# Korey Adeleye v. State

> Texas Court of Appeals, 1st District (Houston) · February 7, 2013

URL: https://www.frixlaw.com/law-library/cases/3119595

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** February 7, 2013
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3119595

## How later opinions describe it (automated extraction)

- noting that trial court is “in a better position to determine whether [the defendant] was presently competent”

## Opinion text

Opinion issued February 7, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-10-00881-CR
NO. 01-10-00882-CR
———————————
KOREY ADELEYE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case Nos. 1212111 & 1212112
MEMORANDUM OPINION

Appellant Korey Adeleye pleaded guilty to two separate offenses of

aggravated robbery without an agreed punishment recommendation. 1 With respect

to each offense, the trial court deferred adjudication of appellant’s guilt and placed

him on community supervision for 10 years. Based on the State’s later-filed

motions to adjudicate, the trial court revoked appellant’s community supervision,

found appellant guilty, and sentenced him to 20 years in state prison in each case.

The trial court granted appellant’s motion for new trial regarding punishment only.

Following the new punishment trial, the trial court again sentenced appellant to 20

years in prison in each case with the sentences to run concurrently. Raising the

same two issues in each appeal, appellant contends that (1) he received ineffective

assistance of counsel at the adjudication hearing, and (2) the trial court erred

because it did not conduct an inquiry into appellant’s competency.

We affirm the judgment in each appellate cause.

Background

In late 2008 and early 2009, appellant participated in the commission of five

aggravated robberies in Harris County and one aggravated robbery in Brazoria

County. With regard to each offense, appellant and his associates robbed store

employees at gunpoint. Appellant was 15 years old at the time. He later admitted

1
See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011).
2
to police that he committed the robberies as a member of a gang, the 52 Hoover

Crips. In two of the robberies, appellant had been the person wielding the gun.

The Harris County juvenile court ordered a full investigation of the offenses

and appellant’s circumstances, along with a diagnostic study and social evaluation

of appellant. After receiving the results of the investigation and conducting a

hearing, the juvenile court found appellant had “sufficient sophistication and

maturity” to have aided in his defense and to be responsible for his conduct. The

juvenile court waived jurisdiction and certified appellant to stand trial as an adult.

Appellant waived indictment, and the State charged appellant in separate

informations with the offense of aggravated robbery with respect to the Harris

County offenses. The State dropped three of the aggravated robbery charges

against appellant. Without an agreed punishment recommendation, appellant

pleaded guilty to the two remaining charges of aggravated robbery. Following the

preparation of a presentence investigation report, the trial court placed appellant on

deferred adjudication community supervision for 10 years in each case.

Four months later, the State filed a motion to adjudicate appellant’s guilt in

each case. The State alleged that appellant had violated 10 separate conditions of

his community supervision. The State asserted that those violations included

appellant’s commission of a new criminal offense and appellant’s communicating

with gang members.

3
The trial court held a hearing on the State’s motions. At the end of the

hearing, the trial court found that appellant had violated the terms and conditions

of his community supervision by committing the offense of terroristic threat and by

communicating with gang members. The trial court adjudicated appellant’s guilt.

Without conducting a punishment hearing, the trial court immediately sentenced

appellant to 20 years in prison in each case with the sentences to run concurrently.

In the juvenile court proceedings and at the adjudication hearing, appellant

had been represented by Kathleen Robbins. Following the adjudication hearing,

appellant obtained new counsel. New counsel filed a motion for new trial in which

they asserted that appellant was entitled to a new punishment hearing because he

had not received a separate punishment hearing following the adjudication hearing.

New counsel also asserted that appellant’s previous attorney had rendered

ineffective assistance of counsel at the adjudication hearing. The motion alleged

that Robbins had failed to call available witnesses to testify at the adjudication

hearing, whose testimony would have been helpful to him. Appellant also asserted

“no investigation was done by counsel of record into mitigation evidence that

would have been favorable to the defense and no objection was made by counsel as

to the complete lack of a punishment hearing.”

The trial court signed an order granting appellant’s motion for new trial with

respect to a new punishment hearing. In the order, the trial court made a finding

4
that appellant had received effective assistance of counsel at the adjudication

hearing but was entitled to a new punishment hearing.

Appellant’s counsel then filed an ex parte motion for appointment of a

mental health and retardation expert to review appellant’s records and interview

him before the new punishment hearing. Counsel stated that they had “discovered

that there was a complete psychological and social history done on [appellant] in

his case in Brazoria County during his adult certification proceedings.” Counsel

stated they saw documents, including recent IQ tests that indicated that appellant

has an overall functional score of approximately 61 IQ, “placing him in the mildly

retarded range.” Counsel averred that appellant’s “mental acuity, intelligence and

overall psychological history will be at issue” at the punishment hearing. Counsel

also filed, under seal, a copy of the evaluations and IQ testing that had been

ordered in the juvenile court proceedings.

The trial court granted appellant’s motion for psychological testing. With

the funds obtained for a court-appointed expert, appellant retained Dr. Steven

Rubenzer to evaluate appellant. The trial court also granted appellant a

continuance of the punishment hearing to permit the doctor to evaluate appellant.

When the punishment hearing began on September 17, 2010, appellant’s counsel

orally moved for a continuance stating that Dr. Rubenzer had not been able to

evaluate appellant. Counsel explained that appellant had been in jail in Brazoria

5
County and that there had been logistical problems transferring appellant to Harris

County. These logistical issues had prevented Dr. Rubenzer from meeting with

appellant.

The trial court noted that it had granted an earlier continuance to facilitate

the psychological evaluation. The court also stated that, for purposes of assessing

appellant’s punishment, in addition to newly introduced evidence, it would

consider evidence previously admitted in the proceedings, including the

presentence investigation (PSI) report and testimony introduced at the adjudication

hearing. The trial court noted that a psychological evaluation had previously been

completed on appellant, and that such evaluation was discussed in the PSI report.

The trial court also noted that, because it was in trial in another case, it

would not complete the punishment hearing that day. It stated that the punishment

hearing would resume the next week on September 21, 2010. The court told

appellant’s counsel that this would allow Dr. Rubenzer time to evaluate appellant.

As his first witness, appellant called Dr. Rubenzer to testify in support of

appellant’s motion for continuance of the hearing. Although he had not had the

opportunity to examine appellant, the doctor testified that he had reviewed two

prior evaluations of appellant and some of appellant’s school records. When asked

whether the recent testing had indicated appellant’s IQ was 62, Dr. Rubenzer

testified, “Well, it reported that number, but [the report] also cautioned that that

6
number might be an underestimate of his abilities based on his presentation during

the evaluation.” Later in his testimony, Dr. Rubenzer again acknowledged that

appellant’s IQ was previously determined to be 62, but noted that the report

indicated it might not be an accurate estimate because during the evaluation,

appellant had been unfocused, distracted and “perhaps not trying his best.”

Dr. Rubenzer also testified that he had reviewed an evaluation in which

appellant’s IQ had been determined to be 78. The doctor stated that this IQ level

did not qualify as mentally retarded but was “borderline.” At the end of the

hearing, the trial court stated that the hearing would be adjourned for four days and

told appellant’s counsel “perhaps that will give Dr. Rubenzer time to interview

your client.”

When the hearing resumed, appellant’s counsel told the trial court that Dr.

Rubenzer had attempted to interview appellant but had been prevented from doing

so by jail personnel. The trial court stated that the punishment hearing would not

be concluded that day and would continue the following day. The court made

arrangements for Dr. Rubenzer to meet with appellant after the hearing adjourned.

However, when the hearing resumed the next day, no mention was made of Dr.

Rubenzer. The defense called two witnesses to testify that day, neither of which

were Dr. Rubenzer. The defense did not ask for another continuance.

7
During the three-day punishment hearing, appellant called six witnesses to

testify who were his friends and family. The testimony of these witnesses, along

with the PSI report, showed that appellant had learning and academic difficulties,

which had become apparent when appellant was in the third grade. Appellant had

been placed in mainstreamed special education classes. Appellant’s relatives

testified that his grades varied at school over the years. A number of the witnesses

indicated that, with support, appellant could succeed at school. The evidence also

showed that appellant had been diagnosed with attention deficit hyperactivity

disorder (ADHD). Appellant’s ADHD affected his ability to focus on tasks and

resulted in poor impulse control.

Appellant’s mother testified that school became more difficult for appellant

when he entered high school. When he became depressed over his difficulty with

school, his mother had appellant admitted to a mental health facility for

approximately a week in December 2008. At the time, appellant’s mother feared

that appellant might attempt suicide. Appellant was diagnosed with depression.

The evidence also showed that appellant had suffered a head injury at some

point before he committed the robbery offenses. After that, appellant experienced

headaches.

At the conclusion of the new punishment hearing, the trial court again

sentenced appellant to 20 years in prison for each offense. These appeals followed.

8
Appellant raises two identical issues in each appeal. He contends (1) he received

ineffective assistance of counsel at the adjudication hearing and (2) the trial court

erred because it did not conduct an inquiry into appellant’s competency at the

second punishment hearing.

Ineffective Assistance of Counsel

In his first issue, appellant contends that he received ineffective assistance of

counsel at the adjudication hearing. He contends that his attorney should have

presented evidence of appellant’s 62 IQ showing that he was “mildly retarded” and

other evidence of his mental deficiencies.

A. Applicable Legal Principles

To prevail on a claim of ineffective assistance of counsel, an appellant must

show the following: (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) a reasonable probability exists that, but for counsel’s

errors, the result would have been different. See Strickland v. Washington, 466

U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068, (1984); Andrews v. State, 159

S.W.3d 98, 101 (Tex. Crim. App. 2005). Failure to make the required showing of

either deficient performance or sufficient prejudice defeats the ineffectiveness

claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009);

Andrews, 159 S.W.3d at 101.

9
Appellant bears the burden of proving by a preponderance of the evidence

that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.

Id. There is a presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance, and counsel’s performance will be found

deficient only if the conduct is so outrageous that no competent attorney would

have engaged in it. Andrews, 159 S.W.3d at 101.

The Court of Criminal Appeals has stated that “[i]n making an assessment of

effective assistance of counsel, an appellate court must review the totality of the

representation and the circumstances of each case without the benefit of

hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). The

court further stated that demonstrating ineffective assistance of counsel on direct

appeal is “a difficult hurdle to overcome.” Id. The court instructed, “[T]he record

must demonstrate that counsel’s performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could justify

trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id.

B. Analysis

Appellant asserts that counsel’s performance at the adjudication hearing was

deficient because counsel did not introduce evidence of his low IQ. Appellant

10
points to two reports containing the findings of psychological evaluations he

underwent as part of the juvenile court certification process. 2 He asserts that

counsel should have introduced these reports and other evidence indicating his

mental deficiencies.

Appellant filed a motion for new trial following the adjudication hearing

alleging that counsel was deficient because she failed to call certain witnesses to

testify for him. He also asserted that he was entitled to a new sentencing hearing

because he did receive a separate punishment hearing. In its order, the trial court

rejected appellant’s assertion of ineffective assistance of counsel but granted

appellant a new punishment trial because he had not had a separate sentencing

hearing.

Appellant did not file a motion for new trial following the new hearing on

punishment. This is significant. With the motion, counsel was not permitted to

testify regarding her trial strategy regarding her decision to present, or not to

present, certain evidence. Absent her testimony, we are left to speculate what

counsel’s trial strategy was regarding the complaint appellant raises against her.

We cannot meaningfully address her strategic reasons for the omission of certain

evidence that appellant now alleges constitutes ineffective assistance of counsel.

2
Appellant attaches these reports to his brief, but he does not point to where they
appear in the record. We cannot consider on appeal items that were not admitted into
evidence. See Webber v. State, 21 S.W.3d 726, 731 (Tex. App.—Austin 2000, pet.
ref’d).
11
See Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.]

2011, pet. ref’d) (citing Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—Houston

[1st Dist.] 1996, pet. ref’d)). In short, we do not know why defense counsel did

not introduce the evidence cited by appellant. Given the silent record, we presume

that counsel had a tactical reason for omitting the evidence. State v. Morales, 253

S.W.3d 686, 696 (Tex. Crim. App. 2008) (“[U]nless there is a record sufficient to

demonstrate that counsel’s conduct was not the product of a strategic or tactical

decision, a reviewing court should presume that trial counsel’s performance was

constitutionally adequate. . . .”). We further presume that trial counsel’s actions

and decisions were reasonable and motivated by sound trial strategy. See Jackson

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has not met his

burden to satisfy the first Strickland component by demonstrating that his

counsel’s performance at the adjudication hearing fell below an objective standard

of reasonableness. See Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064,

2068; Andrews, 159 S.W.3d at 101–02.

Appellant also has not satisfied the second Strickland component. More

precisely, appellant has not shown that there is a reasonable probability that the

result of the proceedings would have been different had counsel introduced

evidence of his mental deficiencies at the adjudication hearing.

12
Appellant makes no substantive argument that the omitted evidence would

have been relevant to appellant’s defense against the State’s motion to revoke

community supervision. Appellant does, however, assert that the omitted evidence

would have served to mitigate his punishment. In making this argument, appellant

fails to recognize that he received a new punishment hearing at which evidence of

appellant’s mental deficiencies was introduced. Even though such evidence was

introduced, appellant again received a 20 year prison sentence for each offense.

We conclude appellant has not shown that there is a reasonable probability

that, but for his counsel’s alleged deficient performance, the outcome of the

proceeding would have been different. See Andrews, 159 S.W.3d at 102. The

failure to make a showing under either of the required prongs of Strickland defeats

a claim for ineffective assistance of counsel. Williams, 301 S.W.3d at 687. We

hold that appellant has failed to show, by a preponderance of the evidence, that he

received ineffective assistance of counsel at trial. See Strickland, 466 U.S. at 687–

88, 694, 104 S. Ct. at 2064, 2068. Accordingly, we overrule appellant’s first issue

in each appeal.

Competency

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

conduct an inquiry and hearing regarding his competency” during the new hearing

13
on appellant’s punishment. Appellant contends that the trial court’s failure to

inquire into his competency deprived him of due process.

A. Standard of Review and Applicable Legal Principles

We review a complaint that a trial court erred because it did not conduct an

informal competency inquiry for an abuse of discretion. See Montoya v. State, 291

S.W.3d 420, 426 (Tex. Crim. App. 2009). A trial court’s assessment of a

defendant’s mental competency is entitled to great deference by a reviewing court.

McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003). We will not

substitute our judgment for that of the trial court; rather, we will determine whether

the trial court’s decision is arbitrary or unreasonable. See Montoya, 291 S.W.3d at

426 (noting that trial court is “in a better position to determine whether [the

defendant] was presently competent”).

At the time of appellant’s punishment hearing, the law provided that the trial

court’s duty to conduct an informal inquiry into the defendant’s competency was

triggered when some evidence raises a “bona fide doubt” that (1) the defendant

lacks a rational and factual understanding of the proceedings against him or (2) he

does not have the ability to consult his attorney with a reasonable degree of

rational understanding.3 See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a)

3
The Texas Legislature amended article 46B.004, effective September 1, 2011, to
add subsection c–1, which provides, in relevant part, that “the court is not required to
have a bona fide doubt about the competency of the defendant.” See Act of May 24,
14
(Vernon 2006), id. art. 46B.004(c) (Vernon Supp. 2012); Montoya, 291 S.W.3d at

425. A bona fide doubt may exist if the defendant exhibits truly bizarre behavior,

has a recent history of severe mental illness, or has at least moderate mental

retardation. See Montoya, 291 S.W.3d at 425. Evidence sufficient to create a bona

fide doubt about the defendant’s competency may come from the trial court’s own

observations, known facts, evidence presented, motions, affidavits, or any other

reasonable or credible sources. Brown v. State, 129 S.W.3d 762, 765 (Tex. App.—

Houston [1st Dist.] 2004, no pet.). The evidence need not be sufficient to find an

accused actually incompetent; rather, it must create “a real doubt in the judge’s

mind as to the defendant’s competency.” See Fuller v. State, 253 S.W.3d 220, 228

(Tex. Crim. App. 2008). If evidence warrants a competency hearing, and the trial

court denies such a hearing, the defendant is deprived of his constitutional right to

a fair trial.4 See Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 842 (1966).

2011, 82nd Leg. R.S., ch. 822, §§ 21(a), 22, 2011 Tex. Sess. Law Serv. 1893, 1899–1900
(codified at TEX. CODE CRIM. PROC. ANN. art. 46B.004(c–1) (Vernon Supp. 2012)). We
do not determine the effect of subsection c–1 to these cases because the subsection was
not in effect at the time of appellant’s second punishment hearing and appellant does not
argue the amendment applies.
4
It is unclear whether appellant is challenging the trial court’s failure to conduct a
competency inquiry or a competency hearing. Nonetheless, to the extent that appellant
argues separately that the court should have conducted either an inquiry or a hearing, the
ultimate issue is the same—was the evidence sufficient to raise a bona fide doubt in the
trial court’s mind about appellant’s competency to stand trial? See Iniquez v. State, 374
S.W.3d 611, 615–16 (Tex. App.—Austin 2012, no pet.) (citing Montoya v. State, 291
S.W.3d 420, 424–25 (Tex. Crim. App. 2009)).
15
B. Analysis

Appellant contends the trial court should have inquired into his competency

and held a subsequent competency hearing based on the evidence presented at the

new punishment trial. Appellant first points out that he was only 15 years old at

the time he committed the robberies. Although he was 15 years old at the time he

committed the aggravated robberies, appellant was 17 years old at the time of the

new punishment hearing. In addition, as mentioned, the record reflects that the

juvenile court ordered a full investigation of the offenses and appellant’s

circumstances along with a diagnostic study and social evaluation of appellant.

After receiving the results of the investigation and conducting a hearing, the

juvenile court found appellant had “sufficient sophistication and maturity” to have

aided in his defense and to be responsible for his conduct. Nothing in the record

indicates that appellant’s youth prevented him from understanding the proceedings

or consulting with his attorney at the second punishment hearing.

Appellant next points to evidence indicating he has an IQ of 62. Appellant’s

62 IQ is characterized in the record as indicating mild mental retardation. Thus, it

is not evidence of “recent, severe mental illness, at least moderate mental

retardation, or truly bizarre acts by [appellant].” See Fuller, 253 S.W.3d at 228

(quoting McDaniel, 98 S.W.3d at 710). In other words, the evidence of appellant’s

62 IQ score did not demonstrate at least moderate retardation. See White v. State,

16
Nos. 05–11–00984–CR, 05–11–00985–CR, 05–11–00986–CR, 2012 WL 3104787,

at *3 (Tex. App.—Dallas July 31, 2012, no pet.) (not designated for publication)

(citing Ex parte Rodriguez, 164 S.W.3d 400, 402 (Tex. Crim. App. 2005)).

Moreover, appellant’s own expert witness, Dr. Rubenzer, explained at the

second punishment hearing that the evaluation report showing the 62 IQ also

indicated that the “number might be an underestimate of his abilities based on his

presentation during the evaluation.” Dr. Rubenzer noted that the report indicated

the 62 IQ might not be an accurate estimate because during the evaluation,

appellant had been unfocused, distracted, and “perhaps not trying his best.” The

record also shows that appellant’s IQ in another evaluation had been determined to

be 78, which as Dr. Rubenzer testified, did not qualify as appellant being mentally

retarded but as being “border line.”

Appellant also cites evidence showing that he had “learning deficiencies”

that caused him to struggle academically and led him to be placed in special

education classes. Placing the evidence in context, the record also reflects that

appellant was mainstreamed into regular classes and could perform satisfactorily

when given academic assistance and support. The record shows that, while he did

not pass some classes, he was successful in others. In any event, evidence of

appellant’s academic challenges did not tend to show incompetency because there

was no evidence that his “learning deficiencies” affected appellant’s present ability

17
at the new punishment hearing to understand the proceedings and to consult with

his attorney. See Moore v. State, 999 S.W.2d 385, 395–96 (Tex. Crim. App.1999)

discussing distinction between evidence of impairment and evidence of

incompetency); see also Montoya, 291 S.W.3d at 425–26.

Appellant points to evidence showing he suffered a head injury before he

committed the offenses nearly two years earlier. While evidence indicated he had

headaches after the head injury, there is no evidence to show the head injury

affected appellant’s present abilities at the second punishment hearing to consult

with his attorney or to understand the proceedings. See Moore, 999 S.W.2d at

395–96; see also Reed v. State, 112 S.W.3d 706, 711 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref’d) (stating evidence of head injury and mental impairment

“alone does not constitute evidence of legal incompetency”).

Additionally, appellant relies on his mother’s testimony that she admitted

him to a health care facility in December 2008 because she feared he might attempt

suicide. While hospitalized, appellant was diagnosed with depression. However, a

person’s past history of depression or mental illness is not an indication of

incompetency unless it shows that it impacts the defendant’s present ability to

understand the proceedings and communicate with counsel. See Montoya, 291

S.W.3d at 425 (“We have held that instances of depression are not an indication of

incompetency and that past mental-health issues raise the issue of incompetency

18
only if there is evidence of recent severe mental illness, at least moderate

retardation, or bizarre acts by the defendant.”); Brown v. State, 129 S.W.3d 762,

766 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (concluding defendant’s

previous mental and behavioral impairments, inability to recall past events,

inability to recall circumstances of charged offense, and depression did not raise

bona fide doubt as to defendant’s competency); Reeves v. State, 46 S.W.3d 397,

399–400 (Tex. App.—Texarkana 2001, pet. dism’d) (concluding evidence of

defendant’s drug addiction and suicide attempt did not reflect on defendant’s

present ability to understand and participate in proceedings against her); Townsend

v. State, 949 S.W.2d 24, 27 (Tex. App.—San Antonio 1997, no pet.) (concluding

suicidal tendencies and depression did not raise bona fide doubt about defendant’s

competency). Here, there was no evidence that appellant’s history of depression in

2008 affected his abilities to understand the proceedings and to consult with his

attorneys in September 2010.

Lastly, appellant points out that it is unclear from the record whether Dr.

Rubenzer ever evaluated him. 5 As discussed, on the second day of the new

5
Appellant also mentions that he was required to undergo a mental health
evaluation as a term of his community supervision. He indicates that such evaluation was
not done before he was adjudicated guilty and incarcerated. However, appellant does not
explain how this point supports his assertion that the trial court erred when it did not
inquire into his competency at the new hearing on punishment; nor does appellant
support the assertion with citation to the record. Thus, appellant’s statement does not
advance his contention on appeal that the trial court erred. See TEX. R. APP. P. 38.1(i)
19
punishment hearing, the trial court stated on the record that it had made

accommodations for Dr. Rubenzer to interview appellant later that day. However,

when the hearing resumed on the third day, appellant did not call Dr. Rubenzer to

testify, nor did the defense state whether the doctor had examined appellant. It is

unknown whether Dr. Rubenzer was unable to examine appellant or whether

appellant simply choose not to offer Dr. Rubenzer’s testimony following the

examination.

Appellant relies on Reed v. State in which the court of appeals held that

sufficient evidence was admitted at trial to raise a bona fide doubt regarding the

appellant’s competence. 14 S.W.3d 438 (Tex. App—Houston [14th Dist.] 2000,

pet. ref’d). The Reed court relied, in part, on the fact that the defense and the State

in that case had requested the appellant to undergo a psychiatric examination. Id.

at 442. The trial court had also ordered that the report from the examination be

filed with the court. See id. No report was ever filed. See id. The court of appeals

held that, because it had requested the psychiatric examination, the State was

estopped from later claiming there was no evidence to show a bona fide doubt as to

appellant’s competence. See id. In this case, the State made no request to have

appellant examined. Thus, Reed is distinguishable on its facts.

(providing that an appellant’s brief must contain clear and concise argument for
contentions made, with appropriate citations to authorities and to the record).
20
Given the record, the trial court could have reasonably concluded that there

was no evidence presented at the new punishment hearing to raise a “bona fide

doubt” (1) appellant lacked a rational and factual understanding of the proceedings

against him or (2) he did not have the ability to consult his attorney with a

reasonable degree of rational understanding. See TEX. CODE CRIM. PROC. ANN. art.

46B.003(a), id. art. 46B.004(c); Montoya, 291 S.W.3d at 425. Therefore, we hold

that the trial court did not abuse its discretion in failing to conduct, sua sponte, a

competency inquiry or hearing. See Montoya, 291 S.W.3d at 425.

We overrule appellant’s second issue in each appeal.

Conclusion

We affirm the judgments of the trial court.

Laura Carter Higley
Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).

21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3119595. Public record. Not legal advice.