the 87th District Court Leon County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
(Chief Justice Gray concurring with a note).[*]
Abushanab pleaded guilty to the offense of assault. The trial
court deferred a finding of guilt, placed Abushanab on
community supervision for 4 years, and assessed a $1000 fine.
The State filed a motion to adjudicate nine days later. The
trial court found the allegations to be true and convicted
Abushanab of the offense of assault. The trial court assessed
punishment at 35 years confinement and a $1000 fine and
ordered the payment of appointed attorney's fees. We
modify the judgment and affirm as modified.
first issue on appeal, Abushanab argues that the trial court
erred in rendering judgment for appointed attorney's fees
without any evidence of his ability to pay. The State
concedes that the attorney's fees were assessed in error
and agrees that the judgment should be reformed to remove the
costs from Abushanab. We sustain the first issue on appeal.
We modify the judgment to delete the requirement that
Abushanab pay his court appointed attorney's fees.
second issue on appeal, Abushanab argues that the trial court
erred in denying his request for a competency evaluation or
conducting an informal inquiry into his competency before
hearing the State's motion to adjudicate. This court has
jurisdiction to resolve the issue of a defendant's
competency at a hearing on the State's motion to
adjudicate. Durgan v. State, 240 S.W.3d 875, 878
suggestion that a defendant may be incompetent to stand
trial, a trial court should determine by informal inquiry
whether there is some evidence that would support an
incompetency finding. Tex. Code Crim. Proc. Ann. art.
46B.004(c) (West Supp.2016). We review a trial court's
failure to conduct a competency inquiry under an abuse of
discretion standard. Moore v. State, 999 S.W.2d 385,
393 (Tex.Crim.App.1999); Fluellen v. State, 443
S.W.3d 365, 369 (Tex.App.-Texarkana 2014, no pet.). A trial
court abuses its discretion if its decision is arbitrary or
unreasonable. Lewis v. State, 911 S.W.2d 1, 7
defendant is presumed competent to stand trial and shall be
found competent to stand trial unless proved incompetent by a
preponderance of the evidence." TEX. CODE CRIM. PROC.
ANN. art. 46B.003(b) (West 2006). "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 of the
proceedings against the person." Tex. Code Crim. Proc.
Ann. art. 46B.003(a) (West 2006). The constitutional standard
for competency to stand trial asks whether the defendant has
a sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding and whether he
has a rational as well as factual understanding of the
proceedings against him. Turner v. State, 422 S.W.3d
676, 689 (Tex.Crim.App. 2013).
January 4, 2016, at the original guilty plea hearing, the
trial court inquired about Abushanab's mental status.
Abushanab stated that he understood the nature and
consequences of the charges against him and that he was able
to consult with his trial counsel about the facts of the
case. Abushanab's trial counsel stated that he believed
Abushanab was competent. On May 20, 2016, at the hearing on
the State's motion to adjudicate, counsel made an oral
motion for a competency hearing. The trial court inquired
whether competency had been an issue previously. The State
responded that there were no concerns about his competency.
The trial court denied the request for a competency hearing.
reviewing the record, we find that nothing suggested that
Abushanab was incompetent at the time of the adjudication.
See Anthony v. State, No., 06-15-00233-CR, 2016
Tex.App. Lexis 6566 (Tex.App. – Texarkana, June 22,
2016, no pet.). The trial court could consider previous
interactions with Abushanab. See Fluellen v. State,
443 S.W.3d at 370. Thus, we find that the trial court's
duty to conduct an informal inquiry on a suggestion of
incompetence was not triggered. See Anthony v.
State, No., 06-15-00233-CR, 2016 Tex.App. Lexis 6566
(Tex.App. – Texarkana, June 22, 2016, no pet.). We
overrule Abushanab's second issue on appeal.
modify the trial court's judgment to delete the
requirement that Abushanab pay his court appointed
attorney's fees. We affirm the judgment as modified.
notes, however, that he disagrees with the Court's
determination that "the trial court's duty to
conduct an informal inquiry on a suggestion of incompetence
was not triggered" citing Anthony v. State.
Anthony v. State, No. 06-15-00233-CR, 2016 Tex. App.
LEXIS 6566 (App.-Texarkana June 22, 2016, no pet.) (publish).
Anthony and Fluellen v. State, 443 S.W.3d
365 (Tex. App.-Texarkana 2014, no pet.), also cited by the
Court, were both cases in which it was argued that there was
sufficient indicia in the record to raise a
"…suggestion … that the defendant may be
incompetent to stand trial." Tex. Code Crim. Proc. Ann.
art. 46B.004(c) (West 2006). They are simply not applicable
in this appeal.
appeal, an oral "Motion for a Competency Hearing"
was made by counsel representing Abushanab. Such a motion, as
a matter of law, constitutes a suggestion that the defendant
is incompetent and triggers the trial court's duty to
"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. (a), (c), (c-1). The trial court clearly
recognized the duty to hold the informal inquiry and
immediately proceeded to that step in the process asking,
"[D]oes the State have anything to add on that? It's
never come up before, has it?" Although the issue had
come up when the trial court conducted its due diligence
before taking Abushanab's plea by investigating his
ability to make a knowing and voluntary plea, see Gray v.
State,257 S.W.3d 825, 827-828 (Tex. App.- Texarkana
2008, pet. ref d), that hearing was conducted by a different
trial court judge and, without something to get the record of
that prior proceeding before the trial court judge as
evidence in this hearing, see Davis v. State, 293
S.W.3d 794, 797-798 (Tex. App.- Waco 2009, no pet.), was not
evidence for purposes of the informal inquiry then being
conducted by the trial court. Abushanab offered no evidence
in support of the motion for a competency hearing. As such,
the only evidence before the trial court as to the
defendant's competence was what had transpired in open
court prior to the informal inquiry conducted by the trial