1 John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeal s, si tt ing by assignment. Tex. Gov’tCode An n. §7 5.00 2(a) (1) (V erno n Su pp. 2 003 ). NO. 07-02-0234-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E MAY 7, 2003

______________________________

PHILLIP COOPER, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 2 42ND DIST RICT COURT OF HALE COU NTY; NO. B13279-9901; HON. ED SELF, PRES IDING

_______________________________ Before QUINN and REAVIS, JJ., an d BOYD, S.J. 1 Phillip Cooper (appel lant) appeals from a final judgment revokinghis probatio n. Throu gh three issues, he asserts t hat 1) the tri al court shoul d have held a hearing to determine his competency, 2) his plea was involun tary, 3) the trial court erred in calculat ing the amount of fine, fees and restitut ion he owed, and 4) the tri al court erre d in calcula ting his credit for time served. We modify the judgment and affirm i t as modified.2 A prob ation re voc ation h earin g is a tria l for pu rpos es o f com pete ncy iss ues
. Thompson v. St ate, 654 S.W .2d 26, 28 (Tex. App. --Ty ler 1983, no pet. ) (hol ding t hat due p rocess req uir es tha t no pe rs on sh all have his p robat ion revo ke d wh ile incom pete nt); see also Re eve s v. S tate, 46 S.W .3d 397, 399 (T ex. App.-- Texarkana 200 1, pe t. dism ’d) (the court addressed t he tr ial court ’s f ail ure t o conduct a competency hear ing with re spe ct to the revo cation of the defe nda nt’s pr oba tion). 2 Issue One — Compet ency and Involuntariness Appellant

argues that the trial court should have conducted a compet ency hea ring,
sua sponte , because appell ant’s “overwhelmingfocus” upon his “medical condition” a nd “its resol ution” indicates that he was incompeten t. This fixation also caused his pl eas of true to all but one of the allegati ons in the State’ s motion to rev ok e probation to be involuntar

y, accord ing to appell ant. Sua Sponte Com

petency Heari

ng Aperson is i ncompetent to stand t rial if he doesnot 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 proceeding s against hi m. T EX
. C ODE C RIM
. P ROC
. A NN . art. 46.02 §1(A)(a) (Vernon Supp. 2003). If, during trial, evid e nce of the defendant’s incompetenc y is br ought to the attention of the trial court from any source, it then must conduct a hearing to determine whether there is evidence to support a finding of in comp eten cy. 2 Id. §2(b) (Vern on 1979). How ever, a sua spontehearing is require d onlyif the evidence brought to the trial court’s atte ntion rais ed a bona fide doubt in the mind of the judge as to the defendant’s competency. Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001). Fina lly, a bona fide doubt ari ses when theevidence i ndicates the accused suffered recent severe mental illness, moderate me ntal re tardation, or truly bi zarre acts were commi tted by the defendant. McDaniel v. State, 98 S.W.3d 704, 710 (Tex. C rim.3 The pains wer e diag nosed as sy mptom s of di vert icul osis. 4 For inst ance, appellant was ask ed “what is your m edical condition,” “ do you want to addres s the court on 5(A), ” “what

other medical problems do you have, ” and “wh at do you w ant th e jud ge to do . . . I want you to clarif y that. ” 3 App. 2003); Alcott v. Stat e, 51 S.W.3d at 599 n.10; Reeves v. State, 46 S.W.3d 397, 399 (Tex. App.--Texarkana 2001, pe t. dism’d). Here, appellant contends tha t the trial court was obli gat ed to sua sponteconduct a hearing because he purportedl y was fixated on his medical condition. Y et, a revi ew of the record does n ot bear that out. Appellant did describe his medical probl ems during the hearing upon the State’s motion to revoke proba tion, but he generally did so in response to questioningby either the prosecutor

or his own counsel. And, though he spoke ofthose conditions, he did not dwell on them, as counsel for appellant

insinuates. Furthermore, the purported maladies consi sted of his h avin g inj ured hi s leg after fal ling from abunk at some unmentioned time and his hav ing suffered abdom inal pain s “two o r thre e W edn esda ys ago.” 3 Whether he felt pain at the time of thehearing is something we cannot di scern from the record for it is silent on the matter. So too does it fail toillustra te whether his conditio n distracted hi m, in any w ay, from preparing for the hearing or par ticipating in his defense. And, while he mayhave rambled at times in answering questions p ropounded to him, th e questionsasked wer

e often quiteopen-ended, calling for less than a succinct r esponse. 4 U nder that circumstance, one can har dly concl ude that the rambli ng answer s evince d some mental defect or i ncompetence. We further note that du ring the hearing, appellant’s counsel not onl y stated that he believed appellant to be competent, b ut appellant himsel f stated that: 1) the allegati ons in the motion to rev

oke were t rue (save for one); 2) no one “forced him” to plead true; 3)5 As to t he one al legat ion to which a ppell ant di d not pl ead tr ue, he exp lai ned to t he courtin a coherent

manner why h e tho ugh t it untrue

. Simplyput, he s aid he adm itt ed to using drugs every day to receive assist ance from Sereni ty House, even thou gh th e ad m ission was false . W e do not say t hat t he expl anati on is wise or rea son able but o nly that it was coh eren tly uttered

.

6 Indeed, tha t ap pe llan t m ay h av e tu rn ed to th e S tate for he lp with his m ed ica l co nd ition s m ay its elf be evide nce of his com pete ncy. Itis wel l-s ettle d th at th e S tate m us t pr ov ide m ed ica l ca re for tho se it inca rce rates

. Es telle v. G am ble, 429 U.S . 97, 10 3, 97 S.C t. 285 , 290 , 50 L .Ed.2 d 25 1 (19 76). 4 no one promised hi m anything or threatened hi m in return for the plea; 4)he could read, writeand u nderstand English; 5) he has not been tr

eated for a mental il lness; 6) he understood he had the rig ht to hear, see a nd confront his accusers; 7) he understood he had a right not to incrim in ate himself; 8) he understood the effect of the stipulation of evidence he executed; 9) he understood that the trial court cou l d revoke hi s probation simplyupon his pleas of true to the all egations in the motion to revoke; 10) he discussed the stipulation of evidence and “declarat ion authoriz ing pre-s entence investigation r eport” with his attorney; 11) he voluntarilyand freely s igned the sti pulation of evidence; a nd, 12) despite understanding his rig hts, he never theless w ished to plead t rue to all but one of the allegations

in the motion to revoke. 5 In provi ding that in formation to the trial court, appellant’s answe rs were cohe rent and r espo nsive to the corres ponding questions. Sotoo did they lead t hat court to find “that the plea of t rue t o tho se al legat ions [was] free ly, voluntari ly, know ingly, and intelligently made . . . .” (Emphasis added)

. In shor t, th e rec ord f ails t o con tain evide nce i ndic ative of any recent severe mental illness, moderate mental r etardation, or

truly bi zarre ac

ts by appellan t. Nor does it evince
an inability

on the part of appell ant to consult w ith his law yer w ith a reasonabl e degree of rational understanding or to rati onall y unde rstan d the pr oceedi ngs ag ainst

him. 6 Moreover, the very same evidence illustr

ating that appel lant was q uite competent also evi nced that7 W e fi nd it ironic t hat whi le app ell ant suggests in h is f irst i ssue tha t he wa s incompetent he nonethel ess fi nds himself suffi cient ly

competent t o calcul ate t he d ays of c re dit to wh ich he is p ur po rte dly enti tl ed and execut e an aff idav it contai ning t hat i nformati on.

5 appellant’s pleasof truewer e vol untary

and ma de while i ntelligently understanding their potential conseq uences. Conseq uently, w e overrul e issue one. Issue Two — No C

redit Next, appellant contend s that the tri al court err ed in failing to give him “crediton his fine and fees and in assessing too much re stitution.”We sustain the issue in par t and overrule the remainder. As to the matter of restitution, appel lant agreed, at the hearing on his init ial guil ty plea, to pay the entire $875 as restitution. T hat was a co nditi on of the plea barg ain, a condition to w hich the court accepted. As to the matter of credit “on his f ine and fees, ” appellant arg ues that he was entitled to a $120 credi t. The State concedes on appeal that he is enti tled to a $130 credit and that it cred ited the sum against the outstanding r estitution, r

educing the l atter to $745. Issue Three –

Calculation of Time Served In his last issue, appellant contend s that the tri al court “erred in gi ving [him] only 171 days credi t against hi s sentence.” We overrule the issue. Ap pellant

contends that he i s entitled to a credit of 252 day s. His ar

gument , however, is dependent upon ou r consideration of an af fidavit executed by appell a nt and attached to his app ellate bri ef. 7 Affidavits and like documents attached to one’s brief cannotbe considered by the cour t. Merchandise Center, Inc. v. W NS, Inc., 85 S.W.3d6

389, 394 (Tex. App. --Texarkana 2002, no pet.). We must limit o ur co nsideration of evidence to that appearing in the recor d before the trial court. Id. Acco rdin gly, we modify the judgment below to reflect that the amount of restituti on owed by appellant is $ 745 rather than $8 75 and affirm the judg ment as modified.

Brian Quinn Justice Do not publish

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