FREDERICK RAYMOND WHITE v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Lang–Miers

Appellant Frederick Raymond White was charged with two counts of aggravated robbery and one count of unlawful possession of a firearm by a felon.   He entered open pleas of guilty and was sentenced by the trial court to concurrent sentences of eight years in prison in each case.   In two issues on appeal appellant argues that the trial court erred when it did not sua sponte conduct a competency hearing and that his plea was involuntary due to his “severe mental illness and or possible lack of competence.”   We resolve appellant's issues against him and affirm.

First Issue

We review a trial court's decision whether to conduct a competency inquiry under an abuse-of-discretion standard.  Montoya v. State, 291 S.W.3d 420, 425 (Tex.Crim.App.2009).   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, 291 S.W.3d at 426.

A trial court cannot accept a plea of guilty “unless it appears that the defendant is mentally competent and the plea is free and voluntary.”   Tex.Code Crim. Proc. Ann. art. 26.13(b) (West Supp.2011).   A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.   Tex.Code Crim. Proc. Ann. art.   46B.003(b) (West 2006).   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);  Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App.2008).

The duty to conduct an informal inquiry is triggered when some evidence raises a “bona fide doubt” that an accused lacks a rational and factual understanding of the proceedings against him or the ability to consult with his attorney with a reasonable degree of rational understanding.   See Tex.Code Crim. Proc. Ann.. arts.   46B.003(a), 46B.004(c) (West Supp.2011) ¹ ;  Montoya, 291 S.W.3d at 425.   A bona fide doubt may exist if the accused exhibits truly bizarre behavior, has a recent history of severe mental illness, or if the defendant has at least moderate mental retardation.   See Montoya, 291 S.W.3d at 425.   Evidence sufficient to create a bona fide doubt about an accused's competency may come from the trial court's own observations, known facts, evidence presented, motions, affidavits, or any other reasonable or credible sources.   See id.;  Hobbs v. State, 359 S.W.3d 919, 924 (Tex.App.—Houston [14th Dist.] 2012, no pet.).   The evidence need not be sufficient to find an accused actually incompetent;  rather, it must create “a real doubt in the judge's mind as to the defendant's competency.”   See Fuller, 253 S.W.3d at 228.   If evidence warrants a competency hearing, and the trial court denies such a hearing, the defendant is deprived of his constitutional right to a fair trial.   See Pate v. Robinson, 383 U.S. 375, 385 (1966).

In this case, during the guilty-plea hearing appellant testified that he was taking four medications because he is “Schizophrenic and bipolar.”   He also stated that he had enough time to talk to his lawyer, that he understood the rights he was waiving, and that he did not want a jury trial.   He also told the trial court that he did not want to enter into a plea agreement but instead wanted to enter open pleas because he hoped to receive probation.   Appellant explained, “I realized what I did was wrong, and I made a mistake.   And I had—I was on drugs at the time and ․ I just want a second chance.”   The trial court asked appellant's counsel, “[D]o you think your client is mentally competent?”   His counsel responded, “I do believe so, Judge.”

Appellant pleaded guilty to two counts of aggravated robbery and one count of unlawful possession of a firearm by a felon.   He acknowledged that he robbed a man in a store while holding a gun and wearing a ski mask, but he testified that he did not point the gun at anyone and “just wanted help” for his drug addiction.   He also testified that he “relapsed on his medication” and was not taking his psychiatric medication at the time of the robbery.   After the trial court sentenced appellant to eight years in prison in each case, appellant told the trial court that putting him in prison was not going to help him.   He also assured the trial court that he would not relapse again.   At the end of the hearing, the trial court told appellant he had an absolute right to appeal and he responded, “Yeah, I want to appeal.”

To support his argument appellant cites the following statements made by the trial court towards the end of the hearing:

Okay. That's the PSI. I'm reviewing the CATS now.   Well, the evaluator was thinking that maybe he's incompetent.   Loosely oriented to place and time.   He didn't know where he was or what time it was.   He was unable to recall the department in which the evaluator worked for despite informing him.   When asked to perform a serial of sentences to spell—and to spell “world” backwards, he repeated—stated, I don't know.   Borderline range of intellectual functioning.   His extensive substance use and mental health were likely factors to contribute to his 69 IQ score.   Overall, he appears to have some cognitive limitations, which would limit the usefulness of his statements.   Okay. Well, that's pretty bad, if we can't rely on what he's saying.   Generally unable to handle complex life tasks.

․

Schizo-affective disorder unless it's methamphetamine-induced psychosis with hallucinations.   Hydrocodone abuse.   Borderline intellectual functioning.   Areas of concern.   High rating for mental health.   High rating for substance abuse.   High rating for criminal thinking attitudes.   High rating for problem solving skills.   You don't see that often.

․

The severity of his mental illness—I mean, he's bad.   I haven't seen anybody that bad in a long time.   It's scary.   It's scary because he's barely aware of where he's even at.   And that's while he's on medication.

Appellant argues that these statements demonstrate that the evidence was sufficient to create a bona fide doubt about whether appellant was legally competent.   We disagree.

The issue here is whether there was a bona fide doubt of competency at the time of the hearing.   We conclude that there was not.   The evidence in this case 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 evidence of appellant's 69 IQ score did not demonstrate at least moderate retardation.   See, e.g., Ex parte Rodriguez, 164 S.W.3d 400, 402 (Tex.Crim.App.2005) (defendant with full-scale IQ of 60 mildly retarded and legally competent).   And appellant's mental illness and medication do not warrant a competency inquiry absent evidence of a present inability to communicate with counsel or understand the proceedings.   See Hobbs, 359 S.W.3d at 925.   Here the record shows that appellant testified clearly in his own behalf and that 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 told the court he was taking his medication at the time of the hearing.   He admitted his wrongdoing, expressed remorse, and intimated that he deserved leniency based on what he considered to be mitigating evidence (i.e., his drug abuse and the fact that he did not point the gun at anyone during the robbery).   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.   The trial court did not abuse its discretion when it did not sua sponte inquire further into appellant's competence.   See id. (although appellant stated “that he was schizophrenic, bipolar, and took medication,” evidence was insufficient to raise a bona fide doubt as to appellant's competence because record reflected appellant had a sufficient understanding of proceedings and was able to communicate with his attorney).   We resolve appellant's first issue against him.

Second Issue

In his second issue appellant argues that his guilty pleas were not made knowingly and voluntarily due to his “severe mental illness and or possible lack of competence.”   As a threshold matter, we consider whether appellant preserved error.   Appellant did not complain to the trial court about the voluntariness of his guilty pleas either before or after his sentencing.   Under Texas Rule of Appellate Procedure 33.1, a party must first complain to the trial court and obtain a ruling in order to preserve most complaints for appellate review.   See Tex.R.App. P. 33.1.   The court of criminal appeals and this Court have held that the rule 33.1 requirement of preservation of error applies to complaints about the voluntariness of a guilty plea.   See Mendez v. State, 138 S.W.3d 334, 339, 350 (Tex.Crim.App.2004);  Aldrich v. State, 53 S.W.3d 460, 468–69 (Tex.App.—Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App.2003).   We conclude that appellant has not preserved his complaint about the voluntariness of his guilty pleas for appellate review.   But even if appellant had preserved his second issue for appellate review, we would resolve it against him.   There is no evidence in the record that appellant's guilty pleas were not made knowingly and voluntarily.   To the contrary, the record demonstrates that appellant fully understood the proceedings, including the trial court's admonishments and the effects of his guilty pleas.

We resolve appellant's second issue against him.

Conclusion

We resolve appellant's two issues against him and affirm the trial court's judgments.

ELIZABETH LANG–MIERS

JUSTICE

Do Not Publish

Tex.R.App. P. 47

110984F.U05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

FREDERICK RAYMOND WHITE, Appellant

No. 05–11–00984–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 204th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–42225–Q).

Opinion delivered by Justice Lang–Miers, Justices O'Neill and Richter participating.   Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 31, 2012.

/Elizabeth Lang–Miers/

ELIZABETH LANG–MIERS

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

FREDERICK RAYMOND WHITE, Appellant

No. 05–11–00985–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 204th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–42226–Q).

Opinion delivered by Justice Lang–Miers, Justices O'Neill and Richter participating.   Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 31, 2012.

/Elizabeth Lang–Miers/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

FREDERICK RAYMOND WHITE, Appellant

No. 05–11–00986–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 204th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–42227–Q).

Opinion delivered by Justice Lang–Miers, Justices O'Neill and Richter participating.   Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 31, 2012.

/Elizabeth Lang–Miers/

ELIZABETH LANG–MIERS

JUSTICE

FOOTNOTES

FN1. We note that article 46B.004 was amended effective September 1, 2011, to add subsection (c–1).   See Act of May 19, 2011, 82nd Leg. R.S., ch. 822, §§ 21(a), 22, 2011 Tex. Sess. Law Serv. 1893, 1899–1900 (codified at Tex.Code Crim. Proc. Ann.. art.   46B.004(c-l) (West Supp.2011)).   We do not address the effect of this subsection in this case because the subsection was not in effect at the time of appellant's hearing and neither party has suggested that it applies..  FN1. We note that article 46B.004 was amended effective September 1, 2011, to add subsection (c–1).   See Act of May 19, 2011, 82nd Leg. R.S., ch. 822, §§ 21(a), 22, 2011 Tex. Sess. Law Serv. 1893, 1899–1900 (codified at Tex.Code Crim. Proc. Ann.. art.   46B.004(c-l) (West Supp.2011)).   We do not address the effect of this subsection in this case because the subsection was not in effect at the time of appellant's hearing and neither party has suggested that it applies.

ELIZABETH LANG–MIERS JUSTICE