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 due-process complaint under article 46B.004 was not preserved where the trial court granted the defense motion for a competency examination, but the defendant did not appear for the evaluation and made no further request, objection, or motion before trial. The Fourteenth Court of Appeals held that, without an adverse ruling or renewed presentation of the issue, appellate review was forfeited under Texas Rule of Appellate Procedure 33.1.

Relevance to Family Law

Although this is a criminal appeal, family-law litigators should pay close attention because the underlying charge involved an alleged violation of a magistrate’s order of emergency protection issued in favor of a former Wife. In protective-order litigation, divorce cases involving family violence allegations, and SAPCR proceedings with parallel criminal exposure, preservation discipline matters. This opinion underscores a practical point that translates directly to family practice: obtaining an initial order related to capacity, competency, or procedure is not enough if the issue later stalls or becomes incomplete. If the record does not show a renewed request, objection, or adverse ruling, an appellate complaint may be lost.

Case Summary

Fact Summary

The appellant was charged by information on May 4, 2022, with harassing his former Wife under Penal Code section 42.07. The next day, at the initial hearing and on the State’s motion, a Harris County criminal law hearing officer signed the magistrate’s order of emergency protection at issue. The order designated the former Wife as a protected individual and prohibited the appellant from committing family violence against her, communicating with her, or coming within certain distances of her.

Within one week, the State filed a new information charging the appellant with violating that order. The opinion notes that he entered into a pre-trial diversion program, that the State later terminated the program, and that he then pleaded not guilty before a jury found him guilty. The parties agreed on a forty-five-day jail sentence, and the trial court signed judgment accordingly.

As to competency, prior counsel filed a motion in May 2022 questioning competency and stating that, after interviewing the defendant and speaking with the defendant’s friends by phone, counsel had reason to believe the defendant might be suffering from psychiatric condition(s). The trial court promptly signed an order for a competency examination on May 17, 2022. In March 2023, the Harris Center for Mental Health notified the defendant that it had received the court’s order and scheduled a forensic psychological evaluation for May 11, 2023. The defendant did not appear for that appointment. The Harris Center then notified the trial judge on May 13, 2023, that “an opinion about competency could not be formed.” The opinion states that the defendant did not raise the issue again.

Issues Decided

• Whether the trial court violated due process by failing to stay proceedings and require a competency examination after receiving a credible suggestion that the defendant might be incompetent to stand trial.
• Whether that competency complaint was preserved for appellate review when the trial court granted the motion for a competency examination, the defendant failed to appear for the evaluation, and no further request, objection, or motion was made.
• The opinion excerpt also identifies additional issues raised on appeal concerning self-representation, a collateral attack on the magistrate’s order of emergency protection, and legal sufficiency, but the provided excerpt sets out the court’s reasoning only on the first issue and begins the second.

Rules Applied

The court relied on the following competency framework:

• A criminal defendant who is incompetent may not stand trial as a matter of due process. Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018).
• A defendant is presumed competent unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. art. 46B.003(b).
• A person is incompetent to stand trial if the person lacks either sufficient present ability to consult with counsel with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings. Tex. Code Crim. Proc. art. 46B.003(a).
• A trial court’s duty to conduct an informal inquiry is triggered by a suggestion from any credible source that the defendant may be incompetent. Tex. Code Crim. Proc. art. 46B.004(a), (c), (c-1).
• If the trial court finds more than a scintilla of evidence supporting a rational finding that the defendant is incompetent, the court must stay other proceedings, appoint an expert if it has not already done so, and move forward with a formal competency trial. Tex. Code Crim. Proc. arts. 46B.004(d), 46B.021(b), 46B.005(a)-(b); Boyett, 545 S.W.3d at 564.

On preservation, the court applied Texas Rule of Appellate Procedure 33.1 and cited authority holding that competency complaints must be preserved for appellate review:

• Tex. R. App. P. 33.1
• Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)
• 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.)
• Additional authorities cited by the court included Ramsey v. State, Bonner v. State, Salahud-din v. State, and Boitnott v. State.

Application

The court’s analysis turned on preservation, not on a merits determination that article 46B procedures were fully satisfied. Counsel raised competency by motion, and the trial court responded by granting the requested relief and signing an order for a competency examination. The evaluation process then broke down because the defendant did not appear for the scheduled appointment, after which the Harris Center advised the trial judge that no opinion about competency could be formed.

At that point, according to the opinion, nothing further happened to present the issue for ruling. The defendant made no renewed request to stay proceedings, no objection to going forward without a competency determination, and no motion asking the court to conduct further proceedings under article 46B. The court emphasized that the trial court had not denied the original motion; it had granted it. Because the record did not show a request, objection, or motion resulting in an adverse ruling, the court held that the complaint was not preserved.

The court found the Fifth Court’s unpublished decision in Mitchell similar. There too, the trial judge had ordered a competency evaluation on counsel’s motion, but the appellate record did not show the kind of further competency ruling the appellant later claimed was required. The Fourteenth Court used that line of cases to reinforce the point that an appellant cannot remain silent, proceed to trial, and then complain on appeal that the trial court should have done more when the matter was never re-presented.

Holding

On the first issue, the Fourteenth Court of Appeals held that the due-process complaint was not preserved for appellate review. The court stated that the appellant made no request, objection, or motion on which the court ruled adversely to him, and that the trial court had instead granted counsel’s motion and ordered a competency examination. Because the appellant failed to appear for that examination and did not raise the issue again, the court held that any error was not preserved.

The excerpt concludes with the court’s statement overruling the first issue. It then turns to the self-representation issue, but the provided text does not include the court’s full analysis or disposition of the remaining issues beyond identifying that the judgment was affirmed.

Practical Application

For Texas family-law litigators, this case is a strong preservation reminder in matters touching protective orders, family-violence allegations, and parallel criminal proceedings. If a party’s mental condition affects the ability to proceed, the initial filing is only the first step. When an ordered evaluation does not occur, when a report is never completed, or when the court moves the case forward without resolving the issue, counsel must decide whether to renew the request, object to proceeding, or seek a ruling that clearly appears in the record.

That lesson has obvious crossover value in divorce and SAPCR practice. Family courts regularly confront issues involving mental-health evidence, requested evaluations, protective-order proceedings, and litigation sequencing. This case does not announce a family-law rule of capacity or competency, but it does illustrate a broader appellate truth: a lawyer who secures an initial order yet allows the case to proceed after the process breaks down may face a preservation problem later.

The case under review is also useful when advising clients whose family cases overlap with criminal protective-order enforcement. If a criminal record issue may affect possession, access, protective-order strategy, or settlement posture in a related family matter, family counsel should coordinate carefully with criminal counsel to ensure that material procedural issues are not left undeveloped in the record.

Checklists

Preserving a Stalled Evaluation Issue

• File a written motion that clearly identifies the requested relief.
• Obtain a signed order on the initial request.
• Monitor whether the ordered evaluation is actually scheduled and completed.
• If the client does not appear or the evaluator cannot form an opinion, place the development on the record immediately.
• Renew the request for further proceedings before trial if the underlying concern remains.
• Object to proceeding without the requested statutory process if that is your position.
• Obtain an express ruling, or make sure the record shows the trial court refused the request.

Building an Appellate Record in Parallel Protective-Order Matters

• Track the criminal docket when the alleged conduct overlaps with divorce, custody, or protective-order litigation.
• Obtain copies of the charging instrument, protective order, and any competency-related motions or orders.
• Note whether a pre-trial diversion program was entered and, if so, whether it was later terminated.
• Confirm whether any examination report was filed or whether the provider reported that no opinion could be formed.
• If the issue affects related family-law strategy, coordinate record preservation across proceedings.

Avoiding Preservation Gaps at Trial

• Do not assume the initial granting of a motion preserves all later complaints.
• Re-urge unresolved issues when the factual posture changes.
• Make a contemporaneous objection before the case proceeds to trial.
• Request a stay or other specific relief tied to the governing statute.
• Ensure that any adverse ruling is clear in the reporter’s record or written orders.

Citation

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

Full Opinion

Read the full opinion here

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