Dewitt, Daniel Julian Londale v. The State of TexasAppeal from 401st Judicial District Court of Collin County (Memorandum Opinion )

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State: Texas

Court: Texas Northern District Court

Docket No: 05-12-00583-CR

Case Date: 07/03/2013

Plaintiff: Dewitt, Daniel Julian Londale

Defendant: The State of TexasAppeal from 401st Judicial District Court of Collin County (Memorandum Opinion )

Preview:Dismiss in part; Affirm in part; Opinion Filed July 3, 2013.

In The Court of Appeals Fifth District of Texas at Dallas Nos. 05-12-00583-CR, 05-12-00584-CR, 05-12-00585-CR DANIEL JULIAN LONDALE DEWITT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause Nos. 401-82426-10, 401-82490-10, & 401-82491-10 MEMORANDUM OPINION Before Justices Moseley, Lang-Miers, and Evans Opinion by Justice Evans Daniel Julian Londale DeWitt was indicted for theft, aggravated assault with a deadly weapon, and assault by strangulation. At trial, appellant pleaded guilty to the two assault charges, and the trial court considered the theft offense pursuant to article 12.45 of the code of criminal procedure. Appellant now complains on appeal that the State is barred from trying him for the theft offense in the future and the trial court erred in failing to inquire into his competency. We dismiss the theft appeal and affirm appellant's two assault convictions. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

In his sole point of error in the theft case, cause number 05-12-00583-CR, appellant states that "a penal code [sic] 12.45 dismissal bars future prosecution for the theft offense." After the trial court considered the theft offense during the punishment phase of appellant's trial for the two assault offenses, it granted the State's motion to dismiss prosecution of the theft case. There is no appealable judgment or order in cause number 05-12-00583-CR. We therefore dismiss the theft case for want of jurisdiction. See TEX. R. APP. P.25.2(a)(2); Bohannan v. State, 352 S.W.3d 47, 48 (Tex. App.--Fort Worth 2011, pet. ref'd). In both of the assault cases, appellant complains that the trial court erred by failing to conduct an informal inquiry into his competency sua sponte. He specifically argues that his previous mental health issues combined with his expressed difficulties communicating with his appointed attorney demonstrated the need for a competency inquiry. A person is incompetent to stand trial if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings against him. See TEX. CODE CRIM. PROC. art.

46B.003(a) (West 2006). A judge must inquire into a defendant's mental competence if the issue is sufficiently raised. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). The initial inquiry is informal and is required when evidence suggesting incompetency comes to the trial court's attention. See TEX. CODE CRIM. PROC. ANN. art. 46B.004(b),(c) (West Supp. 2012); Jackson v. State, 391 S.W.3d 139, 141 (Tex. App.--Texarkana 2012, no pet.). We review a trial court's decision not to conduct an informal competency inquiry for an abuse of discretion. Id. at 426. The evidence in appellant's cases did not suggest he was incompetent to stand trial. The clerk's records show that the trial court ordered a psychiatric evaluation shortly after the cases were filed, but the records do not reveal the results of any evaluation. Evidence presented

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