Code of Criminal Procedure, Article 46.02, Section 2(b) says:

If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

The questions before us are the meanings of "evidence of the defendant's incompetency" and "evidence to support a finding of incompetency to stand trial."

Now, "incompetency" is defined in the same article. ⁽¹⁾ So the only words open to interpretation are "evidence of" and "evidence to support a finding of."

The Court construes "evidence of" to mean "that evidence sufficient to create a bona fide doubt in the judge's mind as to." ⁽²⁾ It further says, "Evidence raising a bona fide doubt need not be sufficient to support a finding of incompetence and is qualitatively different from such evidence … [and] generally is 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." ⁽³⁾

The Court construes "evidence to support a finding of" to mean "some evidence, a quantity more than none or a scintilla, that rationally may lead to." ⁽⁴⁾

So, according to the Court's construction, Code of Criminal Procedure, Article 46.02, Section 2(b) means:

If during the trial evidence that need not be sufficient to support a finding of incompetence and is qualitatively different from such evidence … [and] that generally is sufficient if it shows recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant, is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is some evidence, a quantity more than none or a scintilla, that rationally may lead to a finding of incompetency to stand trial.

I find it passing strange that, in order to trigger a hearing on incompetency, the legislature would create a threshold test that is qualitatively different from evidence that would support a finding of incompetency. And if the evidence of "recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant" is relevant to incompetency (why consider it otherwise?) then the standard of proof at the threshold is higher than the standard at the hearing ("evidence, a quantity more than none or a scintilla, that rationally may lead to a finding of incompetency to stand trial").

I therefore, respectfully, join the judgment of the Court but not its opinion.

En banc.

Delivered June 27, 2001.

Publish.

1. "A person is incompetent to stand trial if the person 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." Tex. Code Crim. Proc. art. 46.02, § 1A(a).

2. "'[E]vidence of the defendant's incompetency,'" as used in the opening clause of Code of Criminal Procedure, Article 46.02,] Section 2(b), is that evidence sufficient to create a bona fide doubt in the judge's mind as to the defendant's competence to stand trial. … Only if such a bona fide doubt exists … does the second clause of Section 2(b) operate requiring the judge to determine whether there is evidence sufficient to support a finding of incompetency." Ante at 8.

3. Ante at 5 n.10 (quotation marks, brackets, and citations omitted).

4. Ante at 6 (quotation marks and citation omitted).