Affirmed and Opinion filed October 31, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00784-CR

ARTHUR JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1257323

O P I N I O N

Appellant Arthur Johnson appeals his conviction for aggregate theft by a 

government contractor of between one hundred thousand dollars and two hundred 

thousand dollars. He asserts the trial court erred in failing to grant a motion to 

reconsider his motion in arrest of judgment and in failing to order a second 

competency examination on the court’s own motion. We affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant and his wife, who is not a party to this appeal, each were charged 

by indictment with the offense of aggregate theft by a government contractor of 

between one hundred thousand dollars and two hundred thousand dollars. 

Appellant’s trial counsel became concerned about appellant’s competency to stand 

trial, after appellant appeared in court on a day he was not scheduled to appear and 

demanded the judge ―release‖ him. Counsel moved for an examination to 

determine whether appellant was incompetent to stand trial, and the trial court 

granted this motion. The psychologist who performed the examination concluded,

in May 2011, that appellant was competent to stand trial. 

Appellant first attempted to plead ―guilty‖ in February 2012, pursuant to a 

plea agreement in which the State agreed to dismiss charges against his wife. The 

trial court refused to accept the plea, however, because appellant continued to 

maintain his innocence. Appellant attempted to plead ―guilty‖ a second time in 

July 2012, but the trial court rejected appellant’s plea after concluding that 

appellant was arguing with the trial court over the manner in which he would pay 

restitution. After further proceedings, described in more detail below, the trial 

court stated that the case would be set for a jury trial the following day.

The next day, appellant entered a ―guilty‖ plea without an agreed 

recommendation from the State. Before accepting the plea, the trial court queried 

appellant’s counsel regarding appellant’s competency. Appellant’s counsel stated

that appellant was competent. The trial court accepted the plea and sentenced 

appellant to ten years’ confinement, suspended the sentence, and placed appellant 

on community supervision for ten years.

Appellant, acting pro se, filed a document entitled, ―Motion for New Trial 

and Motion in Arrest of Judgment,‖ asserting that he was not in his ―right mental 
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state of mind‖ and that a new trial would be in the interest of justice. The trial 

court denied the motion. In September 2012, seventy days after the trial court 

signed the judgment, appellant’s new counsel filed two motions: (1) a motion to

reconsider the motion for new trial, and (2) a ―Motion for Reconsideration of 

Motion in Arrest of Judgment‖ (hereinafter, ―Motion to Reconsider‖), in which 

appellant, for the first time, asked the trial court to quash the indictment against 

him because the State’s prosecution of him under the Texas theft statute is 

preempted by a federal statute governing health-care fraud. The trial court 

overruled both motions. This appeal followed.

II. ISSUES AND ANALYSIS

Appellant challenges the trial court’s denial of the Motion to Reconsider and 

also asserts the trial court abused its discretion in failing to order a second 

competency examination before accepting appellant’s ―guilty‖ plea because of 

evidence supporting a finding of appellant’s incompetency to stand trial.

A. Did the trial court err in denying the Motion to Reconsider?

In his first issue, appellant contends the trial court erred in denying his 

Motion to Reconsider. In this motion, appellant argued that the State’s prosecution

of him under the Texas Penal Code is preempted by federal law; therefore, he 

argues, the trial court should have quashed the indictment against him. For the 

purposes of our analysis, we presume, without deciding, that the Motion to 

Reconsider and the arguments contained therein were timely presented to the trial 

court. 

To support his preemption claim, appellant alleges a defect in the substance 

of the indictment against him. If a defendant does not object to a defect, error, or 

irregularity of form or substance in an indictment before the date on which the trial 

on the merits begins, he waives and forfeits the right to object to the defect, error, 
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or irregularity, unless the defendant objects that there is no indictment at all, which 

is a jurisdictional defect. See Tex. Code Crim. Proc. art. 1.14(b) (West 2006); Teal 

v. State, 230 S.W.3d 172, 176–77 (Tex. Crim. App. 2007).

Appellant failed to tender any objection to the indictment before the date of 

trial, and his objection was not that there was no indictment at all. By failing to 

object to the indictment before trial, appellant waived and forfeited his right to 

raise this objection. See art. 1.14(b); Teal, 230 S.W.3d at 180–82. Therefore, the 

trial court did not err in denying appellant’s Motion to Reconsider. Accordingly, 

we overrule appellant’s first issue.

B. Did the trial court err in failing to order a second competency 

examination on its own motion?

In his second issue, appellant asserts that the trial court erred in failing to 

order a second competency examination on its own motion after he exhibited 

before the court behavior suggesting he was incompetent to stand trial. Appellant 

asserts that, before accepting appellant’s ―guilty‖ plea, the trial court conducted an 

informal inquiry under article 46B.004(c) of the Texas Code of Criminal 

Procedure. See Tex. Code Crim. Proc. Ann. art. 46B.004(c) (West 2013). 

Appellant argues that the trial court erred by failing to determine that there was 

evidence to support a finding of incompetency, which would have required a 

competency examination. See Tex. Code Crim. Proc. Ann. art. 46B.005(a) (West 

2013). 

We review the trial court’s decision not to order a competency examination

under an abuse-of-discretion standard. Young v. State, 177 S.W.3d 136, 139 (Tex. 

App.—Houston [1st Dist.] 2005, pet. dism’d). Under this standard, we view the 

evidence in the light most favorable to the trial court’s ruling and uphold the ruling 

if it falls within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 
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109, 112 (Tex. Crim. App. 2007). A reviewing court cannot substitute its 

judgment for that of the trial court, but instead determines whether the trial court’s 

decision was arbitrary or unreasonable. Id. A trial court abuses its discretion when 

no reasonable view of the record could support the trial court’s ruling. See id. 

The conviction of an accused person while he is legally incompetent to stand 

trial violates due process. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. 

App. 2003). 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 and factual understanding of the 

proceedings against the person. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West

2013). A person is presumed competent to stand trial and shall be found 

competent to stand trial unless proven incompetent by a preponderance of the 

evidence. Id. art. 46B.003(b) (West 2013). If evidence suggesting the defendant 

may be incompetent to stand trial comes to the attention of the trial court, the court,

on its own motion, shall suggest that the defendant may be incompetent to stand 

trial. Id. art. 46B.004(b). Upon suggestion that the defendant may be incompetent 

to stand trial, the court shall determine by informal inquiry whether there is some 

evidence from any source that would support a finding that the defendant may be 

incompetent to stand trial. Id. art. 46B.004(c). After an informal inquiry, if the 

trial court determines that evidence exists to support a finding of incompetency, the 

court shall order an examination to determine whether the defendant is 

incompetent to stand trial in a criminal case. Id. arts. 46B.005(a); 46B.021. 

Appellant’s trial counsel initially questioned appellant’s competency, and 

the trial court ordered an examination to determine whether appellant was 

incompetent to stand trial in a criminal case. See id. arts. 46B.005(a); 46B.021. 

The psychologist who performed the examination concluded, in May 2011, that 
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appellant was competent to stand trial. 

Appellant attempted to plead ―guilty‖ on July 9, 2012, but the trial court 

rejected appellant’s plea after concluding that appellant was arguing with the trial 

court over the manner in which he would pay restitution. The trial court then 

began making preparations for trial and asked counsel if they wanted to start the 

trial that day. Appellant’s counsel stated he preferred not to do so. The parties 

then began working out the timing for the beginning of trial the following day. 

During this colloquy regarding timing, appellant, who had been outside the 

courtroom, apparently entered the courtroom. The trial court asked, ―What is it? 

Does he have trouble remembering his name?‖ Appellant’s counsel answered 

―[n]o, your honor,‖ and appellant then stated ―I want to represent my church.‖ The 

court then asked, ―Does he need to wear that for some reason?‖ Appellant’s 

counsel answered in the negative. Then, there is a gap in the record which the 

reporter’s record shows to have lasted for no longer than ten minutes. When the 

record resumes, the trial judge starts by declaring that she ―just had to declare a 

mistrial, because [appellant] continued to talk to the Court when I asked [him] not 

to; and the jury heard that conversation.‖ The trial court then cautioned appellant 

that his action was contemptuous, but that she would not hold him in contempt 

because she did not think he was trying to be rude. The trial judge stated that she 

would give appellant the benefit of the doubt that he ―jabber[s] when [he is] 

nervous.‖ The trial court stated that the case would be set for a jury trial the 

following day.

On the following day, appellant entered a ―guilty‖ plea without an agreed 

recommendation from the State. Before accepting the plea, the trial judge 

questioned appellant’s trial counsel, asking whether he had an opportunity to talk 

with appellant, whether appellant was competent to enter a plea, and whether trial 
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counsel was waiving an insanity defense. Counsel responded affirmatively to all 

questions. 

Appellant and the State both assert that, before accepting appellant’s plea on 

July 10, 2012, the trial court conducted an informal inquiry under article 

46B.004(c) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. 

Ann. art. 46B.004(c). We presume, without deciding, that the trial court conducted 

such an informal inquiry. 

Appellant asserts that the trial court abused its discretion by failing to 

determine that there was evidence to support a finding of incompetency, which 

would have required a second competency examination. See Tex. Code Crim. 

Proc. Ann. art. 46B.005(a). Appellant asserts that there was evidence to support a 

finding of incompetency based upon (1) appellant’s bizarre behavior when he 

appeared before the trial court on July 9, 2012; (2) appellant’s alleged trouble 

understanding the proceedings based on his continuing to argue with the trial court 

on that day regarding the terms of his probation. Appellant also argues that the 

trial court’s failure to hold appellant in contempt for his behavior on July 9, 2012, 

shows that the trial court suspected that appellant had a mental disorder. Appellant 

asserts that the trial court’s questions about appellant’s competency on the 

following day show that the trial court had doubts about appellant’s competency. 

Bizarre, obscene, or disruptive comments by a defendant during court 

proceedings do not necessarily constitute evidence supporting a finding of 

incompetency. See Moore v. State, 999 S.W.2d 385, 393–95 (Tex. Crim. App. 

1999); Burks v. State, 792 S.W.2d 835, 840 (Tex. App.—Houston [1st Dist.] 1990, 

pet. ref’d). Appellant’s inappropriate court behavior does not show that he could 

not consult with his attorney with a reasonable degree of rational understanding or 

that he lacked a rational and factual understanding of the proceedings against him. 
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Any failure of appellant to understand how he would be making restitution 

payments does not show a lack of rational and factual understanding of the 

proceedings against appellant. It is not clear why the trial court asked whether 

appellant had trouble remembering his name, but his counsel responded that he did

not. Likewise, the record does not reflect what appellant was wearing that caught 

the trial court’s attention or why appellant said he wanted to represent his church. 

In any event, as reflected in our record, these matters do not support a finding that 

appellant was incompetent to stand trial. 

The trial court’s decision not to hold appellant in contempt for his behavior 

on July 9, 2012, could have been based on a variety of considerations and does not 

necessarily show that the trial court suspected appellant had a mental disorder. In 

any event, this failure to hold appellant in contempt is not evidence supporting a 

finding that appellant was incompetent. Likewise, the trial court’s questions about 

appellant’s competency on July 10, 2012, are not evidence supporting a finding 

that appellant was incompetent. And, the responses the trial court received to these 

questions were not evidence of incompetency either. 

On this record, we conclude that the trial court did not abuse its discretion by 

failing to determine that there was evidence to support a finding of incompetency. 

See Lawrence v. State, 169 S.W.3d 319, 324–25 (Tex. App.—Fort Worth 2005, 

pet. ref’d). Therefore, the trial court did not err in failing to order a second 

competency examination on its own motion. See Tex. Code Crim. Proc. Ann. art. 

46B.005(a). Accordingly, we overrule the appellant’s second issue.

III. CONCLUSION

By failing to object to the indictment before trial, appellant waived and 

forfeited his right to raise the objection he asserts in his first issue. Therefore, the 

trial court did not err in denying appellant’s Motion to Reconsider. The trial court 
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did not abuse its discretion by failing to determine that there was evidence to 

support a finding of incompetency or by failing to order a second competency 

examination on its own motion. Finding no merit in appellant’s issues, we affirm 

the trial court’s judgment.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Donovan.

Publish — TEX. R. APP. P. 47.2(b).