1 Joh n T . Boyd , Ch ief Ju stice (Re t.), Sev enth Co urt of A ppe als, sitting by ass ignm ent. NO. 07-02-0397-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E AUGUST 19, 2003

______________________________ SHONQUE R. LUKE, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 108 TH DISTRIC T COURT O F POTT ER COUNTY; NO. 44,528-E; H ONORABLE ABE LO PEZ, JUDGE

_______________________________ Before QUINN and REAVIS, JJ. an d BOYD, S.J. 1
MEMORA NDUM OPIN ION
After appellant Shonque R. Luke’s plea of not guil ty to the offense of assault on a public s ervant, a ju ry conv icted him and, foll owing hi s true plea to the enhancement paragraph included in the indictment, assessed a s punishment a senten ce of confinement2 See Faretta v . California, 422 U.S. 806, 95 S .Ct. 2525, 45 L.Ed. 2d 562 (1975). 2 for 20 years. By a single point of error, appellant all eges “the trial cour t erred in fail ing to conduct a competency i nquiry to determine w hether a competency hearing before a jury must be held to deter mine whether appellant was competent to stand trial.” Based upon the rationale e xpressed he rein, we affirm.
W hile imprisoned on amurder conv iction at the Clements Unit in Amarillo, Texas, appellant

assaulted correctional off icer M anuel Mendo za by s triking him in the face w ith
a closed fist. At the time of the as sault, appella nt was enrolled in the PAMIO (Pr ogram for Aggressively

Mentally Ill Offe nders) p rogr am at the unit. After appe llant was indicted, in the spring of 2002, he filed a Far etta 2 moti on i ndicatin g a d esi re to re pres ent h imse lf. Around the same time, he fil ed a pro se “Motion to Quash Indictment”claiming his personal sovereig n immunity barred any pr osecution agai nst him.
The trial courtentertained appellant ’s Faretta motion at a hearing on June 24, 2002. Atthe hea ring, the court and appellant en gaged, in pertinent part, in the f ollo wing co lloqu y:
The Court: Now, have you ever been tr eated mentally, for

any typ e of mental illn ess, o r hav e you ever been i nstit utiona liz ed in s ome kind of mental ward or any thing of that natur

e? Defendant: I’ve been evaluated. The Court: And can you tel l me what theresultsof that evaluati on were? Defendant: Normal.3

The Court: Normal? W as there some type of uh – com petency exam, or

anything of

that nature donein this all eged – in thi s homicide that occu rred back in Ta rran t Cou nty? Defendant: Yes, there w as. And I was competent. The Court: You wer

e found competent or incompetent? Defendant: I was found compete nt. The Court: Competent. O kay. So, do you have u h – a rationa l

understa nding of the nature of the proceedings that are pending against y

ou? Do you un derstand what you’re accused of, in other words? Defendant: Yes, I do. The Court: Okay. Ag ain, you may disagree w ith the charg es. Of course, you have that

absolute rig ht to do so, but I need to know that have an understanding of what it is that you’re acc used of, and uh – so that you can properl y defend you r self. So, you’re telling me that you’v

e never been instituti onalized i n any ty pe of mental instit ution or

anything of that nature. Is that corr ect? Defendant: Not confined, no. The Court: Have you ever been tr eated by a mental health professional? Defendant: Yes, I have. The Court: For what? Defendant: Aggress ion. The Court: Aggress ion? Did y ou talk to a psychologist, or a psychiatrists (sic) or do you kn ow? Defendant: All of t hem. The Court: How many individ uals – how many mental health professionals have you – have y ou had – hav e treated you or have y ou consulted w ith? Defendant: I can’t say over the course of my whole life. I was jus t in the

Bill Clements PAMIO Program. Psych es run ning unit uh

– assistance of that bui ldi ng, bu t uh – it’s f or aggr essi ve offenders. The Court: Okay.3 We conclude the pr eceding exchange at a hear ing a lit tle less than a month before trial, in fact, constituted an informal co mpetency inquiry . However, because appel lant claim s his de fen sive theories at trial constituted truly bizarr

e acts whi ch should have raised a bona fide doub t about his competen cy to stand trial, we will address his contentions. 4 Defendant: That’s why I have seen psychs all of my li fe for aggress ion,

violence. The Court: And that’s all? Defendant: Yes, sir. The Court: So you’re telling me -- Defendant: Just evalu ated before. The Court:

–are you tel ling me that you do not have any kind of men tal problem at thistime? Defendant: I mean, no psyc h seems to think so. I don’t thi nk so. * * * The Court: Okay. Mr. Ray [defense counsel], do you find any evidence of him having some type of – mental prob lems, other than -- Mr. Ra y: Other

than st aying at

the PAMIO Unit. Like he says, it’s for aggre ssive offenders. Ha ve yo u ever been tothe Jo hn T. Montford Unit, in Lubbock? Defendant: Yes, I was at the hospital at Jo hn T. Montford for ki dney

surge ry. Mr. Ra y: Okay. No psycholog ical eval uation at John T. M ontford? Defendant: I was never admitted to psych, sir. I was at the hospital. 3
Satisfied appellant

understood the pitf alls of self-representat ion and voluntarily, knowingly and intellig ently waived his right to counsel, the tri al court g ranted his Faretta motion and appointed Ray as s tand -by c ounsel. It is clear from the record t hat Ray w as present at each of the subsequent pr oceedings and thatappellant consu lted wit h him on numerous occasions.5

On the mornin g of trial, the court conducted a hearing on appe llant’s moti on to quash the indi ctment. At the hearing , the court q ueried whether appe llant stil l desired to represent

himself. After app ell ant responded affirmati vely, the trial court entertain ed evidence on the motion to q uash. Appellan t argued the indictment s hould be quashed because neither the court nor the United Sta tes m ili tary flag displayed in the courtr oom held jurisdic

tion over him as a sovereign. U npersuaded by appellant’s as sertions, thecourt denied the motion and commenced voir dire.
Duri ng voi r di re, appe lla nt ex amin ed pr

ospe cti ve j uror

s on iss ues of sel f-de fe ns e and explained h is sover eign immunity

defensive theor

y. He tol d jurors, “ [a] sovereig n is
a person, a body or a state invested within its independent supreme authorit y,” and defined sovereign immunity as“the actual i ndependent righ t to keep someo ne from prosecuting you regardless of what the offe nse is.” Appellant commit ted several jurors to listening to both sides of the story and t o rem aini ng op en to his de fen sive theories. At the conclusi on of questioning , ap pel lant consulted Ray, with whom he exercised his peremptory challenges. Appellant

argued, dur ing the cour se of his opening statement, that he wasthe victim of officer brutali ty at the uni t. In that reg ard, he asked thejury to con sider his s ize in relation to the officers who would testify at tria l. Fi nally , appel lant ex plain ed, “a s far as my sovereign immunity g oes, I’ve got paperw ork on all of tha t, the flag and everything . Actual4 W e discern from the record tha t a “bean tool” is a metal instrument used to open the food tray slot in an inmate ’s cell door. 6 photograph to show y

ou, huh, that I’m not

jus t stand ing u p here telli ng you some dream or some theory.” During his cross-examination of the State ’s witnesses, appella nt focus ed on sel fdefense issues. H e stressed the weight differences betwe en himself and the test ifying officers. Additionally, appellant empha sized the officers’ use of a “bean tool” 4 as a weapon ag ains thim, an unarmed in mate. Appellant q uestioned wh ether the officers e xercise d
exces sive force in subduin g him on the dateof the offense in retrib ution for an inci dent involv ing him and other officer s the day before. Finally , appellant was successful in ob taining an admission from on e of the State’s w itnesses that certain objec ts in the cel l block obstruc

ted her vi ew of the ev ents leading up to the assaul t. Appellant

cal led thr

ee w itne sses

to t esti fy

on his behal f. One witness, another officer at the ClementsUnit, testi fied she remembered es corting app ellant to the infirmary
a few times. W hen asked whether she “was prese nt to ass aults in the past against [appellant],”the officer responded “[c]orrec t.” Appellant

also presented two inmateswho minimized appellant’s actions during the assault and claimed theresponding officer used
exces sive force in subduin g him. In closing arguments, appella nt reite rated h is sovereign immunity defense and quoted from t he Fourteenth Amendment to the United States Constitution.7

By his sole poi ntof error, appel lant claims t he trial cour t abused its discr

etion in not cond ucting, sua sponte , a competency inquiry under section 2(b) of artic le 46.02 of th e Code of Criminal Procedure. Specif ically, appellant claims his bizarre defensive theor ies and the fact he partic ipated in the PAM IO program at the Clements U nit should hav e created a bona fide dou bt in the mind of the t rial court . We disagree.
Aperson is presumed to be com petent to stand trial unless proven incompetent. Tex. Code. Crim. Proc. Ann art . 46.02, § 1A(b) (Ve rno n Supp. 2003). A person is incompetent

to stand trial if that

person lacks

“sufficient pres ent ability to consult w ith [that] person’s lawyer with a reasonable degree of rational understanding; or . . . [if that person lacks] a ration al as well as f actual underst anding o f the p roceed ings against [th at] person.” Art. 46.02, § 1A(a). If

evidence of the defen dant’s incompetence is brought to the court’s attention from any source, the court must co nduct a hearing out of the presence of the jury to determine whether there is evidence tosupport a finding of incompetency to stand trial. Art. 46.02, § 2( b) (Vernon 1979)

. Asection 2 hear ing, a competenc y inqui ry, is required o nly if the ev idence brough t to the trial court’s atten tion is such as to raise a bona fide doubt in the cour t’s mind as to the defendant’s competency to stand tri al. Alcott v

. State, 51 S .W.3d 596, 601 (Tex.Cr.A pp. 2001), cert. denied , 525 U.S. 929, 119 S.Ct. 33 5, 142 L.Ed.2d 272 (1998). In general, a bona fide doubt is r aised only

if the evidence i ndicates recent severe mental illness, at least moderate mental retardat ion, or trul y biza rre actsby the defendant. Colli er5 See Tex. Code Crim. Proc. Ann. art. 46.02, § 4 (Vernon Supp. 2003). 8 v. State, 959 S.W.2d 621 , 625 ( Tex.C r.App. 1997). Th e n aked assertio n, “I am incompetent,” uns upported by any facts or evidence, is not sufficient, by itself, to require either a competency inquiry under section 2 or a jury competency heari ng under section 4. McDaniel v. State, 98S.W.3d 704, 711 (Tex.Cr.App. 2003). When a bona fide doubt does exist, the court must conduct the section 2 comp etency inquiry to determine w hether there is “some evidence” to support a finding of inco mpetency and, i f so, to commence a section 4 5 competency hearing before a ju ry. Id . at 710. Having rev ie wed the record, we conclude that a bona fide doubt was n ot raised aboutappellant’s compete ncy to sta nd trial. F irst, at the Faretta hearing, app ellant steadfastly maintained that th e only reas on he had been assig ned to the PAMIO unit was for aggress ion or vi olence. In res ponse to questi oning by the court during tha t procee ding, appellant

acknowled ged he had been tes ted for competency to s tand t rial in Tar rant County when he was tried there for his underl ying m urder conv iction. According to appellant, however , he was found to be competent. Appe llant also denied ever being institutional ized for any mental disorder and f latly stated, no “psyche” ever found him to suffer from mental problems. When Ray asked w hether appellant had ever been t reated atthe Montford Unit, apparently , a psychiatric and medical facility, appellant ex plained he had kidney su rgery

there, but had never been admitted intothe psychi atric porti on of the hospital. Ray never

expressed any concern about his client’s ability to communicate w ith9

him or to understand the charges against him. As a res ult, Ray never asked the court to examine appellant for competen cy to stand trial. Vi ewing t he record as awhole, w e conclude appellant’s p articipati on in the PAMIOprog ram does not ris e to t he l eve l of a bona fide doubt as to hi s competency to stand trial

. Cf . Moor e v. State, 999 S.W.2d 385, 395 (Tex.Cr. App. 1999), c ert denied , 530 U.S. 1216, 120 S .Ct. 2220, 147 L.Ed .2d 252 (2000) (prior hos pitaliza tion and treatment for depression do not per se warrant the trial court to conduct a hearing on comp etence). Next, appellant all eges his defensi ve theories rise to the level of truly bi zarre ac ts which should have created a bona f ide doubt in the mind of the tri al court. Init ially, we note thatappella n t’s acts do no t rise to thelevel of the truly bi zarre. Cf . Clark v . State, 47 S .W.3d 211, 218 (Tex.App.–Be aumont 2001, no pet.) (appellant’s conduct at pret ri a l hearing was bizarre); Reed v. St at e, 14 S.W.3d 438, 442 (Tex.App.–Hous ton [14 th Dist.] 2000, pet. ref’d)(bizar re broad dayli ght episode, taking a full- length aqua green fur coat from Sak ’s and stuffing it in aLord & Taylo r bag, mig ht occasion a s erious ques tion of appellant’s competence). F urthermore, w hile appellant ’s sover eign immunity

and flag claim s were uni que, his other defensive theor ies reflected an under standing of

the charges against him. Appellant

appropriatel y cross -examined theState’s w itnesses and called his
own to prove up his theory of the case. He understood enoug h about the proceedings to mounta reasonable defense and to present the of ficers’ p urported motive for retaliati ng against him because of an incident in volvi ng him the day before. Moreover , through the testimony

of his fellow inmates, appe llant attempted to est ablish his theory that the off icers10

exercis ed excess ive for ce against an unarmed inma te. W e refuse to view appellant’s unique defensive th e ories in a v acuum when the totality of therecord demonstr ates appellant

com petentl y, if not art fully, handled his own d efense in this cas e with the assistance of his stand-by counsel. McDaniel, 98 S.W.3d at 713. Under thes e facts, the trial court did not

err in failing to hold a formal competency inq uiry. A ppellant’s s ole point of error is o verruled

. Accordingl y, the judg ment of the trial court is affirmed.

Don H. Reavis Justice Do not publish

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