Angel Garay v. State

Opinion issued June 14, 2012.

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-11-00595-CR

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Angel Garay , Appellant

V.

The State of Texas , Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1276317

MEMORANDUM

OPINION

Appellant, Angel Garay, was charged by

indictment with burglary of a habitation.

He pleaded guilty without a sentencing recommendation and the trial

court sentenced him to four years in prison.

On appeal, he contends that the trial court abused its discretion by

failing to conduct a sua sponte inquiry into Garay’s competency after

sentencing. We affirm.

Background

The record shows that Garay and two other men broke into a home

and stole guns and ammunition. Garay

entered a plea of guilty to burglary of a habitation on March 24, 2011.

At his July 5, 2011 sentencing hearing, Garay’s father and

sister testified. Both stated that since

his arrest Garay had not associated with the same friends and had spent more

time at home with his family. Neither

offered any testimony about Garay’s mental health. Garay also testified. According to Garay, he acted only as a

lookout for the other two men involved in the burglary and he participated

because he needed money to pay a lawyer.

Garay testified that he had a job at the time of the hearing and if he

received probation, he would work at a warehouse driving fork-lifts and heating

metals. Garay stated that he intended to

go back to school and get a license for automotive technology. According to Garay, he would be able to

transfer his current enrollment at a college in New Orleans to a school in

Houston.

At the end of the hearing, the trial court sentenced Garay to

four years in prison. After the

sentencing, the trial court ordered that Garay be put on suicide watch. The notes on the trial court’s order show

that while in custody, Garay told the bailiff that he had thoughts of killing

himself but had not had those thoughts on that particular day. He also told the bailiff that he “sometimes

hears voices.”

Standard of Review

A trial court’s decision to not hold a

sua sponte informal inquiry into an appellant’s competency is reviewed for an

abuse of discretion. See Kostura v. State , 292 S.W.3d 744,

746 (Tex. App.—Houston [14th Dist.] 2009, no pet). An abuse of discretion occurs where a trial

court’s decision lies outside the zone of reasonable disagreement. Anderson

v. State , 193 S.W.3d 34, 37 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d). “A trial court abuses its discretion if its

decision is arbitrary or unreasonable.” Lawrence v. State , 169 S.W.3d 319, 322

(Tex. App. — Fort Worth 2005, pet. ref’d).

Applicable Law

A 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. Ann. art. 46B.003(b) (West 2006). A defendant is not competent to stand trial if

he lacks (1) a sufficient present ability to consult with his attorney with a

reasonable degree of rational understanding or (2) a rational as well as

factual understanding of the proceedings against him. Id. art.

46B.003(a).

Under article 46B.004 of the Texas

Code of Criminal Procedure, the issue of a defendant’s competency can be raised

by either party or by the trial court on its own motion. Specifically, article 46B.004 provides:

(a) Either party may suggest by motion, or the

trial court may suggest on its own motion, that the defendant may be

incompetent to stand trial. A motion

suggesting that the defendant may be incompetent to stand trial may be

supported by affidavits setting out the facts on which the suggestion is made.

(b)

If evidence suggesting the defendant may be incompetent to stand trial comes to

the attention of the court, the court on its own motion shall suggest that the

defendant may be incompetent to stand trial.

(c)

On 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.

Tex. Code Crim. App. Proc. Ann. art. 46B.004 (West Supp. 2011).

A defendant has the right to be

competent throughout his or her entire trial, which includes sentencing. Casey

v. State , 924 S.W.2d 946, 949 (Tex. Crim. App. 1996). The Texas competency statutes “allow

competency to be raised by either party or the judge, at any time before

sentencing is pronounced.” Rodriquez v. State , 329 S.W.3d 74, 78 (Tex.

App.—Houston [14th Dist.] 2010, no pet.) (quoting Morris v. State , 301 S.W.3d 281, 290 (Tex. Crim. App. 2009)). This is reflected in Texas Court of Criminal

Procedure article 46B.005(d), which states: “If the issue of the defendant’s

incompetency to stand trial is raised after the trial on the merits begins, the

court may determine the issue at any time before the sentence is

pronounced.” Tex. Code Crim. Proc. Ann. art. 46B.005(d) (West 2008). However, as the Fourteenth Court of Appeals

has previously noted: “[S]entencing

marks the final act of the trial stage [and] closes the door on the trial.” Rodriguez ,

329 S.W.3d at 78 (quoting Casey , 924

S.W.3d at 949). It further noted that, “when

determining if the trial court should have had a bona fide doubt as to

competency, we do not typically consider evidence brought to the trial court’s

attention for the first time after sentencing.”

Id. Rather, we consider only the evidence

actually known to the trial court up until the point of sentencing. Id .

at 78 (citing Brown v. State , S.W.2d

772, 775–76 (Tex. App.—Dallas 1997, pet. ref’d)).

The “evidence” required to trigger the mandatory informal

inquiry can be any fact brought to the court’s attention that raises a bona

fide doubt regarding the defendant’s competency. Fuller

v. State , 253 S.W. 3d 220, 228 (Tex. Crim. App. 2008). Evidence raising a bona fide doubt “need not

be sufficient to support a finding of incompetence and is qualitatively

different from such evidence.” Alcott v. State , 51 S.W.3d 596 , 599 n.10

(Tex. Crim. App. 2001) . Evidence is usually sufficient to create a

bona fide doubt if it shows “recent severe mental illness, at least moderate

retardation, or bizarre acts by the defendant.” See Montoya v. State , 291

S.W.3d 420, 425 (Tex. Crim. App. 2009).

Analysis

It is undisputed that under articles 46B.004 and 46B.005(d), a

trial court is required to hold an informal inquiry into an appellant’s

competency if evidence raising a bona fide doubt about an appellant’s

competency is presented to the trial court before

sentencing. See Tex. Code Crim. Proc.

Ann. art. 46B.004, 46B.005(d). Garay

admits that no evidence that could have triggered a duty to conduct an inquiry

into his competency was brought to the trial court’s attention before

sentencing. However, Garay contends that

even if the trial court was not required

under articles 46B.004 and 46B.005 to inquire into his competency, the trial

court nevertheless had discretion to conduct an informal inquiry on his

competency before it adjourned for the day.

In support of this contention Garay cites Aguilera v. State , 165 S.W.3d 695 (Tex. Crim. App. 2005). In Aguilera ,

the Texas Court of Criminal Appeals held that a trial court has the authority

to modify a defendant’s sentence if the modification is made on the same day as

the assessment of the initial sentence and before the court adjourns for that

day. Aguilera ,

165 S.W.3d at 658 . According to Garay, “if the courts are

free to change their sentence before adjourning for the day as in Aguilera , then clearly they are also free

to inquire into a defendant’s competency.”

Garay contends that because evidence raising a bona fide doubt as to his

competency came to the trial court’s attention only moments after sentencing,

the trial court abused its discretion by not conducting an informal inquiry as permitted

under Aguilera .

The competency

statute requires a trial court to hold an inquiry before sentencing only if

evidence raising a bona fide doubt as to competency is raised before then. See Tex. Code Crim. Proc. Ann. art. 46B.004

(“If evidence suggesting the defendant may be incompetent to stand trial comes

to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial.”)

(emphasis added); Id. art. 46B.005 (if issue of competency “is raised after the trial

on the merits begins, the court may determine the issue at any time before the

sentenced is pronounced”). But as the

Fourteenth Court of Appeals noted in Rodriguez ,

“sentencing marks the final act of the trial stage [and] closes the door on the

trial” such that we will not consider evidence brought to the trial court’s

attention after sentencing in determining whether the trial court erred in

failing to conduct an inquiry. Rodriguez , 329 S.W.3d at 78 (court would

not consider evidence brought to the trial court’s attention for first time in

motion for new trial in evaluating argument that trial court abused its

discretion in failing to conduct sua sponte competency inquiry). There is no requirement that the trial court

conduct a competency inquiry after sentencing.

See Tex. Code Crim. Proc. Ann arts. 46B.004, 46B.005. Accordingly, assuming without deciding that

the trial court, under Aguilera , could have held an informal inquiry into

Garay’s competency after sentencing, we conclude the trial court did not abuse

its discretion by failing to do so.

Conclusion

We

affirm the judgment of the trial court.

Rebeca

Huddle

Justice

Panel

consists of Justices Higley, Sharp, and Huddle.

Do

not publish. Tex. R. App. P. 47.2( b).