Billy Gene Odom v. State

11th Court of Appeals Eastland, Texas Opinion Billy Gene Odom Appellant Vs. No. 11-02-00230-CR -- Appeal from Collin County State of Texas Appellee Billy Gene Odom entered an open plea of guilty to the offense of sexual assault of a child, a second degree felony. The trial court convicted appellant and assessed his punishment at confinement for 15 years. We affirm. Appellant presents three points of error on appeal. In the first point, appellant contends that the trial court erred by failing to sua sponte conduct a competency hearing. In the second point, appellant argues that his plea was not made voluntarily or intelligently. In the third point, appellant contends that he did not receive reasonably effective assistance of counsel at trial because trial counsel failed to request a competency hearing. The record shows that appellant pleaded guilty on March 7, 2002, to sexually assaulting his stepdaughter, who is also his niece. There was no plea bargain agreement in this case. The trial court inquired about the voluntariness of appellant=s plea and admonished him regarding the consequences of his plea. The trial court properly instructed appellant that the applicable range of punishment was confinement for a term of not less than 2 years nor more than 20 years and a fine not to exceed $10,000. The trial court also notified appellant that, if he were found guilty or given deferred adjudication, he would have to register as a sex offender. Appellant indicated that he was entering his plea freely and voluntarily and that he was entering a plea of guilty because he was guilty and for no other reason. Appellant also stated that he had never been to a mental hospital or had any indication that he lacked competency or sanity. The trial court found appellant competent, accepted appellant=s plea, ordered a pre-sentence investigation, and reset the case for a subsequent hearing. The subsequent hearing had to be reset because appellant was in the hospital on the date originally set for the hearing. The record from the subsequent hearing shows that appellant had been harassing the victim, that appellant had attempted suicide, that he had been to counseling, and that he was seeing a psychiatrist. Appellant testified regarding his harassment of the victim that he Aknow[s] that was a childish thing@ and that Athose things were totally wrong.@ Appellant also testified that he was involved in various counseling in order to hold himself accountable and that he was Atrying to come clean because [his] conscious (sic) was killing [him].@ Appellant testified that he attempted suicide shortly before the date on which the punishment hearing was originally set because he Awas panicking about going to jail...about [his] job.@ Contrary to appellant=s contention, however, the evidence before the trial court did not require the trial court to initiate a competency hearing. A trial court is required to sua sponte conduct a competency hearing Awhen evidence coming to the court=s attention raises a bona fide or reasonable doubt as to appellant=s competency.@ Loftin v. State, 660 S.W.2d 543, 546 (Tex.Cr.App.1983). We can find nothing in the record which would have suggested to the trial court that appellant did not possess Asufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding@ or that he did not have Aa rational as well as factual understanding of the proceedings against@ him. TEX. CODE CRIM. PRO. ANN. art. 46.02, ' 1A (Vernon Pamph. Supp. 2003). Furthermore, because there is nothing in the record to indicate that appellant was incompetent to stand trial under the standards set out in Article 46.02, section 1A, we cannot hold that appellant has shown that trial counsel=s representation fell below an objective standard of reasonableness because he failed to request a competency hearing. Wilkerson v. State, 726 S.W.2d 542, 551 (Tex.Cr.App.1986), cert. den=d, 480 U.S. 940 (1987); see Strickland v.Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).[1] The first and third points of error are overruled. In the second point, appellant urges that his plea was not entered into voluntarily and intelligently. Under this point, appellant contends that he did not understand the consequences of his plea because of his incompetency and because he Aentered a guilty plea in order to ask the court for probation.@ As discussed above, the record does not support appellant=s contention with respect to his competency. During his testimony, appellant appeared to comprehend what was occurring and was able to communicate and answer questions effectively. The record does show that appellant asked the court for either deferred adjudication community supervision or regular community supervision. Along with documents concerning appellant=s plea, wherein he stipulated to the facts and waived his rights, the clerk=s record contains a written application for a probated sentence signed by appellant and trial counsel. During the subsequent hearing when appellant=s trial counsel was questioning appellant and his wife, counsel asked the following questions: ADo you understand that the judge can grant deferred adjudication or can find [appellant] guilty and still place him on probation?@ and AYou understand that the supervision officer...has stated certain things, if you are placed on deferred or probation?@ During closing arguments, appellant=s trial counsel requested that appellant Areceive deferred adjudication or, in a worse case scenario, be adjudicated guilty and placed on community supervision.@ Although deferred adjudication was available as a viable option in this case, regular community supervision was not. TEX. CODE CRIM. PRO. ANN. art. 42.12, '' 3g(a)(1)(H) & 5 (Vernon Supp. 2003). Pursuant to Article 42.12, section 3g(a)(1)(H), the trial court had no authority to convict appellant and then place him on community supervision. A defendant=s election to plead guilty, when based upon erroneous advice or misinformation from his counsel, is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Cr.App.1991). Proper admonishments create a prima facie showing that the guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Cr.App.1998); Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Cr.App.1985). Where the record reflects that a defendant was duly admonished, the defendant has the burden to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Martinez v. State, supra. In considering the voluntariness of a guilty plea, we must examine the record as a whole. Martinez v. State, supra. The record from the plea hearing reflects that the trial court properly admonished appellant before accepting his guilty plea. The trial court set forth the appropriate range of punishment and did not mention community supervision. The trial court did not make a finding regarding appellant=s guilt until the close of the punishment hearing; thus, appellant was still eligible for deferred adjudication at the time of that hearing. Appellant=s contention was not addressed in a motion for rehearing. Under the circumstances as reflected in this record, we cannot hold that appellant=s plea was entered into involuntarily or unknowingly. See Shepherd v. State, 673 S.W.2d 263, 267 (Tex.App. - Houston [1st Dist.] 1984, no pet=n); cf. Ex parte Battle, supra. In Ex parte Battle, the court reversed the defendant=s conviction based upon ineffective assistance of counsel where counsel misinformed the defendant that he was eligible for community supervision, but the appellate record in that case adequately showed the defendant=s reliance on the misinformation in inducing him to plead guilty. However, the record in appellant=s case has not been so developed; it does not reveal that any misinformation affected appellant=s decision to plead guilty or that the misinformation was provided to appellant prior to entering his plea. Moreover, appellant was eligible for deferred adjudication community supervision. Appellant=s second point of error is overruled. The judgment of the trial court is affirmed. TERRY McCALL JUSTICE April 3, 2003 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]We note that, although the record reflects that appellant and trial counsel were under the mistaken impression that the trial court could convict appellant and place him on Aregular@ community supervision, appellant does not rely on this misinformation for his contention that trial counsel was ineffective. See TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 3g(a)(1)(H) (Vernon Supp. 2003)(person convicted of sexual assault may not receive community supervision from trial court). Moreover, there is nothing in the record regarding whether appellant would have pleaded not guilty and insisted on going to trial but for the misinformation, as required by the second prong of the Strickland test. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Cr.App.1997), cert. den=d, 525 U.S. 810 (1998); Tabora v. State, 14 S.W.3d 332, 336-37 (Tex.App. - Houston [14th Dist.] 2000, no pet=n).