Preservation Bars Unraised Competency Complaint | Davet v. State (2026)

Davet v. State, 14-24-00884-CR, June 18, 2026.

On appeal from County Criminal Court at Law No. 12, Harris County, Texas

Synopsis

A party does not preserve a complaint that the trial court failed to halt proceedings for competency-related action merely by obtaining an order for an examination. When the court grants the request, the litigant fails to appear for the evaluation, and no renewed request, objection, or motion follows, appellate review is forfeited for lack of preservation under Texas Rule of Appellate Procedure 33.1.

Relevance to Family Law

Although Davet is a criminal appeal, its preservation lesson translates directly to Texas family litigation. In divorce, SAPCR, modification, protective-order, and enforcement proceedings, family lawyers regularly confront competency-adjacent issues, mental-health concerns, impaired participation, and requests for continuances, evaluations, guardians ad litem, or other procedural safeguards. Davet is a reminder that securing an initial order is not enough: if the ordered process breaks down, if the client or opposing party does not comply, or if the court moves the case forward without the anticipated follow-up, counsel must re-urge the issue, obtain a ruling, and make a clear record. Otherwise, a later due-process complaint may be lost.

Case Summary

Fact Summary

James Edward Davet was convicted of violating a magistrate’s order of emergency protection entered in favor of his former wife. Before trial, defense counsel filed a motion questioning Davet’s competency, representing that counsel had reason to believe Davet might be suffering from psychiatric conditions. The trial court responded promptly by signing an order for a competency examination.

The examination, however, never produced an opinion. The Harris Center later notified the trial court that Davet did not appear for the scheduled evaluation, so no competency opinion could be formed. After that notice, the case proceeded forward. Davet did not file a renewed motion, did not ask the court to stay proceedings, did not object to going to trial without further competency proceedings, and did not obtain any adverse ruling on the issue. Following conviction, he argued on appeal that the trial court violated due process by failing to stay the proceedings and require further competency action under article 46B.004.

The court of appeals rejected that argument on preservation grounds. The court also addressed and rejected Davet’s additional complaints, including his self-representation issue, but the preservation ruling on competency is the principal takeaway for litigators.

Issues Decided

• Whether a defendant preserves a due-process complaint under Texas Code of Criminal Procedure article 46B.004 by obtaining an order for a competency examination but making no further request, objection, or motion after failing to appear for the evaluation.
• Whether appellate review is forfeited when the trial court granted the competency motion and no adverse ruling followed.
• Whether the trial court erred in denying the defendant’s late request for self-representation.
• Whether the defendant could collaterally attack the magistrate’s order of emergency protection as void.
• Whether the evidence was legally sufficient to support the conviction for violating the order of emergency protection.

Rules Applied

The court grounded its preservation analysis in ordinary appellate-error principles:

• Texas Rule of Appellate Procedure 33.1 requires a timely request, objection, or motion and a ruling, or refusal to rule, to preserve a complaint for appellate review.
• Due-process complaints, including competency-related complaints, are generally subject to preservation requirements.
• Article 46B.004 of the Texas Code of Criminal Procedure governs suggestions of incompetency and the trial court’s duty to conduct an informal inquiry when incompetency is credibly suggested.
• If the trial court finds some evidence supporting incompetency, article 46B contemplates a stay of proceedings and further competency procedures.
• But prior authority holds that a complaint about the trial court’s failure to complete those procedures is not preserved absent a contemporaneous objection or other request bringing the omission to the court’s attention.

The court specifically relied on cases applying Rule 33.1 to competency complaints, including:

• Mitchell v. State, No. 05-19-00296-CR, 2020 WL 4047963, at *4–5 (Tex. App.—Dallas July 20, 2020, no pet.)
• Mapps v. State, 336 S.W.3d 700, 702–03 (Tex. App.—Houston [1st Dist.] 2010, no pet.)
• Salahud-din v. State, 206 S.W.3d 203, 208 (Tex. App.—Corpus Christi–Edinburg 2006, pet. ref’d)
• Boitnott v. State, 48 S.W.3d 289, 293 (Tex. App.—Texarkana 2001, pet. ref’d)

On competency generally, the court referenced:

• Boyett v. State, 545 S.W.3d 556 (Tex. Crim. App. 2018)
• Texas Code of Criminal Procedure articles 46B.003, 46B.004, 46B.021, and 46B.005

Application

The court’s reasoning was straightforward and unforgiving. Davet’s counsel raised competency, and the trial court did exactly what the motion requested: it ordered an examination. That procedural fact mattered. There was no denial of relief at the point the issue was first raised. Instead, the breakdown occurred later, when Davet failed to appear for the scheduled evaluation and the examiner informed the court that no opinion could be rendered.

At that point, the burden shifted back to the defense to do something with the problem. If counsel believed article 46B required the court to stay the case, compel attendance, revisit the competency concern, conduct an informal inquiry, or proceed to additional competency proceedings, counsel had to ask for that relief and secure a ruling. The appellate court treated the silence that followed as dispositive. Because Davet neither renewed the competency issue nor objected when the case proceeded to trial, there was no preserved complaint that the trial court failed to do more.

That is the core strategic lesson. Preservation does not freeze in place merely because counsel once raised the right subject matter. The objection must match the complained-of error as it actually unfolds. Here, the relevant appellate complaint was not that the trial court ignored the initial motion. It did not. The complaint was that the trial court later failed to stop the case and conduct further competency proceedings after the evaluation did not occur. Since counsel never presented that later complaint to the trial court, Rule 33.1 barred review.

The court’s treatment of Mitchell reinforced this point. Like the defendant there, Davet attempted to complain on appeal about the absence of a completed competency process without having objected in the trial court to the omission itself. The Fourteenth Court followed the same preservation logic.

Holding

The court held that Davet failed to preserve his complaint that the trial court violated due process by not staying proceedings and conducting further competency proceedings under article 46B.004. Because the trial court granted the defense motion for a competency examination, and because Davet later failed to appear for the evaluation and did not renew the issue, object, or obtain an adverse ruling before trial, any error was unpreserved under Rule 33.1.

The court also overruled Davet’s self-representation complaint, concluding that the trial court did not abuse its discretion by denying his eleventh-hour request to proceed pro se. The request was made immediately before voir dire, after a lengthy pendency of the case, and the record supported the trial court’s view that the request functioned as a delay tactic rather than a timely and proper invocation of the Faretta right.

The opinion further affirmed the judgment on Davet’s remaining issues, including his collateral attack on the emergency protective order and his sufficiency challenge. The preservation ruling on competency, however, is the aspect with the broadest procedural significance.

Practical Application

For Texas family lawyers, Davet is less about criminal competency doctrine than about record management when a court-ordered protective process stalls. The same dynamic appears in family cases when a court orders a psychological evaluation, social study, custody evaluation, amicus investigation, drug testing, mediation, or temporary-measures hearing, but the process is never completed and the case nevertheless moves toward trial or final hearing.

If you represent a spouse in a divorce who appears unable to rationally assist in litigation, or a parent in a SAPCR whose mental-health condition calls meaningful participation into question, your initial motion is only step one. If the evaluation does not happen, the expert cannot opine, the party fails to attend, or the court simply pushes ahead, you must re-raise the issue and ask for concrete relief. That may include a continuance, enforcement of the prior order, a motion to compel attendance, a motion for appointment of an appropriate representative or ad litem, a renewed request for evaluation, or an objection to proceeding without the ordered safeguard.

The same is true in protective-order litigation, where compressed timelines often create preservation traps. If the court indicates concern, signs an order, but the underlying concern remains unresolved, do not assume the issue is preserved for appeal simply because it was once mentioned. Family-law appellate records are full of “we thought the court knew” problems. Davet teaches that knowledge is not preservation.

Practically, the case also underscores the importance of tying the objection to the precise procedural failure. If your complaint is no longer “the court has not ordered relief,” but instead “the relief was ordered yet never completed, and proceeding now is unfair,” your record must say that in unmistakable terms.

Checklists

Preserving Mental-Health-Related Procedural Issues

• File a written motion identifying the specific concern and requested relief.
• Cite the procedural or constitutional basis for the request.
• Obtain a signed order or an oral ruling on the record.
• If an evaluation or other process is ordered, monitor compliance actively.
• Calendar all deadlines, appointments, and reporting dates.
• If the process fails or is not completed, file a renewed motion before the merits hearing or trial.
• Object on the record to proceeding without completion of the ordered safeguard.
• Request a specific remedy, such as continuance, enforcement, additional evaluation, or other protective measure.
• Obtain an express ruling, or object to the court’s refusal to rule.

Handling Nonappearance for an Ordered Evaluation

• Confirm that the client received notice of the appointment.
• Document all communications about the appointment.
• If the client misses the evaluation, determine immediately why.
• Move promptly to reset the evaluation if appropriate.
• Ask the court to compel attendance if needed.
• Explain on the record why the missed evaluation does not eliminate the underlying concern.
• Request a stay or continuance if the unresolved issue affects the client’s ability to proceed.

Trial-Setting Preservation Checklist for Family Lawyers

• Review every prior order for unfinished conditions precedent to trial.
• Identify whether any evaluation, investigation, inventory, appraisal, or temporary matter remains incomplete.
• Announce ready only if the unresolved issue is not material, or if you have made a strategic decision to waive it.
• If the issue is material, object before evidence begins.
• State specifically why proceeding would impair due process, fair presentation, or the reliability of the result.
• Request a ruling before the court moves into trial.

Building the Appellate Record

• Use written motions in addition to oral objections where possible.
• Make sure notices, reports, nonappearance letters, and related documents are filed with the clerk.
• Offer excluded or uncompleted process documents for the record when appropriate.
• Ask the court reporter to transcribe all pretrial discussions bearing on the issue.
• If the court proceeds despite your request, clarify that you object to going forward.
• Re-urge the objection if circumstances materially worsen during the hearing or trial.

Avoiding the Davet Problem

• Do not assume the original motion preserves every later complaint.
• Do not assume a granted motion equals a preserved appellate issue.
• Do not let a failed evaluation pass without follow-up.
• Do not proceed to final hearing silently if the unresolved issue matters.
• Do not rely on the trial court’s awareness alone; ask, object, and obtain a ruling.

Citation

Davet v. State, No. 14-24-00884-CR, 2026 WL ___ (Tex. App.—Houston [14th Dist.] June 18, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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