Jesus Moises Lopez v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-25-00082-CR

Jesus Moises LOPEZ,
Appellant

v.

The STATE of Texas,
Appellee

From the 381st Judicial District Court, Starr County, Texas
Trial Court No. 22-CR-127
Honorable Jose Luis Garza, Judge Presiding

Opinion by: Lori Massey Brissette, Justice
Dissenting Opinion by: Velia J. Meza, Justice

Sitting: Lori Massey Brissette, Justice
Adrian A. Spears II, Justice
Velia J. Meza, Justice

Delivered and Filed: February 11, 2026

It is undeniable that “the criminal trial of an incompetent defendant violates due process.” 1

The indisputable significance of this due process right is protected by “state procedures that are

adequate to assure that incompetent defendants are not put to trial.” 2 The majority holds that the

appellate record before us is sufficient to conclude the trial court followed the mandatory

1
Medina v. California, 505 U.S. 437, 453 (1992).
2
Turner v. State, 422 S.W.3d 676, 689 (Tex. Crim. App. 2013).
04-25-00082-CR

competency procedures and determined Lopez’s competency was restored after having previously

been found incompetent to stand trial. I dissent.

Our code of criminal procedure provides a framework of shifting presumptions regarding

competency. Lopez was initially presumed competent to stand trial unless proven incompetent by

a preponderance of the evidence. 3 The trial court determined Lopez incompetent to stand trial on

December 7, 2022, and committed him to a jail-based restoration program. 4 Consequently, a new

presumption took effect: Lopez was presumed incompetent to stand trial

until determined competent. 5

The record is remarkably silent about Lopez’s competency restoration. Although the code

requires a notification and report from the head of Lopez’s restoration program to be filed, the

record is devoid of such. 6 The record also does not indicate whether such report was provided to

counsel. 7 Nor does the record show the trial court made any “determination” based on the report. 8

The State asks us to consider a bench warrant relating to a hearing on restoration of competency.

However, the transcript from that hearing indicates its purpose was to enter a docket control order.

While the record does show defense counsel stated the “second evaluation . . . found [Lopez] to

be competent,” no determination was made by the judge pursuant to article 46B.084(a-1).

The majority relies on counsel’s statements, the trial court’s admonishment of Lopez

regarding his plea of not guilty, and the recitations in the nunc pro tunc judgments, to conclude the

court made the required determination. But counsel’s statements 9 and the trial court’s

3
TEX. CODE. CRIM. PROC. art. 46B.003(b).
4
See TEX. CODE CRIM. PROC. art. 46B.071.
5
Schaffer v. State, 583 S.W.2d 627, 630 (Tex. Crim. App. 1979).
6
See TEX. CODE CRIM. PROC. art. 46B.079(c).
7
Id.
8
Id. art. 46B.084(a-1).
9
Ortiz v. State, 866 S.W.2d 312, 316 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (holding that “the belief of
trial counsel that a defendant is or is not competent is not determinative of competency.”).

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admonishment are evidentiary only and cannot be used to imply that Lopez was determined

competent to stand trial.10 All that remains in support of the majority’s rationale are the recitations

made in the nunc pro tunc judgments which state that “[i]t appeared to the Court that Defendant

was mentally competent and had pleaded as shown above to the charging instrument.”

While the majority, as well as sister courts, have found such recitations fulfill article 46B’s

judicial‑determination requirement, doing so undermines the rights that article 46B was designed

to protect. 11 The Texas Court of Criminal Appeals should reaffirm that once a defendant has been

found incompetent, the trial court must follow the statutory procedures set out in article 46B. The

mandatory procedures created by the Legislature—determination of incompetency, commitment,

treatment, receipt of a final report from the facility, service of that report on the parties, an

opportunity to object, and, if an objection is made, a competency hearing—exist to safeguard the

defendant’s constitutional due process rights. Compliance with this procedure is especially vital

today as Texas courts increasingly encounter defendants with significant mental health needs who

are found incompetent while awaiting trial. To disregard these procedures risks compounding the

very vulnerabilities they were enacted to address. Schaeffer recognized these procedures and

controls over intermediate court decisions that have strayed from it. 12

10
Byrd v. State, 719 S.W.2d 237, 238 (Tex. App.—Dallas 1986, no pet.) (citing Schaffer, 583 S.W.2d at 630); see
also Bradford v. State, 172 S.W.3d 1, 5 (Tex. App.—Fort Worth 2005, no pet.) (holding that a determination of
competency to stand trial cannot be implied).
11
See Cooper v. State, 333 S.W.3d 859, 866 (Tex. App.—Fort Worth 2010, pet. ref’d) (holding that an identical
recitation constituted a judicial determination of competency); Waits v. State, No. 05-03-01194-CR, 2004 WL 909747,
at *2 (Tex. App.—Dallas Apr. 29, 2004, pet. ref’d) (not designated for publication); Spratt v. State, No. 10-23-00065-
CR, 2024 WL 48216, at *2 (Tex. App.—Waco Jan. 4, 2024, pet. ref’d) (mem. op., not designated for publication);
Balentine v. State, No. 09-09-00354-CR, 2011 WL 2732146, at *1 (Tex. App.—Beaumont July 13, 2011), rev’d on
other grounds, No. PD-1102-11, 2012 WL 4044895 (Tex. Crim. App. 2012).
12
Schaffer, 583 S.W.2d at 630 (recognizing that the “statute is clear as to the precure to be used” once a defendant is
returned to the committing court).

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It is worth emphasizing that the recitations in the judgments nunc pro tunc are boiler plate

and utilized in all judgments of conviction in Texas. 13 To recognize such recitations as judicial

determinations of competency, as the majority does here, circumvents article 46B.084(a-1)’s

constitutionally grounded procedures and imperils incompetent defendants’ due process rights. In

practice, the majority’s approach allows trial court to superficially rectify any 46B procedure

violations with mere boiler plate recitations.

Additionally, such recitations are unrelated to article 46B.0084(a-1)’s judicial

determination. These recitations track article 26.13’s statutory requirement that “[n]o plea of guilty

or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is

mentally competent and the plea is free and voluntary.” 14 Unlike article 46B—which safeguards

defendants’ constitutional due process rights—article 26.13’s statutory admonitions “are not

themselves constitutionally required.” 15 In fact—unless raised as an issue invoking article 46B’s

procedures—article 26.13 does not require a trial court to inquire or hear evidence regarding a

defendant’s mental competency to include such recitations in the judgment. 16

Given the profound constitutional due process interests at stake, the suggestion that

boilerplate language—borrowed from plea admonishment requirements not invoked in this case—

could replace the judicial determination mandated by article 46B.084(a‑1) is deeply concerning.

Once a defendant has been found incompetent, Texas law unequivocally requires a determination

that the defendant has been restored to competency before the criminal case may proceed. 17

13
Off. of Court Admin., Judgment of Conviction by Court, available at
https://www.txcourts.gov/media/1455963/judgment-of-conviction-by-court-waiver-of-jury-trial-022323.docm; see
also TEX. CODE CRIM. PROC. art. 42.01, § 3 (stating that “[t]he Office of Court Administration of the Texas Judicial
System shall promulgate a standardized felony judgment form” and mandates that courts entering felony judgments
use such form).
14
TEX. CODE CRIM. PROC. art. 26.13(b).
15
VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007).
16
Compare Kuyava v. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976), with Schaffer, 583 S.W.2d at 631.
17
Schaffer, 583 S.W.2d at 631.

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04-25-00082-CR

Because this determination is absent from the record before us, I would abate this appeal and

remand for a retrospective competency determination as the law requires. For these reasons, I

dissent.

Velia J. Meza, Justice

DO NOT PUBLISH

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Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-25-00082-CR

Jesus Moises LOPEZ,
Appellant

v.

The STATE of Texas,
Appellee

From the 381st Judicial District Court, Starr County, Texas
Trial Court No. 22-CR-127
Honorable Jose Luis Garza, Judge Presiding

Opinion by: Lori Massey Brissette, Justice
Dissenting Opinion by: Velia J. Meza, Justice

Sitting: Lori Massey Brissette, Justice
Adrian A. Spears II, Justice
Velia J. Meza, Justice

Delivered and Filed: February 11, 2026

AFFIRMED

In this appeal, Appellant Jesus Moises Lopez challenges the trial court’s failure to make a

judicial determination of his competency before proceeding to a jury trial and the admission of

testimony of a forensic interviewer as an outcry witness. Because the record shows the trial court

determined Lopez was competent and because the admission of the forensic interviewer’s

testimony constituted harmless error, we affirm.
04-25-00082-CR

BACKGROUND

A jury found Lopez guilty of super aggravated sexual assault for repeatedly raping his

nephew, D.C.—who was younger than fourteen years old at the time—under the threat to kill him

if he told anyone. See TEX. PENAL CODE § 22.021(a)(2)(A). The trial court then sentenced him to

life in prison with the Texas Department of Criminal Justice Institutional Division and imposed a

$10,000 fine. This appeal followed.

COMPETENCY DETERMINATION

Lopez contends the trial court erred when it failed to make a judicial determination of

competency before proceeding to a jury trial. The State concedes there was no competency hearing,

but it contends that the trial court made the judicial determination prior to trial as evidenced by the

record. We agree.

On December 7, 2022, the trial court found defendant incompetent to stand trial. A little

over eighteen months later, on July 8, 2024, the trial court signed a bench warrant, filed by the

State, seeking to bring Lopez to court for a competency restoration hearing. Less than ten days

later, the trial court held a brief hearing. In that hearing, the trial court indicated it was aware of

the most recent report, explaining “there was the second evaluation.” Counsel for Lopez agreed

and added Lopez “was found to be competent.” Counsel for the State agreed: “[c]ompetency was

restored.”

After that date, Lopez and his counsel repeatedly indicated Lopez was competent. During

a December 2024 hearing, the court asked Lopez if he understood what was happening during the

proceedings, and he responded “[y]es, sir.” On January 27, 2025, during voir dire, the trial court

again asked Lopez if he understood what was happening and whether he was able to communicate

with his lawyers, and he replied “yes, sir.” The court clarified it was trying to “make sure” Lopez

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04-25-00082-CR

was competent. Lopez’s counsel responded “[y]es” and that Lopez had been assisting in his own

defense. The court then asked Lopez’s counsel if, based on the foregoing, he believed Lopez was

competent, and Lopez’s counsel responded “yes,” he was “coherent,” “spoke well,” had been

“helping,” and they had spent several hours with Lopez going over his case. On January 30, 2025,

Lopez was convicted by a jury of three counts of super aggravated sexual assault. Each of the nunc

pro tunc judgments provide: “It appeared to the Court that Defendant was mentally competent and

had pleaded as shown above to the charging instrument.”

Once a defendant has been found to be incompetent to stand trial and committed to a mental

health facility, as was Lopez, he may be returned to court if the “head of the facility” is of the

opinion that he has attained competency. 1 TEX. CODE CRIM. PRO. art. 46B.079(b). Article 46B.084

sets forth the process which should be followed upon the defendant’s return to the trial court. TEX.

CODE CRIM. PRO. art. 46B.084. Pursuant to Article 46B.084, the trial court “shall make a

determination” as to the defendant’s competency to stand trial. See TEX. CODE CRIM. PRO. art.

46B.084(a-1)(1); see also Cooper v. State, 333 S.W.3d 859, 862 (Tex. App.—Fort Worth 2010,

pet. ref’d) (citing cases). But, the trial court may make the determination based only on the most

recent report to the court from the head of the facility, the provider of the jail-based competency

restoration program, or the provider of the outpatient competency restoration program, as well as

“on other medical information or personal history information relating to the defendant.” TEX.

CODE CRIM. PRO. art. 46B.084(a-1)(1) (emphasis added). 2 The defendant or the State may object

in writing or in open court to the report. Id. But, a hearing is required only if an objection is made.

1
A defendant is incompetent to stand trial if the defendant does not have (1) sufficient present ability to consult with
his “lawyer with a reasonable degree of rational understanding” or (2) a rational and factual understanding of the
proceedings against him. Tex. Code Crim. Pro. art. 46B.003.
2
The trial court is obligated to make the determination within twenty days of receiving any report. TEX. CODE CRIM.
PRO. art. 46B.084(a-1)(2). If the trial court finds the defendant competent to stand trial, criminal proceedings shall be
resumed as soon as practicable after the date of the court’s competency determination. Id.(d)(2).

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04-25-00082-CR

TEX. CODE CRIM. PROC. art. 46B.084(b). Here, no objection was filed and no hearing was

requested. Instead, both counsel agreed with the report and stated on the record that Lopez had

attained competency.

Lopez contends, without citation to authority, that article 46B.084 requires the trial court

to render a written finding that competency had been restored, but we find no case supporting such

a requirement or construing the statute in that manner. TEX. CODE CRIM. PROC. art. 46B.084(a-

1)(1). Moreover, a trial court’s competency determination may be supported by a judgment, order,

docket entry, or any other evidence in the record demonstrating that the court made a competency

determination after the defendant’s return. See, e.g., Cooper, 333 S.W.3d at 862; Timmons v. State,

510 S.W.3d 713, 721 (Tex. App.—El Paso 2016, no pet.). See generally Schaeffer v. State, 583

S.W.2d 627, 630 (Tex. Crim. App. 1979). 3 Here, the trial court’s determination was evidenced

both by the trial court’s statements on the record and by the written statements in the judgments.

The Court of Criminal Appeals’ seminal case on this issue, Schaeffer v. State, is instructive.

583 S.W.2d 627. In Schaeffer, the Court initially reversed Schaeffer’s conviction for attempted

aggravated sexual abuse of a child on the ground that there was no judicial determination of

appellant’s competency to stand trial prior to the trial on the merits. 583 S.W.2d at 630. The court

explained this result was compelled by the record: there was nothing to show the report was ever

filed with the court or furnished or served on the parties and there was no indication of a

determination in the record, such as a finding in the judgment, an order, or a docket sheet entry.

The record was further devoid of any evidence the court ever determined competency after the

appellant’s return from the state hospital. Id. at 631. On rehearing, the State showed the report was

3
If the competency determination is not made prior to trial, we may order the trial court to make a retrospective
determination. See, e.g., Schaeffer, 583 S.W.2d at 630–31; Timmons, 510 S.W.3d at 721.

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04-25-00082-CR

indeed filed with the court and argued it was therefore “obvious” the trial court made a

determination appellant was competent to stand trial. But the Court rejected the argument,

explaining, the record still lacked “any judgment, order, docket sheet entry, or other evidence” the

court ever made a competency determination. Id. at 631.

Here, the report was not filed with the court as required by Texas Code of Criminal

Procedure article 46B.079(c). Nevertheless, the record clearly demonstrates the trial court and

counsel had reviewed the report and neither counsel had objection to it. The trial court inquired

into the parties’ positions and made its judicial determination of competency based on the report’s

finding as well as the representations of both defense counsel and the State that Lopez’s

competency had been restored. The trial court went further to personally inquire about and monitor

Defendant’s conduct, his responses to court inquiries, and the repeated statements of his counsel,

as set forth above. Cf. Timmons, 510 S.W.3d at 721 (same); Cooper, 333 S.W.3d at 862 (same).

And then, unlike in Schaeffer, the trial court expressly set forth in its judgment its determination

that Lopez was competent to stand trial. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.

App. 1984) (providing presumption of regularity created by recitals in judgment can be overcome

only when record otherwise affirmatively reflects error occurred); Cooper, 333 S.W.3d at 862

(mental competency expressly found in judgment); see also Timmons, 510 S.W.3d at 721; cf.

Schaeffer, 583 S.W.2d at 630.

We, like the dissent, are mindful of the due process considerations necessary to protect

those who are not competent to stand trial. But, we are not in a position to add requirements to the

statute that the legislature did not. Although the dissent asserts that a presumption of incompetence

was somehow created here, the legislature has decided how such a presumption may be overcome

in the absence of a hearing. See TEX. CODE CRIM. PRO. art. 46B.084(b). In fact, the statute is clear

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04-25-00082-CR

that a hearing is only required if one of the parties objects to the report finding the defendant’s

competency has been restored. Id. That means, if no party objects, then the trial court is free to

determine competency based only on the report’s findings and other information referred to in the

statute. Finally, while the court’s finding in the judgment may be boilerplate, this is not a case

where it was added absent any indication in the record that the trial court addressed the defendant’s

competence. See Breazeale, 683 S.W.2d at 450.

Accordingly, based on the record before us, we overrule this issue.

THE OUTCRY WITNESS

Lopez argues the trial court erred by admitting the testimony of the State’s designated

expert—a forensic interviewer—as an “outcry witness” under Texas Code of Criminal Procedure

article 38.072. First, Lopez objects because the forensic interviewer was not the first adult to whom

the allegations were made. Further, Lopez contends that the State sought to introduce the forensic

interviewer as an outcry witness because the State missed the deadline by which to otherwise

designate the witness.

During the outcry hearing Lopez’s counsel objected to the selection of the forensic

interviewer as the outcry witness. The State explained the first outcry witness—the child’s mother

who was a Mexican national—was deported, and Lopez’s counsel stipulated to that as a fact. The

State explained the forensic interviewer was the second outcry witness. The State argued that using

the second outcry witness was consistent with Article 38.072 because the outcry witness had to be

available, and it could not compel the mother’s attendance given she had been deported. When the

State called the forensic interviewer to testify as the outcry witness, Lopez’s counsel objected,

which the court overruled.

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Section 2(a) of Article 38.072 creates a hearsay exception for a child-complainant’s out-

of-court statements describing the alleged offense if those statements “were made to the first” adult

“other than the defendant.” TEX. CODE CRIM. PRO. art. 38.072, §2(a-1), (b); Bays v. State, 396

S.W.3d 580, 585 (Tex. Crim. App. 2013); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App.

1990) (providing same). The adult may then testify regarding the child’s statements as an “outcry”

witness. See TEX. CODE CRIM. PRO. art. 38.072, §2(a-1), (b); Bays, 396 S.W.3d at 585. However,

as Lopez contends, the adult must be the first person, based on the plain language of the statute.

See TEX. CODE CRIM. PRO. art. 38.072, §2(a-1); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim.

App. 1990) (stating same).

Lopez further contends the trial court abused its discretion when it allowed the State to use

the designation of the “outcry witness” to avoid the impact of an untimely designation of the

forensic interviewer’s testimony, in violation of the Texas Code of Criminal Procedure Article

39.14. Lopez contends this violated the trial court’s standing docket control and discovery orders. 4

But Lopez never objected to the disclosure on this basis. Indeed, at the outcry hearing, Lopez

plainly stated he had “no objection” to the State’s expert and other witness disclosures. Lopez

therefore waived any complaint on this issue. See TEX. R. APP. P. 33.1. Further, Lopez did not

move for a continuance. See Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994) (“If a

witness’ name is not furnished a defendant before trial despite a court order, any error in allowing

that witness to testify over a claim of surprise is ‘made harmless’ by defendant’s failure to object

or move for a continuance.”). 5

4
The discovery order attached to the docket control order was entered after a July 17, 2024 pretrial hearing. We
therefore assume, for the sake of argument, the trial court intended to refer to the next pretrial hearing date. In any
event, as the outcry witness disclosure was not made until January 2025, it would be untimely as to either date.
5
Lopez does not challenge, in his brief, the disclosure for failure to comply with the timing requirements of article
38.072(b)(1). Even if he had, the disclosure was timely under that rule as it was provided on or before the fourteenth

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04-25-00082-CR

Even if the trial court erred by allowing the forensic interviewer to testify as an outcry

witness, we must disregard any such error unless it affected Lopez’s substantial rights. See Kou v.

State, 536 S.W.3d 535, 540 (Tex. App.—San Antonio 2017, pet. ref’d) (applying TEX. R. APP. P.

44.2(b) when declarant testified at trial (citing Cordero v. State, 444 S.W.3d 812, 819–20 (Tex.

App.—Beaumont 2014, pet. ref’d) (same))); Rojas-Antonio v. State, 719 S.W.3d 422, 428 (Tex.

App.—Corpus Christi–Edinburg 2025, no pet.) (stating same). In general, an erroneous admission

of evidence does not constitute reversible error if the same or similar evidence is admitted without

objection at a different point during the trial. See Kou, 536 S.W.3d at 540; Cordero, 444 S.W.3d

812, 820.

Here, the forensic interviewer testified D.C. told her he was raped as a child by Lopez four

times before he was fourteen years of age and that Lopez told him he would kill him if he told

anyone. But, notably, D.C. testified to the same at trial without objection. See Kou, 536 S.W.3d at

540; Cordero, 444 S.W.3d 812, 820. Accordingly, even if the trial court erred by allowing the

forensic interviewer to testify as an outcry witness, the admission of forensic interviewer’s

testimony did not affect Lopez’s substantial rights, and it is therefore not reversible error. See id.

Accordingly, we overrule this issue.

CONCLUSION

Accordingly, the trial court’s judgments nunc pro tunc are affirmed.

Lori Massey Brissette, Justice

DO NOT PUBLISH

day before proceedings, being provided on January 13, 2025, with the jury empaneled on January 27. See TEX. CODE
CRIM. PRO. art. 38.072(b)(1); Zarco v. State, 210 S.W.3d 816, 832–33 (Tex. App.—Houston [14th Dist.] 2006, no
pet.).

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