Court of Appeals of Texas, Sixth District, Texarkana
Submitted: November 13, 2019
Appeal from the 102nd District Court Bowie County, Texas
Trial Court No. 18F0805-102
Morriss, C.J., Burgess and Stevens, JJ.
K. Burgess Justice
State's evidence during a bench trial showed that
Clifford Clark spat on a jailhouse nurse and a jailer while
being held on pending charges for arson. As a result, the
trial court convicted Clark of two counts of harassment while
in a correctional or detention facility and sentenced him to
ten years' imprisonment on each count. The trial court
ordered the sentences for the harassment convictions to run
concurrently with each other, but consecutively with the
sentences for the arson convictions. Clark appeals in
companion causes 06-19-00033-CR, 06-19-00034-CR, and
06-19-00051-CR. See Tex. Penal Code Ann. §
22.11(a). The trial court also ordered Clark to pay court
costs for all five convictions even though the charges were
consolidated for trial.
appeal, Clark argues that (1) the record does not contain
sufficient evidence showing that his competence to stand
trial was evaluated by a qualified psychologist, (2) the
trial court erred in finding him competent to stand trial,
(3) his counsel rendered ineffective assistance in failing to
request an evaluation of his sanity at the time of the
offense, (4) his oral waiver of a jury trial was invalid and
unintelligently made on the trial court's representation
that all sentences would run concurrently, (5) each judgment
mistakenly references the existence of a plea bargain, and
(6) the trial court erred in assessing duplicative court
Clark's first complaint meritless and unpreserved,
conclude that the trial court did not abuse its discretion in
finding Clark competent to stand trial, and determine that
Clark failed to meet his burden to show counsel rendered
ineffective assistance. We also find Clark's jury trial
waiver valid because he was not harmed by the lack of a
written waiver and the record fails to show Clark's
waiver was based on misinformation that his sentences would
not be stacked. However, because we sustain Clark's last
two points of error, we modify the judgments for each count
of harassment while in a correctional or detention facility
to delete references to a nonexistent plea bargain and delete
the assessment of duplicative court costs. As modified, we
affirm the trial court's judgments.
The Complaint that the Psychologist Was Unqualified
is Meritless and Unpreserved
competence to stand trial was evaluated by Bryan E. Smith,
Psy.D. On appeal, Clark argues that the record does not show
Smith was statutorily qualified to render an opinion on his
competence. Article 46B.022 of the Texas Code of Criminal
Procedure specifies certain qualifying criteria for a
psychiatrist or psychologist appointed by a trial court to
conduct a competency examination. Smith's evaluation
recited, "As a Texas licensed psychologist …
having met and maintained the provisions required by Article
46B.022 of the Texas Code of Criminal Procedure, Smith is
qualified to conduct this evaluation." Because the
record contains evidence showing Smith was statutorily
qualified, Clark's complaint is meritless.
to preserve a complaint for our review, a party must first
present to the trial court a timely request, objection, or
motion stating the specific grounds for the desired ruling if
not apparent from the context. Tex.R.App.P. 33.1(a)(1);
see Teixeira v. State, 89 S.W.3d 190, 192 (Tex.
App.-Texarkana 2002, pet. ref'd) (a complaint about the
qualifications of an expert must be preserved by a specific
objection). Also, the trial court must have ruled on the
request, objection, or motion, either expressly or
implicitly, or the complaining party must have objected to
the trial court's refusal to rule. Tex.R.App.P.
33.1(a)(2). Clark made no complaint about Smith's
qualifications to the trial court. As a result, he cannot
challenge those qualifications on appeal.
overrule Clark's first point of error as both meritless
The Trial Court Did Not Abuse Its Discretion in Finding Clark
Competent A. Introduction
brief, Clark argues that by ordering an evaluation, the trial
court "implicitly found some evidence to support a
finding of incompetency." He further argues that when
the trial court received Smith's first inconclusive
report, "at that point, there was certainly evidence to
support a finding of incompetency." In support of this
argument, he notes that the first "report contained
additional and much more specific evidence of Clark's
potential incompetence." Thus, he concludes that
"[t]here was insufficient evidence for the trial court
to conclude that Clark was competent to stand trial, as it
did." Clark's argument reflects a misunderstanding
of the procedure for establishing incompetency to stand
Procedure For Resolving Competency Questions Under Article
46B of the Texas Code of Criminal Procedure
a matter of constitutional due process, a criminal defendant
who is incompetent may not stand trial." Boyett v.
State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018)
(citing Turner v. State, 422 S.W.3d 676, 688 (Tex.
Crim. App. 2013)). "A defendant is presumed competent to
stand trial unless proved incompetent by a preponderance of
the evidence." Stine v. State, 300 S.W.3d 52,
60 (Tex. App.-Texarkana 2009, pet. dism'd) (citing Tex.
Code Crim. Proc. Ann. art. 46B.003(b)); Gray v.
State, 257 S.W.3d 825, 827 (Tex. App.-Texarkana 2008,
pet. ref'd). Incompetency to stand trial is shown if a
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).
"We review the totality of the facts surrounding the
trial court's decision on the issue of competency for
abuse of discretion." Stine, 300 S.W.3d at 60
(citing Gray, 257 S.W.3d at 827; Moore v.
State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999)).
a defendant is presumed competent and bears the ultimate
burden of proving incompetence to stand trial, Article 46B
does not allow a trial court to stand by and wait for a
defendant to raise the issue. Rather, in order to ensure that
no incompetent defendant is put to trial, Article 46B places
certain responsibilities on the trial court to inquire into
the matter independently and force the parties to litigate
the issue, if necessary. See Tex. Code Crim. Proc.
Ann. arts. 46B.003(b), 46B.004(a), 46B.005(a).
"Procedurally, a trial court employs two steps for
making competency determinations before it may ultimately
conclude that a defendant is incompetent to stand
trial." Boyett, 545 S.W.3d at 563. "The
first step is an informal inquiry; the second step is a
formal competency trial." Id.
When an Informal Inquiry Is Required
trial court's duty to inquire into the issue of a
defendant's competency to stand trial begins whenever it
receives information "suggesting that the defendant may
be incompetent to stand trial." Tex. Code Crim. Proc.
Ann. art. 46B.004(a), (c). Upon receipt of such information,
"the court on its own motion shall suggest that the
defendant may be incompetent to stand trial," and it
"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."
Tex. Code Crim. Proc. Ann. art. 46B.004(b)-(c). The trial
court may also "appoint one or more disinterested
experts to . . . examine the defendant and report to the
court on the competency or incompetency of the
defendant" prior to holding the informal inquiry. Tex.
Code Crim. Proc. Ann. art. 46B.021(a)(1).
amount of information necessary to trigger an "informal
inquiry" is low. It "may consist solely of a
representation from any credible source that the defendant
may be incompetent." Tex. Code Crim. Proc. Ann. art.
46B.004(c-1). It "may be based on observations made in
relation to one or more of the factors described in Article
46B.024. . . ." Id. Or, it may be based
"on any other indication that the defendant is
incompetent within the meaning of Article 46B.003."
Id. Moreover, "a further evidentiary showing is
not required to initiate the inquiry, and the court is not
required to have a bona fide doubt about the competency of
the defendant." Id.
The Informal Inquiry Stage
the informal inquiry stage, the evidentiary standard requires
the trial court to consider three matters. "First, . . .
whether there is 'some evidence' of incompetency to
stand trial." Boyette, 545 S.W.3d at 563. This
"some evidence" standard requires only that there
be "more than none or a scintilla' of evidence that
'rationally may lead to the conclusion of
incompetency.'" Id. at 564 (citing
Turner, 422 S.W.3d at 692). "Second, a trial
court must consider only evidence of incompetency, and it
must not weigh evidence of competency against the evidence of
incompetency." Id. And third, the evidence must
be such that "it may rationally be inferred not
only 1) that the defendant suffers some degree of
debilitating mental illness, and that 2) he obstinately
refuses to cooperate with his counsel to his own apparent
detriment, but also that 3) his mental illness is
what fuels his obstinacy." Id. The Texas Court
of Criminal Appeals noted that this standard "is not a
particularly onerous one-under this standard, the court asks
"whether putting aside the evidence of competency, there
is more than a scintilla of evidence that would support a
rational finding of fact that the accused is incompetent to
stand trial." Id. In short, while the evidence
must be specific-meaning that it demonstrates more than mere
mental illness and more than a mere failure to cooperate with
defense counsel-there does not need to be much of it to
require the trial court to take further action.
Trial Court's Duties Upon Finding Some Evidence that
Would Support a Finding that the Defendant May Be Incompetent
To Stand Trial
during the informal inquiry stage, the trial court finds
"there is more than a scintilla of evidence that would
support a rational finding of fact that the accused is
incompetent to stand trial," id., then the
trial court is required to do three things: (1) "stay
all other proceedings in the case," Tex. Code Crim.
Proc. Ann. art. 46B.004(d); (2) appoint an expert to conduct
a competency examination (if it has not already done so),
Tex. Code Crim. Proc. Ann. art. 46B.021(b); and (3) move
forward with a formal competency trial, Tex. Code Crim. Proc.
Ann. art. 46B.005(a)-(b). The trial court's requirement
to "hold a formal competency trial" is mandatory,
unless "(1) neither party's counsel requests a trial
on the issue of incompetency, (2) neither party's counsel
opposes a finding of incompetency, and (3) the court
does not, on its own motion, determine that a trial is
necessary to determine incompetency." Tex. Code Crim.
Proc. Ann. art. 46B.005(c) (emphasis added).
When May A Trial Court Forego A Competency Trial Under
the statute's plain language indicates that the exception
in Article 46B.005(c) only applies when the parties and the
trial court agree that the defendant is incompetent,
not when they agree that he is competent. In other
words, the statutory language allows the trial court to
forego a competency trial only when all parties and the court
agree the defendant is incompetent. Absent this narrow
exception, the trial court must conduct a competency trial
when there is some evidence that the defendant may be
incompetent to stand trial. Accordingly, the parties and the
trial court may agree that the defendant is incompetent
without a formal competency trial; but where "there is
more than a scintilla of evidence that would support a
rational finding of fact that the accused is incompetent to
stand trial," Boyette, 545 S.W.3d at 563
(quoting Turner, 422 S.W.3d at 696), the trial court
may not find that he is competent without holding a formal
competency trial. Once that evidentiary threshold has been
passed, the defendant must be given an opportunity to prove
that he is incompetent to stand trial, even if the expert
evaluation concludes that he is competent.
we emphasize that this does not mean that a formal competency
trial is required every time an expert evaluation determines
that the defendant is competent. Far from it. As the Texas
Court of Criminal Appeals noted in Boyette,
"[I]t is not enough to present evidence of either a
defendant's mental illness alone or his refusal to
cooperate with counsel." Boyette, 545 S.W.3d at
563 (citing Turner, 422 S.W.3d at 696). Rather,
"there must be some evidence [at the informal inquiry]
indicating that the defendant's refusal to rationally
engage with counsel is caused by his mental illness"
before the trial court is required to hold a competency
trial. Id. Accordingly, competency trials will only
occur in those instances where the trial court finds
"some evidence to support a finding" that the
defendant's "mental illness is what fuels his
obstina[te]" "refusal to cooperate with his counsel
to his own apparent detriment." Id. at 564.
the factors considered in an expert evaluation is "the
degree of impairment resulting from the mental illness or
intellectual disability, if existent, and the specific impact
on the defendant's capacity to engage with counsel in a
reasonable and rational manner." Tex. Code Crim. Proc.
Ann. art. 46B.024(4). Where the only evidence before the
trial court at the informal inquiry is the expert evaluation
and the expert determines that the defendant's impairment
does not "impact the defendant's capacity to engage
with counsel" then the exception in Article 46B.005(c)
does not come into play because the standard for holding a
formal competency trial will not have been met in the first
place. Consequently, in many cases, a competency trial will
not be required where the expert evaluation determines that
the defendant is competent, notwithstanding Article
46B.005(c)'s one-way application.
Clark fell short of meeting the third requirement of the
"some evidence" standard in Boyette,
namely, there was no "evidence to support a
finding" that the defendant's "mental illness
is what fuels his obstina[te]" "refusal to
cooperate with his counsel to his own apparent
detriment." Boyette, 545 S.W.3d at 563 (citing
Turner, 422 S.W.3d at 696). The record demonstrates
that the trial court ordered Smith to evaluate Clark's
competence to stand trial based on Clark's unopposed
motion requesting a competency evaluation on the suggestion
of incompetence. Smith's first report to the court,
agreeing that Clark had a "longstanding history of
mental disorder including paranoid schizophrenia, depression,
and bipolar disorder," was inconclusive due to
Clark's lack of cooperation ...