ONION, Presiding Judge.
The appellant was charged by indictment with the offense of theft from the person. Upon a plea of not guilty, a trial before a jury was commenced, but subsequent to the close of evidence presented by the State the appellant withdrew his plea of not guilty. The jury was discharged and the appellant entered a plea of guilty before the court. The court assessed punishment at two (2) years, but suspended the imposition of sentence and granted the appellant probation.
Appellant contends the court erred in failing to impanel a separate jury to determine his competency to stand trial once the issue had been raised. He also urges that the court erred in accepting his guilty plea after the issue of competency had been raised, and that the court "chilled" his right to trial by coercing his guilty plea.
To put these contentions in proper perspective, a brief resume of what occurred is necessary. The testimony before the jury showed that the complaining witness, Charles T. McAllister, was in the "Port of Entry" shop in Harris County on June 18, 1973, as a customer. While looking at some merchandise, he felt his billfold "go out of my pocket." He looked around and saw the appellant holding his billfold, and he repeatedly and excitedly asked for the return of the billfold as the appellant moved away. A woman employee, Debbie Wings, screamed at the appellant and asked, "What do you think you are doing?" At this point the appellant threw the billfold back to McAllister and fled the store. The license number of the car in which he departed was taken.
Testifying in his own behalf, appellant related he entered the store to "browse around" and noticed McAllister, who he claimed smiled at him and "made an implication to me that he was a homosexual," and showed the billfold to him. He admitted he took the billfold, but shortly thereafter threw it back to McAllister, left the store and went home. He explained he was unemployed at the time, but had worked at Dow Chemical as a chlorine gas operator. He further explained he had "walked off" that job because the gas made him paranoid "and I thought everybody in the plant was trying to get me...." He related that as a result he went to a psychiatrist and stayed at the Cullen Center of St. Joseph's hospital in the Psychopathic Ward for 22 days. No dates were given.
At this juncture in the trial the court removed the jury and the following occurred:
(At this time a call is made to Dr. Sher, but his secretary advised that Dr. Sher was not available at the moment.)
(At this time there is a discussion at the bench after the prosecutor and the defense attorney approached the bench)
Thereafter, apparently as a result of an unrecorded conversation, the court advised the appellant his attorney had informed the court that the appellant wanted to change his plea to guilty and appellant agreed this was correct. The jury was discharged, the appellant entered his guilty plea, waived trial by jury and was properly admonished by the court as to the consequences of his plea, etc., in accordance with Article 26.13, Vernon's Ann.C.C.P.
Among other things, the court determined that the appellant was pleading
It is well settled that the conviction of an accused person, while he is legally incompetent to stand trial, violates due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Perryman v. State, 494 S.W.2d 542 (Tex.Cr. App.1973). Due process requires a separate hearing to determine competency to stand trial. Pate v. Robinson, supra. While Pate would not require a jury trial on such issue, Texas law does. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App. 1968); Cavender v. State, 515 S.W.2d 277 (Tex.Cr.App.1974).
In Noble v. State, 505 S.W.2d 543 (Tex. Cr.App.1974), this court said:
Once this separate inquiry is made out of the jury's presence, the due process requirement is met. If the trial court determines that no such issue exists, his decision will not be disturbed in the absence of abuse of discretion. However, if the issue is found to exist, then Texas law requires the court to halt the proceedings and empanel a separate jury to determine the issue uncluttered by the evidence relevant only to the question of guilt or innocence. Ainsworth v. State, supra; Vardas v. State, Tex.Cr.App., 488 S.W.2d 467; Hefley v. State, Tex. Civ.App., 480 S.W.2d 810; Townsend (sic) v. State, supra; Article 46.02, V. A.C.C.P. . . .'"
The fact that no request or demand for a hearing was made by the accused is immaterial; where evidence of incompetency becomes manifest during trial, due process requires the trial judge on his own initiative to halt the trial and conduct a hearing.
In the instant case appellant's testimony before the jury was relevant to and apparently designed to raise the defensive issue of insanity.
Next, appellant contends the trial court erred in accepting the guilty plea "when it previously had determined that the issue of competency to stand trial had been raised." It is apparently appellant's position that as a result of the court's earlier statements he was precluded from accepting the guilty plea. This contention is germane to the first two grounds of error.
Article 26.13, Vernon's Ann.C.C.P., clearly requires that no guilty plea shall be received by the court unless it "plainly appears" that the accused is mentally competent and it is well established that if the issue is raised the court must make inquiry as to such issue. See Ring v. State, 450 S.W.2d 85
In the instant case the trial court obviously considered the issue raised and made inquiry as to both appellant and his counsel concerning competency before accepting the guilty plea as earlier reflected in this opinion. We do not perceive error. The court was not barred from accepting the guilty plea because of its earlier statements under the circumstances here presented.
Lastly, appellant complains the trial court "chilled" his right to trial by coercing his plea of guilty. Apparently appellant has reference to trial by jury, and contends the court's action in taking him into custody, revoking his bond and ordering a psychiatric examination (as reflected by the docket sheet) coerced his guilty plea.
Appellant candidly admits that the record is silent as to what was discussed by the prosecutor, defense counsel and trial judge after the aforesaid action was taken, and the matter was not developed by a hearing on a motion for new trial. Appellant does call attention to the fact that after the unrecorded discussion the trial judge told the jurors in discharging them the appellant would enter a guilty plea and receive two years, probated.
While a trial judge should not use his authority to order a psychiatric examination under Article 46.02, § 2(f)(1), Vernon's Ann.C.C.P., to prevent a defendant from developing his defense of insanity or in coercing a guilty plea, we cannot conclude in light of the record before us, including the court's careful admonishments and inquiry on the guilty plea and the written waiver of a jury trial signed by the appellant and his counsel, that the court abused its discretion.
The contention is without merit.
The judgment is affirmed.
Under the law of this State every person is presumed to be sane and to have sufficient judgment to be held accountable for his acts until the contrary is established; the defendant who raises insanity at the time of the commission of the offense bears the burden of proof on that issue by a preponderance of the evidence. Nilsson v. State, supra; Cross v. State, supra; Fuller v. State, supra; Forder v. State, 456 S.W.2d 378 (Tex.Cr. App.1970).