Adam Tristan Houston v. State

Opinion issued March 6, 2008 In The Court of Appeals For The First District of Texas NOS. 01-06-01000-CR 01-06-01001-CR ADAM TRISTAN HOUSTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause Nos. 1039094 & 1042011 MEMORANDUM OPINION Appellant, Adam Tristan Houston, pleaded guilty to two aggravated robberies without an agreed recommendation with the State. (1) The trial court assessed his punishment at imprisonment for 30 years in each case to be served concurrently. In two points of error, appellant argues that (1) the trial court abused its discretion in accepting appellant's plea of guilty without a competency inquiry and (2) his trial counsel was ineffective in going forward with appellant's plea of guilty without requesting a competency and sanity evaluation. We affirm. Background The State filed two cases against appellant for aggravated robbery in 2005. On November 1, 2005, the trial court ordered Mental Health Mental Retardation Authority of Harris County (MHMRA) to conduct a psychiatric exam. After a physician determined that appellant was incompetent to stand trial, the trial court committed appellant to Vernon State Hospital for mental health treatment on January 3, 2006. Three months later, a physician at the Texas Department of State Health Services determined that appellant was competent to stand trial. On May 5, 2006, the State filed two motions to conduct a psychiatric examination to determine appellant's present sanity and competency, which the trial court granted. The appellate record does not contain any information on whether these examinations were performed. Trial counsel for appellant also filed a "Motion for Appointment of Independent Expert to Evaluate Defendant Regarding the Issue of Competency." The trial court granted appellant's motion and ordered Dr. Susan Stone to evaluate appellant's competency and, if necessary, his sanity. The appellate record does not contain any information regarding whether Dr. Stone conducted this examination. Appellant then pleaded guilty to the charged offenses on July 10, 2006. The trial court did not find appellant guilty, but deferred a finding of guilt so that a pre-sentence investigation ("PSI") report could be made. After he pleaded guilty, appellant sent a letter to the trial court on July 21, 2006, stating that he had been committed to three psychiatric hospitals, diagnosed as bipolar, dysthimic, schizophrenic, and suicidal. He stated that he hears voices telling him to do bad things and that if he does not do them he will get migraine headaches. He also stated that he does not remember what happened on the night of one of the robberies but that he is willing to accept the consequences. He asked to have character witnesses testify on his behalf and requested a full PSI report. His letter also stated that because he is now on medication he can communicate with anyone and that after he is released he has a guaranteed job. On September 29, 2006, after a PSI hearing, the trial court found that appellant's competency had been restored, found appellant guilty of aggravated robbery, and sentenced him to imprisonment for 30 years for both cases to run concurrently. Notice of Appeal Preliminarily, we address the State's argument that appellant's notice of appeal was untimely and that this Court lacks jurisdiction over the appeal. Texas Rule of Appellate Procedure 26.2 provides that, in a criminal case, the notice of appeal must be filed within 30 days after the trial court entered an appealable order. See Tex. R. App. P. 26.2. If the notice of appeal is not filed within 30 days, the appellate court may extend the time to appeal if the party files the notice of appeal and a motion for extension within 15 days after the deadline for filing the notice of appeal. See Tex. R. App. P. 26.3. Here, the trial court imposed its sentence on September 29, 2006, and thus appellant's notice of appeal was due on October 30, 2006. Appellant filed a pro-se notice of appeal on October 31, 2006, one day too late. However, the appellate record includes a photocopy of the envelope that contained the notice of appeal. The postmark date indicates that the notice of appeal was mailed on October 27, 2006. Accordingly, we conclude that appellant's notice of appeal was timely under the "mailbox rule." (2) Competency to Stand Trial In his first point of error, appellant argues that the trial court abused its discretion in accepting his plea of guilty and proceeding with punishment without a competency inquiry. Specifically, appellant contends that he was discharged from MHMRA and placed back into the Harris County Jail on April 5, 2006. Then, on July 10, 2006, he pleaded guilty to the aggravated robberies, and, after a PSI hearing, the trial court sentenced him in September. Appellant contends that the trial court should have conducted a further investigation into appellant's competency to stand trial after he was discharged from MHMRA and before he pled guilty and also before the punishment hearing. We review a trial court's decision not to conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999); Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.--Fort Worth 2005, pet. ref'd). 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). 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 him. Id. art. 46B.003(a) (Vernon 2006). If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion must suggest that the defendant may be incompetent to stand trial. Id. art. 46B.004(b) (Vernon 2006). A competency inquiry is not required, however, unless the evidence is sufficient to create a bona fide doubt in the mind of the trial court whether the defendant is legally competent. McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003) (applying former article 46.02 of Texas Code of Criminal Procedure). Evidence is usually sufficient to create a bona fide doubt regarding competency if it shows "recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant." Id. Evidence capable of creating a bona fide doubt about a defendant's competency may come from the trial court's own observations, known facts, evidence presented, motions, affidavits, or any other claim or credible source. Brown v. State, 129 S.W.3d 762, 765 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Appellant presented no evidence that would raise a bona fide doubt about appellant's competency during the months after he was released from Vernon State Hospital until the time he pleaded guilty to the aggravated robbery cases. (3) Moreover, the record reflects that appellant's counsel made a request for a competency examination, which was granted. Although we do not have a record of the examination, counsel's willingness to proceed with plea proceedings indicates that counsel knew when appellant was competent and when he was not. Thus, the trial court did not abuse its discretion by not holding an informal inquiry regarding appellant's competence. Appellant's previous mental and behavioral impairments, his inability to recall the circumstances of his charged offenses, and his mental status at the time of his charged offense do not establish the required elements of incompetency concerning his present ability to consult with his counsel with a reasonable degree of understanding or a rational and factual understanding of the proceedings against him. See Brown v. State, 129 S.W.3d 762, 766 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Moreover, appellant's letter to the trial court is well-written and well thought-out, and it acknowledges that his proper medication makes it easier for him to communicate. Because appellant wanted to present witnesses to get leniency from the trial court, the letter shows that he understood the serious nature of the charges against him. Thus, we conclude that the letter would not raise a bona fide doubt about appellant's competency to stand trial. Accordingly, the trial court did not abuse its discretion in not conducting an informal inquiry at the time it received appellant's letter. Appellant also argues that testimony from appellant's mother and appellant himself at the PSI hearing should have alerted the trial court to make an informal inquiry into his competence. Specifically, appellant points to his mother's testimony as to appellant's family history and his childhood, which included physical and emotional abuse by his father. She also testified that he was bipolar and depressed and that he received medications, starting when he was a child. She testified that she visited him at Vernon State Hospital while he was receiving care and that he appeared "okay behaviorwise. It's just that he was so heavily medicated, very heavily medicated--he's gained a lot of weight this last year." She also testified that she visited him at the jail and that "he's definitely . . . medicated [at the jail]." She clarified: It depends upon what medication that they have him on because they did have him on some--I think it was Ambien and he couldn't stay awake. He would get up sometimes--you know, I would be there for, like, a couple minutes. He would get up and walk out because--I don't know--he didn't seem to have all of his wits about him. She testified that she had recently visited him in jail, he was able to carry on a conversation, she was able to communicate with him, and he understood what she was saying. She also testified that appellant was taking medication in jail and that when he is taking mediation on a regular basis he is a better person. During the PSI hearing, appellant had the following exchange with his trial counsel: Q. How old are you? A. 20, sir. Q. You understand why we're here today? A. Yes, sir. Q. Why? A. Because the offense they have charged me. Q. Say again? A. Because the offense I'm charged with. Q. What are you charged with? A. Aggravated robbery. Q. How many of them? A. Two. Two aggravated robberies. Q. What's going to happen--when all this is finished here today, what's going to happen? What's the Judge going to do? A. Sentence me, sir. Later in the PSI hearing, appellant had the following exchange with the State: Q. Now, since you've been in jail over there, show the Judge your left arm, forearm. A. (Defendant complies.) Q. How did that take place? A. I was in my cell and I saw little things crawling in my arm. I had to cut them out. Q. You saw some what? A. Little things crawling around in my skin and I had to cut them out. Q. Is that why you cut yourself? A. Yes, sir. Q. Were you on medication then? A. No, sir. Q. This was over in the Harris County Jail? A. Yes, sir. Q. Did they start at some point in time over there giving you medication? A. Yes, sir. Q. Was it after that cutting took place? A. Yes, sir. Q. Did any--that cutting or any of that take place after you got on medication? A. Like, a week or two afterwards. Q. What kind of medication did they give you? A. They gave me Zyprexa and Depakote, Wellbutrin and Seroquel. Q. What did that do to you? How did it make you feel? A. Like, it started out, I'd feel real sleepy and I go to sleep most of the day. Then, like, a couple weeks afterwards, I start to feel I couldn't hear no voices or see anything. It wouldn't be as much as I used to see, see or hear. Q. Did you see anything crawling on your skin after you started taking the medication? A. No, sir. Appellant further testified about his time on the drug Ambien with his trial counsel: Q. Was that prescribed for you in the jail? A. Yes, sir. Q. What kind of effect did that have on you? A. Like, I go to sleep and I be sleep for, like, two or three days and the people that were in the cell with me, the tanks with me, they'll tell me, Hey, man, like, I, like, wake up under the bench. They say I be talking to the wall and stuff. They say I piss on the floor and I piss on myself. Then they talked to a couple of the guards and the guards had to take me to go see MHMRA and I had to talk to them, like, twice a month. Q. Do you remember me coming to visit you while you were on that Ambien? A. No, sir. Q. Do you remember those occasions? A. Only once, sir. Q. You don't remember two or three jail visits I made to see you while you were on that Ambien? A. No, sir. Q. Do you remember the recent jail visits I've made to see you? A. Yes, sir, at the new jail, yes, sir. Q. Were you on--have they changed your medication to something else recently? A. They took me off the Ambien. I'm on the same medication I am now, but no Ambien. Q. How does that change your day-to-day life? A. Like, I wouldn't--I still feel--it still be good for me. I wouldn't hear voices or see things, but I also wouldn't be--do, just, like, off-the-wall stuff. I wouldn't, like, just go wake up and slapping the wall or wake up and go digging in the toilet or piss on the floor or anything. Q. You wouldn't be? A. Huh-uh. Appellant testified that he had taken Zyprexa, Lithium, and Wellbutrin before the hearing and that it helped him with depression and not having "episodes." After considering all of the evidence, we cannot conclude that the trial court abused its discretion in not holding an informal inquiry into appellant's competence to stand trial. Neither a history of treatment for depression nor a history of childhood abuse is by itself probative evidence of incompetence. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999) ("A defendant's propensity toward depression does not necessarily correlate with his ability to communicate with counsel or his ability to understand the proceedings against him."); Baker v. State, Nos. 05-94-01760-CR, 05-94-01806-CR, 05-94-01804-CR, 05-94-01805-CR, 1996 WL 156899, at *1-2 (Tex. App.--Dallas Mar. 29, 1996, no pet.) (not designated for publication) (testimony that defendant was victim of child abuse, had head injuries, was schizophrenic, and was semi-retarded not evidence of incompetence). Thus, appellant's mother's testimony about appellant's previous mental and behavioral impairments do not establish his incompetence to stand trial. See Brown, 129 S.W.3d at 766. Although the evidence showed that appellant heard voices, the trial court would have been within its discretion to conclude that the voices were a result of appellant's extensive drug use. Moreover, the trial court could have discounted this evidence because the physician who declared appellant competent to stand trial, stated in a report: It should be recalled that [appellant] has admittedly complained of psychiatric symptoms in order to manipulate healthcare providers into giving him additional and unnecessary medications. . . . However, he does tend to depict his psychiatric symptoms in an 'over the top' manner that will seem obviously unauthentic to the trained observer, but may strike those less familiar with the vagaries of mental illness as genuinely bizarre. Although he demonstrated a clear, rational, and factual understanding of the legal process in the presence of this examiner, future treatment providers should be aware of his risk for malingering. The trial court further heard evidence that appellant's mother saw him the Monday before the PSI hearing and that she was able to communicate with him and he understood what she was saying. She also testified that appellant was taking medication in jail and that, if he is taking mediation on a regular basis, he is a "better person." Additionally, at the beginning of the PSI hearing, appellant conveyed to the State and the trial court that he understood the charges against him. Although he may not have recalled the details of the offenses for which he was charged, the trial court was within its discretion to determine that appellant may not have recalled the details of the offenses as a result of his extensive drug use. After considering all of the testimony presented at the PSI hearing, we conclude that appellant did not present evidence sufficient to raise a bona fide doubt in the trial court's mind about appellant's competency to stand trial. See Brown, 129 S.W.3d at 766 (holding that appellant did not show present or recent clinical proof of appellant's incompetency in year in which trial was held); Rice v. State, 991 S.W.2d 953, 957 (Tex. App.--Fort Worth 1999, pet. ref'd) (holding that competency test is not whether someone labored under mental, behavioral, or psychological impairment); Townsend v. State, 949 S.W.2d 24, 27 (Tex. App.--San Antonio 1997, no pet.) (holding that competency test is not met by evidence of depression or mental illness); Valdes-Fuerte v. State, 892 S.W.2d 103, 108 (Tex. App.--San Antonio 1994, no pet.) (holding that competency test not met by evidence of insanity at time of offense). Thus, the trial court did not abuse its discretion by not holding an informal inquiry into appellant's competency to stand trial. We overrule appellant's first point of error. Ineffective Assistance of Counsel In his second point of error, appellant argues that his trial counsel was ineffective because he allowed appellant to plead guilty and proceed to punishment. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005). This right includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92, 104 S. Ct. at 2064-67; see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). We apply a strong presumption that trial counsel was competent. See Thompson, 9 S.W.3d at 813. We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The same analysis we used in appellant's first point of error applies to appellant's claim of ineffective assistance of counsel based on his trial counsel's failure to raise the issue of his competency. Nothing in the record shows counsel observed or otherwise was aware of conduct different than that we have recounted. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (claim for ineffective assistance of counsel must be affirmatively supported by the record). Thus, appellant has not satisfied the first prong of showing ineffective assistance of counsel. We overrule appellant's second point of error. Conclusion We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Justices Taft, Keyes, and Alcala. Do not publish. Tex. R. App. P. 47.2(b). 1. Appellate cause number 01-06-01000-CR; trial court cause number 1039094. Appellate cause number 01-06-01001-CR; trial court cause number 1042011. 2. The "mailbox rule" states that a document is deemed timely filed if it is sent to the proper clerk by first-class mail in a properly addressed, stamped envelope on or before the last day for filing and is received not more than ten days beyond the filing deadline. Tex. R. Civ. P. 5; Tex. R. App. P. 9.2(b)(1), (2). 3. We do not have a reporter's record of any proceedings on the guilty plea because appellant waived that right. The trial court did have appellant's trial counsel's motion for the appointment of an independent expert to evaluate appellant's competency, but we have no information regarding the independent evaluation.