NN
. art. 46B

. 004(c) )

. “ [S]ome evidence ”

means “ ‘ more than none or a scintilla ’ of evidence that ‘ rationally may lead to a conclusion of incompetency. ’” Id

. ( quoting Turner v. State , 422 S.W.3 d 676, 69 2 ( Tex. Crim

. App. 2013) )

. A trial court is only to “ consider . . . eviden ce of incompetency, and it must not weigh evidence of compete ncy against the evidence of incomp etency. ” Id. Finally, “ some evidence m u st be presented at the informal inqui ry stage to show that a defendant ’ s me ntal illness is the source of his inability t o participate in his own defense. ” Id. Only if there is more than a scintilla of

(B) is a person with an intellectual disability; (3) whether the identified condition has lasted or is expected to last continuousl y for at l e as t one year; (4) the degree of impairment resulting from t he mental illness or intellec tual disability, if existent, and the specific impact on the defen dant ’ s capacity to engage with counsel in a reasonable and rational manner; and (5) if the d e fendan t i s taking psychoactive or other medication: (A) whether the medication is necessary to ma intain the defendant ’ s competency; and (B) the effect, if any, of the medication on the defendant ’ s appearance, demeanor, or ability to participate in the pr o c eeding s.
T EX

. C ODE C RIM

. P ROC

. A NN . art. 46B.024

.
8 A person is deemed incompetent to stand trial i f that 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 r a t io na l as well as factual understanding of the proceedings against th e 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.
T EX

. C ODE C RIM

. P ROC

. A NN . art. 46B.003

.
9 Rather than quote Clark quoting Boyett , we cite directly to Boyett , as we did in Clark

.7

evidence that the defendant is incompetent is a tria l court required to move to the next step , stay ing the proceedings and ordering a for mal competency exam ination

. See C lark , 592 S.W.3d
at 926 ( citing T EX
. C ODE C RIM
. P ROC

. A NN
. art s
. 46B.0 04(d) , 46B.005 (a )

– ( b) , 46B.0 21(b) )

. Fren ch complains on appeal tha t the trial court should have conducted an informal inq uiry into French ’ s competence. A s not ed above , “ T he a mount of information necessary to trigger an ‘ informal inquiry ’ is lo w. ” Id. at 925. French ’ s brief argues that the vague comments by Allen that s he anticipated acquiring medical re cords of some kind and H a as ’ s statement that
h e understood Allen to be gathering records relevant to “ Mr. French ’ s I Q or some form of mental
defect or some form of that ” amounted to a suggestion that French could be inco m petent to stan d
trial. See T EX
. C ODE C RIM
. P ROC

. A N N
. art

. 46B .004 (c).
Ass uming , without deciding , that French is correct and Allen ’ s statements c onstituted a suggestion of incompetence, French has not demonstrated that the trial court in fact failed t o informally inquir e into French ’ s competency. Allen pre sented no sp ecifics at all regarding the records she expected to obtain. Haas said only that he understood that Allen was “ gathering evidence regarding Mr. French ’ s IQ or some form of mental d efect or some form of that. ” The

exte nt of a n informal in quiry is , by definition , informal or ephemeral. 10
French has pointed to nothing before the trial court that amounted to more than a scintilla
of evidence that French was not competent to stand tria l. T h e record before us su ggests only that

t he court info rmally inquire d and then f ou nd nothing meriting further examination or a formal
mental evaluation.

10 See Informal , W EBSTER ’ S C OLLEGIATE D ICTIONARY (11th ed. 2006) ( “ marked by the absence of formality or ceremony . . . . characteristic o f o r a p pr op r iate to ordinary, casu al, or familiar use ” )8

French relies on Bautista v. State , 605 S.W.3d 520 (Tex. App.

— Houston [14th Dist.] 2020, no pet.) , where the reviewing court found that t he tri a l court shoul d have conducted an informal inquiry into Bautista ’ s competency to stand trial. However, in that case , there was one very specific comment by defense counsel that amounted to “ a suggestion from a credib l e source th a t a defendant may be incom p etent. ” Id. at 527

. The trial court was admonishing Bautista about the perils of t estifying . When the court asked Bautista ’ s attorney if he believed Bautista sufficiently understood his rig ht to remain silent, cou n sel answered, “ I can ’ t make th a t stat e ment,
J udge. I ’ m here to tell you that [appellant] is very limited in what he unders tands when we speak. We ’ ve gone over this a few time s. But, whether or not he fully comprehends it, th a t ’ s a mystery to both of us

. ” Id. at 529

. Also, i n opening argum e nt, def ense counsel had similarly impugned Bautista ’ s mental capacity by telling the jury Bautista “ was the ‘ functional equivalent of an 1 1

- year
- old ’ and

‘ [found] it difficult to keep the most me nial jobs. ’” Id. at 5 2 8

. 11 The c ourt of a ppeals held that , at t he very least, the statement from counsel regarding Bautista ’ s comprehension of hi s right not to testify “ was enough ” to prompt “ an informal inquiry to determine whether there [was] some evidence from any source th at w ould support a finding that appellant wa s incompetent to stand
trial. ” Id. at 529. The appellate co urt remanded the case to the trial court to “ determine the feasibility of a retrospective competency inquiry

. ” Id. at 53 0

– 31

.

11 The opinion a lso says that Bautista “ ha [d] an estimated IQ of 70, which place [d] him in the ‘mildly delayed to below

- average range ’” but is not clear on whether that information was before the trial court. B a u tis ta , 605 S.W.3d at 528.9

Here , there was nothing nea r ly as s tartling as defense cou nsel ’ s statements in Bautista

. Haas explained hav ing known and spoken wi th French over the course of his 450

- day representation as well as having represented French on previous char ges
. Allen ’ s vague
comments “ didn ’ t r is e t o t he level of [ any ev i dence of ] incompetency. ”
French told the court that he had previously been treate d for a mental illness or defect but
that he was not then under treatment for any such illnes s or defect. Haas told t he court, “ I know
there was som e d i sc ussion about m ental defect s earlier. It didn ’ t rise to the level of incompetency. I spoke to [French] over the last 450 days or so. I represented him on his two other charges, an d at no point during all that time did I ever feel that he was incomp ete n t, Judge. ”
Aft e r hearing Allen ’ s va g ue comments and without any confirmation or substantiation
f rom any source , 12 the court had nothing before it warranting further investig ation. The court
stated that French w as on community supervision for two other of f en ses and that F rench had been competent when he pled guilty to those allegations

. Haas told the court that Haas had represented French at those plea heari ngs and had found French to be compete nt then, as well as

on the day of the instant h earing and pl e a s. From these comments and the dearth of any evidence of incompetency , the r ecord supports a conclusion that the trial court informally inquir ed into French ’ s competence and found
no further examination warr anted

.

12 Haas’s office, the Bowie County Public Defender’ s Office, had re prese nted French for 443 days , during which French was incarcerated.10

T he trial court adequa tely conducte d a n informal inquiry into French ’ s competency and
found no thing to warrant furthe r or formal examination. We overrule French ’ s point of error and affirm the judgment of the trial court

.

Josh R. Morriss, III Chief Justice
Date Submi tted : June 15 , 2 0 21 Date Decided: July 21 , 2021
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