Kostura v. State

292 S.W.3d 744, 2009 WL 1875595
CourtCourt of Appeals of Texas
DecidedAugust 20, 2009
Docket14-08-00386-CR
StatusPublished
Cited by20 cases

This text of 292 S.W.3d 744 (Kostura v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kostura v. State, 292 S.W.3d 744, 2009 WL 1875595 (Tex. Ct. App. 2009).

Opinions

MAJORITY OPINION

LESLIE B. YATES, Justice.

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 [746]*746State charged appellant with indecency with a child, his cousin’s daughter, who was two years old at the time of the offense. At trial, the child’s mother testified that she witnessed appellant place his hand inside the child’s diaper and rub the child’s genital area. Appellant testified that he had not rubbed the child’s genitals, but had merely checked the side of the child’s diaper to see if it was wet because he had smelled a stench.' The trial court found appellant guilty and recessed the trial for preparation of a pre-sentencing investigation report (PSI).

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, 171 S.W.3d 613, 617-18 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); see also Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App.1999). A defendant is not competent to stand trial if he lacks (1) a sufficient present ability to consult with his attorney with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. Tex.Code Crim. Proc. Ann. art. 46B.003(a) (Vernon 2006). If evidence raising a bona fide doubt as to the defendant’s competence to stand trial comes to the trial court’s attention, the trial court shall sua sponte “suggest that the defendant may be incompetent to stand trial” and then “determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incom[747]*747petent to stand trial.” Id. art. 46B.004 (Vernon 2006); See Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App.2008). A bona fide doubt is “a real doubt in the judge’s mind as to the defendant’s competency.” Alcott v. State, 51 S.W.3d 596, 599 n. 10 (Tex.Crim.App.2001). Evidence raising a bona fide doubt “need not be sufficient to support a finding of incompetence and is qualitatively different from such evidence.” Id. Evidence is usually sufficient to create a bona fide doubt if it shows “recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.” McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App.2003).

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, 129 S.W.3d 762, 766 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (finding no evidence of recent incompetency where evidence showed mental, behavioral, and cognitive impairments that did not occur within year of trial); Thompson v. State, 915 S.W.2d 897, 902 (Tex.App.Houston [1st Dist.] 1996, pet. ref'd) (holding that depression and suicide attempts more than nine months prior to trial did not amount to recent severe mental illness and did not trigger competency inquiry).

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Kostura v. State
292 S.W.3d 744 (Court of Appeals of Texas, 2009)

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Bluebook (online)
292 S.W.3d 744, 2009 WL 1875595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kostura-v-state-texapp-2009.