GREGORY WALKER v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Campbell 1

Appellant entered a plea of guilty to a jury to the offense of theft in an amount of $100,000 or more but less than $200,000.   Punishment, enhanced by a prior felony conviction, was assessed at twenty-five years' imprisonment and a fine of $10,000.   The trial court also ordered restitution to the victim as a condition of any future parole.   On appeal, appellant raises a single point of error, contending that at the time of his guilty plea, he was mentally incompetent to stand trial in violation of article 26.13 of the code of criminal procedure.   See Tex.Code Crim. Proc. Ann. art. 26.13(b) (West 2009).   We disagree and affirm.

FACTS

Appellant testified at the punishment phase concerning the facts surrounding the underlying theft case, basically laying the blame for the idea of the theft on a co-actor.   Appellant and others attempted to steal an ATM machine from the parking lot of a shopping center by using a front-end loader.   He was caught by police nearby, and an indictment followed.   Appellant testified that he would sometimes “hear voices” and that he was told while in prison to go to MHMR for medical treatment.   When he was released, he did not go for treatment.   He testified he was presently receiving medication, namely Haldol, and other medications not relevant to this issue.

APPELLANT'S AND STATE'S CLAIMS

In a sole point of error, appellant claims his guilty plea was improperly accepted because testimony that he heard voices, needed medication, and had been referred to MHMR showed he was mentally incompetent pursuant to article 26.13(b).  See id.   The State responds that appellant's testimony regarding his medical history did not create a bona fide doubt as to his competency such that the trial court was compelled sua sponte to inquire further into his competence to stand trial.   The State contends appellant indicated at trial both orally and in writing that he understood the charge, he was entering his plea freely and voluntarily, and he understood both the punishment range and the judicial confession that he signed.   The State further alleges that appellant's trial counsel, when asked by the trial court if appellant was mentally competent to enter his plea, replied in the affirmative.   Additionally, the State argues that appellant testified the medication was helping him in that he was not as depressed and he did not hear voices as much.   He also indicated that he understood the nature of the offense and the effect of the enhancement paragraph and wished to “make amends” in any way possible.

STANDARD OF REVIEW

On appeal, the standard of review is whether the trial court abused its discretion by failing to empanel a jury for the purpose of conducting a competency hearing.  Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App.1999);  Garcia v. State, 595 S.W.2d 538, 542 (Tex.Crim.App. [Panel Op.] 1980).   A trial court's assessment of a defendant's mental competency is entitled to great deference by a reviewing court.  McDaniel v. State, 98 S.W.3d 704, 713 (Tex.Crim.App.2003).   An appellate court does not substitute its judgment for that of the trial court, but rather determines whether the trial court's decision was arbitrary or unreasonable.  Montoya v. State, 291 S.W.3d 420, 426 (Tex.Crim.App.2009).

APPLICABLE LAW

A guilty plea must be freely, knowingly, and voluntarily made.   See Brady v. United States, 397 U.S. 742, 748 (1970);  Mitschke v. State, 129 S.W.3d 130, 136 (Tex.Crim.App.2004).   In considering the voluntariness of a guilty plea, the appellate court should examine the record as a whole.  Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998).   When the record reflects that a defendant was properly admonished, it presents a prima facie showing that the guilty plea was knowing and voluntary.  Id. The burden then shifts to the defendant to show his plea was not voluntary.  Id.

A defendant is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding;  or (2) a rational as well as factual understanding of the proceedings against the person.   Tex.Code Crim. Proc. Ann. art.   46B.003(a) (West 2006);  Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App.2008).   If evidence suggesting that a defendant may be incompetent comes to the attention of the trial court, the court, on its own motion, must determine by informal inquiry whether there is some evidence from any source that would support a finding the defendant may be incompetent to stand trial.   Tex.Code Crim. Proc. Ann.. art.   46B.004(b), (c);  Fuller, 253 S.W.3d at 228.   However, a defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of evidence.   Tex.Code Crim. Proc. Ann.. art.   46B.003(b).

A competency inquiry is not required unless the evidence is sufficient to create a bona fide doubt as to whether the defendant is legally competent.   See Montoya, 291 S.W.3d at 425 (re-affirming the application of the bona fide doubt standard).   A bona fide doubt may exist if the defendant exhibits truly bizarre behavior or has a recent history of severe mental illness or at least moderate mental retardation.  Id. The evidence of incompetence must be specific and must show a present inability to communicate with the defendant.   Moore, 999 S.W.2d at 394.

In the instant case, as a prelude to a guilty plea, appellant indicated in writing and in response to verbal questioning pursuant to article 26.13, that he understood the charges against him and was freely and voluntarily pleading guilty.   He also understood the range of punishment and confirmed that he read the indictment.   He entered a plea of guilty to the primary charge and pleaded true to the enhancement paragraph.   Appellant's counsel offered his opinion that appellant was competent to stand trial.

At the punishment phase of his trial, appellant testified he knew what he was doing was wrong and thus did not attempt to avoid police before his capture.   He also testified that during a prison stay for a previous conviction, he received unspecified medical treatment and he was taking medicine “right now” because he “hears voices.” ²  He stated the medicine had helped in that hearing voices and depression had both dissipated.   He asked for leniency from the judge, and he said he wanted to “make amends” in any way possible.

Appellant's relies on Greene v. State, 225 S.W.3d 324 (Tex.App.—San Antonio 2007, no pet.) (op. on reh'g).   In Greene, the San Antonio Court of Appeals concluded that legislative changes to article 46B.004, that were effectuated in 2004, changed the bona fide doubt standard, replacing it with a “some evidence” quantum of proof.   See Greene, 225 S.W.3d at 328–29 n.3. That court ultimately decided to reverse the trial court and remanded the case for a new trial because a retrospective competency hearing was no longer feasible given Greene's long-term prognosis of incompetence.   See Greene v. State, 264 S.W.3d 271, 272 (Tex.App.—San Antonio 2008, pet. ref'd) (op. on reinstatement and further reh'g).   In 2009, the court of criminal appeals, at least sub silentio, overruled Greene by reaffirming the bona fide doubt standard.   See Montoya, 291 S.W.3d at 425.   Thus appellant's citation to Greene is of no precedential value, except that Greene does correctly state what the remedy would be if the bona fide doubt standard had been met by appellant and appellant's motion for a competency hearing had been erroneously overruled by the trial court.   In the instant case, there was no motion or request for a competency determination.

The evidence in this case does not raise a bona fide doubt as to appellant's competence.   It does not show or suggest “recent, severe mental illness, at least moderate mental retardation, or truly bizarre acts by [appellant].”   See Fuller, 253 S.W.3d at 228 (quoting McDaniel, 98 S.W.3d at 710).   The record does show that appellant testified clearly in his own behalf and he understood questions propounded to him by the attorneys and the trial court.   Appellant appeared to be coherent and alert, and his responses were rational and clear.   He admitted his wrongdoing, urged his guilty plea several times, and sought leniency from the trial court.   His plea for leniency was based in part on what he considered mitigating evidence, and his testimony arguably conveyed some degree of mitigating value.   Taken as a whole, the record does not show appellant did not have sufficient present ability to consult meaningfully with his attorney or that he did not have a rational, as well as factual, understanding of the proceedings against him.   Because the trial court was not confronted with such evidence, it did not abuse its discretion in failing sua sponte to inquire further into appellant's competence.   We resolve appellant's sole issue against him.

The judgment of the trial court is affirmed.

FOOTNOTES

FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment..  FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.

FN2. The fact that a defendant may have been on psychiatric medication during trial and had a history of mental problems did not mandate a competency inquiry.  LaHood v. State, 171 S.W.3d 613, 619 (Tex.App.—Houston [14th Dist.] 2005, pet. ref'd)..  FN2. The fact that a defendant may have been on psychiatric medication during trial and had a history of mental problems did not mandate a competency inquiry.  LaHood v. State, 171 S.W.3d 613, 619 (Tex.App.—Houston [14th Dist.] 2005, pet. ref'd).

CHARLES F. CAMPBELL JUSTICE, ASSIGNED