I know this is an elementary question, but: The defense attorney filed a motion suggesting that the defendant is incompetent. The Court appointed an expert to examine the defendant. The expert's report states that the defendant is competent to stand trial. Now what do we do? Put the case back on the jury trial docket for a trial on the merits of the case? Do we have a jury trial on competency? Thanks.

46B.003(b) applies in that situation. 46B.005(c) applies. I guess the defendant can nevertheless request (demand) a trial, but the report should be admissible under 46B.074(b) and see 46B.007.

Thanks for your response, Martin. I read 46B.005. However, (c) says that a trial is not required if (1) neither party requests one, (2) neither party opposes a finding of INCOMPETENCY, AND (3) the Court doesn't find that there need to be a trial. As I read 46B.005 (c), I think it says that you don't need a hearing if no one wants a trial and everyone agrees that the defendant is incompetent.

There was a time when I knew this stuff. I don't know what happened to my brain! Surely, the answer is not that we have to have a jury trial on this issue.

You are right that 46B.005(c) is worded as though to avoid a trial only if everyone agrees the defendant should be found incompetent. But, I have never seen anyone argue subsection (b) required a trial under your facts. Maybe you just fall back on the rule that the law does not require a useless thing to be done.

Addendum: And under the old law it was fairly clear that once a report of competence was returned a so-called Sec. 4 hearing was not required. Reed, 112 S.W.3d 706.

It's always a good idea, though, for the judge to put it on the record that the defendant has been examined and been found to be competent before you go to trial. And try it as quickly as you can, in case the defendant decompensates and they raise competency again!

I would strongly agree with Jane's comment. Logically simply note that given the presumption of competency there is now no evidence before the court to defeat such a presumption.

Although unpublished, this opinion makes it pretty clear the court could decline a demand for a jury trial (and it is a Second District case). Hartfield