I agree with the majority that a bona fide doubt is the appropriate standard for determining whether a defendant may obtain a competency inquiry by the judge during trial. I write separately to try to clarify some confusion in this area of law.

There are two stages in the competency-determination process. First the trial court conducts an inquiry into the accused's competency to stand trial. The second stage is a hearing before the jury on the merits of the claim. The trial court must hold a hearing if, during its inquiry, it finds some evidence to support a finding of incompetency to stand trial.

Before trial, there are two ways to obtain a jury hearing on the merits of a claim of incompetency to stand trial. First, the judge can sua sponte order a hearing before a jury upon a finding that there is some evidence to support a finding of incompetency to stand trial. Art. 46.02 § 2(a). In the alternative, the accused may file a written motion for an inquiry before the judge, and the judge can determine from the inquiry that there is some evidence of incompetency. Id.

The timing of a request for an inquiry is an important consideration. It is easier for the trial court to investigate an accused's competency to stand trial before resources have been expended on a trial. As a result, the accused's or his counsel's written motion is sufficient to trigger the trial court's inquiry into having a jury hearing on the matter. Id.

During trial, it is much less convenient to conduct a separate jury determination of the accused's competence. But we cannot lose sight of the rationale for requiring that the accused be competent to stand trial. The requirement that the accused be competent to stand trial is a fundamental component of the accused's right to a fair trial. See Drope v. Missouri, 420 U.S. 162, 171-72 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966).

The accused's interest in a fair trial and the trial court's interest in the efficient operation should be balanced when the trial court applies the appropriate test.

To obtain an inquiry during trial, the evidence available must raise a bona fide doubt. We have explained that a bona fide doubt exists "if the evidence indicates recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant." Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997) (citing Mata v. State, 632 S.W.2d 355, 359 (Tex. Crim. App. 1982)). If the trial judge harbors such a doubt, she should conduct an inquiry outside the presence of the jury, at which time she should determine whether there is some evidence of incompetency. A finding of some evidence of incompetency triggers an incompetency hearing before a jury.

The threshold for obtaining a jury hearing on the merits of a claim of incompetency is the same whether it occurs before or during trial. To obtain a pretrial inquiry by the trial court into the need for a competency hearing, the accused only needs to file a written motion. The judge may sua sponte decide to have a hearing on the merits also. After the trial has begun, the trial court must find from the evidence that a bona fide doubt exists as to the accused's competence to stand trial.

Given the fact that an inquiry is required to reach the hearing on the merits before the jury, the bona fide doubt standard must be a lower threshold than the evidence to support a finding standard. See, e.g., id. ("The evidence to which appellant points was insufficient to raise a bona fide doubt; therefore, the trial court was not required to hold a section 2 [inquiry], much less submit the question of appellant's competency to a jury"). The appellant seems to be confused about which threshold is higher because he argues that the standard to obtain an inquiry by the trial court is the same as that to obtain a hearing on the merits before the jury. This would make the trial court's inquiry during trial unnecessary because the accused would have already reached the threshold for obtaining a hearing on the merits before the jury.

The appellant does not argue that the evidence met either standard; therefore the determination of the threshold for obtaining an inquiry into the accused's competency to stand trial is the end of our inquiry. As a result, we cannot address whether the Court of Appeals's determination was correct that the appellant did not meet the bona fide doubt threshold.

With these comments, I concur in the judgment of the Court.

Delivered: June 27, 2001.

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