Defendant is on trial for evading arrest. Before trial he was found incompetent with probability of attaining competence. We are now beginning trial (tomorrow) and defense attorney wants to use fact of competence for mitigation in punishment (also seemed to hint at possibly for guilt-innocence). Does anyone have any ideas or caselaw?

I am a bit unclear - if the def was found incompetent in the present case, then by 46B.084 you have two options (dismissal or transfer to civil) - or in the alternative, suspending proceedings and civilly committing him under 46B.102.

However, if you are referring to an unvacated adjudication of incompetency - with no intervening case which has been disposed -- then Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987) would require that you, i.e. the state, establish competency "beyond a reasonable doubt" before proceeding.

If you are saying, however, that the def was restored, then it would be specious to rely upon a "present tense" determination, i.e. competency, to argue necessity for a past tense mitigation, without evidence to establish that he was "incompetent" at the time. However, I haven't searched that portion of the caselaw to provide a cite.

[This message was edited by Floyd L. Jennings on 11-09-10 at .]

Jury's got it on guilt. Defense attorney didn't try anything.

But he appears to be ready to try a competency mitigation if we get to punishment.

I don't think he can. And I don't think the judge thinks he can, but it is a trial.

Might want to look at article 46B.007, CCP, admissibility of statements and certain other evidence.