Rodney Wayne Robins, Appellant v. The State of Texas, Appellee (2016)

MEMORANDUM OPINION

A jury found appellant, Rodney Wayne Robins, guilty of the offense of possession of a controlled substance, namely, cocaine, weighing less than one gram.¹ After finding true the allegations in two enhancement paragraphs that appellant had been twice previously convicted of felony offenses, the trial court assessed his punishment at confinement for six years.  In his sole issue, appellant contends that the trial court erred in not sua sponte conducting an informal inquiry into his competency to stand trial.

We affirm.

Background

Houston Police Department (“HPD”) Officer J. De La Cruz testified that on the night of November 9, 2013, while on patrol in a “high crime” area of Houston, he saw appellant at a carwash known for narcotics trafficking.  He noted that appellant, who did not have a vehicle at the carwash, was “sitting in sort of a bucket” and “smoking something.”  When De La Cruz drove his car over to appellant, he saw appellant “toss something.”  De La Cruz recovered the object, which was a “crack pipe,” and he arrested appellant.  A subsequent search of appellant's “front left pocket” revealed a “cigarette box” containing a “crack rock.”  Mona Colca, a criminalist at the Houston Forensic Science Center, testified that the substance seized from appellant's pocket weighed 0.12 grams and tested positive for cocaine.

At trial, prior to voir dire, the following discussion took place:

THE COURT:  ․ We're in open court on case number 1408007, the State versus Rodney Wayne Robins.  Mr. Robins is present in the courtroom with defense counsel Mr. Arlan J. Broussard.  And the State's attorney Mr. Overhuls is also present.  There is a jury in the hallway.

Mr. Robins is charged by indictment with a state jail felony cocaine offense, twice enhanced with two prior state jail felonies possible sentencing range 2 to 10 years in the state penitentiary up to a $10,000.00 fine.

This morning we invited Mr. Robins to speak with us at the bench with all parties and counsel present.  He chose not to do that this morning.  He chose not to speak with either myself or his attorney.

Mr. Robins scoot up.  Scoot up.  There you go.

Mr. Broussard we brought Mr. Robins out to speak with him.  He refused to speak with either myself or you.  Is that correct Mr. Broussard?

[Broussard]:  It is Your Honor.

THE COURT:  We—I conveyed a recommendation of three years TDCJ to Mr. Robins this morning.  Is that correct State?

[Overhuls]:  That's correct Judge and Mr. Robins stood mute at the time, would not speak with me nor his lawyer.

THE COURT:  And Mr. Robins we're about to pick your jury. Right here is called an election of sentence.  If you do not sign the election with your lawyer if you're found guilty, it would be my job not the Jury's job to assess punishment if you're found guilty.  Do you understand Mr. Robins?

[Appellant]:  No response.

THE COURT:  He's chosen to remain mute.  So I'll take that as a refusal to sign.  If he's found guilty we'll do Court sentencing not jury sentencing pursuant to Section 3707.  And Mr. Robins is wearing an orange jail jumpsuit at this time and I believe Mr. Broussard you offered Mr. Robins the opportunity to wear civilian clothes at his trial.  Is that correct?

[Broussard]:  That's correct Your Honor.  Clothes were provided to him and made clear to him that he had the opportunity to wear something other than the orange jumpsuit.  He remained mute.

THE COURT:  Mr. Robins you aren't helping your lawyer being tried in orange jumpsuit.  You're making that choice against my advice, against your lawyer's advice.  Do you understand Mr. Robins?

[Appellant]:  No response.

THE COURT:  Mr. Robins chooses to remain mute so he'll be charged in his jail clothes.  Mr. Broussard any indication of mental health abuse [sic] in Mr. Robins file?  I looked at his file.  He has 15 convictions.  Was he ever found to be incompetent or insane in his years here in Harris County?

[Broussard]:  Not to my knowledge Your Honor.

THE COURT:  There is no indication of Mr. Robins lack of competency. He's just chosen to remain mute at this time.  And Mr. Robins you want to say anything before the jury comes in?  It's time for you to say what's on your mind Mr. Robins.  Do you have anything you'd like to tell us at this time Mr. Robins?

[Appellant]:  No response.

THE COURT:  Mr. Robins remains mute.  He has nothing to tell us. Yes, sir, Mr. Broussard.

[Broussard]:  I would like to also state for the record Your Honor that I asked Mr. Robins about prior convictions that the State might use to enhance his punishment and to those inquiries he remained mute and I couldn't get [a] response from him.

THE COURT:  I suspected that.

The trial court also noted that if appellant did “not answer arraignment,” it would “enter a not guilty plea on his behalf.”  When appellant was arraigned the next day, however, he answered that he was “not guilty.”  Further, during the punishment phase of trial, appellant pleaded “true” to having been twice previously convicted of felony offenses.  And, after the State rested, appellant said, “I want to appeal it and I want a transcript of the trial.”

Standard of Review

We review challenges to a trial court's determination of a defendant's competency to stand trial for an abuse of discretion.  See Luna v. State, 268 S.W.3d 594, 600 (Tex.Crim.App.2008);  George v. State, 446 S.W.3d 490, 499 (Tex.App.–Houston [1st Dist.] 2014, pet. ref'd).  A trial court's first-hand factual assessment of a defendant's competency is entitled to great deference on appeal.  Ross v. State, 133 S.W.3d 618, 627 (Tex.Crim.App.2004).  “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) (Vernon 2006).

Competency

In his sole issue, appellant argues that the trial erred in not sua sponte conducting an informal inquiry into his competency to stand trial because the fact that, on the day of trial, he “stood mute,” “did not change from his jail clothes,” and “did not make a punishment election,” “suggested he was potentially incompetent.”

“A criminal defendant who is incompetent may not be put to trial without violating due process.”  Turner v. State, 422 S.W.3d 676, 688 (Tex.Crim.App.2013).  And “[t]his constitutional right cannot be waived by the incompetent–by guilty plea or otherwise.”  Bouchillon v. Collins, 907 F.2d 589, 592 (5th Cir.1990) (internal quotations omitted).  “[A] person 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, may not be subjected to trial.”  Turner, 422 S.W.3d at 688–89 (quoting Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903 (1975)).  Thus, a defendant is incompetent to stand trial if he does not have a 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.  Tex.Code Crim. Proc. Ann. art.  46B.003(a).

Upon a suggestion that a defendant may be incompetent, a trial court shall determine by “informal inquiry” whether there is “some evidence” from any source that would support a finding that the defendant may be incompetent to stand trial.  Id. art.  46B.004(c) (Vernon Supp.2015);  see Druery v. State, 412 S.W.3d 523, 538 (Tex.Crim.App.2013) (informal inquiry intended to determine whether issue of competency sufficiently raised such that formal hearing should be held).  Either party may suggest by motion, or a trial court may suggest on its own motion, that a defendant may be incompetent to stand trial.  Tex.Code Crim. Proc. Ann. art.  46B.004(a).  A suggestion of incompetence “may consist solely of a representation from any credible source.”  Id. art.  46B.004(c–1).  “A further evidentiary showing is not required to initiate the inquiry, and [a] court is not required to have a bona fide doubt about the competency of [a] defendant.”  Id.

“Evidence suggesting the need for an informal inquiry may be based on observations made in relation to one or more of the factors described by Article 46B.024 or on any other indication that the defendant is incompetent within the meaning of Article 46B.003.” Id. The factors include whether the defendant can:  “(A) rationally understand the charges against [him] and the potential consequences of the pending criminal proceedings;  (B) disclose to counsel pertinent facts, events, and states of mind;  (C) engage in a reasoned choice of legal strategies and options;  (D) understand the adversarial nature of criminal proceedings;  (E) exhibit appropriate courtroom behavior;  and (F) testify.”  Id. art.  46B.024(1) (Vernon Supp.2015).  Further, the trial court “may appoint” an expert to:  (1) examine the defendant and report to the court on his competency or incompetency and (2) testify as to the issue of competency or incompetency of the defendant at any trial or hearing involving that issue.  Id. art.  46B.021(a) (Vernon Supp.2015).

If, after its informal inquiry, the trial court determines that “evidence exists to support a finding of incompetency to stand trial,” the trial court “shall appoint” an expert to perform the duties listed in subsection (a).  See id. art.  46B.021(b);  Turner, 422 S.W.3d at 692.  And the trial court “shall hold a trial before determining whether [a] defendant is incompetent to stand trial on the merits,” unless:  (1) neither party's counsel requests a trial on the issue of incompetency;  (2) neither party's counsel opposes a finding of incompetency;  and (3) the court does not, on its own motion, determine that a trial is necessary to determine incompetency.  Tex.Code Crim. Proc. Ann. art.  46B.005(b), (c) (Vernon 2006).

Here, appellant argues that “the record shows that concern existed as to whether [he] understood the charges and the nature of the proceedings” because the trial court “repeatedly asked [him] whether he understood certain concepts that [it] was attempting to explain” and he did not respond.  See id. art.  46B.024(1)(A), (D).  And he asserts that he failed to “disclose to counsel pertinent facts, events, and states of mind” by “remaining] mute” when asked about prior convictions that the State might use to enhance his punishment.  See id. art.  46B.024(1)(B).  Appellant further argues that he demonstrated an inability to “engage in reasoned choice of legal strategies and options” because the trial court observed that he was not “helping [his] lawyer” by “being tried in [an] orange jumpsuit.”  See id. art.  46B.024(1)(C).  In sum, appellant argues that he failed to “exhibit appropriate courtroom behavior” because “he did not respond when spoken to, dressed inappropriately for trial, and did not sign the necessary paperwork.”  See id. art.  46B.024(1)(F).  And his “unexplained silence” suggested that he may have been incompetent to stand trial.  Id. art.  46B.004(c).  He further asserts that the trial court itself “actually made a suggestion of incompetency” as follows:

THE COURT:  Mr. Robins chooses to remain mute so he'll be charged in his jail clothes.  Mr. Broussard any indication of mental health abuse [sic] in Mr. Robins['s] file?  I looked at his file.  He has 15 convictions.  Was he ever found to be incompetent or insane in his years here in Harris County?

[Broussard]:  Not to my knowledge[,] Your Honor.

THE COURT:  There is no indication of Mr. Robins['s] lack of competency. He's just chosen to remain mute at this time․

The State asserts that appellant's silence was a “short isolated event”;  “during the remainder of the trial, appellant appropriately responded” to the trial court”;  and there was “no indication of appellant exhibiting any unusual, obstinate, or bizarre behavior.”

The record shows that the trial court asked appellant whether he understood that if he did not “sign the election” to have the jury assess his punishment, the trial court itself would assess his punishment.  The trial court also asked appellant whether he understood that his decision to be tried in his jail clothes was against the advice of his counsel and the trial court.  That appellant, whom the trial court noted had had fifteen prior convictions, did not answer these questions does not suggest that he did not “underst[and] the charges and the nature of the proceedings.”  See Tex.Code Crim. Proc. Ann. art.  46B.024(1)(A), (D);  see George, 446 S.W.3d at 501 (holding refusal to communicate with trial court not probative of inability to factually appreciate proceedings or communicate with counsel and trial court).  Rather, the trial court could have reasonably concluded that appellant's decisions were simply the product of choice.

A defendant has no constitutional right to jury-assessed punishment;  rather, he has a statutory right to elect to have his punishment assessed by a jury.  Ivey v. State, 277 S.W.3d 43, 47 (Tex.Crim.App.2009);  Grubbs v. State, 440 S.W.3d 130, 134–35 (Tex.App.–Houston [14th Dist.] 2013, pet. ref'd).  Here, appellant may have preferred to have the trial court assess his punishment.

In regard to appellant's decision not to be tried in civilian clothes, we note that “[i]t is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant [and] not impair the presumption of innocence.”  Tex.Code Crim. Proc. Ann. art. 2.03(b) (Vernon 2005).  “If a defendant timely objects to being put to trial while dressed in prison clothes, he should not be compelled to stand trial in that attire.  Such a compulsion would violate the defendant's right to a fair trial and his right to be presumed innocent.”  Randle v. State, 826 S.W.2d 943, 944–45 (Tex.Crim.App.1992);  see also Estelle v. Williams, 425 U.S. 501, 504–05, 96 S.Ct. 1691, 1693 (1976).  However, a defendant is “free to make the decision to be tried in jail clothes.”  Calamaco v. State, 462 S.W.3d 587, 597 (Tex.App.–Eastland 2015, pet. ref d).  Even a “failure to understand the importance” of a decision to be tried in prison clothes is “not grounds for error, nor [does] it impose a duty on [a] trial court to direct [a defendant] to wear civilian clothes.”  See Donjuan v. State, 461 S.W.3d 611, 618–19 (Tex.App.–Houston [14th Dist.] 2015, no pet.) (citing Randle, 826 S.W.2d at 945).

The record shows that appellant was offered civilian clothes and it was “made clear to him that he had the opportunity to wear something other than the orange jumpsuit.”  However, appellant did not change clothes.  His failure to cooperate with counsel and decision not to be tried in civilian clothes, without more, are not probative of his incompetence to stand trial.  See Tex.Code Crim. Proc. Ann. art.  46B.024(1)(A), (C), (D), (F);  Turner, 422 S.W.3d at 691;  see also Estelle, 425 U.S. at 508, 96 S.Ct. at 1695 (”[I]nstances frequently arise where a defendant prefers to stand trial before his peers in prison garments.  The cases show, for example, that it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury.”);  Burks v. State, 792 S.W.2d 835, 840 (Tex.App.–Houston [1st Dist.] 1990, pet. ref'd) (“If such actions were probative of incompetence, one could effectively avoid criminal justice through immature behavior.”).

Further, appellant's failure to disclose to his counsel whether there existed prior convictions that the State might use to enhance his punishment is not probative of his incompetence to stand trial.  See Tex.Code Crim. Proc. Ann. art.  46B.024(1)(B);  DeWitt v. State, No. 05–12–00583–CR, 2013 WL 3389055, at *2 (Tex.App.–Dallas July 3, 2013, no pet.) (mem. op., not designated for publication) (defendant's failure to communicate with counsel did not demonstrate inability to communicate).  And, the record shows that appellant himself answered “true” to the enhancement allegations.

The trial court, having observed appellant at trial, expressly determined that he had “chosen” to remain silent and there was “no indication” that he lacked competency to stand trial.  Again, a trial court's first-hand factual assessment of a defendant's competency is entitled to great deference on appeal.  See Ross, 133 S.W.3d at 627;  George, 446 S.W.3d at 501;  see also Jackson v. State, 391 S.W.3d 139, 142 (Tex.App.–Texarkana 2012, no pet.) (trial court's inquiry to defense counsel coupled with its own observations of defendant constituted sufficient informal inquiry into defendant's competence).

Appellant asserts that the trial court “was required to at least attempt to gather some relevant information before concluding that appellant was competent.”  However, even in making an informal inquiry, a trial court is not required to follow specific protocols.  See George, 446 S.W.3d at 501;  see, e.g., Teal v. State, No. 01–10–00506–CR, 2011 WL 6140676, at *2 (Tex.App.–Houston [1st Dist.] Dec. 8, 2011, pet. ref'd) (mem. op., not designated for publication) (“As its name suggests, an ‘informal inquiry’ does not have specific formal requirements.”).  And here, as the trial court noted, nothing before it suggested that appellant was incompetent, as the term is statutorily defined.  See Tex.Code Crim. Proc. Ann. art.  46B.003.

Appellant further asserts that “[i]n a jail record within State's exhibit 22, dated in June of 2012, there appears to be a notation indicating that [he] may have had a stroke and that a psychiatric competency exam had been ordered.”  We note that trial in this case was held two years later, in July 2014.  The relevant inquiry is whether appellant lacks present capacity to understand the nature of and object to the proceedings against him, consult with counsel, and assist in preparing his defense.  See Turner, 422 S.W.3d at 689–91;  Horan v. State, No. 08–07–00222–CR, 2009 WL 2951918, at *5 (Tex.App.–El Paso Sept. 16, 2009, no pet.) (noting essential distinction between impairment and incompetence).

Nothing in the record suggests that appellant lacked “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].”  See Tex.Code Crim. Proc. Ann. art.  46B.003(a).  His refusal to communicate with counsel and the trial court did not overcome the presumption of his competence.  See id. art.  46B.003(b) (“A defendant is presumed competent to stand trial ․”);  see, e.g., George, 446 S.W.3d at 501;  White v. State, No. 02–12–00087–CR, 2013 WL 4210827, at *8 (Tex.App.–Fort Worth Aug. 15, 2013, no pet.) (mem. op., not designated for publication) (defendant's refusal to cooperate may have been disruptive, but not probative of incompetence).

Accordingly, we hold that the trial court did not err in not sua sponte conducting an informal inquiry as to appellant's competency to stand trial.

We overrule appellant's sole issue.

Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

1.   See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(b) (Vernon 2010).

Terry Jennings, Justice