Opinion issued November 15, 2012

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-10-00431-CR

———————————

DAVID EARL BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1233362

OPINION ON MOTION FOR REHEARING

The State has moved for rehearing contending that we have not (1) 

addressed every issue raised and necessary to the final disposition of this appeal 

and (2) performed a harm analysis. We requested a response, but none was filed. 
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See TEX. R. APP. P. 49.2. We grant the motion for rehearing to address the State’s 

concerns, but we deny the requested relief.

Voluntarily Absented

The State argues that we erred in reversing the trial court’s judgment 

because in reversing we did not address the issue of whether the trial court 

erroneously found that Brown had voluntarily absented himself from trial. The 

State asserts that Brown was not entitled to a competency evaluation because 

Brown voluntarily absented himself from trial through his failed suicide attempt.

When the trial court denied Brown’s motion for continuance to evaluate his 

competence, there was evidence that Brown’s wound was self-inflicted. Thus, the 

trial court ruled Brown voluntarily absented himself and was not entitled to a stay 

of proceedings for a competency evaluation.

The State asks us to hold that the trial court did not abuse its discretion in 

denying Brown’s motion for continuance based upon his assertion of 

incompetency because he allegedly voluntarily brought about his own absence and 

disability. We hold that Brown did not voluntarily absent himself from trial 

because under article 46B.005 the trial court was required to stay the proceedings 

and conduct a formal competency examination. See TEX. CODE CRIM. PROC. ANN.

arts. 46B.004(d), .005(a), (b) (West 2006 & Supp. 2012).
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This Court reviews a trial court’s determination that a defendant has 

voluntarily absented himself from trial under an abuse-of-discretion standard. See

Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984). In urging us to 

uphold the trial court’s ruling, the State relies on Code of Criminal Procedure 

article 33.031and an older line of cases and statutes that seem to suggest that a 

defendant who attempts to commit suicide is absent because of his own voluntary 

conduct. See, e.g., Maines v. State, 170 S.W.3d 149, 150 (Tex. App.—Eastland 

2005, no pet.).2

The only case cited by the State that applies current law is an unpublished 

case in which defense counsel did not object to continuing with the punishment 

phase of trial after the defendant attempted suicide by swallowing pills. Gizzard v. 

State, No. 01-06-00930-CR, 2008 WL 2611865 at *4–5 (Tex. App.—Houston [1st

Dist.] July 3, 2008, no pet.) (mem. op., not designated for publication). Gizzard is 

distinguishable from the case at hand.

 

1 Article 33.03 states, in relevant part, “In all prosecutions for felonies, the 

defendant must be personally present at the trial . . . however, that in all 

cases, when the defendant voluntarily absents himself . . . the trial may 

proceed to its conclusion.” TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 

2006).

2 Maines relies on the former competency provisions of Code of Criminal 

Procedure article 46.02, which was repealed in 2003. Act of Apr. 30, 2003, 

78th Leg., R.S., ch. 35 § 15, 2003 Tex. Gen. Laws 57, 72 (repealing former 

TEX. CODE CRIM. PROC. art. 46.02).
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In Gizzard, this Court held that the trial court did not abuse its discretion by 

determining that the defendant had sufficient present ability to consult with his 

attorney and a reasonable degree of rational understanding. Id. at *6. Here, we 

hold that the trial court abused its discretion in finding Brown competent to 

continue with trial. It is important to note that the evidence presented before the 

trial court concerning Gizzard’s competence was also different from the evidence 

presented concerning Brown. While Gizzard overdosed on medication, Brown 

suffered a gunshot wound to the head, resulting in a bullet lodged in his brain. 

Brown’s treating psychiatrist testified that, based on the description of Brown’s 

injuries, it was unlikely that Brown could provide information to assist in the 

remainder of the trial. We hold the trial court erroneously found Brown competent 

to stand trial and erred in not holding a competency hearing as required by article 

46B.005. TEX. CODE CRIM. PROC. ANN. arts. 46B.004(d), .005(a), (b) (West 2006 

& Supp. 2012).

We also rely on the Supreme Court case of Drope v. Missouri in holding that 

Brown did not voluntarily absent himself from trial. Drope, 420 U.S. 162, 95 S. 

Ct. 896 (1975). There the Court stated that a failure to observe adequate 

procedures to protect a defendant’s right not to be tried or convicted while 

incompetent to stand trial deprives him of his due-process right to a fair trial. 420 

U.S. at 172, 95 S. Ct. at 904. Drope suffered a self-inflicted gunshot wound to the 
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abdomen. 420 U.S. at 167, 95 S. Ct. at 901. Drope’s lawyer moved for a mistrial 

due to his client’s absence, but the trial court denied the motion on the basis that 

Drope’s absence was voluntary. 420 U.S. at 167, 95 S. Ct. at 901–02. The 

Supreme Court held that Drope’s absence “was due to an act which suggests a 

rather substantial degree of mental instability contemporaneous with the trial.” 

420 U.S. at 181, 95 S. Ct. at 908. The Court arrived at its decision by concluding 

that, when considered together, the testimony from Drope’s psychiatrist, testimony 

by his wife, and his suicide attempt created a sufficient doubt of his competence to 

stand trial, thus requiring a competency evaluation. 420 U.S. at 180, 95 S. Ct. at 

908.

In the instant case the evidence of incompetence is more closely aligned 

with the facts and considerations of Drope than Gizzard or Maines. Brown’s 

partner reported that Brown had been “despondent” during trial. Brown’s 

psychiatrist had been treating him for depression since the original arrest, and the 

psychiatrist believed the attempted suicide was evidence of mental illness, which 

prevented Brown from communicating with his attorney. Applying the analysis in 

Drope, there was enough evidence to raise a doubt as to whether Brown was 

competent. This should have triggered a competency hearing rather than a ruling 

that Brown was voluntarily absent.
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Harm Analysis

The State also argues that we erred in reversing the trial court’s judgment 

because we did not perform a harm analysis, contending that nonconstitutional 

error must be disregarded unless the error had a substantial and injurious effect or 

influence in determining the jury’s verdict. See King v. State, 953 S.W.2d 266, 

271 (Tex. Crim. App. 1997) (citing TEX. R. APP. P. 44.2(b)). The State argues that 

the trial court’s violation of Code of Criminal Procedure article 46B.004 requires a

harm analysis because the error was not structural and was merely statutory. See

Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005); Cain v. State, 947 

S.W.2d 262, 264 (Tex. Crim. App. 1997). Without determining whether the error 

was structural in nature, we determine there was harm.

The State asserts that if the trial court did violate Code of Criminal 

Procedure articles 46B.004 and 46B.005, then we must disregard the error unless it 

is determined that the statutory violation had a substantial and injurious effect on 

the jury’s verdict both at guilt and punishment. TEX. R. APP. P. 44.2(b); see e.g.,

King, 953 S.W.2d at 271. The State also argues that an immediate stay for a 

competency hearing was not required based on a reading of articles 46B.004(d)3

 

3 Article 46B.004(d) states that “if the court determines there is evidence to 

support a finding of incompetency, the court, except as provided by . . . 

Article 46B.005(d), shall stay all other proceedings in the case.” TEX. CODE 

CRIM. PROC. ANN. art. 46B.004(d) (West 2006 & Supp. 2012).
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and 46B.005(d).4 The State maintains that the appropriate disposition in this case 

would be an abatement for a retrospective competency evaluation. We disagree.

As noted above, the Supreme Court stated in Drope that a failure to observe 

procedures adequate to protect a defendant’s right not to be tried or convicted,

while incompetent to stand trial, deprives him of his due process right to a fair trial. 

420 U.S. at 172, 95 S. Ct. at 904. Brown’s attempted suicide occurred before he 

was able to rest his case. If found incompetent, Brown would have been unable to 

aid in his own defense. This is a harm contemplated by both the Sixth 

Amendment5and Code of Criminal Procedure articles 46B.0046and 33.03.

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No sentence could have been imposed on Brown, who was wheeled in from 

the hospital to be sentenced, if the trial court had found him found to be 

incompetent. It follows that any sentence that was handed down was harmful to 

 

4 Article 46B.005(d) states that “if the issue of the defendant’s incompetency 

to stand trial is raised after the trial on the merits begins, the court may 

determine the issue at any time before the sentence is pronounced.” TEX.

CODE CRIM. PROC. ANN. art. 46B.005(d) (West 2006 & Supp. 2012).

5 Requiring that the accused “have the assistance of counsel for his defense.” 

U.S. CONST. amend. VI.

6 Requiring that “if the court determines there is evidence to support a finding 

of incompetency, the court, except as provided by . . . Article 46B.005(d), 

shall stay all other proceedings in the case.” TEX. CODE CRIM. PROC. ANN.

art. 46B.004(d) (West 2006 & Supp. 2012).

7 Requiring that for “all prosecutions for felonies, the defendant must be 

personally present at the trial.” TEX. CODE CRIM. PROC. ANN. art. 33.03 

(West 2011).
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Brown. Article 46.005(d) requires that the trial court determine the issue of

incompetency “before the sentence is pronounced.”8

Because Brown’s incompetence was raised before the jury determined his 

guilt, the trial court’s error in not holding a competency hearing had a substantial 

and injurious effect on Brown as he may not have been able to aid in his own 

defense. We are unable to grant an abatement for a retrospective competency 

evaluation due to the language of article 46.005(d)’s requirement that the court 

determine the issue of incompetency “before the sentence is pronounced.” 

Accordingly, the appropriate disposition for this case is to remand for a new trial. 

See TEX. CODE CRIM. PROC. ANN. art. 44.29(a) (West Supp. 2012).

 

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TEX. CODE CRIM. PROC. ANN. art. 46B.005(d) (West 2006 & Supp. 2012).
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Conclusion

Having addressed the State’s rehearing arguments, we deny the requested 

relief. Our judgment of February 23, 2012 remains unchanged.

Jim Sharp

Justice 

Panel consists of Justices Keyes, Bland, and Sharp.

Publish. TEX. R. APP. P. 47.2(b).