Israel MORALES, Appellant, v. The STATE of Texas, Appellee, 801 S.W.2d 624

OPINION OVARD, Justice. In this case, the critical issue is whether a criminal defendant can appeal directly from a jury finding that he is not competent to stand trial and that there is no substantial probability that he will attain competency in the near future. We hold that a judgment of incompetency to stand trial is not a final judgment. Instead, judgments from hearings on competency to stand trial are ancillary to some other proceeding such as a criminal trial or a mental illness hearing.

The judgment of competency/incompetency to stand trial is not appealable until a final judgment issues from the main proceeding. In this case, Morales failed to perfect an appeal from the final judgment in the main proceeding. That failure waived the right to appeal from the finding of incompetency to stand trial. We dismiss the appeal. Israel Morales stood accused by indictment of a 1987 aggravated assault on a peace officer. The trial began on October 25, 1989. Prior to the guilt/innocence phase, the court held a hearing to determine Morales’s competence to stand trial.

Morales had a previous history of mental illness. Three times previously, while under indictment for the same offense, he had been found incompetent. On July 19, 1988, Morales was committed indefinitely for mental health treatment in Vernon State Hospital. In August 1989, Vernon notified the district court where the indictment was pending that in its opinion Morales had become competent to stand trial. When Morales returned from Vernon, the district court appointed two psychiatrists to examine him. Both psychiatrists testified that they believed Morales had regained competency.

The trial court also admitted into evidence the conclusions of three doctors at Vernon. They also indicated that they believed Morales had become competent. However, the professionals failed to persuade the jurors. The jury found Morales incompetent and further found that there was no substantial probability that Morales would attain competency in the near future. On October 26, 1989, the trial court signed a judgment which incorporated the jury finding and which further ordered that Morales be held for a reasonable time pending another mental illness (commitment) hearing.

Morales appeals from the judgment entered in the competency hearing. He raises two points of error: (1) that there was no evidence to support the jury finding of incompetency contained in the October 26, 1989 judgment; and (2) that the jury finding was against the great weight and preponderance of the evidence. Since Morales filed his appeal, another mental illness hearing occurred on August 2, 1990. Two psychiatrists testified that they believed Morales mentally ill. The August 2, 1990 hearing produced a final judgment, but Morales failed to timely perfect any appeal from that judgment.

We believe Morales’s failure to perfect his appeal from the judgment of the mental illness hearing deprived us of jurisdiction to review the propriety of the jury’s finding of ineompetency to stand trial. Morales contends that the October 26, 1989 incompetency finding was a final judgment that disposed of the single issue of his competence or incompetence to stand trial. Legal Analysis Before we can address the merits of Morale’s points of error we must determine whether a direct appeal can be taken from a jury finding of incompetency to stand trial.

In civil cases, as a general rule, only final judgments are appealable. Northeast Indep. School District v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). A judgment is final only if it disposes of all parties and all issues so that no further action by the court is necessary to conclude the case. Clear Lake City Water Auth. v. Winograd, 678 S.W.2d 740, 742 (Tex.App.-Houston [14th Dist.] 1984, no writ). Interlocutory orders and judgments in ancillary proceedings are appealable only if a statute specifically authorizes an appeal before a final judgment. Parks v.

Huffington, 616 S.W.2d 641, 644 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.). Interlocutory orders and ancillary judgments may be appealed as points of error when the entire suit proceeds to final judgment and is appealed. Parks, 616 S.W.2d at 644. The Court of Criminal Appeals has held that a hearing on competency to stand trial is not a criminal action because no determination is made of guilt or innocence. When the accused raises the issue of competency, a finding of competency is a necessary prerequisite to a criminal trial.

Consequently, a preliminary hearing to determine competency is ancillary to the main criminal proceeding. Jackson v. State, 548 S.W.2d 685, 690 (Tex.Crim.App.1977). A judgment resulting from a competency hearing is an ancillary judgment, not a final judgment. In addition, Texas law treats competency hearings as civil in nature, even though they necessarily involve individuals charged with criminal offenses. Parker v. State, 667 S.W.2d 185, 187 (Tex.App.-Texarkana 1983, writ ref’d); Ex Parte Watson, 606 S.W.2d 902, 905 (Tex.Crim.App.1980). Logic dictates that the civil rules should apply.

A judgment from a pretrial competency hearing is not reviewable until the matter is raised in an appeal from a full trial on the merits. Jackson, 548 S.W.2d at 690. Since the State cannot appeal from an acquittal in a criminal case, “trial on the merits” in this context means either a criminal conviction that follows a pretrial finding of competency to stand trial or an order of commitment for mental health treatment that results from a full trial on that question.

Our analysis of the Texas Code of Criminal Procedure also points us to the conclusion that appeal is not available until after a criminal conviction or a judgment in a mental illness trial. When a trier of fact finds a defendant incompetent to stand trial and also finds that there is no substantial probability that the defendant will become competent in the foreseeable future, and the trial court determines there is evidence that the defendant is mentally ill, and the court does not dismiss the pending charges, the court has two options.

He may release the defendant or impanel a jury to determine whether the defendant shall be committed to a mental health facility. Tex.Code CRIM.Proc.Ann. art. 46.02,

section 4(a-d) (Vernon 1979 and Supp. 90). If the court impanels a jury and the jury finds that the defendant is mentally ill and requires mental health services, the trial court may order the defendant committed for a period not to exceed twelve (12) months. Tex.Code Crim.Proc.Ann. art. 46.-02,

section 6(b)(6) (Vernon Supp.1990). Appeals from the criminal court proceedings under § 46.02,

section 6 go to the court of appeals, as do commitment judgments that result from mental illness trials in civil courts. See Tex.Code Crim.Proc. Ann. art. 46.02,

section 6(b) (Vernon Supp. 1990); Tex.Rev.Civ.Stat.Ann. art. 5547-57(a) (Vernon Supp.1990). The Code of Criminal Procedure contains no special appellate provisions for competency and mental health determinations. It refers to provisions in the Mental Health Code. Under the Mental Health Code, judgments for court ordered mental health services (commitments) from civil and criminal courts are appealable. Tex.Rev.Civ.Stat.Ann. art. 5547-57(a) (Vernon Supp.1990). However, the Mental Health Code contains no provision authorizing direct appeals from judgments in hearings on competency to stand trial.

Because the jury found Morales incompetent to stand trial, the State could not proceed with the criminal action. No conviction resulted. The State instead held a mental health commitment hearing. A final judgment resulted from that hearing, but Morales did not perfect an appeal from that judgment. The appeal Morales perfected complains of the findings in the criminal pretrial competency hearing. When the final judgment issued from the mental illness hearing, the judgment from the competency hearing merged into it and became appealable as part of that judgment.

Since Morales did not perfect timely his appeal from the commitment hearing, we have nothing to review. We hold that the competency hearing did not dispose of the mental illness issue. The incompetency judgment was merely ancillary to the judgment in subsequent mental illness trial. We have no appeal from the final judgment. Therefore, the judgment from the competency hearing is not appealable unless a statute specifically authorizes such an appeal. No such statute exists in Texas. We have no jurisdiction over Morales’s appeal. Consequently, we dismiss it. HOWELL, J., dissents with opinion.