Gerardo Solis III v. the State of Texas

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.
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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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