CourtListener 10797251•Gerardo Solis III v. the State of Texas
Gerardo Solis III v. the State of Texas
CourtListener 10797251Txctapp1319.02.2026
Gesamter Gesetzestext
NUMBER 13-24-00483-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GERARDO SOLIS III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 206TH DISTRICT COURT
OF HIDALGO COUNTY, TEXAS
NUMBER 13-24-00484-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GERARDO SOLIS III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 206TH DISTRICT COURT
OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION ON ORDER OF ABATEMENT
Before Chief Justice Tijerina and Justices West and Cron
Memorandum Opinion Per Curiam
Appellant Gerardo Solis III challenges the revocation of his community supervision
in two separate cases. Appellant argues that he was incompetent to stand trial, and “the
trial court abused its discretion by not abating the matter and appointing an expert to
evaluate [his] competency to stand trial.” Because there was some evidence that
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appellant was incompetent, and the trial court improperly weighed evidence of
competency against evidence of incompetency, we agree. Accordingly, we abate the
appeal and remand the cases to the trial court.
I. BACKGROUND
On August 8, 2022, pursuant to a plea bargain agreement with the State, appellant
pleaded guilty in trial court cause number CR-1996-22-D for tampering with or fabricating
physical evidence, a third-degree felony, and CR-1588-22-D for burglary of a building, a
state jail felony. See TEX. PENAL CODE §§ 30.02(a), (c)(1), 37.09(a), (c). The trial court
adjudicated appellant guilty of the offenses and suspended each sentence for two years.
On April 9, 2024, the State filed a motion to revoke community supervision in both
causes. 1 The State alleged that appellant failed to report to his supervision officer from
August 2023 through March 2024 and failed to pay various fines, fees, and court costs.
The State later amended the motions, and added allegations among others that appellant
“failed to participate in the Hidalgo County CSCD Mentally Impaired Caseload Program
and/or submit to psychological and/or psychiatric testing and evaluation.”
At the hearing on the motions on September 25, 2024, appellant’s trial counsel
advised the trial court that he believed appellant was “not competent to proceed” based
on his “attempts to converse with him and in talking to his family.” The trial court then
asked appellant some questions about the proceedings:
The Court: [Appellant], you understand I’m the judge?
Appellant: Yes, ma’am. I do understand about that.
1 The State filed a motion to revoke community supervision in both causes a year earlier, which the
State later withdrew.
3
The Court: Okay. And you understand the gentleman next to you, that’s
your attorney?
Appellant: Yes, ma’am. I understand he’s my attorney.
The Court: And you understand that one of his many obligations is to
represent you and protect your legal rights?
Appellant: That’s correct.
The Court: And you understand you’re in a courtroom?
Appellant: Yeah, I do, ma’am. I understand about everything today.
After some back and forth about whether appellant received the motions to revoke,
the trial court asked appellant’s trial counsel if, “based on the examination here today,”
he had any reason to believe appellant was incompetent:
The Court: [Counsel], based on the examination here today, do you really
have any reason, as an officer of the court, to make the
announcement of your belief of incompetency?
Counsel: Very definitely, Your Honor.
....
Counsel: In trying to talk to him, Your Honor, the few times I’ve seen
him at the jail and here, he does not respond to my questions.
He does not . . . [give] clear . . . answers . . . [to] the questions
that I ask him.
The Court: Did you not believe that he answered my questions very
clearly here this afternoon? Do you not agree with that
statement?
....
Counsel: No, I do not agree.
The Court: You don’t think he answered my questions clearly?
Counsel: No, Your Honor. He’s not clear.
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The Court: [Counsel], I want to know, as an officer of the court, you really
believe that his answers have not been clear here today. I’m
talking about today at this time.
Counsel: He’s responded to your questions, Your Honor, but he’s not
clear. I don’t think he understands the questions.
The Court: When you say not clear, he’s answered everything clearly. He
may not enunciate as much as we would like him to.
Counsel: He doesn’t even remember receiving notices of his motions,
Your Honor.
The Court: That’s not unusual, [Counsel], for such a long period of time.
The trial court concluded that “[b]ased on the examination this afternoon,” there
was “no reason to create any doubt, suspicion or concern about the [appellant’s]
competency to proceed at this time.” Appellant’s trial counsel responded that appellant
“doesn’t respond” to his questions and that appellant “cannot assist [him] with his
defense.” With permission from the court, appellant’s trial counsel then asked appellant if
he understood “what these charges are about”:
Counsel: Do you understand what these charges are about?
Appellant: No, but I do understand about the charges, because I don't
have no charges. I just got pulled over, but it was just over the
bad things.
Counsel: The questions that I asked you about what they say you did,
do you understand what they mean?
Appellant: No.
Counsel: Why not? You can’t read?
Appellant: I don’t know how to read books.
Counsel: You don’t know how to read. You didn’t go to school?
Appellant: I didn’t—no, not to read.
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Counsel: Is this the first time you [have] look[ed] at [the motions to
revoke]?
Appellant: Yes, Your Honor [sic].
The Court: [Counsel], just because someone can’t read the English
language does not mean they’re incompetent.
The trial court continued the hearing.
Later in the hearing, appellant’s grandmother, Blanca Cantu, testified. Cantu
testified that she tried to help appellant get to his probation appointments but “he went
back to doing drugs,” and the drugs prevented him from attending his probation
appointments. She also testified that appellant could not go to his probation appointments
because he is not “in his five sense[s].” Appellant’s trial counsel asked Cantu if she
believed that appellant was “all right mentally”:
Counsel: Is he all right mentally in your opinion?
Cantu: No.
Counsel: That’s because he doesn’t answer our questions—your
questions and my questions; is that right?
Cantu: Yes.
....
Counsel: Ms. Cantu, if you ask him a question, [appellant] always say
yes, yes, but does he understand what you’re saying?
Cantu: No. He’s very—he is very respectful, and if I would say,
[appellant], yes, ma’am, no, ma’am, but did you hear what I
said, what I asked you? Yes, mom, no, mom.
Counsel: He’s very proper, but he doesn’t know what you’re asking
him?
Cantu: (Moving head side to side.)
Counsel: Is that your opinion?
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Cantu: Yes. All he asks from me is coloring books and colors, and
that’s all he does. His mind, I don’t know, the drugs put him in
that.
At the conclusion of the hearing, the trial court found all of the State’s allegations
to be true and revoked appellant’s community supervision. The trial court sentenced
appellant to one-hundred and eighty-days’ imprisonment as to the burglary charge and
two years’ imprisonment for the tampering with physical evidence charge, to run
concurrently. This appeal followed.
II. DISCUSSION
A. Standard of Review & Applicable Law
We review a trial court’s failure to conduct a competency inquiry under an abuse
of discretion standard. Montoya v. State, 291 S.W.3d 420, 425–26 (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). In determining abuse of discretion, 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. Id. at 426. We give “great deference”
to the trial court’s assessment of a defendant’s ability to understand the proceedings and
to assist counsel. Lewis v. State, 532 S.W.3d 423, 432 (Tex. App.—Houston [14th Dist.]
2016, pet. ref’d) (citing McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003)).
“As a matter of constitutional due process, a defendant that is not competent may
not stand trial.” Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018) (citing
Turner, 422 S.W.3d at 688). “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
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proceedings against the person.” TEX. CODE CRIM. PROC. ANN. art. 46.003(a). “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. 46.003(b).
The same standard applies to a revocation hearing. See McDaniel, 98 S.W.3d at 709–
10; see also Alvarez v. State, No. 13-20-00308-CR, 2021 WL 4313115, at *3 (Tex. App.—
Corpus Christi–Edinburg Sept. 23, 2021, pet. ref’d) (mem. op., not designated for
publication).
“Procedurally, a trial court employs two steps for making competency
determinations before it may ultimately conclude that a defendant is incompetent to stand
trial[:] [t]he first step is an informal inquiry; the second step is a formal competency trial.”
Boyett, 545 S.W.3d at 563. The “informal inquiry” is triggered by any “suggestion” of
incompetency to stand trial. See TEX. CODE CRIM. PROC. ANN. art. 46B.004; Turner, 422
S.W.3d at 692–93. “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. ANN. art. 46B.004(c)). “If that
requirement is met, then the trial court must order a psychiatric or psychological
competency examination, and except for certain exceptions, it must hold a formal
competency trial.” Id. (citing TEX. CODE CRIM. PROC. ANN. arts. 46B.005(a), (b),
46B.021(b)).
During the informal inquiry, the “trial court must consider only evidence of
incompetency, and it must not weigh evidence of competency against the evidence of
incompetency.” Id. at 564. “[S]ome evidence must be presented . . . to show that a
defendant’s mental illness is the source of his inability to participate in his own defense.”
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Id. “[I]t is not enough to present evidence of either a defendant’s mental illness alone or
his refusal to cooperate with counsel—rather, there must be some evidence indicating
that the defendant’s refusal to rationally engage with counsel is caused by his mental
illness.” Id. (citing Turner, 422 S.W.3d at 696). “[T]he proper inquiry at this stage is
whether, putting aside all competing indications of competency . . . there is some
evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion
of incompetency.” Id. at 565 (citation modified). “[W]hile the evidence must be specific—
meaning that it demonstrates more than mere mental illness and more than a mere failure
to cooperate with defense counsel—there does not need to be much of it to require the
trial court to take further action.” Clark v. State, 592 S.W.3d 919, 926 (Tex. App.—
Texarkana 2019, pet. ref’d).
B. Analysis
We first address appellant’s contention that the trial court failed to conduct an
informal inquiry into appellant’s competency at the September 25 hearing. See TEX. CODE
CRIM. PROC. ANN. art. 46B.004(c). Appellant points to Article 46B.024 for authority, which
lists several factors that must be considered in a psychological competency examination.
See id. art. 46B.024(1)–(5). He argues that because the trial court did not utilize these
factors, it made no informal inquiry into his competency to stand trial.
However, the trial court is not required to consider the Article 46B.024 factors in
an informal competency inquiry. See id. art. 46B.004(c-1). In fact, the Code of Criminal
Procedure does not provide specific guidance as to how to conduct the informal inquiry.
See id. arts. 46B.001–.171; George v. State, 446 S.W.3d 490, 501 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d) (concluding that “the trial court was not required to follow
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specific protocols” in making its informal inquiry into appellant’s competency); see also
Teal v. State, No. 01-10-00506-CR, 2011 WL 6140676, at *2 (Tex. App.—Houston [1st
Dist.] Dec. 8, 2011, pet. ref’d) (mem. op., not designated for publication) (“As its name
suggests, an ‘informal inquiry’ does not have specific formal requirements.”). Here,
appellant’s trial counsel informed the trial court that he believed appellant was
incompetent to stand trial, and the trial court asked appellant questions related to his
understanding of the proceedings. The trial court concluded that based on “its
examination” there was “no reason to create any doubt, suspicion or concern about the
defendant’s competency to proceed at this time.”
We will assume without deciding that the trial court made an informal inquiry; 2
however, as discussed below, we agree with appellant that the trial court abused its
discretion when it failed to order a formal psychological evaluation into appellant’s
competency.
When conducting an informal inquiry into a defendant’s competency, the trial court
must consider only evidence of incompetency, and it must not weigh evidence of
competency against the evidence of incompetency. Boyett, 545 S.W.3d at 564. Here, the
trial court was presented with evidence from appellant’s trial counsel that, due to his
mental illness, he was unable to understand the questions counsel asked him. When trial
counsel questioned appellant, appellant testified in pertinent part that he did not
2 We make no comment on the adequacy or sufficiency of the trial court’s informal inquiry. See,
e.g., Bautista v State, 605 S.W.3d 520, 530 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (holding “that
the trial court’s three closed-ended questions” did not constitute an informal inquiry because “there [wa]s
no indication in the record that the purpose of the three questions was to fulfill the requirements of an
informal competency inquiry”); Jackson v. State, 391 S.W.3d 139, 142 (Tex. App.—Texarkana 2012, no
pet.) (concluding that “the trial court’s own observations coupled with the inquiry to counsel regarding
competency was a sufficient informal inquiry into [appellant’s] competence”).
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understand counsel’s questions, and he gave a conflicting and incoherent answer as to
whether he understood the charges against him. The State’s motion to revoke specifically
alleged that appellant was required to participate in “the Hidalgo County CSCD Mentally
Impaired Caseload Program and/or submit to psychological and/or psychiatric testing and
evaluation” as part of his community supervision. Moreover, Cantu later testified that
appellant was not “alright mentally,” that he “doesn’t know what you’re asking him” despite
his affirmative responses, “all he does” is color, and “the drugs put him in that [state].”
We find that the cumulative force of the aforementioned evidence constitutes at
least “some evidence” that appellant was incompetent. See TEX. CODE CRIM. PROC. ANN.
art. 46B.004(c); Boyett, 545 S.W.3d at 563. When considering only the evidence of
appellant’s incompetency, the evidence showed that appellant may have suffered from a
mental illness which was the “the source of his inability to participate in his own defense.”
See Boyett, 545 S.W.3d at 564. In other words, there was at least some evidence that
appellant lacked “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. ANN. art. 46.003(a); see also
Williams v. State, No. 05-24-00750-CR, 2025 WL 2456129, at *6 (Tex. App.—Dallas Aug.
26, 2025, no pet.) (mem. op., not designated for publication) (holding that trial court did
not abuse its discretion when it did not order a formal competency evaluation because
there was no indication or evidence from any source in the record that appellant was
incompetent to stand trial).
The trial court, however, weighed this evidence against the “clear” answers
appellant gave at the beginning of the hearing and concluded that there was “no
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reason . . . or concern about the defendant’s competency to proceed at this time.” Here,
the trial court “improperly considered evidence of appellant’s competency rather than
considering only evidence of [his] incompetency.” Boyett, 545 S.W.3d at 558, 564–65
(holding that the court of appeals erred when it upheld “the trial court’s determination that
there was inadequate evidence of incompetency” because it “mistakenly focused its
analysis on the evidence tending to show that appellant might be competent, rather than
limiting its analysis to an assessment of the evidence of incompetency”). And while we
must give great deference to the trial court’s assessment of a defendant’s ability to
understand the proceedings and to assist counsel, see Lewis, 532 S.W.3d at 432, the
“some evidence” standard is low. See Turner, 422 S.W.3d at 692 (concluding that “some
evidence” means “a quantity more than none or a scintilla” (citing Ex parte LaHood, 401
S.W.3d 45, 52–53 (Tex. Crim. App. 2013)); Clark, 592 S.W.3d at 926. We cannot find that
there was no evidence from any source that appellant was incompetent. See Boyett, 545
S.W.3d at 563; Turner, 422 S.W.3d at 692; Clark, 592 S.W.3d at 926; see also Williams,
2025 WL 2456129, at *6.
Accordingly, we hold that the record shows some evidence that would rationally
support a finding that appellant may have been incompetent to stand trial. See TEX. CODE
CRIM. PROC. ANN. art. 46B.004(c); Turner, 422 S.W.3d at 692, 696; see also Williams,
2025 WL 2456129, at *6. Therefore, the trial court abused its discretion when it continued
the September 25th hearing and did not order a psychological competency examination
of appellant. We sustain appellant’s sole issue.
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III. ABATEMENT
In this situation, the proper remedy is to remand to the trial court for a retrospective
competency determination. See Owens v. State, 473 S.W.3d 812, 816 (Tex. Crim. App.
2015) (“We have long held that the appropriate remedy when there is an error in
competency proceedings is to abate the appeal and remand the cause to the trial court
to determine the feasibility of a retrospective competency proceeding.”); see, e.g., Boyett,
545 S.W.3d at 566 (abating the appeal and remanding to the trial court to determine
whether it was feasible to conduct a retrospective competency trial, and if so, to conduct
one). We, therefore, abate the appeal and remand the cases to the trial court. On remand,
the trial court shall, within thirty days, first determine whether it is presently feasible to
conduct a retrospective competency examination. If a retrospective competency trial is
feasible, the trial court shall conduct one in accordance with Chapter 46B of the Texas
Code of Criminal Procedure. If, on the other hand, the trial court finds that the
retrospective competency trial is not feasible, the record of the proceedings shall be
returned to this Court in accordance with this order.
Under either scenario, the trial court is ordered to prepare written findings within
thirty days after it has determined whether a retrospective competency trial is feasible,
and the results of such proceeding, if feasibly conducted. We further order (1) the district
clerk forward a supplemental clerk’s record containing the trial court’s written findings
within thirty days after the trial court files its written findings or order; and (2) that the court
reporter for the 206th district court create a supplemental reporter’s record containing a
transcript of all proceedings associated with any retrospective competency trial and to file
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the supplemental reporter’s record with this Court within thirty days after the trial court
files its written findings.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
19th day of February, 2026.
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