See TEX. PENAL CODE ANN. § 22.021(a) (Vernon Supp. 2008). 1

NOS. 12-08-00068-CR

 12-08-00069-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHRISTOPHER HEWITT, § APPEAL FROM THE 217TH

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § ANGELINA COUNTY, TEXAS

 

MEMORANDUM OPINION

Appellant Christopher Hewitt appeals his conviction for two counts of aggravated sexual

assault. In three issues, Appellant asserts that his convictions, and the trial court’s order setting his

two sentences to run consecutively, should be reversed. We affirm.

BACKGROUND

Appellant was charged by separate indictments with two counts of aggravated sexual assault.

Specifically, the indictments alleged that, on two occasions, Appellant sexually assaulted a child

“younger than fourteen years of age.” The trial court appointed counsel to represent Appellant in

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his defense of these two charges.

On May 16, 2006, Appellant filed an agreed motion suggesting incompetency and requesting

an examination of Appellant by a disinterested expert. The following day, the trial court ordered that
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Appellant be examined for competency by Dr. Joseph Kartye, a psychologist in Lufkin, Texas.

Kartye examined Appellant and provided a written report to the trial court. In that report, Kartye

stated his opinion that Appellant was not competent to stand trial. However, Kartye provided the

trial court with the following guidance:

. . . There is ample evidence from both [Appellant’s] history as well as current behavior that mental

retardation significantly impairs his ability to assist his attorney with his defense.

There is the possibility that he could benefit from involvement in a program of instruction that teaches

enough about the legal process and the roles of various court officials, as well as his rights and

responsibilities, to the point that he could eventually be declared competent.

Following a hearing on the matter, at which the report was entered into evidence, the trial court

rendered a written judgment in each case finding Appellant incompetent to stand trial. As part of

its judgment in each case, the trial court ordered that Appellant be committed and confined to the

Vernon Campus of North Texas State Hospital for “further examination and treatment towards the

specific objective of attaining competency to stand trial.” 

Appellant was delivered to the Vernon Campus on July 30, 2007. On October 30, 2007, and

after a period of observation and treatment, Dr. Gloria Bell, a psychologist at the hospital, prepared

a written report for the trial court. After setting forth in detail the data forming the factual basis of

her opinion, Bell stated that Appellant was “presently Competent to Stand Trial.” (emphasis in

original). 

On December 6, 2007, the trial court held a joint competency and plea hearing, addressing

both aggravated sexual assault cases. During the hearing, the trial court allowed Appellant to plead

“no contest” in both cases, and subsequently accepted those pleas. The trial court then found

Appellant guilty in both cases and sentenced him to fifteen years of imprisonment for each. The trial

court ordered that the sentences were to run consecutively. These appeals followed.

COMPETENCY

In his first issue, Appellant asserts that the trial court rendered a judgment that Appellant had
 The competency judgment is styled with the cause number of only one case and was filed in the clerk’s 2

record of that case only.

 According to Appellant’s brief, 3

. . . When the [trial] court questioned Appellant about his stay at Vernon[,] he asked

Appellant about his diagnosis and the Court stated: [‘]I’m asking because I don’t know[.’] (RII. 9,

lines 10-22). This would indicate that the Court had not seen or at least had not read the [expert]

report that determined Appellant had regained competency.

A review of the record reflects that the document titled “JUDGMENT RESTORING COMPETENCY” was signed and

filed in the clerk’s record before the hearing cited above began.

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gained competency in only one of the two pending aggravated sexual assault cases. As such, 2

Appellant argues that the trial court erred by resuming proceedings in the other case (appellate cause

no. 12-08-00068-CR). In his second issue, Appellant asserts that the trial court abused its discretion

when it rendered any judgments finding that Appellant had gained competency to stand trial. More

specifically, Appellant argues that the trial court rendered any competency judgments without first

reviewing adequate evidence upon which to base such a judgment.3

Competency Proceedings

Under the Due Process Clause of the Fourteenth Amendment to the United States

Constitution, a trial court may not accept a criminal defendant’s no contest plea unless that defendant

is legally competent to make such a plea. See Godinez v. Moran, 509 U.S. 389, 400, 113 S. Ct.

2680, 2687, 125 L. Ed. 2d 321 (1993) (applying such a rule in guilty plea context). It is the

constitutional duty of each state to provide reasonable procedures to address the issue of competency.

Medina v. California, 505 U.S. 437, 449-50, 112 S. Ct. 2572, 2579-80, 120 L. Ed. 2d 353 (1992).

Further, a defendant whose competence is in doubt cannot be deemed to have expressly or implicitly

waived his right to such procedures. See id., 505 U.S. at 449, 112 S. Ct. at 2579; Pate v. Robinson,

383 U.S. 375, 384, 86 S. Ct. 836, 841, 15 L. Ed. 2d 815 (1966).

Article 46B.084 of the Texas Code of Criminal Procedure requires that, after a defendant has

been adjudicated incompetent to stand trial and has been criminally committed to a mental hospital,

the trial court must make a judicial determination that the defendant has regained competency before

the criminal proceedings against him may be resumed. See TEX. CODE CRIM. PROC. ANN. art.

46B.084(a), (d) (Vernon Supp. 2008); Bradford v. State, 172 S.W.3d 1, 4-6 (Tex. App.–Fort Worth
 Because it is unnecessary to do otherwise, we refer to only the current version of Article 46B.084 in this 4

opinion.

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2005, no pet.). When the head of a mental health facility discharges a committed defendant to the 4

trial court, the trial court may, absent timely objection, make a competency determination based

solely on the report filed by the head of the facility where the defendant had been committed. See

TEX. CODE CRIM. PROC. ANN. art. 46B.084(a); Bradford, 172 S.W.3d at 5. “If the defendant is

found competent to stand trial, criminal proceedings against the defendant may be resumed.” TEX.

CODE CRIM. PROC. ANN. art. 46B.084(d); see Bradford, 172 S.W.3d at 4-5.

Under Article 46B.084, once a defendant is found incompetent, he is presumed to be

incompetent to stand trial until it has been determined in accordance with the law that he is

competent to stand trial. See TEX. CODE CRIM. PROC. ANN. art. 46B.084(a), (d); Bradford, 172

S.W.3d at 4. As such, appellate courts may not construe a trial court’s decision to resume

proceedings against a defendant to include an implied finding of competency. See Schaffer v. State,

583 S.W.2d 627, 630 (Tex. Crim. App. 1979) (requiring additional evidence that trial court made

competency finding); Bradford, 172 S.W.3d at 5 (same); Bell v. State, 814 S.W.2d 229, 232-33

(Tex. App.–Houston [1st Dist.] 1991, pet. ref’d) (same). Expert evaluations containing recitations

of competency cannot operate as a substitute for a judicial fact finding of a defendant’s competency

to stand trial. See Schaffer v. State, 583 S.W.2d 627, 631 (Tex. Crim. App. 1979) (op. on reh’g)

(holding that expert report filed in record was evidence of competency, not evidence the trial court

made a finding of competency); Bradford, 172 S.W.3d at 5 (same); Bell, 814 S.W.2d at 232-33

(same). Instead, some evidence must exist that the trial court actually made a finding that the

defendant had gained competency. See id. The failure of a defendant to object to a resumption in

the proceedings does not waive a defendant’s right to appeal such a resumption. See Bradford, 172

S.W.3d at 6.

Discussion

On December 19, 2008, we abated Appellant’s appeals and remanded the cases to the trial

court to make a judicial determination regarding Appellant’s competency. See Schaffer, 583 S.W.2d

at 631 (op. on reh’g);Bradford, 172 S.W.3d at 6. Pursuant to our order, the trial court held a hearing

and, on February 4, 2009, made written findings in each case. The trial court found in each case that
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Appellant was competent to stand trial at the time of the joint competency and plea hearing and that

Appellant remained so until such time as a final judgment was rendered in both. These findings

were made after reviewing evidence relating to Appellant’s competency, including the reports of

Kartye and Bell. Cf. TEX. CODE CRIM. PROC. ANN. art. 46B.084(a) (trial court may, absent timely

objection, make a competency determination based solely on report filed); Bradford, 172 S.W.3d

at 5 (same). These reports provided sufficient evidence for the trial court to make its findings. Cf.

id. Further, these findings were made within a reasonable time after December 6, 2007, the date of

the joint competency and plea hearing. See Schaffer, 583 S.W.2d at 631 (op. on reh’g)

(July 18, 1979 opinion abating for competency findings to be made regarding trial that occurred on

May 16, 1977). 

In light of the trial court’s judicial determination as to Appellant’s competence, we hold that

the trial court did not violate Appellant’s due process rights by its resumption of proceedings or

acceptance of Appellant’s guilty pleas. See Bell, 814 S.W.2d at 233 (finding no error where case

file contained judgment of competency);see also Godinez, 509 U.S. at 400, 113 S. Ct. at 2687 (trial

court may not accept defendant’s plea unless defendant is legally competent to make plea).

Moreover, the failure, if any, by the trial court to follow the requirements of Article 46B.084 during

the December 6, 2007 joint competency and plea hearing was not preserved for appellate review

because Appellant, an individual determined to be competent, failed to raise a complaint before the

trial court. See TEX. R. APP. P. 33.1 (setting forth the general rule of error preservation); cf.

Bradford, 172 S.W.3d at 6 (holding error preserved where record before it contained no evidence

that trial court had found defendant competent). Therefore, we overrule Appellant’s first and second

issues.

CONSECUTIVE SENTENCES

In his third issue, Appellant argues that his sentences could not be ordered to run

consecutively because the first of the two sentences is void. More specifically, Appellant asserts

that, because the trial court failed to follow the procedures of Article 46B.084 before resuming

proceedings, Appellant’s first sentence is part of a void judgment. We note, however, that while

Article 46B.084 does set forth the procedure necessary for a trial court to resume criminal
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proceedings following a judgment of incompetence, it does not operate to deprive a trial court of

ongoing jurisdiction in that case. See TEX. CODE CRIM. PROC. ANN. art. 46B.084. Because Article

46B.084 is not jurisdictional, we overrule Appellant’s third issue. See Nix v. State, 65 S.W.3d 664,

667-69 (Tex. Crim. App. 2001) (addressing void judgments).

DISPOSITION

We affirm the judgments of the trial court.

 BRIAN HOYLE 

 Justice

Opinion delivered March 25, 2009.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)