FRANKS v. STATE (1997)

OPINION

This appeal involves a conviction for indecency with a child.   The court sentenced the appellant, Gregory Andrew Franks, to nine years in prison and assessed a $5,000 fine.   The complaints involved in this appeal center around exchanges between the appellant and three jurors during a recess in appellant's criminal trial.   In three points of error, the appellant asserts that the trial court abused its discretion in denying his motion for mistrial, for failing to order a separate competency hearing before a jury, and for failing to refer his motion for recusal to an administrative judge.   The appellant also alleges that he was denied a fair trial guaranteed by the Texas Constitution because of ineffective representation and cumulative error.

Motion for Mistrial

 In his first point of error, the appellant asserts that the trial court erred in denying his motion for mistrial.   The appellant asserts that at least two of the three jurors he talked to received information clearly prejudicial to his defense.   Furthermore, he asserts the trial court did not ask either of these jurors whether the information given them by appellant would affect their deliberations, nor did they explicitly claim that their encounter with the appellant would have no such effect.   However, the judge did admonish each of the jurors that they were not to consider anything the appellant may have said in their deliberations, to which they agreed.   In addition, the judge admonished the jurors not to divulge any information about their encounter with the rest of the panel.

During an early recess, the appellant approached juror Samford while he was waiting for the elevator.   Before Samford realized what was happening, the appellant reached out and shook his hand and introduced himself.   The appellant may have said something about meeting Samford the day before.   Samford, upon realizing who the appellant was, stood by stonefaced and did not reply.   The judge admonished Samford not to use this encounter in any part of his deliberations, and Samford agreed.

In another recess, the appellant entered the elevator with two other jurors.   He attempted to exchange pleasantries with them, but the two stood by quietly not acknowledging him.   The appellant then asked them how they felt about the trial's progress and said something about alcohol or drug use.   The two jurors continued to ignore him.   They then got off the elevator and walked away from him.   During the court's examination of juror Tanner, the following colloquy occurred:

THE COURT: Okay.   What was it that he said to you?

THE JUROR: He asked us how it was going, how we thought it was going, and made a remark about the alcohol and something about the drugs that was very-this part I am not even sure I even heard.   Sounded like he just said Rosemary or basil or, you know, because I am not familiar with that kind of stuff;  but, did refer to something like that.   Okay.

THE COURT: Obviously, this is not to be any part of your deliberations?

THE JUROR: No, it has no-

THE COURT: Okay.

THE JUROR: I have no problem with that.

THE COURT: Okay.   Great.  If you would, please, when you go back to the jury room, please don't discuss the fact that you and I have had this conversation outside the presence of the rest of the jury.

THE JUROR: In fact, I never said anything.   Neither one of us said to the other jurors what was said to us.   Just the one was spoken to and how we should handle it. (sic)

The court then examined juror Park. When asked whether there had been any conversation in the elevator between anybody about the case, Park replied that there had not been and that he had heard nothing about the case.   He did relate that the appellant asked him what he thought, to which he did not reply.   The court then admonished Park not to use this contact with the appellant in his deliberations and not to speak about it with any of the other jurors.

Article 36.22 of the Code of Criminal Procedure states “No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.”  Tex.Code Crim. P. Ann. art. 36.22 (Vernon 1981).  Rule 30 of the Rules of Appellate Procedure provides that a new trial shall be granted an accused where a juror has conversed with any other person in regard to the case.  Tex.R.App. P. 30(b)(7).   It appears no Texas case has addressed the situation presented here involving a defendant who initiates unauthorized conversation with jurors.

The difficulty with treating a defendant initiating jury contact like other instances of unauthorized conversation with the jury is that it gives a defendant the power to create a mistrial by his own actions.   The general rule is that injury is presumed whenever a juror receives information about the case from an unauthorized source.   Thus, if a defendant or his agent gives a juror information about the case it is impossible for the trial court to avoid granting a mistrial.   A defendant who does not like the way the trial is going can deliberately cause a mistrial by engaging in such unauthorized conversation with jurors.   By treating the error as reviewable, the foundation is laid for requiring a trial court to declare a mistrial whenever a defendant engages in a more blatant violation of article 36.22.

 It is a well-settled principle of law that an accused cannot invite error and then complain of it.   See Ex parte Guerrero, 521 S.W.2d 613, 614 (Tex.Crim.App.1975).   The rule applies when a defendant is the “moving factor” creating the error.  Id.

There is no question that the appellant was the moving factor creating the error in this case.   Accordingly, we hold the rule of invited error applies here to preclude our review of point of error one.

The judgment is affirmed.

The discussion of the remaining points of error does not meet the criteria for publication Tex.R.App.P. 90, and is thus ordered not published.

Competency Evaluation

In his second point of error, the appellant asserts the court erred in denying his motion for competency evaluation after applying an improper standard.   Competency to stand trial is defined in Texas as (1) sufficient present ability to consult with counsel with a reasonable degree of rational understanding, or (2) the ability to understand, both rationally and factually, the criminal proceedings.  Tex.Code Crim. P. Ann. art. 46.02, § 1(a) (Vernon 1979);  Doherty v. State, 892 S.W.2d 13, 17-18 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).   Questions concerning a defendant's competency to stand trial may be raised at any time during the trial until sentence is pronounced.   See Williams v. State, 663 S.W.2d 832, 833 (Tex.Crim.App.1984) (holding that “a motion filed and presented by appellant after verdict of the jury but before assessment of punishment” raised the issue of incompetency during trial);  see also Tex.Code Crim. P. Ann. art. 42.07 (Vernon Supp.1997) (limiting defendant's right of allocution to three matters, including incompetency to stand trial).   During trial,2 if 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.”  Tex.Code Crim. P. Ann. art. 46.02, § 2(b) (Vernon 1979).   This hearing is known as a section 2(b) hearing.   If, during this hearing, “the court determines that there is evidence to support a finding of incompetency to stand trial, a jury shall be impaneled to determine the defendant's competency to stand trial.”  Tex.Code Crim. P. Ann. art. 46.02, § 4(a) (Vernon Supp.1997).3  This proceeding is known as a section 4 hearing.

This case poses two interrelated questions:  first, what “evidence” may be considered by the court when conducting a section 2(b) hearing, and, second, was the evidence presented to the court and duly considered by it sufficient to merit submitting the issue to a jury?   However, before addressing these issues, we must determine whether the court held a section 2(b) hearing.   After the court examined Tanner and Parks about their interaction with the appellant, it then examined the appellant.   The following discussion between the court and the appellant occurred.

THE COURT: Do you have problems understanding my instructions?

THE DEFENDANT: No, Your Honor, I don't.   I wasn't aware of-I am unaware of what you are referring to right now.

THE COURT: I heard that you had a conversation with two of the jurors on the break.

THE DEFENDANT: Your Honor, on the way down in the elevator I had mentioned-it wasn't a two-way conversation.   I had made a remark that I had-do you want me to repeat the remark?

THE COURT: What did you tell them?

THE DEFENDANT: I told them that I was intoxicated.   There were no drugs.   It was pills from herbs.   That was it, was herbs, and I wasn't aware that I am not supposed to do that.

THE COURT: So, obviously, you had a problem understanding my instructions to the jurors about don't discuss the case.

How it would be relevant for you to discuss the case with the jury outside this courtroom, is beyond me, Mr. Franks.   I am going to order you right now you are not to talk to the jurors in any way, shape, or form.   You are not to mingle with the jury and you are not to ride in the elevators with the jury.   You are to have no contact, whatsoever, with the jurors in this case.

Is that clear to you, sir?

THE DEFENDANT: Yes, it is, Your Honor.   Very clear.

THE COURT: I don't want to hear about this happening again.   And that goes for everybody who is a witness or anybody who is participating in this case.

The next day, the appellant's attorney filed a written motion requesting a competency evaluation.   In this motion, she asserted that the appellant's actions in interacting with the jurors were so bizarre and so against the judge's admonishments to the participants in the case, that it was indicative of the appellant's inability to consult with her with a reasonable degree of understanding.   In addition, the appellant's attorney asserted that this event supported her subjective observations of the appellant during the course of her representation.   In this motion, the appellant's attorney opined:

[Appellant] appears to have an inability to retain information his counsel imparts to him as well as an inability to cognitively receive the information defense counsel tells him and put it in perspective.   It is as if the Defendant hears information, but scrambles it once it reaches his brain to put it nonscientifically.

The attorney attached an affidavit to this motion verifying the truth of the statements contained in it.

In response to this motion, the court briefly questioned the appellant.   The discussion was as follows:

THE COURT: Mr.   Franks, have you been able to talk with your lawyer?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You have been discussing your case with her, have you not?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Is there any reason that you can't understand what's going on here in this courtroom this morning?

THE DEFENDANT: Some things that are told to me I forget immediately and as far as what's being understood here in the courtroom, I have a hard time understanding.

THE COURT: Any problem understanding me right now?

THE DEFENDANT: No, Your Honor.

THE COURT: You have been writing notes to your lawyer and communicating to your lawyer throughout the trial, have you not?

THE DEFENDANT: Yes.

THE COURT: I have been able to observe Mr. Franks in the courtroom.   I have also been able to observe him communicating with his attorney.   Although I have not been privileged to any conversations that have gone on between his attorney and Mr. Franks, I have no reason to believe that Mr. Franks is incompetent to stand trial.   So, I will deny your motion for competency.

In addressing a dialogue between the court and the defendant similar to the discussion in this case, the Court of Criminal Appeals recognized that article 46.02 does not set out any particular formalities when conducting a section 2(b) hearing.  Mata v. State, 632 S.W.2d 355, 361 (Tex.Crim.App.1982).

While the Section 2(b) inquiry was not as formal as it ideally might have been, it was a sufficient inquiry hearing to comply with Section 2(b) since the matter was being raised by the court sua sponte.   The purpose of Section 2(b) is to ensure that a defendant is competent to stand trial even if his attorney does not know to raise the issue.   Proceedings under Section 2(a) must be more formal if the defendant has asserted his incompetence.

Id. (citations omitted).4  As in Mata, we hold that the above colloquy between the court and the appellant constituted a section 2(b) hearing.

We next address what “evidence” was before the court when it held the section 2(b) hearing.  Section 2(b) provides:

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.

Tex.Code Crim. P. Ann. art. 46.02, § 2(b) (emphasis added).   The Mata court held:

The evidence must cause the court a bona fide doubt that the defendant has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or that he lacks an understanding of the proceedings against him.   The term “evidence” as used in Section 2(b) should not be strictly construed.   The statute itself uses the phrase “evidence ․ from any source.”   Therefore, the unsworn statement of the attorney could be evidence for this purpose if the statement of the attorney raised a bona fide doubt as to the defendant's competence.

Mata, 632 S.W.2d at 359.

The purpose of a section 2(b) hearing is to determine whether or not evidence exists to submit the issue of competency to a jury.   See Sisco v. State, 599 S.W.2d 607, 612 (Tex.Crim.App.1980) (discussing court's duty in the context of a section 2(a) hearing).   The court must conduct such a hearing sua sponte if presented with evidence from any source raising a bona fide doubt about the defendant's competency.  Mata, 632 S.W.2d at 359.

The Rules of Criminal Evidence are expressly inapplicable in a section 2(b) hearing.  Tex.R.Crim. Evid. 1101(c)(3)(B).   These factors suggest that the court may consider a broad array of “evidence” when conducting a hearing.   Therefore, we believe that the unsworn statements that the appellant made during the hearing and the sworn statements of the appellant's attorney contained in the motion for competency evaluation constituted evidence for purposes of section 2(b).   See, e.g., Arnold v. State, 873 S.W.2d 27, 37 (Tex.Crim.App.1993) (“If the evidence presented to the trial court, ‘from any source’ raised [the issue of incompetency], then the separate jury determination was required.”);  Fannin v. State, 715 S.W.2d 137, 138 (Tex.App.-Dallas 1986, pet. ref'd) (“Unsworn statements by an attorney may constitute ‘some evidence’ under article 46.02.”).

We next address whether this evidence was sufficient to submit the issue of competency to a jury.   In Sisco, the Court of Criminal Appeals interpreted the phrase “evidence to support a finding of incompetency to stand trial” in section 2(a) to require the court “to assay just that evidence tending to show incompetency, putting aside all competing indications of competency, to find whether there is some evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetency.”   599 S.W.2d at 613.   In Williams v. State, 663 S.W.2d 832 (Tex.Crim.App.1984), the court extended Sisco to section 2(b).  Id. at 834.   Therefore, if the evidence presented to the court throughout the trial constituted more than a scintilla, it was incumbent upon the court to submit the issue to a jury.  Arnold, 873 S.W.2d at 37.

The appellant asserts that his interaction with the jury and the sworn statement his attorney made in the motion for competency evaluation about her subjective observations of appellant constitute at least some evidence of incompetency.   We disagree.   This Court has held that evidence consisting of unruly courtroom behavior by a defendant, failure to cooperate with counsel, and requests for psychiatric evaluations were not sufficient evidence to show incompetency.  Burks v. State. 792 S.W.2d 835, 840 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd).   This Court held that if such evidence were sufficient, a criminal defendant could always raise a question respecting competency based merely on immature behavior.  Id. Similarly, appellant's failure to follow the court's instructions about interacting with the jury alone is not sufficient to show incompetency.

The appellant also contends that his attorney's statements about her subjective observations of the appellant's cognitive deficiencies constitutes some evidence of incompetency.   However, these conclusory statements about the appellant's inability to retain information and his failure to understand what his attorney related to him, in the absence of contextual facts, are not sufficient to require submission of the issue to a jury.   A jury could not rationally conclude based solely on the assertions in the appellant's motion that he was incompetent to stand trial.   The trial judge appears to have squarely faced this issue.   During the hearing, the trial judge asked the appellant questions relating to his cognitive abilities.   The appellant related nothing more than that he had a hard time understanding things.   Precisely what he had a hard time understanding is not clear from the record, nor is it clear how the appellant's difficulties understanding hindered his ability to assist in his defense.   With no other evidence before it, the court did not err in denying the appellant's motion.

We overrule point of error two.

Recusal

In his third point of error, the appellant asserts that the trial court erred in denying his motion for recusal.   In that motion, filed contemporaneously with the motion for mistrial and the motion requesting a competency evaluation, the appellant asserted that his behavior in communicating with the three jurors impacted the judge's ability to be impartial.   Of the three motions, the trial court entertained the motion for recusal last and denied it summarily.   Notwithstanding the timing difficulties in presenting a motion for recusal while a trial is in progress, the appellant's motion was not verified.   As such, the court was not required to entertain it, and any complaint the appellant may have had has been waived.  Bruno v. State, 916 S.W.2d 4, 7-8 (Tex.App.-Houston [1st Dist.] 1995, no. pet.) (holding that proper verification is required on a motion for recusal and that failure to meet this requirement waives error).

We overrule point of error three.

Ineffective Assistance of Counsel

In his fourth and fifth points of error, the appellant asserts that he was provided ineffective assistance of counsel and that he was denied a fair trial because of cumulative error.   He asserts as evidence of ineffectiveness his attorney's failure to recognize that he was incompetent prior to trial and her failure to properly inform him of proper conduct when at trial, her failure to properly follow through with the three motions discussed above, and her failure to preserve error by objecting to the prosecutor's alleged attempt to bolster the two victims during final argument.   Appellant further invites this Court to determine whether the Texas Constitution creates rights more protective than those provided in the United States Constitution when considering Strickland's prejudice prong.

To make out a claim for ineffectiveness during the guilt-innocence phase of a noncapital trial, a defendant must show (1) that counsel's performance was deficient in that it fell below an objective standard of reasonableness based on prevailing professional norms and, if so, (2) that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  Ex parte Walker, 777 S.W.2d 427, 430 (Tex.Crim.App.1989).   This test, more commonly known as the Strickland test after the Supreme Court's landmark decision, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), has been fully adopted in Texas.   See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986).   In Hernandez, the Court of Criminal Appeals held that the Texas Constitution does not “create a standard in ineffective assistance cases that is more protective of a defendant's rights than the standard put forward” in Strickland. Id. (emphasis in original).   Based on this language, we hold that the appellant's claim that the Texas Constitution provides greater protection and that the level of harm required to show ineffectiveness of counsel is accordingly reduced in Texas is without merit.   We proceed to address appellant's claims applying Strickland's two-prong test.

It is axiomatic that assertions of ineffectiveness must be firmly rooted in the record and that ineffectiveness is gauged by the totality of the representation.   See Price v. State, 923 S.W.2d 214, 217 (Tex.App.-Eastland 1996, pet. ref'd).   Furthermore, great deference must be given to the defense attorney's actions, and these actions will not be deemed defective if they can be considered to be the product of sound trial strategy.  Id. First, appellant's attorney did not err in seeking a mistrial for the appellant's inadvertent attempt at jury tampering.   This motion was properly presented, both orally and in written form, and a ruling was made on it.   Any potential error was preserved.   The same holds true for her motion questioning the appellant's competency to stand trial.   As such, no error is shown respecting the appellant's counsel's prosecution of these two motions.

With respect to the motion to recuse, to the extent that failure to verify it may be considered error, it is an isolated incident, and such isolated incidents are not necessarily indicative of ineffectiveness.   See Price, 923 S.W.2d at 217.   When placed in the totality of the representation, this lapse does not so infect the representation as to render it constitutionally infirm.   The appellant's attorney properly presented two other motions, one of which sufficiently presented evidence of incompetency.   Furthermore, no proof of prejudice on the part of the trial court is evident from the record.   We cannot determine from the record whether the motion to recuse, even if it had been properly presented, was meritorious.   Thus, the appellant has failed to demonstrate to this Court that he was harmed by any deficiency in the motion.

The appellant also directs this Court to the fact that his trial counsel failed to file a motion for new trial.   The appellant, however, has failed to demonstrate why this motion was necessary to preserve error for this Court.   To the extent that he asserts such a motion was necessary to preserve error as to possible jury misconduct stemming from his improvident contact with certain jurors, any error may only be guessed at by this Court and is not firmly grounded in the record before us.   See Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.)   Therefore, we do not find any evidence of ineffectiveness in trial counsel's failure to timely file a motion for new trial.

Finally, the appellant asserts that the prosecutor attempted to bolster the testimony of the two victims in this case.   However, the appellant does not demonstrate how the prosecutor engaged in improper closing argument, and he does not cite to any authority supporting any such argument.   Furthermore, after reviewing the record, we do not find any impropriety on the part of the prosecutor's argument.   The appellant's counsel was not ineffective by not objecting to this argument.

The appellant also asserts that the record is so replete with error that he was denied due process and a fair trial.   However, as discussed above, the record contains at most only one benign example of error on the part of the appellant's trial counsel.   Furthermore, the appellant's interaction with the jury was not so prejudicial as to merit a mistrial.

We overrule the appellant's points of error four and five and affirm the judgment of the trial court.

I concur with the majority's resolution of the first point of error, concerning jurors receiving information from an unauthorized source.   I would overrule the point of error.   However, I would not analyze it under the doctrine of invited error.   The majority extends the doctrine of invited error too far by including actions by a defendant alone that do not involve an action by the court.   In this case, the appellant filed a motion for mistrial based on the fact that the jury had been exposed to evidence from an outside source, namely himself.   The judge did not grant the mistrial.

Invited error is defined as:  “In appellate practice, the principle of invited error is that if, during the progress of a cause, a party requests or moves the court to make a ruling which is actually erroneous, and the court does so, that party cannot take advantage of the error on appeal or review.”   Black's Law Dictionary 543 (6th edition)(1990).

The Court of Criminal Appeals has applied invited error when the defendant has “invited” the court to do something, the court has then done the act, and thereafter the defendant complains of the court's action.   See Kelley v. State, 823 S.W.2d 300, 302 (Tex.Crim.App.1992) (defendant requested a name change, trial court changed indictment to reflect name change, when defendant complained the name change was error, the court held any objection was waived);  Capistran v. State, 759 S.W.2d 121, 124 (Tex.Crim.App.1988) (defendant requested the trial proceed on the evidence presented during an earlier trial, trial court did so, and then defendant complained on appeal the trial court erred in receiving evidence without appellant's written consent, appellate court held objection waived);  Livingston v. State, 739 S.W.2d 311, 341 (Tex.Crim.App.1987) (defendant requested a charge, the court gave the charge requested, when defendant complained the charge was error, appellate court held error was invited.);   Murphy v. State, 640 S.W.2d 297, 299-300 (Tex.Crim.App.1982) (appellate court held defendant was estopped from complaining about the legality of a search when he elected to prevent any disputed fact issue from coming before jury);  Cadd v. State, 587 S.W.2d 736, 741 (Tex.Crim.App.1979) (appellate court held defendant in no position to complain about the charge given because the defendant requested the charge);  Holmes v. State, 140 Tex.Crim. 619, 146 S.W.2d 400, 403 (App.1940) (defendant objected to the wording of the charge, the wording was taken out, then defendant complained the wording was not in the charge, appellate court held defendant invited error and could not complain).

A review of the appellate court decisions also shows the doctrine of invited error has only been applied when there has been an “invitation” by the defendant to the court to commit error, the court does what was requested, and thereafter the defendant complains of that action.   See McCray v. State, 861 S.W.2d 405, 409 (Tex.App.-Dallas 1993, no pet.) (court held defendant invited error when he rejected a defensive issue in the charge and then complained when it was not put in);  Mann v. State, 850 S.W.2d 740, 742 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (defendant who stipulated to evidence and told court to take judicial notice of all testimony and evidence presented at another hearing, invited trial court error and could not complain on appeal);  Ex parte Hargett, 827 S.W.2d 606, 607-608 (Tex.App.-Austin 1992, pet. ref'd) (defendant invited error when he told the court the case could be decided on the record and then complained on appeal that he was denied an evidentiary hearing);  Rivera v. State, 684 S.W.2d 174, 176 (Tex.App.-Houston [14th Dist.] 1984, pet. ref'd) (defendant invited error when he put his own character at issue, trial court allowed in State's evidence about his character, and on appeal defendant contends trial court erred in allowing it in).

In this case, only juror Tanner heard anything from appellant about the case.   Therefore, the two other jurors' interactions with the appellant did not prejudice him in any way, and the trial court did not err in denying the appellant's motion for mistrial based on their testimony alone.   Tanner did hear something relating to the trial but was unsure exactly what it was she heard.   She could not specifically relate what she heard or how it related to the trial.   Of course, information that the appellant was intoxicated or was using drugs at the time of the offense could prejudice the appellant's case.   However, Tanner agreed that she would not use the information in any way during her deliberations.   She also agreed not to discuss the matter with any other juror.

I would resolve point of error one by holding that the trial court did not err in denying the appellant's motion for mistrial because the appellant did not show how he was harmed by his discussions with the jurors.

This case should not expand the invited error doctrine to a situation that involves a defendant's actions alone.   The appellant did not “invite” the court to commit error and the court committed no error.

FOOTNOTES

FN2.  A defendant's competency may be raised prior to a trial on the merits by the court's “own motion or on written motion by the defendant or his counsel.”  Tex.Code Crim. P. Ann. art. 46.02, § 2(a) (Vernon 1979);  see Brown v. State, 871 S.W.2d 852, 858 (Tex.App.-Corpus Christi 1994, pet. ref'd).   Neither the defendant nor his counsel filed a pretrial motion concerning his competency.   Therefore, we are not concerned with section 2(a)..  FN2.  A defendant's competency may be raised prior to a trial on the merits by the court's “own motion or on written motion by the defendant or his counsel.”  Tex.Code Crim. P. Ann. art. 46.02, § 2(a) (Vernon 1979);  see Brown v. State, 871 S.W.2d 852, 858 (Tex.App.-Corpus Christi 1994, pet. ref'd).   Neither the defendant nor his counsel filed a pretrial motion concerning his competency.   Therefore, we are not concerned with section 2(a).

FN3. Section 4 further provides that:This determination shall be made by a jury that has not been selected to determine the guilt or innocence of the defendant.․(c) If the issue of incompetency to stand trial is raised other than by written motion in advance of trial pursuant to Subsection (1) of Section 2 of this article and the court determines that there is evidence to support a finding of incompetency to stand trial, the court shall set the issue for determination at any time prior to the sentencing of the defendant..  FN3. Section 4 further provides that:This determination shall be made by a jury that has not been selected to determine the guilt or innocence of the defendant.․(c) If the issue of incompetency to stand trial is raised other than by written motion in advance of trial pursuant to Subsection (1) of Section 2 of this article and the court determines that there is evidence to support a finding of incompetency to stand trial, the court shall set the issue for determination at any time prior to the sentencing of the defendant.

FN4.  Though this case deals with a hearing under section 2(b), appellant's counsel did assert the issue of incompetency in a motion.   However, appellant did not object that the “hearing” was procedurally infirm, nor does he make such a contention on appeal.   Therefore, we do not address whether the court erred in not conducting a more formal hearing..  FN4.  Though this case deals with a hearing under section 2(b), appellant's counsel did assert the issue of incompetency in a motion.   However, appellant did not object that the “hearing” was procedurally infirm, nor does he make such a contention on appeal.   Therefore, we do not address whether the court erred in not conducting a more formal hearing.

TAFT, Justice.

En banc review requested by TAFT, J., with respect to the first point of error.   Tex.R.App. P. 100(f). SCHNEIDER, C.J., and COHEN, MIRABAL, O'CONNOR, WILSON, HEDGES, TAFT and NUCHIA, JJ., voted for en banc review. ANDELL, J., voted against en banc review.   Joining in this portion of the opinion are SCHNEIDER, MIRABAL, COHEN, WILSON, HEDGES and NUCHIA, JJ. ANDELL, J., concurring in the opinion on point of error one, joined by O'CONNOR and HUTSON-DUNN, JJ.