Billy Ray Pegues v. the State of Texas

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CAUSE NO. 12-21-00124-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

BILLY RAY PEGUES, } APPEALED FROM 217TH
APPELLANT

V. } DISTRICT COURT IN AND FOR

THE STATE OF TEXAS, } ANGELINA COUNTY, TEXAS
APPELLEE
ORDER
Billy Ray Pegues appeals his conviction for aggravated robbery. He raises seven issues
for our consideration. We abate the appeal and remand the case to the trial court with
instructions.

BACKGROUND
Appellant was indicted for aggravated robbery, a first-degree felony.1 Thereafter, the trial
court appointed Appellant counsel and referred Appellant to Joseph Kartye, a licensed
psychologist, for a competency evaluation.2 Dr. Kartye’s evaluation was filed with the court on
December 10, 2019.
According to Dr. Kartye’s report, he informed Appellant of the purpose, scope, and
possible outcomes of the competency examination. Dr. Kartye told Appellant that he was
required to relay his findings to the trial court, and that Appellant could refuse to answer any
questions. At this point in the examination, Appellant told Dr. Kartye that he would not answer

1 TEX. PENAL CODE ANN. §§ 12.32(a) (West 2019) (“An individual adjudged guilty of a felony of the first
degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not
more than 99 years or less than 5 years.”), 29.03(a)(2) (West 2019) (“A person commits an offense if he commits
robbery...and he...uses or exhibits a deadly weapon.”).
2 There is no motion from either Appellant or the State suggesting Appellant was incompetent, nor did the
court note on its docket sheet why Appellant was sent for a competency evaluation.
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any questions. Dr. Kartye noted that Appellant was “defensive but also belligerent and
confrontive.” Appellant returned to his cell.
Dr. Kartye interviewed the lieutenant at the Angelina County jail, who informed Dr.
Kartye that Appellant was housed in a cell with other inmates, interacted appropriately with
other inmates and staff, exhibited no unusual behavior, and was not taking any medications. Dr.
Kartye reviewed Appellant’s jail medical records but found no medical or psychiatric history to
reference. He also reviewed two letters Appellant wrote to the district attorney. Ultimately, Dr.
Kartye opined that Appellant had significant psychiatric issues, including paranoid delusions and
grandiosity, which would interfere with his ability to assist his attorney. Dr. Kartye listed
paranoid schizophrenia as his diagnostic impression and found Appellant incompetent to stand
trial. He recommended that Appellant be transferred to a psychiatric facility for additional
evaluation, diagnosis, and treatment.
On January 15, 2020, Appellant appeared before the trial court with his counsel and
State’s counsel for a pretrial hearing. At the hearing, Appellant’s counsel told the court that
Appellant disagreed with Dr. Kartye’s findings and believed himself competent to stand trial.
The court asked Appellant several questions about his competency. After questioning Appellant,
the trial court declared him competent to stand trial.
On September 16, Appellant’s counsel filed a subsequent motion for a psychiatric
evaluation of Appellant to determine his competency to stand trial. On September 17, the trial
court appointed Dr. Kartye to conduct a second competency evaluation of Appellant. However,
the record contains no report, nor is there any indication from the record that Appellant was ever
evaluated a second time prior to trial.3
Appellant’s trial began on July 19, 2021. The jury convicted Appellant of aggravated
robbery and sentenced him to life in prison. Appellant filed a motion for new trial, which was
denied. This appeal followed.

COMPETENCY TO STAND TRIAL
In his first issue, Appellant argues that the trial court abused its discretion by determining
Appellant competent to stand trial without holding a formal competency trial. The State elected
not to file a brief.
Standard of Review and Applicable Law

3 The trial court noted the motion and order on the docket sheet, but there is no notation as to why an
evaluation was not performed.
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As a matter of constitutional due process, a criminal defendant who is incompetent may
not stand trial. Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). The Legislature
has codified this due-process requirement by setting forth a substantive and procedural
framework for making competency determinations to ensure that legally incompetent criminal
defendants do not stand trial. See TEX. CODE CRIM. PROC. ANN. arts. 46B.003, 46B.004,
46B.005 (West 2018). Substantively, incompetency to stand trial is shown if the defendant 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.” Id. art. 46B.003(a).
Procedurally, a trial court employs a two-step process for making competency
determinations before it may ultimately conclude a defendant is incompetent to stand trial.
Boyett, 545 SW.3d at 563. The first step is an informal inquiry, and the second step is a formal
competency trial. Id. An informal inquiry is called for upon a “suggestion” from any credible
source that the defendant may be incompetent. Id.; TEX. CODE CRIM. PROC. ANN. art.
46B.004(a),(c),(c-1). At the informal inquiry stage there must be “some evidence from any
source that would support a finding that the defendant may be incompetent to stand trial.” 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 with some certain exceptions,
it must hold a formal competency trial. Id. arts. 46B.005(a), (b), 46B.021(b) (West 2018).
Although a defendant is presumed competent and bears the ultimate burden of proving
incompetence to stand trial, Article 46B does not allow a “trial court to stand by and wait for a
defendant to raise the issue.” Clark v. State, 592 S.W.3d 919, 925 (Tex. App.—Texarkana 2019,
pet. ref’d). Instead, Article 46B places certain responsibilities on the trial court to inquire into
the matter independently and force the parties to litigate the issue, if necessary. Id.; see also
TEX. CODE CRIM. PROC. ANN. arts. 46B.003(b), 46B.004(a), 46B005(a). We review the trial
court’s decision on the issue of competency for abuse of discretion. Stine v. State, 300 S.W.3d
52, 60 (Tex. App.—Texarkana 2009, pet. ref’d, untimely filed).
Analysis
As previously discussed, under the current statutory scheme, any “suggestion” of
incompetency to stand trial requires the trial court to conduct an informal inquiry to determine
whether evidence exists to justify a formal competency trial. See TEX. CODE CRIM. PROC. ANN.
art. 46B.004(c). Generally, the trial court conducts an informal inquiry after any “suggestion”
that Appellant is incompetent. See id. If after an informal inquiry, the court determines that
evidence exists to support a finding of incompetency, the court shall order a competency
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examination under Subchapter B to determine whether the defendant is incompetent to stand trial
in a criminal case. Id. art. 46B.005. The trial court may appoint one or more disinterested
experts to examine the defendant and report to the court on the competency or incompetency of
the defendant; and testify as to the issue of incompetency of the defendant at any trial or hearing
involving that issue. Id. art. 46B.021(a)(1)-(2).
If, during the informal inquiry, the trial court finds “there is more than a scintilla of
evidence that would support a rational finding of fact that the accused is incompetent to stand
trial,” then the trial court is required to (1) stay all other proceedings in the case; (2) appoint an
expert to conduct a competency examination; and (3) move forward with a formal competency
trial. Clark, 592 S.W.3d at 926; TEX. CODE CRIM. PROC. ANN. arts. 46B.004(d), 46B.005(a)-(b),
46B.021(b). The trial court’s requirement to “hold a formal competency trial” is mandatory,
unless “(1) neither party’s counsel requests a trial on the issue of incompetency, (2) neither
party’s counsel opposes a finding of incompetency, and (3) the court does not, on its own
motion, determine that a trial is necessary to determine incompetency.” TEX. CODE CRIM. PROC.
ANN. art. 46B.005(c).
Notably, the statute’s plain language indicates the exception in Article 46B.005(c) only
applies when the parties and the trial court agree that the defendant is incompetent, not when
they agree that he is competent. Id.; Clark, 592 S.W.3d at 926. Accordingly, the statute allows
the trial court to forego a competency trial only when all parties and the court agree the
defendant is incompetent. Clark, 592 S.W.3d at 926. Absent this exception, the trial court must
conduct a competency trial when there is some evidence that the defendant may be incompetent
to stand trial. Id. Thus, while the parties and the trial court may agree that the defendant is
incompetent without a formal competency trial, where “there is more than a scintilla of evidence
that would support a rational finding of fact that the accused is incompetent to stand trial,” the
trial court may not find that he is competent without holding a formal competency trial. Id.
In this case, the trial court did not follow the procedures outlined in the statutory
framework. Instead, the trial court referred Appellant to Dr. Kartye for a competency evaluation,
presumably at a credible suggestion of incompetency. Thereafter, Dr. Kartye made a report to
the court in which Dr. Kartye opined that Appellant was incompetent to stand trial and should be
transferred to a psychiatric facility for competency restoration. The trial court essentially
ignored Dr. Kartye’s findings, questioned Appellant, and deemed him competent. This is not an
acceptable process under the law. See TEX. CODE CRIM. PROC. ANN. art. 46B.005 (c)(1)-(3);
Clark, 592 S.W.3d at 926. Dr. Kartye’s report certainly provided “more than a scintilla” of
evidence that would support a rational finding of fact that Appellant was incompetent to stand
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trial. Therefore, a formal competency trial was required. See Clark, 592 S.W.3d at 926. We
sustain Appellant’s first issue.

CONCLUSION
Having sustained Appellant’s first issue, we abate the appeal and remand the cause to the
trial court. On remand, the trial court shall first determine whether it is presently feasible to
conduct a retrospective competency trial, given the passage of time, availability of evidence, and
any other pertinent considerations.4 Should the trial court deem a retrospective competency trial
to be feasible, it shall proceed to conduct such a trial in accordance with Chapter 46B,
Subchapter C, of the Code of Criminal Procedure. Regardless of whether the trial court deems a
retrospective competency trial to be feasible, the record of the proceedings on remand shall then
be returned to this Court.5

Accordingly,
It is ORDERED that (1) on or before September 28, 2022, the trial court shall determine
whether a retrospective competency trial is feasible and, if it is, conduct such trial; and (2)
prepare written findings on or before October 7, 2022 as to whether a retrospective competency
trial is feasible and the results of any such trial.
It is FURTHER ORDERED that a supplemental clerk’s record including the trial court’s
written findings, along with any supporting documentation and orders, be certified to this Court
on or before October 17, 2022.
It is FURTHER ORDERED that the court reporter file a supplemental reporter’s record
of any proceedings associated with a retrospective competency trial on or before October 17,
2022.

4 See George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE
§ 31:81, at 89–90 & n.10 (3rd ed. 2011) (citing, e.g., Torres v. State, 593 S.W.2d 717, 719 (Tex. Crim. App. 1980))
(remanding to trial court to decide, inter alia, whether “a nunc pro tunc determination of appellant’s competency is
not possible”); Ex parte McKenzie, 582 S.W.2d 153, 155 (Tex. Crim. App. 1979) (remanding case to the trial court
to “determine if it is possible to conduct a nunc pro tunc competency hearing and, if it is, to hold such a hearing”
under the then-extant competency-to-stand-trial statute); Ex parte Winfrey, 581 S.W.2d 698, 699 (Tex. Crim. App.
1979) (holding that the original competency hearing suffered from a flawed jury instruction and remanded to trial
court for a determination whether, inter alia, a retrospective competency hearing was feasible)).
5 This Court elects not to dispose of Appellant’s other points of error before remanding for a retrospective
competency determination. A formal competency trial will address Appellant’s second and third issues, in which he
makes other complaints about the trial court’s competency rulings. In his fourth and fifth issues, Appellant argues
that the trial court abused its discretion by admitting a fingerprint report and failing to allow his alibi witness to
testify remotely. In his sixth and seventh issues he argues that the trial court erred by conducting a hearing on his
motion for new trial in his absence, and by denying the motion. Pending a competency trial, the resolution of these
claims may prove unnecessary. In order to avoid resolving Appellant’s points of error piecemeal, and in an effort to
avoid rendering advisory opinions, we will abstain from addressing Appellant’s other issues until it should become
necessary to do so in our opinion after remand. See TEX. R. APP. P. 47.1.
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WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th
Court of Appeals District of Texas, at Tyler.

GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the
7th day of September 2022, A.D.

KATRINA MCCLENNY, CLERK