¶1dissenting.
¶2I respectfully dissent on issue one. I believe we have jurisdiction to consider the incompetency of the defendant. A defendant must be competent to stand trial. See Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (citing Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956)); Ex parte Hagans, 558 S.W.2d 457, 460-61 (Tex.Crim.App.1977); Casey v. State, 924 S.W.2d 946, 949 (Tex.Crim.App.1996) (sentencing). This is an issue of due process as well as statutory provision. Pate, 383 U.S. at 378, 86 S.Ct. 836; see Tex.Code CRIM. PROC. Ann. ch. 46B (Vernon Supp. 2005). By statute, a person is presumed competent to stand trial. Tex.Codb Crim. PROC. Ann. art. 46B.003(b) (Vernon Supp. 2005). Article 46B.004(b) of the Texas Code of Criminal Procedure provides that “[i]f evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial.” See Tex.Code Crim. PROC. Ann. art. 46B.004(b) (Vernon Supp.2005). On suggestion of a defendant’s incompetency, the court “shall determine by informal inquiry whether there is some evidence from any source” that defendant is incompetent to stand trial. Tex.Code CRIM. PROC. Ann. art. 46B.004(c) (Vernon Supp.2005). The competency inquiry and any further required competency proceedings under chapter 46B are separate and distinct from the decision to proceed with an adjudication of guilt under article 42.12, section 5(b). See Tex.Code CRim. PROC. Ann. art. 42.12, § 5(b) (Vernon Supp.2005). A trial court cannot proceed to adjudicate the guilt or punishment of someone who has already been adjudicated an incompetent person without first determining competency; two courts have held that proceeding to do so without a competency determination is appealable notwithstanding article 42.12, section 5(b). See Bradford v. State, 172 S.W.3d 1, 4r-5 (Tex.App.-Fort Worth 2005, no pet.) (previous determination of incompetency); Byrd v. State, 719 S.W.2d 237, 238 (Tex.App.-Dallas 1986, no pet.) (previous determination of incompetency). I believe the same is true of someone who is, in fact, incompetent to stand trial even if that fact has not yet been adjudicated. See Tex. Code CRIM. Proc. Ann. art. 46B.004 (Vernon Supp.2005); but see Bradford, 172 S.W.3d at 3 — 4 (distinguishing cases where defendant had not been adjudicated incompetent or had been adjudicated competent). Because I believe the competency inquiry is a separate and distinct issue from the decision to adjudicate guilt, I would hold the issue of competency is appealable notwithstanding article 42.12, section 5(b) of the Code of Criminal Procedure.