Fernando Carrillo v. State ( 2005 )

                     NUMBER 13-03-027-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

FERNANDO CARRILLO,                                                                  Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

                             On appeal from the 148^th District Court

                                        of Nueces County, Texas.

                                M E M O R A N D U M   O P I N I O N

     Before Chief Justice Valdez and Justices Rodriguez and Garza

      Opinion by Chief Justice Valdez  

 This is an appeal of a conviction for murder and two counts of aggravated assault by appellant, Fernando Carrillo.  In two issues, appellant asserts the trial court erred (1) in proceeding to trial without first making a judicial determination appellant was competent to stand trial, and (2) in finding appellant was sufficiently competent to waive his right to trial.  We abate and remand. 

I.  FACTUAL AND PROCEDURAL BACKGROUND

After appellant was indicted on murder and aggravated assault charges, the trial court granted appellant=s motion for a psychiatric examination.  The court appointed Carlos Estrada, M.D., who found appellant suffered a disorder involving paranoia, delusions and grandiose self ideals.  Based on Dr. Estrada=s testimony, a jury found appellant was incompetent to stand trial on February 14, 2002, but also found that there was a substantial probability he would attain competency within the foreseeable future.  Appellant was accordingly ordered to obtain treatment at North Texas State Hospital=s Vernon Campus. On May 10, 2002, Joseph Black, M.D., sent a report to the 148th District Court of Nueces County, in which he stated that appellant had become competent and could now assist an attorney with his case. This report was signed by the chief psychiatrist for the facility.

The judge hearing appellant=s case recused herself on October 1, 2002, due to a conflict of interest, and a new judge was appointed in her place.  The newly appointed trial judge first held a hearing for appellant on October 11, 2002. During this hearing, appellant requested the right to represent himself.  The trial judge allowed him to do so, but also appointed Astandby@ counsel to issue legal advice to appellant and to take over the defense should appellant=s trial methods become unsound.  Following trial, appellant was convicted on all counts.

II.  ANALYSIS

In his first issue, appellant asserts that the trial court erred in proceeding to trial without first making a judicial determination that appellant was competent to stand trial, and that appellant had fifteen days to object after this determination.

Former article 46.02 of the Texas Code of Criminal Procedure governs this case since it was effective at the time of appellant=s criminal acts. Act of May 29, 1975, 64th Leg., R.S., ch. 415, 1975 Tex. Gen. Laws 1095-96 (henceforth Aformer Tex. Code Crim. Proc. Ann. art. 46.02"), repealed by Act of May 2, 2003, 78th Leg., R.S., ch. 35, ' 15, 2003 Tex. Gen Laws 57, 72 (current version at Tex. Code Crim. Proc. Ann. 46B (Vernon Supp. 2004)).

The former statute set forth explicit instructions on how an incompetency hearing must be initiated and the procedure which follows.  Id.; Schaffer v. State, 583 S.W.2d 627, 630 (Tex. Crim. App. 1979). Once a person is judicially declared incompetent under the former statute, this declaration remains standing until the court makes a separate judicial determination that they are once again competent.  Schaffer, 583 S.W.2d at 630.  The person is ordered to obtain treatment at a designated facility for a period not to exceed eighteen months or until the head of the facility medically determines the person is competent to stand trial.  See former Tex. Code Crim. Proc. Ann. art. 46.02, _ 5(a).  If the head of the facility determines the person to be competent, he must notify the court via an affidavit setting forth the reasoning behind the medical determination. Id. at art. 46.02, _ 5(f).  After such notification, the person shall be transferred back into the committing court=s custody within fourteen days, upon the expiration of which, if he is not so transferred, the head of the facility shall automatically transfer the person into the county sheriff=s custody without a judicial recall of the person from the facility.  See id. at art. 46.02, _ 5(g).

In making a judicial determination of competency, the court is allowed to rely solely upon the report issued by the head of the facility. See id. at art. 46.02, _ 5(i).  However, the parties are entitled to make an objection Ain writing or in open court to the findings of the report within fifteen days from the time the report is served on the parties.@  Id. The court will set a hearing if an objection is made, and upon a motion from any party or the court itself, the hearing will be before a jury.  Id.

Appellant contends that the record contains no evidence that a judicial determination was made declaring appellant competent after the chief psychiatrist filed the medical report with the trial judge. Appellant fails to note that during the second day of the trial, the recused judge was called by appellant as a witness.  The court questioned the original trial judge about the proceedings before her recusal, asking if a judicial or administrative determination of competence was made.   She answered that appellant was competent to stand trial.

Further, appellant questioned the recused judge about the medical report declaring him competent.  The recused judge replied that after she had received the report, she ordered appellant recalled to jail to stand trial.  In conjunction, these statements establish that the original trial judge made a judicial determination of competence based on the medical report, as was her prerogative according to law.  Id.

However, the competency report must be furnished to or served on the parties, and the former statute allows for a fifteen day period following service of the report during which an objection in open court or in writing may be made.  See former Tex. Code Crim. Proc. Ann. art. 46.02, _ 5(i); Schaffer at 630.  This Court finds nothing in the record or trial transcripts that shows the report was furnished or served to the appellant in any fashion. Although the medical report declaring appellant competent is contained in the transcript, it was not file stamped. See Schaffer at 630.   Nor did any other evidence exist to show that the parties received and had an opportunity to object to this judicial finding as required by law.  See former Tex. Code Crim. Proc. Ann. art. 46.02, _ 5(i); Schaffer at 630.

As such, this appeal must be abated and the case remanded to the trial court to determine if the parties were furnished or served a copy of Dr. Black=s medical report from  North Texas State Hospital, and if appellant=s attorney was afforded the proper fifteen days to object to those findings. See Schaffer at 630.

III.  Conclusion

This appeal is abated and remanded so the trial court may make the above determination, after which the trial judge is directed to file findings of fact and conclusions of law with this Court.  Upon receipt of the trial court=s determination, we will re-instate the case and decide appellant=s remaining issues on appeal.       

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 28^th day of July, 2005.