Affirmed and Memorandum Opinion filed September 20, 2016. 

In The

Fourteenth Court of Appeals

NO. 14-15-00723-CR

EDWARD MCKENZIE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 1444596

M E M O R A N D U M O P I N I O N

Appellant Edward McKenzie appeals his conviction for assault of a public 

servant. See Tex. Penal Code § 22.01(b). In a single issue, appellant asserts that the 

trial court erred by failing to investigate his competency before proceeding to trial. 

We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

Officer Novak, a Metropolitan Transit Authority police officer, was working 

undercover in plain clothes, on October 10, 2014, when he and his partner

investigated some unattended bags near a Metro bus shelter. Novak testified that he 

knelt down and began unzipping one of the unattended bags in search of 

information to identify the bag’s owner. Novak heard someone behind him yell, 

“hold on young buck” and then saw appellant run toward him. Novak had his 

badge hanging around his neck, and he held it up and identified himself as a police 

officer. In response, appellant said “I don’t give a . . . who you are.” Appellant then 

jumped on Novak and they began to fight. 

Novak testified that during the struggle appellant was punching him, and 

Novak attempted to take appellant to the ground. Novak testified that his partner,

Officer Simmons, identified himself as a police officer, instructed appellant to stop 

resisting, and began trying to pull appellant off of Novak. Simmons and Novak 

were able to overcome appellant and bring him to the ground. Novak testified that 

once appellant was on the ground, appellant stated he would “get a shotgun and kill 

[Novak and Simmons].” Novak further testified that once appellant was 

handcuffed, appellant stated he would make a bomb and blow up the Metro Police 

Department. At this point, Novak noticed that appellant’s nose was bleeding,

which he assumed was caused by the scuffle, so Novak contacted EMS and other 

officers that were in full uniform to come to the scene. Novak then contacted the 

District Attorney’s office, they accepted charges, and appellant was transported to 

the Houston Police Department Jail.

Appellant testified that he did not know Novak was a police officer because 

he was in plain clothes and thought Novak was “one of those bums trying to rob 

[him] or something.” Appellant further testified that when he saw Novak at his 
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bag, appellant said to Novak “hey, man, get off my bag,” Novak then turned 

around and hit appellant in the face.

Appellant was charged by indictment on November 4, 2014, with assault on 

a public servant. On November 12, 2014 appellant requested that his case be reset 

and a competency evaluation be conducted. The trial court granted this request and 

reset the case for January 7, 2015. Appellant was evaluated for competency to 

stand trial on January 2, 2015. The examining psychologist concluded that 

appellant was temporarily incompetent to stand trial, but opined that with 

treatment, appellant’s competency “likely could be restored in approximately six to 

nine weeks.” The trial court found appellant temporarily incompetent, and on 

January 7, 2015, the trial court committed appellant to no more than 120 days of 

treatment. On February 24, 2015, seven and a half weeks after appellant began his 

mental health treatment, appellant’s attorney, the prosecutor and the judge all 

agreed that appellant’s competency had been restored and the court issued an order 

for restoration of competency. 

On August 18, 2015, appellant waived his right to a jury trial, entered a plea 

of not guilty, and the case proceeded to a bench trial. The trial court found 

appellant guilty as charged and assessed punishment at ten years’ confinement in 

the Institutional Division of the Texas Department of Criminal Justice. Appellant 

timely filed a notice of appeal.

ANALYSIS

Appellant argues that the trial court erred in failing to investigate his 

competency before proceeding to trial. Specifically, appellant asserts that his 

documented mental health history, temporary incompetency determination, letters 

and motions filed with the court, and erratic behavior at trial was sufficient 

evidence to suggest appellant may not be competent to stand trial. Therefore,
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appellant asserts, the trial court was required to conduct an informal inquiry as to 

appellant’s competency before proceeding to trial, and the trial court erred by

proceeding to trial without first conducting this informal inquiry. 

Standard of Review

We review a trial court’s failure to conduct a competency inquiry under an 

abuse of discretion standard. See Criswell v. State, 278 S.W.3d 455, 457 (Tex. 

App.—Houston [14th Dist.] 2009, no pet.) (citing Moore v. State, 999 S.W.2d 385, 

393 (Tex. Crim. App. 1999). A trial court’s first-hand factual assessment of a 

defendant’s competency is entitled to great deference on appeal. See Ross v. State, 

133 S.W.3d 618, 627 (Tex. Crim. App. 2004) (citing McDaniel v. State, 98 S.W.3d 

704, 713 (Tex. Crim. App. 2003). When we review a trial court’s ruling for abuse 

of discretion, we do not substitute our judgment for that of the trial court, rather we 

decide whether the trial court acted without reference to any guiding rules or 

principles. See Criswell, 278 S.W.3d at 457. An abuse of discretion is not 

demonstrated merely by the fact that the trial court resolved a matter, within its 

discretionary authority, differently than the reviewing court. See id. (citing State v. 

Herndon, 215 S.W.3d 901, 907–08 (Tex. Crim. App. 2007)).

Applicable Law

“A criminal defendant who is incompetent may not be put to trial without 

violating due process.” Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 

2013) (citing Cooper v. Oklahoma, 517 U.S. 348, 354 (1996)); see Criswell, 278 

S.W.3 at 457. The constitutional standard for determining competency to stand 

trial in Texas is codified in Chapter 46B of the Texas Code of Criminal Procedure.

See id. at 689. 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 
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of the proceedings against the person. Tex. Code Crim. Proc. art. 46B.003(a). 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. Id. art. 

46B.003(b). Any party, including the court, may suggest by motion that a 

defendant is incompetent to stand trial. See id. art. 46B.004(a). However, if 

evidence is brought to the attention of the trial court that suggests a defendant may 

be incompetent to stand trial, then the trial court shall suggest on its own motion 

that defendant may be incompetent to stand trial. See id. art. 46B.004(b).

Upon a suggestion of incompetency, the trial court must determine by 

informal inquiry whether some evidence, from any source, exists that would 

support a finding of incompetency. See id. art. 46B.004(c). The threshold 

requirement for an informal inquiry is a suggestion of incompetency. See id. art. 

46B.004(c–1). This suggestion may be established by a credible source’s single 

representation that the defendant may be incompetent. See id. Initiating the inquiry 

does not require any further evidentiary showing or that the trial court have a bona 

fide doubt about the competency of the defendant. See id.

The trial court must consider only the evidence tending to show 

incompetency when making this determination by “putting aside all competing 

indications of competency, to find whether there is some evidence, a quantity more 

than none or a scintilla, that rationally may lead to a conclusion of incompetency.”

See Ex parte LaHood, 401 S.W.3d 45, 52–53 (Tex. Crim. App. 2013) (citing Sisco 

v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. [Panel Op.] 1980)). Evidence 

suggesting the need for an informal inquiry may be based on observations made in 

relation to defendant’s capacity to: (1) rationally understand the charges against 

him and the potential consequences of the pending criminal proceeding; (2) 

disclose to counsel pertinent facts, events, and states of mind; (3) engage in a 
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reasoned choice of legal strategies and options; (4) understand the adversarial 

nature of criminal proceedings; (5) exhibit appropriate courtroom behavior; and (6) 

testify. See Tex. Code Crim. Proc. art. 46B.024(1). It may also be based on any 

evidence indicating that the defendant is incompetent within the meaning of article 

46B.003. Tex. Code Crim. Proc. art. 46B.004(c–1). If the court makes such a 

determination after the informal inquiry, then it must conduct a formal competency 

trial. See Tex. Code Crim. Proc. art. 46B.005(a)–(b).

Application

Appellant asserts that evidence suggesting his incompetence was brought to 

the court’s attention through his documented mental health history, temporary 

incompetency determination, letters and motions filed with the court, and erratic 

behavior at trial. Appellant argues that because this evidence suggested he may be 

incompetent to stand trial, the trial court was required to conduct an informal 

inquiry to determine whether some evidence from any source existed that would 

support a finding of incompetency. See Tex. Code Crim. Proc. art. 46B.004(c).

A documented history of mental illness alone is not sufficient evidence of a 

defendant’s incompetency to stand trial so as to require an informal inquiry. See 

Turner, 422 S.W.3d at 691 (“The fact that a defendant is mentally ill does not by 

itself mean he is incompetent.”); Hobbs v. State, 359 S.W.3d 919, 925 (Tex. 

App.—Houston [14th Dist.] 2012, no pet.) (holding that appellant’s history of 

mental illness insufficient “to warrant a competency inquiry absent evidence of a 

present inability to communicate with his attorney or understand the proceedings”).

When a defendant is mentally ill, the relevant inquiry is whether this mental 

instability resulted in the defendant’s inability to understand the nature of, and 

object to, the proceedings against him, consult with counsel, and assist in preparing 

his defense. See Turner, 422 S.W.3d at 689–91. However, if the defendant’s 
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mental illness prevents him from pursuing his own best interests through engaging 

rationally with counsel or rationally understanding the proceedings against him, 

due process prevents him from being made to stand trial. See id. at 691. When 

evidence raises this possibility, an informal inquiry is required, and if that inquiry 

reveals that the possibility is substantial, a formal competency trial is required. See 

id.

The trial court conducted an initial informal inquiry into appellant’s 

competency on January 2, 2015, when appellant underwent a court ordered 

competency evaluation. Dr. Stephen McCary, the examining psychologist that 

conducted appellant’s competency evaluation, diagnosed appellant with 

Schizoaffective Disorder and Bipolar Type. McCary found that appellant was 

“affected by a moderately severe to severe degree of impairment,” and opined that 

appellant did not presently “appear to be sufficiently able to engage with counsel in 

a reasonable and rational manner.” McCary concluded that appellant was 

temporarily incompetent to stand trial, but opined that with treatment, appellant’s 

competency “likely could be restored in approximately six to nine weeks.” The 

trial court committed appellant to no more than 120 days of treatment. On 

February 24, 2015, seven and a half weeks after appellant began his mental health 

treatment, appellant’s attorney, the prosecutor, and the trial court all agreed

appellant’s competency had been restored through his treatment and the trial court 

issued a restoration of competency order. 

Appellant argues that even though the court signed this order certifying that 

his competency had been restored, the several documents appellant sent to the trial 

court as well as his outbursts and behavior during trial suggested appellant was not 

competent to stand trial. Although appellant’s penmanship makes some of the

letters, affidavits, and power of attorney forms difficult to read, they appear to be at 
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least topically related to appellant’s case. In these documents, appellant seems to 

be describing his version of the incident in a manner that is fairly consistent with 

his trial testimony, and he complains about the State’s lack of evidence; the 

documents also appear to contain various definitions of legal proceedings, causes 

of action, and statutes.

Although these documents may show that appellant lacks familiarity with 

the intricacies of legal analysis and terminology, they fail to evidence an inability 

to understand the nature of, and object to, the proceedings against him, consult 

with counsel, and assist in preparing his defense. See id. at 689–91 (noting the 

relevant inquiry is whether the mental instability resulted in the defendant’s 

inability to understand the proceedings and consult with counsel); Moralez v. State, 

450 S.W.3d 553, 559–60 (Tex. App.—Houston [14th Dist.] 2014, pet ref’d) 

(holding that it is the defendant’s burden to establish incompetency, after there has 

been a finding of restoration). The trial court could have reasonably concluded that 

these documents showed that appellant was impaired to some extent, but that this

impairment did not render appellant incompetent to stand trial. See Moore, 999 

S.W.2d at 396 (holding that “it is within the purview of the trial judge to 

distinguish evidence showing only impairment from that indicating incompetency 

as contemplated by the law”). Therefore, the trial court did not abuse its discretion 

by proceeding to trial without conducting an additional inquiry into appellant’s 

competency. 

Appellant further contends that his behavior during trial suggested he was 

incompetent to stand trial and warranted an informal inquiry by the trial court.

Specifically, appellant asserts that his outbursts during Novak’s testimony and later 

appellant’s inquiry as to whether his conviction was a misdemeanor or felony 

provided sufficient grounds to warrant an informal inquiry into his competency to 
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stand trial. We disagree.

While appellant’s behavior and comments during trial displayed violations

of courtroom decorum, they do not evidence an inability by appellant to 

communicate with his counsel, or appreciate the proceedings against him.

Appellant’s comments did not consist of any unusual rants that might suggest

incompetence; rather appellant’s comments and outbursts were “timely, topical, 

and logically related to the questions and answers offered during the examination 

of [Novak].” Moore, 999 S.W.2d at 395. Additionally, the record reflects that 

when the trial court admonished appellant for his outbursts and instructed him to 

remain quiet during Novak’s testimony, appellant acknowledged the trial court 

responding “Yes, sir.” Moreover, appellant’s testimony was lucid and evidenced 

his ability to communicate with counsel, his understanding of the State’s 

accusations and evidence, and to present a plausible defense based on his 

reasonable alternative version of events. See McDaniel, 98 S.W.3d at 712–13; 

Kostura v. State, 292 S.W.3d 744, 747–48 (Tex. App.—Houston [14th Dist.] 2009, 

no pet.).

Inappropriate outbursts and comments during trial are not evidence of one’s 

incompetency to stand trial. See Moore, 999 S.W.2d at 395 (holding that “if such 

actions were probative of incompetence, one could effectively avoid criminal 

justice through immature behavior”); Johnson v. State, 429 S.W.3d 13, 18 (Tex.

App.—Houston [14th Dist.] 2013, no pet.) (holding that after a defendant has been 

found competent to stand trial, inappropriate court behavior does not evidence a 

lack of understanding of the proceedings and require a second competency 

examination). Appellant’s outbursts during his trial did not suggest incompetency.

Therefore, the trial court did not abuse its discretion by proceeding to trial without 

conducting an additional inquiry into appellant’s competency. 
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CONCLUSION

The trial court certified that appellant’s competency had been restored 

approximately six months prior to his trial, and the record contains no evidence 

establishing a deterioration in appellant’s competency. See Moralez, 450 S.W.3d at

559–60 (concluding that once the defendant’s competency has been restored, it is 

the defendant’s burden to establish that he was not competent to stand trial).

Because appellant’s competency was found to have been restored, neither a

previous finding of temporary incompetency, nor documents expressing 

appellant’s reasonable but inarticulate alternate version of events, nor his 

inappropriate courtroom behavior shows that at the time of his trial appellant 

lacked a present ability to know and understand the charges against him, or that 

appellant was prevented in any way from meaningfully participating in his trial.

Therefore, the trial court did not abuse its discretion by proceeding to trial without 

conducting a second inquiry into appellant’s competency. We affirm the trial 

court’s judgment. 

/s/ Ken Wise

Justice

Panel consists of Justices Busby, Donovan, and Wise.

Do Not Publish — Tex. R. App. P. 47.2(b).