Clay Edward Richie A/K/A Damien v. State

11th Court of Appeals Eastland, Texas Opinion Clay Edward Richie a/k/a Damien Appellant Vs. No. 11-03-00031-CR -- Appeal from Collin County State of Texas Appellee Clay Edward Richie a/k/a Damien entered an open plea of guilty to two counts of aggravated sexual assault of a child and one count of indecency with a child. The trial court convicted appellant of all three offenses and assessed punishment at confinement for 35 years for each of the aggravated sexual assault offenses and confinement for 20 years for the offense of indecency with a child. We affirm. On appeal, appellant presents three points of error relating to his competence. In the first point, appellant contends that the trial court erred by failing to conduct a competency hearing sua sponte. In the second point, appellant contends that his guilty plea was not made voluntarily and intelligently because he did not know if he had committed the offenses. In the third point, appellant asserts that he received ineffective assistance of counsel at trial because trial counsel failed to request a competency hearing prior to the entry of appellant=s guilty plea.[1] The record shows that appellant pleaded guilty on October 2, 2002, to the offenses of indecency with and sexual assault of his four-year-old stepdaughter. 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 as to the applicable range of punishment for the offenses. 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. After insuring that appellant understood the rights he was waiving, the trial court accepted appellant=s plea, ordered a presentence investigation, and reset the case for a subsequent hearing. The record from the subsequent hearing shows that appellant=s trial counsel requested the appointment of a psychiatrist to evaluate appellant before a sentence was pronounced. Trial counsel=s request was based on appellant=s statements in the presentence investigation report indicating that Ahe cannot remember the incidents, though he acknowledged that they must have taken place.@ Trial counsel did not insinuate that appellant was incompetent. The trial court denied appellant=s request. Appellant then testified that he could A[n]ot specifically@ remember the offenses. Appellant testified that he has vague recollections and dreams which cause him to become depressed and then Ajust stop thinking.@ Appellant stated that he remembered being interviewed by a police investigator but that he could not remember any of their conversation, that his affidavit triggers vague memories, that he believes that he must have committed the offenses, that he feels terrible A[k]nowing that [he] did do these things,@ and that he cannot understand why or how he could have done such a thing to his stepdaughter. Appellant testified that, while in jail for these offenses, he attempted suicide at least four times A[b]ecause of what [he]=d done.@ Appellant also testified that he was taking medication prescribed by the doctors at the jail for his bipolar condition. Appellant requested psychiatric help and asked the trial court for a second chance even though he knew he did not deserve one and had no Adelusions about what the possibility is.@ Contrary to appellant=s contention, 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. Former TEX. CODE CRIM. PRO. art. 46.02, ' 1A (Vernon Pamph. Supp. 2004)[2]; see McDaniel v. State, 98 S.W.3d 704 (Tex.Cr.App.2003); Reeves v. State, 46 S.W.3d 397 (Tex.App. - Texarkana 2001, pet=n dism=d); Townsend v. State, 949 S.W.2d 24, 26-27 (Tex.App. - San Antonio 1997, no pet=n). Furthermore, because there is nothing in the record to indicate that appellant was incompetent to stand trial under the standards set out in former 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). 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 because he did not know if he had committed the offenses. 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 proceeding and the written plea documents reflect that appellant understood the consequences of his plea and that he entered the plea knowingly and voluntarily. There was no indication at the plea proceeding that appellant could not remember committing the offenses. During his testimony, appellant appeared to comprehend what was occurring and was able to communicate and answer questions effectively. We hold that appellant has not shown that he did not fully understand the consequences of his plea. The second point of error is overruled. The judgments of the trial court are affirmed. JIM R. WRIGHT JUSTICE February 26, 2004 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 the State contends that appellant forfeited his right to appeal the issue in the third point of error. The State relies on Young v. State, 8 S.W.3d 656, 667 (Tex.Cr.App.2000), in support of its contention. Because the alleged ineffectiveness of trial counsel was based on the issue of appellant=s competency to enter a guilty plea, the judgment of guilt was not rendered independent of the alleged error. Thus, we conclude that the issue has not been waived or forfeited pursuant to Young; and, accordingly, we will address the merits of appellant=s third point. See Dorsey v. State, 55 S.W.3d 227 (Tex.App. - Corpus Christi 2001, no pet=n). [2]We note that former TEX. CODE CRIM. PRO. art. 46.02 (Vernon Pamph. Supp. 2004) has been repealed and replaced by TEX. CODE CRIM. PRO. ANN. ch. 46B (Vernon Pamph. Supp. 2004). However, the former version applies to this case because it was in effect at the time the proceedings were initiated. The substance of former Article 46.02, section 1A is currently located in Article 46B.003.