Gilbert v. State, 852 S.W.2d 623 (Tex. App. 1993). · Go Syfert
Gilbert v. State, 852 S.W.2d 623 (Tex. App. 1993). Cases Citing This Book View Copy Cite
58 citation events (29 in the last 25 years) across 2 distinct courts.
Strongest positive: Nakeesha Durgan v. State (texapp, 2009-04-01) · Strongest negative: Henderson v. State (texapp, 2004-03-26)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 42 distinct citers.
discussed Cited "but see" Henderson v. State
Tex. App. · 2004 · signal: but see · confidence high
But see Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.-Amarillo 1993, no pet.) (holding it had jurisdiction to determine whether the trial court’s failure to conduct competency hearing before adjudicating Gilbert's guilt constituted denial of his due process rights); Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (holding it had jurisdiction to determine whether Eldridge's denial of "hearing” on adjudication of guilt violated minimum requirements of due process).
discussed Cited as authority (rule) Nakeesha Durgan v. State
Tex. App. · 2009 · confidence medium
Durgan , 240 S.W.3d at 878 (finding that a defendant's incompetency claim raises a preliminary due-process issue that must be resolved before the adjudication process (1) may begin); Gilbert v. State, 852 S.W.2d 623, 626 (Tex. App.-Amarillo 1993, no writ).
discussed Cited as authority (rule) Richard Robles Vigil v. State
Tex. App. · 2006 · confidence medium
App. P. 47.2(b). [1] In Gilbert v. State , 852 S.W.2d 623, 626 (Tex. App. C Amarillo 1993, no pet.), the Amarillo Court of Appeals held it had jurisdiction to consider the issue now before us, but specifically disavowed that reasoning in Sanders v. State , No. 07-00-0519-CR, 2001 WL 1217313 , at *2 (Tex. App. C Amarillo Oct. 11, 2001, no pet.) (not designated for publication).
cited Cited as authority (rule) Shawn Hardee v. State
Tex. App. · 2004 · confidence medium
App. 1981), cert. denied , 456 U.S. 965 (1982); Gilbert v. State , 852 S.W.2d 623, 627 (Tex. App.—Amarillo 1993, no writ).
discussed Cited as authority (rule) Emich v. State (2×)
Tex. App. · 2004 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.-Amarillo 1993, no writ) (competency to stand trial); DeLeon v. State, 797 S.W.2d 186, 188 (Tex.App.-Corpus Christi 1990, no pet.) (motion untimely); Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (no meaningful hearing); Dahlkoetter v. State, 628 S.W.2d 255, 257 (Tex.App.-Amarillo 1982, no pet.) (judge’s authority to hold hearing).
cited Cited as authority (rule) Jose Valderas v. State
Tex. App. · 2003 · confidence medium
Leyva v. State , 552 S.W.2d 158, 161 (Tex.Crim.App. 1977); Gilbert v. State , 852 S.W.2d 623, 626-27 (Tex.App. - Amarillo 1993, no pet.).
cited Cited as authority (rule) Valderas v. State
Tex. App. · 2003 · confidence medium
Leyva v. State, 552 S.W.2d 158, 161 (Tex.Crim.App.1977); Gilbert v. State, 852 S.W.2d 623, 626-27 (Tex.App.-Amarillo 1993, no pet.).
cited Cited as authority (rule) Jose Valderas v. State
Tex. App. · 2003 · confidence medium
Leyva v. State , 552 S.W.2d 158, 161 (Tex.Crim.App. 1977); Gilbert v. State , 852 S.W.2d 623, 626-27 (Tex.App. – Amarillo 1993, no pet.) .
cited Cited as authority (rule) Jose Valderas v. State
Tex. App. · 2003 · confidence medium
Leyva v. State, 552 S.W.2d 158, 161 (Tex.Crim.App. 1977); Gilbert v. State, 852 S.W.2d 623, 626-27 (Tex.App. – Amarillo 1993, no pet.).
discussed Cited as authority (rule) Nava v. State
Tex. App. · 2003 · confidence medium
The court in Marbut also relied upon Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.-Amarillo 1993, no pet’n). 1 The Marbut court held that *493 the question of competency to stand trial pertained to the validity of the “proceedings” whereby the defendant’s guilt was adjudicated and the defendant was sentenced to prison.
cited Cited as authority (rule) in Re: Occidental Permian LTD, Relator
Tex. App. · 2003 · confidence medium
Leyva v. State , 552 S.W.2d 158, 161 (Tex.Crim.App. 1977); Gilbert v. State , 852 S.W.2d 623, 626-27 (Tex.App. - Amarillo 1993, no pet.).
discussed Cited as authority (rule) Marbut v. State (2×)
Tex. App. · 2002 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 626 (Tex. App.-Amarillo 1992, no writ); contra Arista v. State, 2 S.W.3d 444, 445-46 (Tex. App.-San Antonio 1999, no pet.). [1] Furthermore, *747 sentencing is part of the "trial," and therefore both articles should be read together.
cited Cited as authority (rule) Wade Ray Sanders v. State of Texas
Tex. App. · 2001 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.–Amarillo 1993, no pet.).
cited Cited as authority (rule) Wade Ray Sanders v. State of Texas
Tex. App. · 2001 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.-Amarillo 1993, no pet.).
cited Cited as authority (rule) Wade Ray Sanders v. State of Texas
Tex. App. · 2001 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.–Amarillo 1993, no pet.).
cited Cited as authority (rule) Alcott v. State
Tex. App. · 2000 · confidence medium
Thompson, 915 S.W.2d at 902 ; Gilbert v. State, 852 S.W.2d 623, 627 (Tex.App.—Amarillo 1993, no pet.).
discussed Cited as authority (rule) Lopez, Michael v. State
Tex. App. · 2000 · confidence medium
Gilbert v. State , 852 S.W.2d 623, 625 (Tex. App.--Amarillo 1993, no pet.); De Leon v. State , 797 S.W.2d 186, 188 (Tex. App.--Corpus Christi 1990, no pet.); Dahlkoetter v. State , 628 S.W.2d 255, 257 (Tex. App.--Amarillo 1982, no pet.).
discussed Cited as authority (rule) Tatum, Melva Sue v. State
Tex. App. · 2000 · confidence medium
Gilbert v. State , 852 S.W.2d 623, 625 (Tex. App.--Amarillo 1993, no pet.); De Leon v. State , 797 S.W.2d 186, 188 (Tex. App.--Corpus Christi 1990, no pet.); Dahlkoetter v. State , 628 S.W.2d 255, 257 (Tex. App.--Amarillo 1982, no pet.).
cited Cited as authority (rule) Jose Armando Arista v. State
Tex. App. · 1999 · confidence medium
Gilbert v. State , 852 S.W.2d 623, 626 (Tex. App.--Amarillo 1992, no pet.).
cited Cited as authority (rule) Arista v. State
Tex. App. · 1999 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.—Amarillo 1993, no pet.).
discussed Cited as authority (rule) Rice v. State (2×) also: Cited "see"
Tex. App. · 1999 · confidence medium
See Porter v. State, 623 S.W.2d 374, 380 (Tex.Crim.App.1981), cert. denied, 456 U.S. 965 , 102 S.Ct. 2046 , 72 L.Ed.2d 491 (1982) (evidence of earlier psychological problems not enough to show defendant incompetent to stand trial); Leyva v. State, 552 S.W.2d 158, 160 (Tex.Crim.App.1977) (even judicial determination that a person is mentally ill is not determination of mental incompetency); Culley v. State, 505 S.W.2d 567, 569 (Tex.Crim.App.1974) (testimony that defendant had learning disabilities and was in special education classes did not raise issue of competency to stand trial); Valdes-Fue…
cited Cited as authority (rule) Perez, Sr., Michael Anthony v. State
Tex. App. · 1999 · confidence medium
Gilbert v. State , 852 S.W.2d 623, 625 (Tex. App.--Amarillo 1993, no pet.); De Leon v. State , 797 S.W.2d 186, 188 (Tex. App.--Corpus Christi 1990, no pet.).
discussed Cited as authority (rule) Thompson v. Johnson
S.D. Tex. · 1998 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 627 (Tex.App.—Amarillo 1993, no pet.) (citing Leyva v. State, 552 S.W.2d 158, 161 (Tex.Crim.App.1977)).” It is well established that a Pate inquiry focuses on what was known to the trial court at or immediately preceding the trial, not on evidence later developed.
discussed Cited as authority (rule) Brown v. State (2×) also: Cited "see"
Tex. App. · 1998 · confidence medium
See Valdes-Fuerte v. State, 892 S.W.2d 103, 108 (Tex.App.-San Antonio 1994, no pet.) (evidence of person's mental status at time of offense not evidence of incompetency to stand trial); O’Neil v. State, 642 S.W.2d 259, 260 (Tex.App.—Houston [14th Dist.] 1982, no pet) (characterization of defendant as having a “mental problem” and "crazy” did not relate to statutory test of incompetency); cf. Porter v. State, 623 S.W.2d 374, 380 (Tex.Crim.App.1981) (evidence of earlier psychological problems not enough to show defendant incompetent to stand trial), cert. denied, 456 U.S. 965 , 102 S.C…
discussed Cited as authority (rule) Kendall v. State (2×) also: Cited "see, e.g."
Tex. App. · 1996 · confidence medium
ANN. art. 11.07 § 3(b) (Vernon Supp.1996). [5] See, e.g., Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex.App.—Amarillo 1993, no pet.); De Leon v. State, 797 S.W.2d 186, 187-88 (Tex.App.— Corpus Christi 1990, no pet.); Eldridge v. State, 731 S.W.2d 618, 619-20 (Tex.App.—Houston [1st Dist.] 1987, no pet.); Dahlkoetter v. State, 628 S.W.2d 255, 257-58 (Tex.App.—Amarillo 1982, no pet.).
discussed Cited as authority (rule) Wier v. State
Tex. App. · 1996 · confidence medium
However, citing Gilbert v. State, 852 S.W.2d 623, 625 (Tex.Cr.App.1993), for the ruling that the prohibition does not preclude challenges to all rulings the court may potentially make in the course of a deferred adjudication proceeding, appellant submits that we have jurisdiction to entertain his appeal as it relates to the trial court’s determination as.to punishment.
cited Cited as authority (rule) Thompson v. State
Tex. App. · 1996 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 627 (Tex. App.—Amarillo 1993, no pet.) (citing Leyva v. State, 552 S.W.2d 158, 161 (Tex.Crim.App. 1977)).
cited Cited as authority (rule) Thornhill v. State
Tex. App. · 1995 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.—Amarillo 1993, no pet.).
cited Cited as authority (rule) Thomas Lubecke v. State
Tex. App. · 1995 · confidence medium
Gilbert v. State , 852 S.W.2d 623, 627 (Tex. App.--Amarillo 1993, no pet.).
discussed Cited "see" Whitney v. State (2×)
Tex. App. · 2006 · signal: see · confidence high
ANN. art. 42.12, § 5(b) (Vernon Supp.2005). [7] Of course, a writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure is always available, but it seems an unnecessary burden to place on the Texas Court of Criminal Appeals. [8] See Gagnon v. Scarpelli, 411 U.S. 778, 782 , 93 S.Ct. 1756, 1759-60 , 36 L.Ed.2d 656 (1973); Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App. [Panel Op.] 1979). [9] See Morrissey v. Brewer, 408 U.S. 471, 481 , 92 S.Ct. 2593, 2600 , 33 L.Ed.2d 484 (1972). [10] Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.);…
discussed Cited "see" Harry James Whitney v. State
Tex. App. · 2006 · signal: see · confidence high
App. [Panel Op.] 1979). 9: See Morrissey v. Brewer , 408 U.S. 471, 481 , 92 S. Ct. 2593, 2600 (1972). 10: Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) (“[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited "see" Tatum v. State (2×)
Tex. App. · 2005 · signal: see · confidence high
Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.-Houston [1st Dist.] 1987, no pet.); see Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex. App.-Amarillo 1993, no pet.) ("[A]rt.42.12, § 5(b) ... is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding....
discussed Cited "see" Michael Joseph Tatum v. State
Tex. App. · 2005 · signal: see · confidence high
App. [Panel Op.] 1979). 5: See Morrissey v. Brewer , 408 U.S. 471, 481 , 92 S. Ct. 2593, 2600 (1972). 6: Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited "see" Michael Joseph Tatum v. State
Tex. App. · 2005 · signal: see · confidence high
Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited "see" Trevino v. State (2×)
Tex. App. · 2005 · signal: see · confidence high
Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.); see Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex.App.-Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) ... is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding....
discussed Cited "see" Marissa Yvonne Trevino v. State
Tex. App. · 2005 · signal: see · confidence high
Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited "see" Marissa Yvonne Trevino v. State
Tex. App. · 2005 · signal: see · confidence high
App. [Panel Op.] 1979). 9: See Morrissey v. Brewer , 408 U.S. 471, 481 , 92 S. Ct. 2593, 2600 (1972). 10: Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited "see" Charles Edward Harris v. State
Tex. App. · 2000 · signal: see · confidence high
See Gilbert v. State , 852 S.W.2d 623, 625 (Tex. App.--Amarillo 1993, no pet.); De Leon v. State , 797 S.W.2D 186, 188 (Tex. App.--Corpus Christi 1990, no pet.); Dahlkoetter v. State , 628 S.W.2d 255, 257 (Tex. App.--Amarillo 1982, no pet.).
discussed Cited "see" Small v. State (2×)
Tex. App. · 1998 · signal: see · confidence high
App. [Panel Op.] 1979). [17] See Morrissey v. Brewer, 408 U.S. 471, 481 , 92 S.Ct. 2593, 2600 , 33 L.Ed.2d 484, 494 (1972). [18] Eldridge, 731 S.W.2d at 619 ; see Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex.App.—Amarillo 1993, no pet.) ("[A]rt.42.12, § 5(b) .... is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding....
discussed Cited "see, e.g." Abdallah v. State
Tex. App. · 1996 · signal: see, e.g. · confidence low
See, e.g., Gilbert v. State, 852 S.W.2d 623 (Tex.App.—Amarillo 1993, no pet.); De Leon v. State, 797 S.W.2d 186 (Tex.App.—Corpus Christi 1990, no pet.); Eldridge v. State, 731 S.W.2d 618 (Tex.App.—Houston [1st Dist.] 1987, no pet.); Dahlkoetter v. State, 628 S.W.2d 255 (Tex.App.—Amarillo 1982, no pet.). .
discussed Cited "see, e.g." Gareau v. State
Tex. App. · 1996 · signal: see, e.g. · confidence low
See, e.g., Gilbert v. State, 852 S.W.2d 623 (Tex.App. — Amarillo 1993, no pet.); De Leon v. State, 797 S.W.2d 186 (Tex.App. — Corpus Christi 1990, no pet.); Eldridge v. State, 731 S.W.2d 618 (Tex.App. — Houston [1st Dist.] 1987, no pet.); Dahlkoetter v. State, 628 S.W.2d 255 (Tex.App.— Amarillo 1982, no pet.). .
discussed Cited "see, e.g." Jarour v. State
Tex. App. · 1996 · signal: see, e.g. · confidence low
See, e.g., Gilbert v. State, 852 S.W.2d 623 (Tex.App. — Amarillo 1993, no pet.); De Leon v. State, 797 S.W.2d 186 (Tex.App. — Corpus Christi 1990, no pet.); Eldridge v. State, 731 S.W.2d 618 (Tex.App. — Houston [1st Dist.] 1987, no pet.); Dahlkoetter v. State, 628 S.W.2d 255 (Tex.App.—Amarillo 1982, no pet.). .
Kirk Douglas Gilbert
v.
the State of Texas.
07-92-0136-CR.
Court of Appeals of Texas.
Mar 24, 1993.
852 S.W.2d 623
Delhomme, Skrepnek & Fishburn, Allan Fishburn, Dallas, for appellant., Dallas County Crim. Dist. Attorney’s Office, John Vance, and Pamela Sullivan Ber-danier, Dallas, for appellee.
Dodson, Boyd, Poff.
Cited by 60 opinions  |  Published
POFF, Justice.

Appellant Kirk Douglas Gilbert was charged by indictment with unauthorized use of a motor vehicle. See Tex. Penal Code Ann. § 31.07 (Vernon 1989). On May 2, 1991, appellant entered into a plea bargain agreement and plead guilty to the charge. The trial court found that the evidence substantiated appellant’s guilt but deferred further proceedings without entering an adjudication of guilt. The court placed appellant on probation for a period of four years and fined him $300.

On September 25, 1991, the State filed a motion for the adjudication of appellant’s[*625] guilt alleging that he had violated seven separate conditions of his probation. A hearing was held on the State’s motion on October 2, 1991, at which time it came to the court’s attention that appellant had previously been under the care of a psychiatrist and had been prescribed tranquilizers. The trial court decided to continue appellant on probation. The court also granted appellant’s counsel’s request that appellant be given a psychiatric evaluation.

Subsequently, the State filed a second motion to proceed with an adjudication of guilt. The trial court held a hearing on the State’s motion on February 20, 1992. At that hearing, appellant reminded the court that he had been ordered to undergo a psychiatric evaluation. Don Mazoch, a probation officer for the 283rd District Court, related the results of appellant’s psychological evaluation to the court. [1] In regard to appellant’s psychological report, Mr. Ma-zoch testified that

under diagnosis it’s got schizophrenia undifferentiated, alcohol dependence, antisocial personality disorder, mild mental retardation, severity of psychosocial stress is moderate, and under recommendations it says psychiatric treatment for schizophrenia and alcohol dependence is recommended.

The report did not contain a finding that appellant was incompetent, however. The trial judge noted that appellant had not been examined by a psychiatrist. Accordingly, the court ordered that appellant be examined by a doctor. The hearing was recessed until February 28, 1992.

At the hearing on February 28, the trial court admitted State’s Exhibit No. 2 which contained, inter alia, a report by forensic psychiatrist E. Clay Griffith finding appellant competent to stand trial. At the conclusion of the hearing, the court found that appellant had violated the terms and conditions of his probation. Accordingly, the court set aside its previous order deferring adjudication of guilt and proceeded to find appellant guilty of unauthorized use of a motor vehicle. The court assessed appellant’s punishment at five years confinement in the Texas Department of Criminal Justice, Institutional Division.

In a single point of error, appellant contends the trial court erred in failing to conduct a hearing on the issue of his competency to stand trial. Before addressing the merits of his contention, however, we must resolve a threshold issue.

It is well-established that no appeal may be taken from the hearing in which a trial court determines to proceed with an adjudication of guilt on an original charge. Tex.Crim.Proc.Code Ann. art. 42.12, § 5(b); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App.1992); Russell v. State, 702 S.W.2d 617, 618 (Tex.Crim.App.1985). This rule is designed to eliminate appellate review of the hearing on the motion to adjudicate guilt, including but not limited to issues such as admissibility and sufficiency of the evidence. Dahlkoetter v. State, 628 S.W.2d 255, 257 (Tex.App.—Amarillo 1982, no pet.). The rule is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. See Olowosuko v. State, 826 S.W.2d at 941 (“[A]n appellate court must sort out various rulings a trial court may make in the course of a deferred adjudication proceeding to determine those which the Legislature provided a right to appeal.”).

Several reported cases have permitted appeals from trial court rulings made in the course of deferred adjudication proceedings. See generally De Leon v. State, 797 S.W.2d 186 (Tex.App.—Corpus Christi 1990, no pet.). In Dahlkoetter v. State, 628 S.W.2d at 257, this Court held that the prohibition against appellate review of a trial court’s determination to proceed with an adjudication of guilt does not preclude “an appeal for the purpose of determining whether the judge who conducted the hearing on the motion to adjudicate guilt was empowered to do so.” The Court of Criminal Appeals has stated that the Code of Criminal Procedure clearly requires a hearing limited to a determination of whether the trial judge should proceed with a deter-[*626] ruination of guilt and that “although a defendant cannot appeal the determination made by the trial judge at this hearing, a defendant can appeal a trial judge’s failure to hold such a hearing.” McNew v. State, 608 S.W.2d 166, 173 n. 10 (Tex.Crim.App. [Panel Op.] 1978). The adjudication hearing must provide a defendant with minimum substantive and procedural due process protection.

In Fuller v. State, 653 S.W.2d 65, 66-67 (Tex.App.—Tyler 1983, no writ), the Tyler Court of Appeals entertained an appellant’s contention that he was not represented by counsel at the hearing in which the trial court determined to proceed with an adjudication of guilt. Similarly, in Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.—Houston [1st Dist.] 1987, no pet.), the First District Court of Appeals held that it had “jurisdiction to determine if a ‘hearing’ was held that satisfied the requirements of substantive and procedural due process.”

Minimum due process rights guarantee the right of a probationer to actively contest a charge that his probation should be revoked. The protection of these rights would be of little efficacy, however, if a probationer was incompetent. An incompetent probationer is entirely incapable of participating in his defense and contesting the charges against him. To subject an incompetent probationer to an adjudication hearing would be a travesty of justice. Just as due process entitles a probationer to counsel when contesting an adjudication of his guilt, Fuller v. State, 653 S.W.2d at 66-67, due process mandates that a probationer be competent before a court proceeds to an adjudication of guilt.

In the present case, appellant contends that the trial court erred in failing to conduct a hearing on the issue of his competency. We are satisfied that we are not prohibited from reviewing appellant’s contention. We do not view appellant’s assertion of trial court error as an appeal from the trial court’s determination to proceed with an adjudication of guilt. Rather, we view appellant’s argument as addressing possible error of constitutional magnitude on the part of the trial court in failing to hold a hearing on the issue of appellant’s competency to stand trial. The fact that the issue of appellant’s competency first came to light during the trial court’s hearing on the State’s motion to adjudicate guilt does not render the issue unreviewable by this Court. We will address appellant’s solitary point of error.

Appellant contends that the trial court erred in failing to conduct a hearing pursuant to Tex.Crim.Proc.Code Ann. art. 46.02, § 2(b) (Vernon 1979), which states:

If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

According to the teachings of Pipken v. State, 671 S.W.2d 626, 629 (Tex.App—Houston [1st Dist.] 1984, no pet.), “the time between the deferment of adjudication of guilt and subsequent disposition of the cause by adjudication or dismissal is ‘during trial’ for the purposes of the requirements imposed by article 46.02, sec. 2(b).” The State does not dispute that in the case at bar, the question as to appellant’s competency came to light “during trial.” Accordingly, we move on to an analysis of whether the trial court erred in failing to conduct a competency hearing as alleged by appellant.

Appellant argues that evidence of his incompetency was brought to the trial court’s attention, thereby mandating a competency hearing pursuant to article 46.02, sec. 2(b). We disagree with appellant because we do not find that any evidence of incompetency was brought to the attention of the trial court.

In determining whether there is “some evidence” of a defendant’s incompetency, the trial court is required to consider only evidence tending to show incompetency, putting aside all competing indications of competency. Barber v. State, 737 S.W.2d 824, 828 (Tex.Crim.App.1987). “A person is incompetent to stand trial if he[*627] does not have: (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or (2) a rational as well as a factual understanding of the proceedings against him.” Tex.Crim.Proc.Code Ann. art. 46.02, § 1(a) (Vernon 1979). “A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.” Tex.Crim.Proc.Code Ann. art. 46.-02, § 1(b) (Vernon 1979).

While it is true that during the course of the three different hearings to adjudicate guilt, the question of appellant’s competency came to the attention of the trial judge, the judge satisfied himself that appellant was competent to stand trial. No evidence existed to the contrary. The mere fact that a defendant has been treated by a psychiatrist does not constitute evidence of that defendant’s present incompetency to stand trial. Leyva v. State, 552 S.W.2d 158, 161 (Tex.Crim.App.1977). Nor does the fact that a court orders a defendant to undergo a psychiatric evaluation constitute evidence that the defendant is incompetent to stand trial. Johnson v. State, 564 S.W.2d 707, 711 (Tex.Crim.App.1977), overruled on other grounds, Williams v. State, 663 S.W.2d 832, 834 (Tex.Crim.App.1984); Rodriquez v. State, 816 S.W.2d 493, 495 (Tex.App.—Waco 1991, pet. ref’d).

While the initial court-ordered psychological examination of appellant revealed that appellant suffered from various mental and emotional problems, the examination did not reveal that appellant was incompetent to stand trial. Likewise, the second court-ordered psychological examination of appellant did not contain a finding of incompetence. Upon receipt of the results of the two psychological evaluations performed upon appellant, the trial court had before it no evidence that appellant was incompetent. Thus it cannot be said that evidence of appellant’s incompetency was brought to the attention of the trial court during appellant’s trial. Accordingly, the court did not err in declining to sua sponte conduct a hearing on the issue of appellant’s competency to stand trial.

Appellant’s point of error is overruled. The judgment of the trial court is affirmed.

1

. No written report of appellant’s psychological examiriation was offered into evidence.