Summary
declining to find counsel ineffective for failing to file a motion for a competency hearing where there was no evidence in the record raising the issue of incompetency
Summary of this case from Saldaño v. Dir., TDCJ-CIDOpinion
Nos. 05-04-00623-CR, 05-04-00624-CR, 05-04-00625-CR
Opinion issued May 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-52625-LN; F03-52747-LN; F03-72855-TN. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION
Paul Craig Jackson appeals three convictions-two for robbery (05-04-00623-CR and 05-04-00624-CR) and one for aggravated robbery (05-04-00625-CR). Appellant entered an open plea in all three cases. The trial court entered a deadly weapon finding in the aggravated robbery case, and it assessed punishment, enhanced by two prior felony convictions, at confinement for life in all three cases. Appellant brings three issues on appeal complaining he was incompetent to enter his plea, the trial court erred in not conducting a competency hearing during his trial, and he received ineffective assistance of counsel. The background of the cases and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4. We affirm the trial court's judgments. All of appellant's issues involve his contention that he was incompetent to stand trial. In his first issue, appellant collaterally attacks his plea and argues his competency to stand trial should have been determined before the trial began because the trial court had information before it that could have raised the issue of competency. Appellant contends the failure to do so violated his due process rights. He argues in his third issue that his due process rights were violated because the trial court did not sua sponte conduct an inquiry into his competency during the trial. In his second issue, appellant contends he was denied effective assistance of counsel because his attorney never investigated his competency or requested a competency examination. All of appellant's arguments are without merit. The due process right to a fair trial prevents the government from subjecting a person to trial whose "mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense." Drope v. Missouri, 420 U.S. 162, 171 (1975); Alcott v. State, 51 S.W.3d 596, 598 (Tex.Crim.App. 2001); see Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon Supp. 2004-05). To protect the right, the trial court must inquire into the accused's mental competence once the issue is sufficiently raised. McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003). After an informal inquiry, if the trial court concludes evidence supports a finding of incompetency, it shall order an examination to determine whether the defendant is incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004 (Vernon Supp. 2004-05); McDaniel, 98 S.W.3d at 710. The standard of review on appeal is whether the trial court abused its discretion in failing to conduct a competency hearing. See Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999). Evidence showing recent severe mental illness, moderate or greater retardation, or truly bizarre acts by the defendant is sufficient to create a question of competency. McDaniel, 98 S.W.3d at 710. However, evidence of previous psychiatric treatment or drug addiction, standing alone, does not raise the issue of competency. See Moore, 999 S.W.2d at 395; Leyva v. State, 552 S.W.2d 158, 161 (Tex.Crim.App. 1977); Reeves v. State, 46 S.W.3d 397, 400 (Tex.App.-Texarkana 2001, pet. dism'd). Appellant bases his arguments on the fact that he had seen a psychotherapist, Phillip David Taylor, prior to his arrest. Under his first issue, appellant contends that because Taylor testified that he had spoken to appellant's parole officer and discovered appellant had been arrested, the trial court must have known appellant was under Taylor's care. However, there is no evidence in the record of what information Taylor relayed to the parole officer. There is no evidence that before the trial, any knowledge of appellant's mental health status was made known to the court. Further, the evidence of psychological treatment alone does not raise the issue of competency. See Ex parte McWilliams, 634 S.W.2d 815, 821 (Tex.Crim.App. 1980) (en banc). We resolve appellant's first issue against him. In appellant's third issue, he claims the evidence presented at trial sufficiently raised the issue of his mental competence such that the trial court should have stopped the trial to conduct a competency hearing. Taylor testified appellant had been his client for approximately one year. Taylor had previously thought appellant had symptoms of chronic adjustment disorder with anxiety and depression, but due to appellant's behavior around the time of the robberies, Taylor hypothesized appellant would have a diagnosis of posttraumatic stress disorder. However, Taylor had not had the opportunity to test his hypothesis. And when asked if there was anything else Taylor thought the trial court should be aware of "as far as [his] professional relationship with [appellant]," Taylor responded there was nothing. Defense counsel called appellant to testify, and appellant said that he and his counsel had spoken about people appellant had wanted to testify and what he wanted counsel to discuss with those witnesses. Appellant also discussed his prior convictions, time he spent in prison, his work history, his drug use, and the present robberies, for which he apologized. Appellant said that when he had been released from prison, he had been ordered to be evaluated for mental retardation. However, after three weeks his parole officer determined appellant did not need the evaluation. Appellant said he was not mentally retarded but could be "mentally handicapped, disabled." This evidence does not show present severe mental illness, moderate retardation, or any bizarre acts by appellant. Rather, it shows appellant discussed his defense with counsel. It also shows appellant had previously been in therapy, but the evidence suggests only that appellant had some behavioral or emotional problems — not severe mental illness — and there are no indications of bizarre acts. See Moore, 999 S.W.2d at 395; Reeves, 46 S.W.3d at 400. Because the record fails to contain evidence that appellant did not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings against him, we cannot conclude the trial court was required to sua sponte conduct an inquiry into appellant's competency to stand trial. We resolve appellant's third issue against him. In his second issue, appellant claims he was denied effective assistance of counsel because his attorney never investigated his competency or requested a competency examination. Having already concluded that there was no evidence in the record raising the issue of incompetency, we cannot conclude trial counsel was ineffective for failing to file a motion for a competency hearing. See Brown v. State, 129 S.W.3d 762, 767 (Tex.App.-Houston [1st Dist.] 2004, no pet.); see also Bourque v. State, 2005 WL 341688, at *2 (Tex.App.-Dallas Feb. 14, 2005, no pet. h.). Because appellant failed to establish trial counsel's performance was deficient, we conclude his complaint lacks merit. We resolve appellant's second issue against him. We affirm the trial court's judgments.
Appellant and the State cite former article 46.02 in discussing the code of criminal procedure's legal process for finding a person to be incompetent to stand trial. However, article 46.02 was repealed effective January 1, 2004 and replaced with chapter 46B. See Act of April 30, 2003, 78th Leg., R.S., ch. 35, § 15, 2003 Tex. Gen. Laws 57, 72. Appellant entered his plea in March 2004. Accordingly, we cite chapter 46B.