TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00143-CR
Cristal Juanita Montoya, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT NO. 75606, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Cristal Juanita Montoya guilty of sexual assault of a child for
performing oral sex on fifteen-year old S.A.I. See Tex. Penal Code § 22.011(a)(2)(C) (defining
offense of sexual assault of child as “caus[ing] the sexual organ of a child to contact or penetrate the
mouth . . . of another person, including the actor”), (f) (classifying offense of sexual assault of child,
generally, as second degree felony). The jury assessed appellant’s punishment at confinement for
five years in the Texas Department of Criminal Justice. See id. § 12.33 (establishing punishment
range for second degree felony). On appeal, appellant complains about the trial court’s failure to sua
sponte conduct an informal inquiry into her competency to stand trial. We find no reversible error.
However, through our own review of the record, we have found non-reversible error in the written
judgment of conviction. We will modify the judgment to correct the clerical error and, as modified,
affirm the trial court’s judgment of conviction. BACKGROUND1
The jury heard evidence that appellant met S.A.I. through S.A.I.’s cousin, who
babysat appellant’s children. Appellant began communicating with S.A.I. through Facebook, and
the messages eventually turned toward sexual matters. Appellant asked S.A.I. if she knew anyone
who was bisexual and was willing to participate in a threesome; appellant then later asked S.A.I. if,
were she older, she would be interested in a threesome. The record reflects that S.A.I. was fifteen;
appellant was ten years older than S.A.I.
During one communication, appellant asked S.A.I. to watch her children during the
day while she was at work. S.A.I. was hesitant because she was feeling “emotional” and “stressed”
because it was the day of the funeral of her uncle, who had been “like another father figure to [her].”
Ultimately, S.A.I. agreed to babysit because she needed the money. Because S.A.I. did not have a
ride to appellant’s house, appellant picked her up the night before the day of babysitting so S.A.I.
could spend the night at appellant’s house. On the ride to appellant’s house, appellant asked S.A.I.
if she would participate in a threesome with appellant and her boyfriend. S.A.I. expressed
uncertainty. Appellant also stopped at the liquor store and bought alcohol.
At appellant’s house, appellant made dinner for her four children and S.A.I. After
dinner, appellant and S.A.I. began drinking shots. S.A.I. indicated that she was drinking the alcohol
1 Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we provide only a general overview of the facts of the case here. We provide additional facts in the opinion as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the testimony and other evidence presented at trial.
2 because she “wanted to get [her] uncle’s death off [her] mind.” Later that evening, appellant’s
boyfriend arrived at appellant’s house.
At some point, S.A.I. began feeling sick so she went to lie down in appellant’s room.
A few minutes later, appellant joined her. She kissed S.A.I. and put S.A.I.’s hands on her
(appellant’s) breasts. The two then undressed. Once S.A.I. was undressed, appellant “slowly began
to go down towards [S.A.I.’s] vagina to penetrate [her] with her mouth.” Appellant contacted
S.A.I.’s sexual organ with her mouth and penetrated it with her finger. Afterwards, the two kissed
some, and S.A.I. performed oral sex on appellant. Appellant then went to get her boyfriend.
Appellant put a condom on her boyfriend, and they started kissing. Appellant then kissed S.A.I.
while her boyfriend touched S.A.I.’s sexual organ. He then penetrated S.A.I.’s sexual organ with
his penis. After a few minutes, he withdrew from S.A.I. and engaged in sexual intercourse with
appellant. Appellant and her boyfriend were lying next to S.A.I., touching her breasts and genitals
with their hands while they were having intercourse. After appellant’s boyfriend “finished,” S.A.I.
got up, cleaned herself up, and got dressed. When S.A.I. returned, appellant told S.A.I. to lie about
her name and age if her boyfriend asked. S.A.I. slept in one of the children’s rooms that night and
watched the children the next day as planned.
S.A.I. testified that she subsequently returned to appellant’s home on several
occasions to watch appellant’s children and had sex with appellant “around eight times.” She
indicated that appellant’s boyfriend was also present during those encounters, which were all similar
to the first one S.A.I. described.
3 Appellant elected not to testify during the guilt-innocence phase of trial. During the
punishment phase, she testified and admitted that she had a sexual relationship with S.A.I., that she
put her mouth on S.A.I.’s sexual organ, and that the sexual contact “happened several times.” She
explained, however, that S.A.I. could have “said no, stop, leave me alone, or got up that night and
called the police.” Appellant maintained that she “didn’t force [S.A.I.]” and insisted that S.A.I.
“knew what she was doing.”
DISCUSSION
In her sole point of error, appellant contends that the trial court abused its discretion
in failing to sua sponte conduct an informal competency inquiry.
Standard of Review
We review a trial court’s decision not to conduct an informal competency inquiry into
a criminal defendant’s competency to stand trial 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
recognized in Turner v. State, 422 S.W.3d 676, 692 & n.31 (Tex. Crim. App. 2013); Moore v. State,
999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A trial court does not abuse its discretion absent a
showing that its decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426; Moore,
999 S.W.2d at 393.
In conducting our review, we do not substitute our judgment for that of the trial court,
but rather determine whether the trial court’s decision was arbitrary or unreasonable. Montoya,
291 S.W.3d at 426. We give “great deference” to the trial court’s assessment of a defendant’s ability
4 to rationally and factually understand the proceedings and to assist counsel. See McDaniel v. State,
98 S.W.3d 704, 713 (Tex. Crim. App. 2003).
Competency to Stand Trial
A fundamental principle of our criminal justice system is that, as a matter of
constitutional due process, a criminal defendant who is incompetent may not stand trial. Boyett
v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018); Owens v.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00143-CR
Cristal Juanita Montoya, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT NO. 75606, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Cristal Juanita Montoya guilty of sexual assault of a child for
performing oral sex on fifteen-year old S.A.I. See Tex. Penal Code § 22.011(a)(2)(C) (defining
offense of sexual assault of child as “caus[ing] the sexual organ of a child to contact or penetrate the
mouth . . . of another person, including the actor”), (f) (classifying offense of sexual assault of child,
generally, as second degree felony). The jury assessed appellant’s punishment at confinement for
five years in the Texas Department of Criminal Justice. See id. § 12.33 (establishing punishment
range for second degree felony). On appeal, appellant complains about the trial court’s failure to sua
sponte conduct an informal inquiry into her competency to stand trial. We find no reversible error.
However, through our own review of the record, we have found non-reversible error in the written
judgment of conviction. We will modify the judgment to correct the clerical error and, as modified,
affirm the trial court’s judgment of conviction. BACKGROUND1
The jury heard evidence that appellant met S.A.I. through S.A.I.’s cousin, who
babysat appellant’s children. Appellant began communicating with S.A.I. through Facebook, and
the messages eventually turned toward sexual matters. Appellant asked S.A.I. if she knew anyone
who was bisexual and was willing to participate in a threesome; appellant then later asked S.A.I. if,
were she older, she would be interested in a threesome. The record reflects that S.A.I. was fifteen;
appellant was ten years older than S.A.I.
During one communication, appellant asked S.A.I. to watch her children during the
day while she was at work. S.A.I. was hesitant because she was feeling “emotional” and “stressed”
because it was the day of the funeral of her uncle, who had been “like another father figure to [her].”
Ultimately, S.A.I. agreed to babysit because she needed the money. Because S.A.I. did not have a
ride to appellant’s house, appellant picked her up the night before the day of babysitting so S.A.I.
could spend the night at appellant’s house. On the ride to appellant’s house, appellant asked S.A.I.
if she would participate in a threesome with appellant and her boyfriend. S.A.I. expressed
uncertainty. Appellant also stopped at the liquor store and bought alcohol.
At appellant’s house, appellant made dinner for her four children and S.A.I. After
dinner, appellant and S.A.I. began drinking shots. S.A.I. indicated that she was drinking the alcohol
1 Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we provide only a general overview of the facts of the case here. We provide additional facts in the opinion as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the testimony and other evidence presented at trial.
2 because she “wanted to get [her] uncle’s death off [her] mind.” Later that evening, appellant’s
boyfriend arrived at appellant’s house.
At some point, S.A.I. began feeling sick so she went to lie down in appellant’s room.
A few minutes later, appellant joined her. She kissed S.A.I. and put S.A.I.’s hands on her
(appellant’s) breasts. The two then undressed. Once S.A.I. was undressed, appellant “slowly began
to go down towards [S.A.I.’s] vagina to penetrate [her] with her mouth.” Appellant contacted
S.A.I.’s sexual organ with her mouth and penetrated it with her finger. Afterwards, the two kissed
some, and S.A.I. performed oral sex on appellant. Appellant then went to get her boyfriend.
Appellant put a condom on her boyfriend, and they started kissing. Appellant then kissed S.A.I.
while her boyfriend touched S.A.I.’s sexual organ. He then penetrated S.A.I.’s sexual organ with
his penis. After a few minutes, he withdrew from S.A.I. and engaged in sexual intercourse with
appellant. Appellant and her boyfriend were lying next to S.A.I., touching her breasts and genitals
with their hands while they were having intercourse. After appellant’s boyfriend “finished,” S.A.I.
got up, cleaned herself up, and got dressed. When S.A.I. returned, appellant told S.A.I. to lie about
her name and age if her boyfriend asked. S.A.I. slept in one of the children’s rooms that night and
watched the children the next day as planned.
S.A.I. testified that she subsequently returned to appellant’s home on several
occasions to watch appellant’s children and had sex with appellant “around eight times.” She
indicated that appellant’s boyfriend was also present during those encounters, which were all similar
to the first one S.A.I. described.
3 Appellant elected not to testify during the guilt-innocence phase of trial. During the
punishment phase, she testified and admitted that she had a sexual relationship with S.A.I., that she
put her mouth on S.A.I.’s sexual organ, and that the sexual contact “happened several times.” She
explained, however, that S.A.I. could have “said no, stop, leave me alone, or got up that night and
called the police.” Appellant maintained that she “didn’t force [S.A.I.]” and insisted that S.A.I.
“knew what she was doing.”
DISCUSSION
In her sole point of error, appellant contends that the trial court abused its discretion
in failing to sua sponte conduct an informal competency inquiry.
Standard of Review
We review a trial court’s decision not to conduct an informal competency inquiry into
a criminal defendant’s competency to stand trial 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
recognized in Turner v. State, 422 S.W.3d 676, 692 & n.31 (Tex. Crim. App. 2013); Moore v. State,
999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A trial court does not abuse its discretion absent a
showing that its decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426; Moore,
999 S.W.2d at 393.
In conducting our review, we do not substitute our judgment for that of the trial court,
but rather determine whether the trial court’s decision was arbitrary or unreasonable. Montoya,
291 S.W.3d at 426. We give “great deference” to the trial court’s assessment of a defendant’s ability
4 to rationally and factually understand the proceedings and to assist counsel. See McDaniel v. State,
98 S.W.3d 704, 713 (Tex. Crim. App. 2003).
Competency to Stand Trial
A fundamental principle of our criminal justice system is that, as a matter of
constitutional due process, a criminal defendant who is incompetent may not stand trial. Boyett
v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018); Owens v. State, 473 S.W.3d 812, 816 (Tex.
Crim. App. 2015); Turner, 422 S.W.3d at 688; see Drope v. Missouri, 420 U.S. 162, 171 (1975) (“It
has long been accepted that a person whose mental condition is such that he lacks the capacity to
understand the nature and object of the proceedings against him, to consult with counsel, and to
assist in preparing his defense may not be subjected to a trial.”). The constitutional standard for
competency to stand trial is codified in the statutory scheme set forth in article 46B of the Texas
Code of Criminal Procedure, which describes the circumstances that require, and the procedures for
making, a determination of whether a defendant is competent to stand trial. See Tex. Code Crim.
Proc. arts. 46B.001–.055.
Substantively, incompetency to stand trial is shown if the defendant does not have:
“(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational
understanding; or (2) a rational as well as factual understanding of the proceedings against the
person.” Boyett, 545 S.W.3d at 563 (quoting Tex. Code Crim. Proc. art. 46B.003(a)); accord
Turner, 422 S.W.3d at 689. Procedurally, a trial court employs two steps for making competency
determinations before it may ultimately conclude that a defendant is incompetent to stand trial: the
first step is an informal inquiry; the second step is a formal competency trial. Boyett, 545 S.W.3d
5 at 563. “An informal inquiry is called for upon a ‘suggestion’ from any credible source that the
defendant may be incompetent.” Id.; see Tex. Code Crim. Proc. art. 46B.004(a), (c), (c-1). At the
informal inquiry, there must be “some evidence from any source that would support a finding that
the defendant may be incompetent to stand trial.” Boyett, 545 S.W.3d at 563 (quoting Tex. Code
Crim. Proc. art. 46B.004(c)). If that requirement is met, the trial court must order a psychiatric or
psychological competency examination, and, except for certain exceptions, must hold a formal
competency trial. Boyett, 545 S.W.3d at 563; Turner, 422 S.W.3d at 693; see Tex. Code Crim. Proc.
arts. 46B.005(a), (b), 46B.021(b).
“Evidence suggesting the need for an informal inquiry may be based on observations
made in relation to one or more of the factors described by Article 46B.024 or on any other
indication that the defendant is incompetent within the meaning of Article 46B.003.” Tex. Code
Crim. Proc. art. 46B.004(c-1). These factors include the defendant’s capacity during criminal
proceedings to (a) rationally understand the charges against him and the potential consequences
of the pending criminal proceedings; (b) disclose to counsel pertinent facts, events, and states of
mind; (c) engage in a reasoned choice of legal strategies and options; (d) understand the adversarial
nature of criminal proceedings; (e) exhibit appropriate courtroom behavior; and (f) testify. Id.
art. 46B.024(1).
In complaining about the trial court’s failure to sua sponte conduct an informal
competency inquiry, appellant cites to various statements contained in the report of a psychological
evaluation that was conducted in a separate Child Protective Services proceeding to assess
appellant’s parental fitness and the evaluating psychologist’s trial testimony, which was admitted
6 into evidence during the punishment phase of trial. The trial testimony and report indicated that
appellant had potential mental-health issues, was poorly educated and had learning difficulties, and
self-reported below average intelligence.
However, the record reflects that the psychological evaluation in the CPS proceeding
was conducted five months before trial. The relevant time frame for determining competency is at
the time of the proceedings. See Morris v. State, 301 S.W.3d 281, 292–93 (Tex. Crim. App. 2009)
(“[T]he competency question assesses the defendant’s mental condition at the time of trial.”).
Moreover, the issues that appellant references—her alleged mental illness and intellectual
deficiencies—are not, in and of themselves, suggestions of incompetency to stand trial. A
defendant’s mental illness, past or present, absent credible evidence that, because of it, he lacks
“(1) sufficient present ability to consult with [his] lawyer with a reasonable degree of rational
understanding; or (2) a rational as well as factual understanding of the proceedings against [him],”
see Tex. Code Crim. Proc. art. 46B.003(a), does not necessarily equate to a suggestion of
incompetency. See Boyett, 545 S.W.3d at 564; Turner, 422 S.W.3d at 696. “There must be ‘some
evidence from which it may rationally be inferred not only 1) that the defendant suffers some degree
of debilitating mental illness, and that 2) he obstinately refuses to cooperate with counsel to his own
apparent detriment, but also that 3) his mental illness is what fuels his obstinacy.’” Boyett,
545 S.W.3d at 564 (quoting Turner, 422 S.W.3d at 696). In other words, some evidence must show
that a defendant’s mental illness is the source of his inability to participate in his own defense. Id.;
Turner, 422 S.W.3d at 696. The fact appellant has or is being treated for mental illness does not by
itself mean she is incompetent to stand trial. Nor does the fact that she is uneducated or has learning
7 challenges. The inquiry is whether her mental illness or intellectual deficiency “operate[d] in such
a way as to prevent [her] from rationally understanding the proceedings against [her] or engaging
rationally with counsel in the pursuit of [her] own best interests.” See Turner, 422 S.W.3d at 691.
Nothing in the record here indicates that they did.
In this case, prior to the testimony of the psychologist who conducted the
psychological evaluation in the CPS proceeding and the admission of his report, which appellant
now contends amount to a suggestion of incompetency, the trial court had the opportunity to preside
over pretrial proceedings as well as the trial. Thus, the court had multiple opportunities to interact
with and observe appellant. Nothing in the record of the pretrial proceedings or the trial itself
suggested that appellant was incompetent as defined by article 46B.003.
The record reflects that about a week before the CPS psychological evaluation was
conducted, appellant wrote a letter to her appointed counsel asking him to withdraw as her attorney.
She cited, among other things, a “lack of communication” and her belief that appointed counsel was
not “actually trying to help represent [her].” At the hearing on the motion, appellant testified and
articulated her concerns in a coherent, logical, and rational manner.
The trial court also had the opportunity to preside over a guilty-plea proceeding. The
trial court engaged in extensive dialogue with appellant regarding the plea, and nothing in the record
of that proceeding suggested that appellant was incompetent to stand trial. While appellant did, at
one point, express some confusion or lack of understanding about the proceeding, after being given
the opportunity to confer with her attorney, she expressed her understanding of the proceeding, the
constitutional rights she was giving up, and the plea-bargain agreement. The record does not reflect
8 that appellant’s momentary confusion alone was sufficient to obligate the trial court to sua sponte
conduct an informal competency inquiry. The fact that appellant, a person inexperienced with the
law and unfamiliar with the criminal justice system, needed clarification from an attorney, an expert
in the law and criminal proceedings, about some of the legal concepts or procedure involved in a
legal proceeding does not suggest incompetency under article 46B.
At the sentencing hearing, three months after the plea proceeding, when the trial court
asked appellant if she still wanted to proceed with her guilty plea, appellant expressed that she did
not. After conferring with her attorney, appellant withdrew her guilty plea because, according to her
attorney, she did not “independently remember” the events and wanted to go to trial. The trial court
advised appellant that, in going to trial, she would forfeit the State’s agreement to reduce the charge
to the lesser-included offense (per the plea-bargain agreement) and would be tried on the greater
offense as alleged in the indictment. Appellant indicated that she understood, and made the choice
to go to trial. Once again, nothing in the record of that proceeding suggested that appellant was
incompetent to stand trial.
Finally, nothing in the trial proceeding suggested that appellant was incompetent.
Despite the evidence reflected in the psychologist’s testimony and contained in the report of the CPS
psychological evaluation, which indicated potential mental-health illness and possible intellectual
deficiencies, there was no suggestion from any source that appellant suffered from any debilitating
mental illness or intellectual disability such that she lacked the capacity to “rationally understand the
charges against [her] and the potential consequences of the pending criminal proceedings,” “engage
9 in a reasoned choice of legal strategies and options,” and exhibit appropriate courtroom behavior.2
See Tex. Code Crim. Proc. art. 46B.024.
“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).
Under Texas law, a suggestion of incompetency triggers a requirement for the trial court to conduct
an informal inquiry into the defendant’s competence. Id. art. 46B.004(b), (c). Nothing in the record
here triggered an informal inquiry. Nothing in the record of the pretrial proceedings or the trial,
which took place almost five months after the CPS psychological evaluation that appellant relies on,
suggested any sign of incompetency. The record shows that appellant understood the charge against
her and the adversarial nature of the proceedings. It is also clear from the record, including
appellant’s statements, that she was capable of working with her trial counsel, that they had
discussed strategic alternatives and any possible defense that she might have, and that she was
capable of making informed decisions regarding those alternatives. Nothing in the record shows that
appellant acted belligerently or that she exhibited any kind of inappropriate behavior at all. In
addition, the record shows that appellant was able to testify in an articulate and coherent manner on
both direct examination and cross-examination.
2 We note that nothing in the evidence regarding appellant’s intellectual deficiencies, which were based in large part on her self-reporting and her education level, indicated that appellant’s intellectual issues rose to the level of an intellectual disability. See Tex. Code Crim. Proc. art. 46B.001(1) (explaining that “intellectual disability” has meaning assigned by section 591.003(7-a) of Health and Safety Code and means “significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period”).
10 Based on the record before us, we cannot conclude that the trial court abused its
discretion by failing to sua sponte conduct an informal inquiry into appellant’s competency to stand
trial. See Montoya, 291 S.W.3d at 426 (noting that “those who observed the behavior of the
defendant at the hearing were in a better position to determine whether she was presently
competent”); McDaniel, 98 S.W.3d at 713 (“We cannot ignore the trial court’s first-hand factual
assessment of appellant’s mental competency. [The court’s] factual findings, that appellant
understood the nature of the proceedings and assisted his counsel in his defense, are entitled to great
deference by the reviewing court.”). Accordingly, we overrule appellant’s sole point of error.
Error in Judgment
On review of the record, we observe that the written judgment of conviction in this
case contains non-reversible clerical error. The judgment states that the “Statute for Offense” is
“22.011(a)(2)(A) Penal Code.” This statutory provision defines the offense of sexual assault of a
child as a person “caus[ing] the penetration of the anus or sexual organ of a child by any means.”
However, the applicable statutory provision for the offense of sexual assault of a child for which
appellant was indicted and convicted is section 22.011(a)(2)(C) of the Penal Code, which defines
the offense of sexual assault of a child as a person “caus[ing] the sexual organ of a child to contact
or penetrate the mouth, anus, or sexual organ of another person, including the actor.”
This Court has authority to modify incorrect judgments when the necessary
information is available to do so. See Tex. R. App. P. 43.2(b) (authorizing court of appeals to
modify trial court’s judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993) (concluding that Texas Rules of Appellate Procedure empower courts of appeals
11 to reform judgments). Accordingly, we modify the judgment of conviction to reflect that the “Statute
for Offense” is “22.011(a)(2)(C) Penal Code.”
CONCLUSION
Having concluded that the trial court did not abuse its discretion by not sua sponte
conducting an informal competency inquiry but having found non-reversible clerical error in the
written judgment of conviction, we modify the judgment as noted above to correct the error and
affirm the trial court’s judgment of conviction as modified.
__________________________________________ Cindy Olson Bourland, Justice
Before Justices Puryear, Field, and Bourland
Modified and, as Modified, Affirmed
Filed: November 29, 2018
Do Not Publish