Billy Ray Pegues v. the State of Texas

                                       NO. 12-21-00124-CR

                              IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

BILLY RAY PEGUES,                                       §       APPEAL FROM THE 217TH
APPELLANT

V.                                                      §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                §       ANGELINA COUNTY, TEXAS

                                       MEMORANDUM OPINION
        In seven issues, Billy Ray Pegues appeals his conviction for aggravated robbery. We
reverse and remand.


                                                BACKGROUND
        Appellant was indicted for aggravated robbery, a first-degree felony. 1 The trial court
appointed counsel and referred Appellant to Joseph Kartye, a licensed psychologist, for a
competency evaluation.
        Dr. Kartye filed his evaluation with the court on December 10, 2019. According to the
report, Kartye informed Appellant of the purpose, scope, and possible outcomes of the
competency examination, that he was required to relay his findings to the trial court, and that
Appellant could refuse to answer any questions. Appellant declined to answer any questions.
Kartye noted that Appellant was “defensive but also belligerent and confrontive.” Appellant
returned to his cell.
        Kartye interviewed the lieutenant at the Angelina County jail, who informed Kartye that
Appellant was housed in a cell with other inmates, interacted appropriately with other inmates


        1
            TEX. PENAL CODE ANN. §§ 12.32(a), 29.03(a)(2) (West 2019).
and staff, exhibited no unusual behavior, and was not taking any medications. Kartye reviewed
Appellant’s jail medical records, but found no medical or psychiatric history to reference, and
reviewed two letters from Appellant to the district attorney. Ultimately, Kartye opined that
Appellant had significant psychiatric issues, including paranoid delusions and grandiosity, which
would interfere with his ability to assist his attorney. 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. Appellant’s counsel told the court that Appellant disagreed
with 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 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.
       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 issue one, Appellant argues that the trial court abused its discretion by finding him
competent to stand trial without holding a formal competency examination.
       On September 7, 2022, this Court sustained this issue, abating the appeal and remanding
the case to the trial court to determine (1) whether a retrospective competency trial is feasible
and, if so, to conduct such trial; and (2) prepare written findings as to whether a retrospective
competency trial is feasible and the results of any such trial. We explained as follows:


       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



                                                      2
        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. 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 trial. Therefore, a
        formal competency trial was required.


Pegues v. State, No. 12-21-00124-CR (Tex. App.—Tyler Sept. 7, 2022) (order) (internal
citations omitted); see TEX. CODE CRIM. PROC. ANN. arts. 46B.003, 46B.004, 46B.005 (West
2018) (setting forth substantive and procedural framework for making competency
determinations to ensure that legally incompetent criminal defendants do not stand trial); see also
Boyett v. State, 

 (Tex. Crim. App. 2018) (trial court employs two-step
process for making competency determinations before it may ultimately conclude defendant is
incompetent to stand trial: (1) an informal inquiry, and (2) a formal competency trial).
           On September 26, the trial court held a hearing to determine whether a retrospective
competency trial is feasible. Both the State and Appellant’s counsel agreed that such a trial is
feasible, and they discussed needing testimony from two witnesses: Kartye and Appellant’s trial
counsel.     The trial court made the following findings: (1) the State and Appellant agree a
retrospective trial is feasible, (2) Appellant requested a jury trial on the issue of competency, (3) the
trial court consents to the retrospective feasibility of a trial, (4) trial counsel has a serious health issue
“at this time to testify at trial or give a deposition,” (5) trial counsel has “relevant evidence which is
essential to the competency question,” and (6) trial counsel is expected to be in inpatient physical
therapy for four to six weeks. The trial court requested an extension of time to hold a retrospective
competency trial and we granted the motion to November 18.
        On November 16, the trial court filed a response to our order, which stated that it is
unable to conduct a retrospective competency trial because Appellant’s trial counsel died, and
such a trial is not feasible. The trial court concluded that Pegues should be “granted a new trial
and be evaluated to stand trial and if he is competent, the parties will proceed to trial.” This
Court requested responses from the State and Appellant’s appellate counsel, but none were filed.
        “A criminal defendant who is incompetent may not be put to trial without violating due
process.” Turner v. State, 

 (Tex. Crim. App. 2013). Because the trial court
determined that a retrospective competency evaluation is not feasible, the appropriate disposition
of this appeal is to reverse Appellant’s conviction and remand for a new trial. See Ex parte



                                                         3
Winfrey, 

 (Tex. Crim. App. 1979) (if it is not possible to make a
retrospective determination of applicant’s competency, or if applicant is found to have been
incompetent when tried, he must have a new trial); see also Guerra v. State, No. 11-21-00010-
CR, 

, at *3 (Tex. App.—Eastland Nov. 17, 2022, no pet. h.) (mem. op., not
designated for publication) (reversing appellant’s revocation of community supervision and
remanding for a new trial where trial court determined retrospective competency trial was not
feasible).


                                                  DISPOSITION
         We reaffirm our previous holding sustaining Appellant’s first issue.                       Because a
retrospective competency trial is not feasible under the circumstances of this case, we reverse
Appellant’s conviction and remand for a new trial. 2

                                                                     BRIAN HOYLE
                                                                        Justice

Opinion delivered December 7, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



         Having sustained Appellant’s first issue, reversed Appellant’s conviction, and remanded for a new trial,
         2

we need not address Appellant’s remaining issues. See TEX. R. APP. P. 47.1.


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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                        DECEMBER 7, 2022


                                        NO. 12-21-00124-CR


                                      BILLY RAY PEGUES,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                               Appeal from the 217th District Court
                       of Angelina County, Texas (Tr.Ct.No. 2019-0706)


                   THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that
the judgment be reversed and the cause remanded to the trial court for a new trial in
accordance with the opinion of this Court; and that this decision be certified to the court below
for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.