Andrew Garcia, Jr v. State

Opinion issued March 10, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00958-CR

———————————

andrew garcia JR. , Appellant

V.

THE STATE OF

TEXAS , Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1176954

MEMORANDUM OPINION

A jury

found appellant, Andrew Garcia, Jr., guilty of the offense of murder [1] and assessed his punishment

at confinement for seventy years. In two

issues, appellant contends that the trial court erred in not performing an

informal inquiry as to his competency to stand trial and in admitting hearsay “identification”

testimony.

We affirm.

Background

After a Harris County grand jury issued a true

bill of indictment, accusing appellant of committing the offense of murder, the

trial court, on August 17, 2009, ordered that appellant undergo a psychiatric

examination. In its order, the trial

court noted that appellant had claimed that he was “hearing voices.” Appellant’s mother confirmed that he had made the

same claims to her. On September 8,

2009, Dr. Ginari Price, pursuant to the trial court’s order, filed a psychiatric

report, in which he stated that he had conducted a psychiatric examination of

appellant. Ginari noted that appellant

was “receiving medication” and needed an “additional time” of fourteen days for

“stabilization.” Ginari did not conclude

that appellant needed a “formal mental health evaluation.” Additionally, on September 25, 2009, Dr.

Enrique Huerta, pursuant to the trial court’s order, filed a psychiatric report,

in which he stated that he had conducted another psychiatric examination of

appellant. Huerta determined that appellant

was “receiving medication” and no longer needed any “additional time” for “stabilization.” Consistent with Ginari’s conclusions, Huerta

did not recommend appellant for a “formal mental health evaluation.” [2] There is nothing else in the record to

indicate that appellant ever raised any challenge to his competency to stand

trial until after jury selection.

On

October 19, 2009, after jury selection, the following exchange occurred between

appellant’s counsel and the trial court:

[Appellant’s

counsel]: Judge, my client is telling me

that he feels he is not competent to stand trial. I don’t necessarily agree with

that assessment. But he’s been telling

me the whole jury selection that—he also said something about that he was

examined at the jail by someone.

[Trial

court]: Yeah.

[Appellant’s

counsel]: And they found him incompetent

is what he’s telling me. I’ve never done a full-blown competency; so, I’m not

really sure.

[Trial

court]: No. We did that a

long time ago.

[Appellant’s

counsel]: I’m not aware of any finding

he’s not competent is what I’m saying.

[Trial

court]: I don’t have any

information of that at all.

[Appellant’s

counsel]: We have the 2l-day in the

file?

[Trial

court]: I know the order

was done a long time ago, probably at the very beginning.

[Appellant’s

counsel]: He is telling me something

recently occurred in jail. Is that

something that would occur in the jail? I’m

not aware. Is that possible?

[Trial

court]: I don’t know. You

can call to forensics and find out—if he would have been found incompetent, I

can assure you they would have sent me a notice. Maybe he would like to be incompetent, but if

he’s competent enough to know he’s incompetent, that’s interesting.

[Appellant’s

counsel]: So, there’s nothing in the

file to reflect that.

[Trial

court]: You are welcome

to look at the file.

[Appellant’s

counsel]: Can I look at the file?

[Trial

court]: Sure. Because I get all those letters.

Following this exchange, the proceedings concluded

for the day. The next day, the trial

commenced, and the parties presented their cases. Neither party raised any further challenges

regarding appellant’s competence to stand trial.

Competency

In his first issue, appellant

argues that the trial court erred in not performing an informal competency

inquiry because appellant’s counsel, after jury selection, suggested that appellant

might be incompetent to stand trial, the record does not include a psychiatric

report of findings from a court-ordered psychiatric examination, a witness

testified during trial that appellant “wasn’t in his right state of mind” at

the time appellant was involved in an extraneous “shooting incident,” and

appellant’s mother testified during trial that appellant was “bipolar and hears

voices.”

We review complaints regarding the

adequacy of the trial court’s informal competency inquiry, and the trial court’s

finding following an informal competency inquiry, for an abuse of discretion. [3] Luna v.

State , 268 S.W.3d 594, 600 (Tex. Crim. App. 2008); Thomas v. State , 312 S.W.3d 732 , 736–37 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d).

A person is incompetent to stand

trial if he does not have a sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding or a rational, as

well as factual, understanding of the proceedings against him. Tex.

Code Crim. Proc. Ann. art. 46B.003(a) (Vernon 2007). 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. Id . art. 46B.003(b) (Vernon 2007). 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. Id . art. 46B.004 (Vernon 2007). On suggestion that the defendant may be

incompetent to stand trial, the trial 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. Id .

art. 46B.003(c) (Vernon 2007). A trial

court should conduct an informal inquiry to determine if there is evidence that

would support a finding of incompetence if it “has a bona fide doubt about the

competency of the defendant.” Montoya v. State , 291 S.W.3d 420, 425 (Tex.

Crim. App. 2009). A bona fide doubt may

exist if the defendant exhibits truly bizarre behavior or has a recent history

of severe mental illness or at least moderate mental retardation. Id .

Here, the trial court, after initially

noting that appellant had claimed to be “hearing voices,” ordered a psychiatric

review of appellant. Pursuant to this

order, Drs. Ginari and Huerta prepared reports, in which they stated their

opinion that appellant did not need a “formal mental health evaluation.” [4] Ginari noted that, at the time of his September

8, 2009 report, appellant was on medication and needed an additional fourteen

days for “stabilization.” Just over

fourteen days later, Huerta noted that appellant remained on medication and no

longer needed additional time for “stabilization.” Although the trial court did not make specific

reference to these reports during its exchange with appellant’s counsel, the

trial court acknowledged that an “order” had been entered “a long time ago” and

that documents from these examinations would be in its file. Thus, the record reveals that the trial court

had already considered, by informal inquiry, the issue of appellant’s

competence to stand trial. Based upon

the history of the proceedings, the trial court could have reasonably concluded

that appellant was competent to stand trial.

This is because a trial court, at the informal inquiry stage, is

entitled to consider reports similar to those furnished here in determining if

there is any evidence of incompetence. [5] See

Luna , 268 S.W.3d at 600 (indicating

that psychiatric examinations, even if not necessary for informal inquiry, may

be considered by trial court); Lawrence

v. State , 169 S.W.3d 319 , 328 n.1 (Tex. App. — Fort Worth 2005, pet. ref’d) (stating that review of any psychological evaluations

of defendant constitutes “useful source” of information for trial court in conducting

informal inquiry); see also Tex. Code Crim. Proc. Ann. art.

46B.021(a) (Vernon 2007) (stating that, on suggestion of incompetency, court

may appoint one or more disinterested experts to examine defendant and report

to court on competency of defendant). The

trial court stated that, after ordering the expert reports, it had not received

any information to indicate that appellant was incompetent to stand trial, and

nothing in the record contradicts this.

Moreover, the trial court could

have reasonably concluded that appellant, during the exchange after jury

selection, did not present any new information or evidence that would have

required another informal inquiry. During

the exchange, appellant’s counsel even suggested that he did not “necessarily”

agree with appellant’s competence claims.

Rather, it appears that counsel was merely inquiring about the status of

any prior competence proceedings. At the

end of the exchange, the trial court invited counsel to review the court’s file

and search it for any reports. Counsel

did not object to proceeding to trial, and there is nothing in the record to

indicate that counsel ever raised a competence objection again or complained

that the reports previously ordered by the trial court had not been prepared, filed

in the record, or misplaced. There is

also nothing in the record to indicate whether appellant’s counsel ever obtained

the reports of Drs. Ginari and Huerta or learned of their findings before

proceeding to trial. In fact, appellant’s

counsel, in arguments at the punishment phase, asked the jury to consider the

fact that appellant suffered mental illness while expressly stating that “[n]o

one’s saying he’s not competent to stand trial.”

In regard to appellant’s reliance

upon the testimony presented at trial by a witness concerning appellant’s state

of mind during the commission of an extraneous offense, we note that this

testimony did not require the trial court to conduct another informal inquiry

into whether appellant was competent to stand trial. And in regard to appellant’s reliance upon

his mother’s testimony at the punishment phase that he was “bipolar” and “heard

voices,” we note that the record reveals that this matter had already been

considered by the trial court in its informal inquiry. Appellant has not cited any authority for the

proposition that such testimony compelled the trial court to conduct another

informal inquiry, and the Texas Code of Criminal Procedure does not provide

that the trial court had any such duty. [6]

Accordingly, we hold that the trial

court did not abuse its discretion in not conducting an informal competence

inquiry just prior to or during the trial on the merits.

We overrule appellant’s first

issue.

Hearsay

In his second issue, appellant

argues that the trial court erred in admitting “identification testimony from a

police officer on an extraneous offense” during the punishment phase of trial

because “the complaining witness was unavailable to testify.”

During the punishment phase, the

State introduced evidence concerning another aggravated robbery allegedly committed

by appellant. Alejandro Ruiz testified that

on July 28, 2009, his mother was staying at his apartment and, when Ruiz

returned to his apartment for lunch, he found his mother outside the apartment

in shock and crying. Based upon what his

mother had told him, Ruiz called for emergency assistance. Ruiz inspected his apartment and discovered

cash and property missing. Ruiz

explained that when police officers showed his mother a photographic lineup,

she identified the person who had robbed her.

Appellant then objected to the testimony concerning what Ruiz’s mother had

said during the identification, and the trial court sustained the objection and

instructed the jury to disregard the testimony about what Ruiz’s mother had

said.

The State then introduced the

testimony of Houston Police Officer J. Sosa.

During the State’s direct examination of Sosa concerning the photographic

lineup that he had shown to Ruiz’s mother, appellant objected to “that portion

of the photograph” that contained her handwritten notes identifying appellant

as her assailant. Appellant’s only

objection was that the handwritten notes constituted hearsay. The trial court overruled appellant’s

objection to the notes and permitted Sosa to testify that Ruiz’s mother had

made the notations.

Although appellant timely objected

to testimony concerning the handwritten notes on the photographic lineup,

appellant did not object to Officer Sosa’s testimony concerning the

identification of appellant by Ruiz’s mother as her assailant. Prior to the line of questioning to which

appellant did object, Sosa testified, without objection, that he had conducted

an investigation into the aggravated robbery and “a photospread was shown to

the complainant where[in] [appellant] was identified.” Sosa further testified, without objection, that

Ruiz’s mother had identified appellant as her assailant after he had given her

the required admonishments. Moreover,

after the challenged line of questioning, Sosa again testified, without

objection, that Ruiz’s mother had identified appellant in the photographic

lineup. Sosa explained that she had selected

the person in the bottom right of the photographic line up, this person was

appellant, and after Sosa interviewed Ruiz’s mother, he presented a case against

appellant to the district attorney. Sosa

also noted that he had learned that appellant was “already wanted on other

cases” and the aggravated robbery case against appellant was still “pending.”

Appellant, on appeal, now generally

complains of Officer Sosa’s testimony concerning the identification of Ruiz’s

mother. However, because appellant did

not object to this testimony at trial, we hold that he has waived this

challenge on appeal. See Tex.

R. App. P. 33.1. Moreover, even construing

appellant’s challenge on appeal as related to Sosa’s testimony regarding the

photographic lineup, the handwritten notations on the lineup exhibit were

merely cumulative of Sosa’s testimony concerning the identification of

appellant by Ruiz’s mother. See Brooks

v. State , 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (providing that

admission of inadmissible evidence becomes harmless error if other evidence

proving same fact is admitted elsewhere without objection); Smith v. State , 236 S.W.3d 282, 300 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d) (stating that “improper admission of

evidence is harmless if the same or similar evidence is admitted without

objection at another point in the trial”). Accordingly, we hold

that any error in the admission of this evidence did not affect appellant’s substantial rights. See Tex. R. App. P. 44.2; Smith , 236 S.W.3d at 300 (noting that “admission

of inadmissible hearsay is nonconstitutional error and will be considered

harmless if, after examining the record as a whole, we are reasonably assured

that the error did not affect appellant’s substantial rights—i.e., did not have

a substantial and injurious effect or influence in determining the jury’s

verdict”).

We overrule appellant’s second

issue.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Higley, and Brown.

Do

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

[1] See

Tex. Penal Code Ann. § 19.02(b)

(Vernon 2003).

[2]

In his reply brief, appellant

complains that neither of these reports were originally contained in the

clerk’s record in the underlying trial cause number, but instead were filed in

a clerk’s record for a separate cause number.

However, the trial court’s order for the psychiatric review, which

appellant himself relies upon, and the two reports authored by Drs. Ginari and

Huerta, all concern the same three identical cause numbers, including the cause

number that is the subject of the instant appeal.

[3] If the trial court had

found evidence to support a finding that appellant was incompetent, the trial

court would have proceeded to a trial on the issue of competency. See

Tex. Code Crim. Proc. Ann. art.

46B.003(a) (Vernon 2007).

[4]

We note that these reports appear to be the reports that appellant’s

counsel inquired about in his exchange with the trial court after jury

selection. Appellant’s counsel asked

about the existence of “the 2l-day in

the file,” and the reports reflect that they were made “not later than

twenty-one (21) days of the issuance” of the trial court’s order.

[5]

If, after informal inquiry, a trial court determines that evidence

exists to support a finding of incompetency, it “shall” order an examination of

a defendant’s competency by an expert. T ex. Code Crim. Proc.

Ann. arts. 46B.005(a),

46B.021(b) (Vernon 2007).

In

his reply brief, appellant complains that “there is no evidence that the judge

examined the medical status reports,” this Court “cannot presume that the

[trial court] examined reports that were hiding in another file,” the trial

court was not entitled to “rely upon [its] memory” of the past proceedings, and

the “medical status reports reflect a cursory psychiatric examination . . .

rather than a full formal mental health evaluation.” As we have noted above, the reports bear the

same cause numbers as the trial court’s order, the record supports a finding

that the trial court considered by informal inquiry appellant’s competence, and

the trial court was entitled to consider its own observations in determining if an informal inquiry was necessary

and if there was “some evidence” from “any

source” that would have supported a finding that appellant was incompetent to

stand trial. Moreover, although a trial

court may rely upon reports at the informal inquiry stage in determining if

there is any evidence of incompetence, there is no statutory obligation for the

trial court to conduct an examination beyond those conducted here. The trial court had requested a psychiatric

review, and two reports were furnished pursuant to its order. The most recent report indicated that

appellant had been “stabilized” on medications and did not need further

examination.

[6]

In his brief, appellant also

asserts that the trial record “is dappled” with evidence of “mental illness”

and “bizarre acts,” but appellant provides no citation to the record in support

of this assertion.