Comment

Article 46B of the Code of Criminal Procedure creates the jury-trial right for a determination of competency to stand trial on the merits. See Tex. Code Crim. Proc. arts. 46B.051, 46B.052. It is beyond the scope of this commentary to discuss in detail the procedures required to reach that point. However, once the statutory procedures have been satisfied, the state, the defense, and the trial court all have the separate right to request a jury trial rather than a bench trial, and upon request, jury determination is mandatory. Tex. Code Crim. Proc. art. 46B.051. Some discussion is required, however, to frame the issues the Committee faced, most notably the burden of proof.

Proceedings Driven by Parties or Trial Court. In all cases, a defendant is presumed competent unless proven incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. art. 46B.003(b).

Either party or the trial court itself can raise the issue of incompetency (Tex. Code Crim. Proc. art. 46B.004 (a)), and either party or the trial court can insist on a jury trial after the examiner’s report (Tex. Code Crim. Proc. art. 46B.005 (a), (c)). Thus, for example, defense counsel can initiate the proceedings by making a suggestion of incompetency, and later, after the evaluations and reports have been filed, the state could request the jury trial, even when the defense does not seek it.

After a suggestion of incompetency and informal inquiry, the trial court and the lawyers together can agree the defendant is incompetent and thereby dispense with a jury trial. See Tex. Code Crim. Proc. arts. 46B.005(c), 46B.054. Conversely, a trial court can determine on its own motion that a trial is required even if neither party requests one. Tex. Code Crim. Proc. art. 46B.005 (c). However, the parties and the trial court cannot agree among themselves that the defendant is competent.

Ethical Problems Created by This Process. The Committee also notes the particular ethical problems defense counsel can be presented in these cases. For example, counsel can agree over objection that the defendant is incompetent and thereby subject him or her to various forms of competency restoration and restrictions on liberty. See Tex. Code Crim. Proc. arts. 46B.054, 46B.071. Or counsel might be directed by a client to argue competency when counsel sincerely believes the client is incompetent. Or counsel might be called as a witness to testify against the defendant on the competency issue despite the prohibition in rule 3.08(b) of the Texas Rules of Professional Conduct on a lawyer continuing as an advocate if "the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client." Manning v. State, 766 S.W.2d 551, 556–58 (Tex. App.—Dallas 1989), affirmed and opinion adopted in part, 773 S.W.2d 568, 569 (Tex. Crim. App. 1989); see Gonzalez v. State, 616 S.W.3d 585 (Tex. Crim. App. 2020) (unpublished section) (rule 3.08 of the Texas Rules of Professional Conduct does not apply to article 46B trials). But see Tex. R. App. P. 77.3 (unpublished opinions have no precedential value).

Some of these problems are alleviated by the view that competency trials are "nonadversarial" in nature. Manning, 766 S.W.2d at 554–55. The court of criminal appeals, in its published per curiam opinion on review, referred to that portion of the opinion as "sound" without any elaboration. Manning, 773 S.W.2d at 569. That court cited the lower-court opinion in Manning approvingly in more detail in an unpublished section of Gonzalez. Gonzalez, 616 S.W.3d at 594 (not designated for publication). But see Tex. R. App. P. 77.3.

Most recently, in Bluntson v. State, the court of criminal appeals rejected a complaint that counsel at his self-representation hearing became his adversary by taking the position that he was not competent to represent himself. Bluntson v. State, 728 S.W.3d 87, 129–30 (Tex. Crim. App. 2025). The court framed the complaint thus: "What Appellant suggests is that his appointed counsel were required to promote a waiver [of counsel] they believed to be invalid." Bluntson, 728 S.W.3d at 130. Part of the explanation for its rejection was Bluntson’s failure to cite any "law, constitutional or statutory, that requires appointed counsel—who believe that severe mental illness renders their client incompetent to waive counsel and represent himself—to withhold evidence demonstrating that incompetence from the trial court." Bluntson, 728 S.W.3d at 130. "In fact," the court continued, withholding such evidence and allowing or assisting in a waiver counsel believes to be invalid "could itself be an act that violates the Sixth Amendment right to counsel." Bluntson, 728 S.W.3d at 130. This further supports the idea that the purpose of article 46B is to get the correct answer, not to frame an adversarial contest.

Nature of Proceedings Also Affects Who, if Anyone, Has Burden of Proof. Since 1979, the court of criminal appeals has ascribed the burden to prove incompetency to the defendant in cases in which the defendant raised it. White v. State, 591 S.W.2d 851, 854 (Tex. Crim. App. 1979) ("[T]he burden of proof in a regular competency hearing will be on the defendant and not the State."); Barber v. State, 757 S.W.2d 359, 363 & n.1 (Tex. Crim. App. 1988) (citing White, 591 S.W.2d at 854, for the proposition that a "regular" competency hearing or "normal[]" situation warrants placement of the burden on the defendant).

The U.S. Supreme Court has considered a California statute substantially similar to the Texas statute and concluded that it "establishes a presumption that the defendant is competent, and the party claiming incompetence bears the burden of proving that the defendant is incompetent by a preponderance of the evidence." Medina v. California, 505 U.S. 437, 440 (1992) (construing statute that "[i]t shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent"). The California Supreme Court observed that its statute placed the burden on whichever party challenged the presumption of competence. Medina, 505 U.S. at 452. The U.S. Supreme Court agreed with that reading. Medina, 505 U.S. at 447. The Court noted that, while this practice was not unique, some states place the burden on the defendant and others place it on the prosecution. Medina, 505 U.S. at 447–48. Unfortunately, the only issue for the U.S. Supreme Court was whether placing the burden on a defendant raising incompetence violates due process; the Court concluded that it does not. Medina, 505 U.S. at 448. At no point did it raise or consider the issue of there being no burden on any party.

The court of criminal appeals has not addressed the consequences of Manning’s "non-adversarial" characterization on burden placement nor has it overruled the White or Barber language that places a burden on the defendant when the defendant raises the issue. Adopting the Manning reasoning would support an argument that no party bears any burden in a competency trial and so lead to the conclusion that no statement of burden be included in the charge.

In light of Manning’s reasoning, and the fact that the trial court has the right to set the issue before a jury even when the parties agree otherwise, the Committee’s default position is to not place a burden on any party. Both the abstract instruction on the level of confidence the jury must have to rebut the presumption of competence and its application can be understood without reference to a party. In a case in which one party contests competence, that party may assume the burden of proof to better focus the jury’s attention. Further, the parties may agree to structure the charge to reflect the adversarial nature of that particular case.

Evidence Related to the Indicted Offense. It is generally improper to introduce evidence of the offense itself into the competency hearing. Barber, 757 S.W.2d at 361; Brandon v. State, 599 S.W.2d 567, 580 (Tex. Crim. App. 1979); Ex parte Hagans, 558 S.W.2d 457, 461 (Tex. Crim. App. 1977); Townsend v. State, 427 S.W.2d 55 (Tex. Crim. App. 1968). The necessity of the separate trial on competency is so that the determination may be made "uncluttered by the evidence of the offense itself." Hagans, 558 S.W.2d at 461 (quoting Townsend, 427 S.W.2d at 63). A determination of competency should not include facts of the underlying offense because those facts "might well so stir the minds of the jury as to make difficult the exercise of calm judgment upon the question" of incompetency. Hagans, 558 S.W.2d at 461 (citing Ramirez v. State, 241 S.W. 1020, 1021 (1922)).

However, not "every mention of the crime itself will be prejudicial; to necessitate reversal evidence of the offense brought to the attention of the competency jury must be of such nature as to deny the accused a fair trial and impartial determination of his competency." Barber, 757 S.W.2d at 361 (citing Brandon, 599 S.W.2d at 580).

The court of criminal appeals considered charge language mentioning the alleged crime in Goodman v. State, 701 S.W.2d 850, 863 (Tex. Crim. App. 1985). The first sentence of the charge stated the offense the defendant was charged with and the date of its alleged commission. Goodman, 701 S.W.2d at 863. The charge also contained instructions that the indictment was not to be considered by the jury as evidence of the defendant’s competency to stand trial and that the jury was not to consider the defendant’s guilt or innocence in their competency determination. Goodman, 701 S.W.2d at 863. The court concluded that this language did not cause harm, which is not the same as saying it was not error. See Goodman, 701 S.W.2d at 863.

The Committee believes that the better approach is to acknowledge the defendant has been accused of a criminal offense but omit any reference to the nature of the offense.

Extraneous Offense and Bad Acts. Although the Code expressly states that the Texas Rules of Evidence apply in competency trials, Tex. Code Crim. Proc. art. 46B.008, the court of criminal appeals has suggested that rule 404(b), regarding extraneous offenses, might not apply in that context:

The basic purpose for the exclusion of extraneous offenses [under rule 404(b)] is to prevent the accused from being tried for some collateral crime or for being a criminal generally. Such purpose is not applicable in a competency hearing. A [defendant’s] guilt or innocence is to be determined in a separate trial where extraneous offenses are generally prohibited. In a competency hearing, all relevant facts concerning petitioner’s mental competency should be submitted to the jury.

Ex parte Harris, 618 S.W.2d 369, 373 (Tex. Crim. App. 1981). The court of criminal appeals recently repeated this reasoning in Bluntson, 728 S.W.3d at 112. Yet in both cases the court applied a rule 404(b) rubric—substituting "competence" for "guilt"—to analyze the propriety of the admission of extraneous offense evidence. See, e.g., Bluntson, 728 S.W.3d at 112 ("The State offered evidence of Appellant’s extraneous offenses—the theft from Jarvis and his prior criminal convictions—to demonstrate a pattern of behavior consistent with antisocial personality disorder. This was not an invitation to draw an inference of competence solely from Appellant’s apparent character as a criminal in general."). In both cases, the evidence was deemed admissible to prove the defendant was feigning incompetence. Bluntson, 728 S.W.3d at 112; Harris, 618 S.W.2d at 373. Notably, the relevance could cut the other direction—a history of bad acts might be argued to be attributable to mental illness or intellectual disability to such a degree to tend to prove incompetence.

What remains is the question of the proper jury instruction when evidence of extraneous offenses is raised under rule 404(b)—or even, presumably, when evidence is raised of the underlying offense itself. This Committee has published a general extraneous offense charge, which is required by law in criminal cases and mandates that the jury must find beyond a reasonable doubt that the defendant committed those extraneous acts. See CPJC 2.2. But competency trials are civil in nature, not criminal. See White, 591 S.W.2d at 854–55 (noting that the traditional view of competency trials was that they were not a "criminal case" and thus determining that the civil rules concerning the number of peremptory jury strikes applied rather than the criminal rules); see also George E. Dix & John M. Schmolesky, 43 Texas Practice: Criminal Practice and Procedure § 31:55, at 68 (3d ed. 2011). The court of criminal appeals has cited White favorably on this issue. See Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990). Texas civil law does not have a clear application of burdens in an extraneous-offense situation. See Texas Farm Bureau Mutual Insurance v. Baker, 596 S.W.2d 639, 643 (Tex. App.—Tyler 1980, writ ref’d n.r.e.) (allegation inadmissible when never proved). See generally Jeff Brown & Reece Rondon, Texas Rules of Evidence Handbook 273–74 (2023). The State Bar committees for civil law areas do not offer a pattern instruction.

The Committee believes Texas courts would be unlikely to apply a beyond-a-reasonable-doubt standard to an instruction on extraneous bad acts when the burden in the trial itself is preponderance of the evidence. The reasoning in the long line of case law establishing the burden of such evidence in a criminal trial does not seem relevant to a competency trial.

The Committee offers here in the comments a modified rule 404(b) instruction in light of this difficult issue—with no statement of the burden:

Evidence of Wrongful Acts Possibly Committed by Defendant

During the trial, you heard evidence that the defendant may have committed wrongful acts. These acts were offered for the limited purpose of determining whether the defendant is competent to stand trial. You are not to consider that evidence at all unless you find by a preponderance of the evidence that the defendant did, in fact, commit the wrongful acts. Those of you who believe the defendant did the wrongful act may consider it.

If you find the defendant committed a wrongful act, you may consider this evidence only for the limited purpose I have described. You may not consider this evidence for any other purpose.

The Committee recognizes this instruction comes with no guidance from courts or from the civil practice pattern jury instructions. The Committee encourages the parties to study this issue and advance arguments appropriate for their cases in the trial courts.

Defendant’s Right to Remain Silent. The defendant has a constitutional right to remain silent during trial on the merits. The question arises as to whether this right applies in the context of a competency trial.

Texas courts have not ruled on this issue. However, by statute a defendant’s statements made during any course of a 46B proceeding, including trial, "may not be admitted in evidence against the defendant in any criminal proceeding" unless those statements are first introduced by the defendant in the criminal trial. Tex. Code Crim. Proc. art. 46B.007. Furthermore, this legislative immunity is substantially similar to the judicially created immunity in California that the Ninth Circuit considered when it held that the Fifth Amendment did not apply to California competency trials. See Nguyen v. Garcia, 477 F.3d 716, 725–26 (9th Cir. 2007).

The Committee believes that Texas courts would rule in a manner similar to the Ninth Circuit because testimony produced during a 46B trial cannot be used against the defendant at any future criminal proceeding. Because the interests of the Fifth Amendment do not seem to be implicated, the Committee has not included a Fifth Amendment instruction in this pattern charge.

Undefined Terms. As the court of criminal appeals recognized in Penry v. State, 903 S.W.2d 715, 729–30 (Tex. Crim. App. 1995), because there are no statutory definitions of "rational," "reasonable," or "understanding," and because these words are not used in any technical sense, the jury is entitled to give them their ordinary meaning. Just as no definitions of these terms are required in the jury charge, no further meaning need be given to the phrase "sufficient present ability to consult with his lawyer to a reasonable degree of rational understanding." Penry, 903 S.W.2d at 729–30. The only definition provided in the Committee’s instruction is for "preponderance of the evidence."

Verdict Form. The Code provides, "If a jury determination of the issue of incompetency to stand trial is required ... the court shall require the jury to state in its verdict whether the defendant is incompetent to stand trial." Tex. Code Crim. Proc. art. 46B.052. Read literally, this language might require the trial court to instruct the jury, "State in your verdict whether the defendant is incompetent to stand trial," and leave it to them to draft their own verdict. Or it might require the trial court to pose the question, "Is the defendant incompetent to stand trial?" The Committee, however, believed the plain language of the statute is directed at what the jury is required to articulate in its verdict—not how the trial court must achieve that result. Consequently, the Committee determined the legislative mandate would best be followed by offering the jury a verdict form with two options: (1) we find the defendant competent, or (2) we find the defendant incompetent. The Committee also believed it would be unduly repetitive to include a recitation of the burden in the verdict form.