Lead Opinion
MAJORITY OPINION
Appellant Justin Andrew Kostura was convicted following a bench trial of indecency with a child and sentenced to twenty-five years’ imprisonment. In his sole issue on appeal, he contends that the trial court erred by not conducting a competency inquiry sua sponte. We affirm.
Appellant was released from prison in July of 2007. In September of 2007, the
To supplement the PSI, appellant’s trial counsel prepared a Sentencing Memorandum, which summarized medical records from appellant’s previous incarceration as follows:
Diagnosis;
Schizoaffective Disorder
Impulse Control Disorder
03/17/06 [Appellant] striking knuckles against edge of bed.
10/25/06 [Appellant] derailing himself from sessions with hyperreligious and witchcraft themes, “the devil got him_”
10/27/06 [Appellant] complaining about repetitive noises, said it’s like physical pain
11/02/06 [Appellant] hearing voices for a long time, [appellant] requesting more medication
11/03/06 [Appellant] states stepfather abused him, also cut himself on the chest, hearing voices, feeling paranoid and depressed
11/05/06 Hears voices like a whisper
11/07/06 Having hallucinations, [appellant] is depressed, hears voices and sees shadows
11/13/06 I am real paranoid and hear voices, [appellant] states he is good and bad
11/16/06 Still hearing murmuring voices, mood changes to mad to sad, has not hurt himself since moving to Jester IV
11/28/06 Partial remission psychotic — hearing voices and tremors in hands
09/27/07 Mutilation to left upper chest, laceration 2 inches long
10/06/07 [Appellant] seen with laceration to loll upper chest, [appellant] said “he had a light with the devil.”
[Emphasis added]. However, the medical records summarized by and attached to the sentencing memorandum reveal that the last two incidents occurred in September and October of 2006, rather than in 2007, as reported by appellant’s trial counsel. Also, the medical records and trial testimony show that appellant’s previous incarceration ended in July of 2007.
At the punishment hearing, appellant’s mother testified that he was treated at the Mental Health and Mental Retardation Authority (MHMRA) when he was younger. She also testified that appellant had been diagnosed with bipolar schizophrenia during his prior incarceration. Neither the parties nor the trial court raised the issue of appellant’s competence to stand trial. Appellant now asserts that the trial court erred by not conducting a competency inquiry sua sponte.
We review a trial court’s failure to conduct a competency inquiry for an abuse of discretion. Lahood v. State,
Here, appellant argues that the sentencing memorandum contained evidence of recent severe mental illness and truly bizarre acts that should have created a bona fide doubt as to appellant’s competency, such that the trial court erred by failing to conduct a competency inquiry sua sponte. As noted above, our review of the medical records summarized in the sentencing memorandum shows that appellant’s trial counsel apparently erred by reporting two incidents as occurring in 2007, because the incidents were actually documented as occurring in 2006. Indeed, it is clear from the record that appellant’s incarceration at the facility where the records were taken ended well before the dates reported in the summary. Appellant relies on that error to argue that the trial court was presented with evidence that appellant suffered from a recent, severe mental illness within four months of the trial date, February 15, 2008. However, the records reflect that the most recent incident summarized actually occurred over fourteen months prior to the date of trial. Therefore, while the evidence showed that appellant had been diagnosed with a severe mental illness, no evidence suggested the illness was recent. See Brown v. State,
Moreover, appellant’s past history of mental illness and bizarre behavior did not mandate a competency inquiry absent evidence raising a bona fide doubt as to appellant’s present ability to communicate or understand the proceedings. See Lahood,
In support of his sole issue, appellant cites Greene v. State,
Having overruled appellant’s sole issue, we affirm the trial court’s judgment.
SULLIVAN, J., concurring.
Concurrence Opinion
concurring.
I respectfully concur. I agree with the majority that, on the record presented, the trial court did not abuse its discretion by not conducting a sua sponte competency inquiry because ultimately the evidence during trial did not suggest or otherwise raise a bona fide doubt about appellant’s competency to stand trial. See Tex.Code Crim. Proc. Ann. art. 46B.004(b) (Vernon 2006). The earliest suggestion that appellant might be incompetent was during the sentencing process, when appellant’s medical records showed a history of self-mutilation, hallucinations, and psychiatric diagnoses such as schizoaffective disorder, impulse control disorder, bipolar schizophrenia, and attention deficit hyperactive disorder. However, appellant’s testimonial performance at trial,
However, in reaching this conclusion, we are obviously able to review appellant’s performance during trial questioning through hindsight. Trial courts, of course, do not have that luxury. They need tools to allow them prospectively to predict the need for a more thorough competency inquiry.
To assist trial courts in making this determination, the Court of Criminal Appeals has offered a three-prong test: “Generally, to raise the issue [of incompetency], there must be evidence of recent severe mental illness or bizarre acts by the defendant or of moderate retardation.” Mata v. State,
• While there may be some agreement that certain types of mental illness can be considered “severe” in nature, where is the line between “severe” and only “moderate” mental illness?*749 Is it fair to ask trial judges, who presumably lack medical or psychiatric training, to make this determination?
• Can a court fairly conclude, with any degree of confidence, that a once-ill (and potentially incompetent) defendant is now competent simply because his symptoms did not reappear immediately prior to trial?2 Why should the mere passage of time, without more,3 act to discount or disqualify the impact of evidence of a severe mental disorder that would otherwise compel a threshold inquiry as to competency?
• In the absence of training and adequate resources, how would a trial court determine the existence of “moderate” retardation? Is a proper determination dependent upon IQ testing and, if so, how does one account for malingering or intentional underperformance?4
As the Court of Criminal Appeals has observed, “we cannot lose sight of the rationale for requiring that the accused be competent to stand trial. The requirement that the accused be competent to stand trial is a fundamental component of the accused’s right to a fair trial.” Alcott v. State,
For example, other jurisdictions have suggested specific factors for trial courts to consider in deciding whether a given defendant comprehends the nature of the criminal proceedings and can adequately consult with his attorney. See State v. Guatney,
Importantly, consideration of those additional factors would not change the outcome in this case because, as the majority explains, the appellate record affirmatively demonstrates appellant’s familiarity with the criminal proceedings and his ability to formulate an effective defense strategy with his counsel. However, because the current three-factor test may not capably enable trial judges to resolve closer calls than this case, I respectfully concur.
Notes
. Appellant appropriately responded to questioning under both direct and cross examination, was rarely non-responsive, and testified in accordance with the apparent defensive strategy.
. In fact, courts have deemed a time period of only nine months not to be sufficiently "recent.” See Thompson v. State,
. Here, the record reflects that appellant received some psychiatric treatment, including medication and group therapy, after the onset of symptoms.
.See, e.g., Sanders v. State, No. 14-06-01130—CR,