RICHARDSON, J., delivered the opinion for a unanimous Court. OPINION In May 2016, a jury convicted Appellant of two counts of capital murder for fatally shooting twenty-one-month-old D.B., Appellant’s son with Brandy Cerny, and six-year-old J.T., Cerny’s son from a former relationship. See TEX. PENAL CODE § 19.03(a)(8). Based on the jury’s punishment phase verdicts, the trial court sentenced Appellant to death for each count. See Art. 37.071, § 2(g).[1] Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises twenty-six points of error, none challenging the sufficiency of the evidence to support either his convictions or death sentences. Five points of error relate to his competence to stand trial and the competency proceedings below. In two of these points of error, Appellant asserts constitutional and statutory violations based, in part, on the trial court’s failure to comply with the statutory procedures set forth in Chapter 46B. After reviewing the competency proceedings in the trial court, we abate the appeal and remand the cause to the trial court to conduct a retrospective competency review. THE COMPETENCY PROCEEDINGS BELOW Eight months after a Webb County grand jury indicted Appellant for capital murder, Appellant’s counsel filed a “Motion for Jury Trial on Issue of Incompetency.” In support of the motion, counsel attached his affidavit and an excerpt from a report of Dr. John Enriquez, a psychiatrist who had conducted “a general psychiatric examination” of Appellant. In the excerpt, Enriquez opined that Appellant “is going through a brief psychotic break” and that “[h]is mental state has decompensated and is now becoming delusional.” Appellant’s counsel presented the motion to the trial court at a pretrial hearing two days later. He read aloud the excerpt from Enriquez’s report and informed the court that, based on his “own personal observations” of Appellant, he believed that Appellant was incompetent to stand trial. Counsel noted the “very low” threshold for a jury trial on the issue of competency—”it only requires that counsel show that there is some evidence that would support a finding that the defendant may be incompetent to stand trial”—and reminded the court that Article 46B.005 requires the court to order an examination if that evidentiary threshold is met. He then asked the court to appoint an expert and order a competency examination. In response to counsel’s request, the State “agree[d] that there is sufficient evidence that there may be some incompetency.” The trial court orally granted counsel’s request, indicating that it would appoint an expert and order a competency examination. The court subsequently signed an order granting the motion for a jury trial on the issue of competence and, a week later, signed an order for a competency examination. The order for the competency examination, however, did not appoint an expert.[2] Therefore, the following month, the trial court signed another order for a competency examination that appointed Dr. Gabriel Holguin to examine Appellant. Two weeks later, Appellant’s counsel filed a motion to abate the competency examination. The trial court conducted a hearing on the motion the following month. At the hearing, Appellant’s counsel asked the court to abate Appellant’s competency evaluation “pending at least a preliminary mitigation investigation by the mitigation specialist.” Counsel explained that the mitigation investigation might uncover relevant personal history, including information about mental illness, that “should be made known to the mental health examiner.” The State objected to abating the competency examination. The trial court orally denied the motion at the hearing and signed an order memorializing that ruling the same day. Approximately two weeks later, the State filed a motion seeking to amend the trial court’s order for a competency examination so as to have the order track the statutory language of Chapter 46B.[3] On the same date, the trial court granted the motion and signed an amended order for a competency examination that again appointed Holguin. Almost five months later, Appellant’s counsel filed a “Motion to Withdraw Request for an Incompetency Examination and for a Jury Trial on the Issue of Incompetency.” Three months after the motion was filed, the trial court conducted a hearing on the motion. At the hearing, Appellant’s counsel noted that he initially requested a competency examination “exactly a year ago” and that “for various reasons,” the examination had not been done. Counsel asserted that in consulting with Appellant, both of Appellant’s attorneys felt that Appellant was now competent to stand trial. Counsel explained that since the time the defense requested the competency examination, counsel had listened to recordings of Appellant’s phone calls in the jail and observed that Appellant was “able to carry on a normal conversation.” Counsel acknowledged that Appellant “makes comments which are somewhat unusual” but expressed that counsel did not believe that “that rises to the level of incompetence.” The trial court, however, noted the statute’s evidentiary standard—”[I]t doesn’t have to rise to the level of incompetence. It merely has to show some evidence of incompetence.” The court remarked that it had previously made a finding that there was some evidence to support a finding of incompetency. The court also expressed that it “had the benefit of seeing [Appellant] in and out of court over the last six to eight months” and “his behavior alone would have probably required [the court] sua sponte to order the examination in any event.” The trial court orally denied Appellant’s motion at the hearing. Two days later the court signed an order memorializing the ruling, as well as a second amended order for a competency examination. The second amended order again appointed Holguin to examine Appellant and also emphasized that the evaluation should occur within thirty days of the order. Approximately six weeks later, the trial court signed another order for a competency examination, this time appointing Dr. Brian P. Skop to examine Appellant.[4] Three weeks after signing that order, the trial court signed an amended order for a competency examination that again appointed Skop. Apparently, the trial court signed this order in response to the State’s motion to amend the order to have the order track Chapter 46B’s statutory language.[5] Five months later, the State filed another motion to amend the trial court’s order for a competency examination. The State filed this motion in response to notification from the court coordinator that Skop had failed to conduct the competency examination or respond to the coordinator’s emails concerning his appointment. The State asked the trial court to appoint Dr. Michael Jumes to conduct Appellant’s competency evaluation instead of Skop. The trial court signed an amended order for a competency examination appointing Jumes the day after the State filed its motion seeking to replace Skop. Jumes evaluated Appellant almost four weeks later and prepared his report to the trial court the following month. The report, in which Jumes concluded that Appellant was competent to stand trial, was filed with the court under seal. Three months after the competency report was filed, the proceedings resumed with a hearing on Appellant’s pro se request to represent himself.[6] The trial court denied Appellant’s request after finding that he “[did] not have the capacity to represent [him]self.” Over the next eleven months, the trial court conducted eight more pretrial hearings—including a hearing on Appellant’s motion to transfer venue and motion to suppress certain evidence, a hearing on numerous pretrial defense motions, and several hearings on Appellant’s motions for continuance—and the case proceeded to trial. After the State rested its case in chief, Appellant’s counsel suggested to the trial court that, based on Appellant’s “irrational behavior” in court as well as during counsels’ attempts to confer with him, Appellant was incompetent to stand trial. The State maintained that Appellant’s behavior demonstrated belligerence and defiance, not incompetence. The trial judge, noting that he had observed Appellant not only during the trial but through “the entire process” and that “we’ve had evaluations of him already, and . . . had the findings come back with regard to that,” expressed that he had not seen a deterioration.[7] The judge found that “we do not need to go through an evaluation process” because “we’ve done what we already had to do.” The court reiterated that nothing in Appellant’s behavior led it to believe that the proceedings should be interrupted for another evaluation of Appellant.
