Tevin Ahere v. State ( 2018 )

AFFIRMED; Opinion Filed December 3, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00737-CR
TEVIN AHERE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F15-76047-T
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Schenck
Appellant Tevin Ahere appeals his conviction for aggravated robbery. In his first two
issues, appellant urges the trial court violated his statutory and constitutional rights by restoring
him to competency for purposes of proceeding with his adjudication without reviewing a
psychiatric examination and without a psychiatric examination supporting its determination in the
record. In his third through sixth issues, appellant claims he is entitled to a new trial because his
Presentence Investigation report (PSI) and the reports of Dr. Kristi Compton, Dr. Sandy Le, and
Dr. Gail Johnson were lost and are not included in the district clerk’s record. We affirm the
judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP.
P. 47.4.
BACKGROUND
Appellant was arrested on July 28, 2015, for armed robbery. He was eighteen-years old at
the time and was serving four years’ deferred adjudication community supervision for committing
three robberies in Collin County. On February 4, 2016, the trial court considered the issue of
appellant’s competency to stand trial and ordered appellant to undergo a mental competency
evaluation. Dr. Compton conducted the competency evaluation and prepared a report in which
she opined that appellant was mentally incompetent to stand trial and recommended that he be
remanded to a state psychiatric hospital. On March 8, 2016, the trial court held a competency
hearing during which it took judicial notice of Dr. Compton’s report, which had been filed with
the court on March 1, 2016. The trial court found appellant was not competent to stand trial and
committed him to North Texas State Hospital’s Vernon campus for a period not to exceed 120
days.
On September 12, 2016, the trial court ordered appellant to undergo a second competency
evaluation. Michele L. Borynski, Ph.D conducted the evaluation and issued a report in which she
opined that appellant was not competent to stand trial. Dr. Le and Dr. Johnson also examined
appellant, and they each prepared a Physician’s Certificate of Medical Examination for Mental
Illness. Both doctors opined that appellant’s condition was expected to continue for more than 90
days and recommended that appellant be recommitted to the state hospital.
On January 12, 2017, the trial court held another competency hearing during which the
court took judicial notice of the two certificates of medical examination for mental illness, one
completed by Dr. Sandy Le and dated December 22, 2016, and the other by Dr. Gail Johnson,
dated December 21, 2016. During the hearing, the State called Dr. Michael Pittman to testify. He
testified that he had reviewed Dr. Le’s and Dr. Johnson’s reports and was of the opinion that
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appellant was mentally ill and met the criteria for extended court-ordered inpatient mental health
services. The court found appellant was mentally incompetent to stand trial, and on January 12,
2017, ordered that appellant’s commitment to North Texas State Hospital be continue for a period
not to exceed 12 months.
On March 10, 2017, Lincoln Lim, Ph.D, Geri-Psychologist Program Chief Psychologist at
North Texas State Hospital, issued a report from his evaluation and examination of appellant in
which he opined that appellant was, at that time, competent to stand trial with a high probability
of rapid deterioration due to non-compliance with treatment. The Texas Department of State
Health Services sent the trial court notice of Dr. Lim’s evaluation on March 22, 2017. By docket-
entry dated May 17, 2017, the trial court noted that appellant’s competency had been restored.
On June 22, 2017, appellant entered a non-negotiated plea of guilty to the offense of
aggravated robbery. Appellant indicated he understood the charge and the punishment range and
waived his right to a jury trial. The court admitted appellant’s judicial confession and stipulation
of evidence. The prosecutor then stated, “Your Honor, the State offers the judicial notice of the
PSI with the defendant.” Appellant’s trial counsel stated, “No objection, Judge.” The trial court
responded, “So admitted.” Thereafter, appellant’s trial counsel confirmed that he believed
appellant to be mentally competent at that time. Appellant then testified on his own behalf and
called his mother to testify as well. The trial court sentenced appellant to twelve years’
confinement.
DISCUSSION
A person is incompetent to stand trial if he lacks either sufficient present ability to consult
with his attorney “with a reasonable degree of rational understanding” or a rational and factual
understanding of the proceedings against him. TEX. CODE CRIM. PROC. ANN. art. 46B.003(a).
When a defendant has been found incompetent to stand trial, he may be committed to a state
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hospital for treatment. Id. arts. 46B.071, 46B.073. If the defendant attains competency to stand
trial while at the state hospital, the head of the facility must notify the committing court. Id. art.
46B.079(b)(1). When giving notice, the head of the facility must file a report with the court stating
the reason for the defendant’s discharge; the court, in turn, must provide copies of the report to the
attorneys for the defendant and the State. Id. art. 46B.079(c). Either party may object to the
findings of the report within fifteen days of the court’s receiving notification of the defendant’s
competency. Id. If a party objects to the report, the court must set the competency issue for a
hearing. Id. art. 46B.084(b).
Whether a hearing is required or not, the trial court must make a judicial determination of
the defendant’s competency to stand trial. Id. art. 46B.084(a). The court may make the
determination based on the hospital report and on other medical information or personal history
information relating to the defendant. Id. The determination may be evidenced by a recitation in
a judgment, an order, a docket sheet entry, or any “other evidence that the court ever made a
determination of competency after the appellant’s return from the State hospital.” Schaffer v. State,
583 S.W.2d 627, 631 (Tex. Crim. App. 1979) (op. on reh’g).
We review issues involving competency determinations for an abuse of discretion.
Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other
grounds as stated in Turner v. State, 422 S.W.3d 676, 692, n.3 (Tex. Crim. App. 2013). We may
not substitute our judgment for that of the trial court; instead we determine whether the trial court’s
decision was arbitrary or unreasonable. Id. at 426.
In his first issue, appellant argues the trial court made its determination concerning
restoration of competency without reviewing a psychiatric examination. Here, the record shows
the head of mental health facility to which appellant had been committed provided the court with
a written statement that in his opinion appellant was competent to stand trial.
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We apply a presumption of regularity to proceedings in the trial court. Kelley v. State, 676
S.W.2d 104, 108 (Tex. Crim. App. 1984). In this case, we presume the trial court reviewed the
report it received from the head of North Texas State Hospital. We likewise presume the trial
court distributed the report to the parties as he was required by statute to do and that the parties
were given the opportunity to object to the report and did not do so. The burden is on appellant to
overcome these presumptions of regularity. Wright v. State, 873 S.W.2d 77, 80 (Tex. App.—
Dallas 1994, pet. ref’d). But appellant has not identified any basis in the record that would support
a contrary conclusion. Moreover, the trial court made its judicial determination of competency by
docket-sheet entry after receiving Dr. Lim’s report, which supports the competency determination.
Furthermore, when appellant appeared in court on June 22, 2017, and pleaded guilty to the charged
offense, his counsel represented to the court that appellant was mentally competent and confirmed
the existence of a report establishing his competence. The trial court made a second docket entry
noting its restoration of appellant to competency on June 22, 2017, after the trial judge had the
opportunity to view appellant and discuss matters with him. We conclude the trial court did not
abuse its discretion. Instead, the court made its determination of appellant’s restored competency
based on sufficient and appropriate evidence of that fact. We overrule appellant’s first issue.
In his second issue, appellant claims his due process rights were violated because, while
his trial counsel referenced an unspecified report as supporting restoration of competency, the trial
court never required for it to be made of record. The Texas Department of State Health Services
filed the report with the trial court on March 22, 2017. Consequently, the report is in the record.
We overrule appellant’s second issue.
In his third issue, appellant argues he is entitled to a new trial because the PSI is not in the
record. Texas Rule of Appellate Procedure 34.6 provides that an appellant is entitled to a new trial
for problems involving the reporter’s record only when a significant exhibit is lost through no fault
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of the appellant, and even then he is not entitled to a new trial unless he can demonstrate that the
lost exhibit is necessary to the resolution of his appeal, and cannot be replaced by agreement of
the parties or with a copy determined by the trial court to accurately duplicate with reasonable
certainty the original exhibit. TEX. R. APP. P. 34.6(f).
Appellant asserts that the PSI might show that the evaluation competency report used to
restore him to competency did not support the court’s determination. But the record contains Dr.
Lim’s report, which is sufficient to support the trial court’s determination. Thus, the PSI is not
necessary to the resolution of this appeal. We overrule appellant’s third issue.
In his fourth through sixth issues, appellant argues he is entitled to a new trial because the
reports prepared by Dr. Compton, Dr. Le, and Dr. Thompson opining that appellant was not
competent to stand trial are lost and thus are not included in the court’s record. After appellant
filed his appellate brief, the district clerk prepared and filed a supplemental clerk’s record
containing the reports. Accordingly, appellant’s fourth through sixth issues are moot. We overrule
appellants fourth, fifth, and sixth issues.
CONCLUSION
We affirm the trial court’s judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
170737F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TEVIN AHERE, Appellant On Appeal from the 283rd Judicial District
Court, Dallas County, Texas
No. 05-17-00737-CR V. Trial Court Cause No. F15-76047-T.
Opinion delivered by Justice Schenck.
THE STATE OF TEXAS, Appellee Justices Lang and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 3rd day of December, 2018.
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