McGowan, Gerald Demetrius v. State

Affirmed and Opinion filed January 12, 2006 Affirmed and Opinion filed January 12, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00139-CR ____________ GERALD DEMETRIUS MCGOWAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 839,261 O P I N I O N Appellant, Gerald Demetrius McGowan, appeals from his conviction for aggravated assault. After appellant pleaded guilty, the trial court placed him on deferred adjudication for ten years and assessed a $1,500 fine. The State subsequently filed a motion to adjudicate guilt, and appellant pleaded true to the allegations in the motion. The trial court found him guilty and assessed punishment at four years imprisonment. On appeal, appellant contends that the trial court abused its discretion by (1) failing to conduct a competency hearing prior to sentencing, (2) assessing punishment based on grounds not alleged in the motion to adjudicate guilt, and (3) entering a deadly weapon finding in the judgment. We affirm. Background Appellant was charged with aggravated assault with a deadly weapon against a family member. On May 15, 2000, he pleaded guilty and received deferred adjudication for ten years and a fine of $1,500. The trial court=s order imposed numerous conditions on appellant=s community supervision, including that he submit to psychological counseling. On November 14, 2001, the State filed its first motion to adjudicate guilt alleging that appellant had violated several of the conditions placed on his community supervision, including the counseling requirement. The State subsequently filed several amended motions. The copy of the Alive@ motion in the clerk=s record has several of its paragraphs lined or scribbled through, although there is no indication in the record as to when or why this occurred. Prior to the hearing on the motion to adjudicate, appellant requested that he receive a psychological evaluation; the trial court ordered the evaluation, but there is no indication in the record as to whether or not the evaluation was performed. No reporter=s record was brought forward on appeal of the hearing on the motion to adjudicate. Appellant pleaded true to the allegations in the motion and entered into a stipulation of evidence. The trial court found that appellant violated six of the conditions that had been placed on his community supervision as alleged in the State=s motion. The trial court then found appellant guilty of aggravated assault with a deadly weapon and sentenced him to four years in prison. Competency In his first issue, appellant contends that the trial court abused its discretion in failing to conduct a hearing on his competency to stand trial prior to sentencing him. We review a trial court=s failure to conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proven incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon Supp. 2004-05). A defendant is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding, or (2) rational as well as factual understanding of the proceedings against him. Id. art. 46B.003(a). If evidence is brought to the attention of the trial court from any source raising a bona fide doubt as to the defendant=s competency, the court must conduct an informal inquiry outside the jury=s presence to determine whether there is evidence to support a finding of incompetency to stand trial. Id. art. 46B.004; McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003). In the inquiry, the court must determine whether there is Asome evidence@ to support a finding of incompetency, and, if the court so finds, it must then commence a hearing before a jury. McDaniel, 98 S.W.3d at 710; see also Tex. Code Crim. Proc. Ann. arts. 46B.005(b), 46B.051. The requirements of each step must be fulfilled before the next step becomes applicable. McDaniel, 98 S.W.3d at 710‑11. The naked assertion, AI am incompetent,@ is not sufficient without supporting evidence to require either an inquiry by the court or a hearing before a jury. Id. at 711. 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.CHouston [1st Dist.] 2004, no pet.). Evidence is usually sufficient to create a bona‑fide doubt if it shows recent, severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. McDaniel, 98 S.W.3d at 710. 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). Appellant asserts that the following occurrences raised a bona fide doubt regarding his competency: (1) the trial court required that appellant submit himself to psychological counseling as a condition of his community supervision; (2) the court ordered that appellant be arrested for failing to fulfill the conditions of his community supervision, including failing to participate in counseling; (3) while in jail awaiting the hearing on the motion to adjudicate guilt, appellant requested that a psychological evaluation be performed; (4) the trial court in fact ordered that a mental health evaluation be performed on appellant prior to the hearing; and (5) on November 16, 2004, appellant damaged five windows by striking them with an unknown object. Regarding the first two matters, there is no indication in the record as to why the court included counseling among the conditions for community supervision. It may, or may not, have been based on evidence that would have also been capable of creating a bona fide doubt about a defendant=s competency.[1] Accordingly, these actions by the trial court alone do not demonstrate that the court abused its discretion in failing to hold a hearing on appellant=s competency. Regarding the third and fourth matters appellant relies upon, there is no indication in the record (1) whether the psychological evaluation was ever performed, (2) if performed, what the results indicated concerning appellant=s competency, and (3) whether the results were received by the court. That the judge ordered the evaluation is some evidence that the judge did in fact make an inquiry into appellant=s mental faculties, but it is no evidence of appellant=s incompetency. What is clear from the record is that the appellant, his counsel, the prosecutor, and the trial judge all signed a document in which appellant stated that he was mentally competent and understood the nature of the charges against him. While this document does not establish appellant=s competency to stand trial, it does strongly suggest that whatever the outcome of the psychological evaluation, no one who would have been privy to that outcome was concerned with appellant=s competency at the time of sentencing. Accordingly, appellant=s request for and the trial court=s order of a psychological evaluation do not demonstrate that the court abused its discretion in failing to hold a hearing on appellant=s competency. Lastly, regarding the fifth issue raised by appellant, the smashing of five windows, without any evidence of the circumstances surrounding this event, we cannot say that it was such a bizarre act as to create a bona‑fide doubt about appellant=s competency. See McDaniel, 98 S.W.3d at 710. Because appellant has failed to demonstrate that there was any evidence before the trial court raising a bona fide doubt regarding his competency, we hold that the trial court did not abuse its discretion in failing to hold a hearing on the matter. We overrule appellant=s first issue. Punishment In his second issue, appellant contends that the trial court abused its discretion by assessing punishment based on grounds not alleged in the motion to adjudicate guilt. The trial court found that appellant violated six of the conditions placed on his community supervision. Appellant contends that only two of these six violations were alleged in the motion to adjudicate because one of the violations was not listed in the motion at all and three others were abandoned by the State, as evidenced by the fact that the copy of the motion in the record had certain allegations lined out or scribbled through. Appellant supports his arguments by citing to probation revocation cases. See Caddell v. State, 605 S.W.2d 275 (Tex. Crim. App. 1980); Garner v. State, 545 S.W.2d 178 (Tex. Crim. App. 1977). We begin by noting that appellant=s assertion that the trial court assessed punishment based on appellant=s violation of the conditions of his community service is incorrect. The court=s order clearly reflects that the court assessed punishment only for the underlying offense for which appellant was chargedCaggravated assault. See generally Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2005) (providing that upon determination by court to proceed with an adjudication of guilt, all proceedings, including assessment of punishment, continue as if the adjudication of guilt had not been deferred). Indeed, the punishment imposed (four years) was at the low end of the applicable range (two to twenty years). See Tex. Pen. Code Ann. ' 12.33(a); 22.02(b) (Vernon 2003). Further, unlike post-conviction probation revocation, a trial court=s determination to revoke community supervision and adjudicate guilt after a grant of deferred adjudication is not reviewable on appeal. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b); Connolly v. State, 983 S.W.2d 738, 740-41 (Tex. Crim. App. 1999). Consequently, the probation revocation cases on which appellant relies are inapplicable, and we cannot review his argument that the trial court erred in revoking his community supervision and proceeding to adjudicate his guilt based on allegations not contained in the State=s motion for adjudication.[2] Accordingly, we overrule appellant=s second issue. Deadly Weapon Finding In his third issue, appellant contends that the trial court abused its discretion by entering a deadly weapon finding in the judgment when neither the order granting deferred adjudication nor the motion for adjudication indicated that the State would seek such a finding. A defendant is certainly entitled to notice that the State intends to seek a deadly weapon finding. Ex parte Minott, 972 S.W.2d 760, 761 (Tex. Crim. App. 1998). Here, appellant clearly received such notice both in the indictment and in the plea documents that he signed.[3] Appellant appears to argue that such notice was rendered ineffective by the fact that neither the order of deferred adjudication nor the motion for adjudication mentioned the State=s intention to seek a deadly weapon finding. However, appellant does not explain why either document should have included that information. In Sampson v. State, our sister court dealt with the question of whether a trial court could make an affirmative finding of a deadly weapon in the order adjudicating guilt when it did not make that finding in its order deferring adjudication. 983 S.W.2d 842, 843 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d). The court explained that the purpose of a trial court making a deadly weapon finding was to aid the Department of Criminal Justice in calculating a prisoner=s parole-eligibility date. Id. (citing Tex. Gov=t Code Ann. ' 508.145(d) (Vernon 1998), among other statutes and cases). The court further reasoned that because parole eligibility only applies to incarcerated persons, and persons on deferred adjudication are not incarcerated, a finding on a deadly weapon has no place in an order of deferred adjudication. Id. We agree with our sister court=s reasoning and conclusions. Similarly, there is no reason for the motion for adjudication to include a request for a deadly weapon finding when the defendant has already received proper notification. Cf. Tellez v. State, 170 S.W.3d 158, 163 (Tex. App.CSan Antonio 2005, no pet.) (holding trial court erred in entering deadly weapon finding in judgment because state did not give any notice of intent to seek such a finding prior to or during deferred adjudication proceedings); Lister v. State, 24 S.W.3d 525, 526-27 (Tex. App.CCorpus Christi 2000, pet. ref=d) (rejecting defendant=s argument that he lacked notice of deadly weapon finding because it was not mentioned in plea papers, where it was included in indictment); Alexander v. State, 868 S.W.2d 356, 360 (Tex. App.CDallas 1993, no pet.) (same). The purpose of such a motion is to apprise the court of the defendant=s alleged violations of the conditions of his community supervision; it is not to recharge the defendant with the crime. Appellant received proper notice of the State=s intention to seek an affirmative deadly weapon finding by its inclusion in the indictment and the plea documents. Accordingly, we overrule appellant=s third issue. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Opinion filed January 12, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Anderson. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The offense with which appellant was charged and ultimately convicted for was aggravated assault on a family member. The court may well have wanted appellant to receive counseling for anger management issues or other problems that would not necessarily impact his ability to consult with his attorney or understand the proceedings against him. See Tex. Code Crim. Proc. Ann. art. 46B.003(a). [2] Appellant also cites Vidaurri v. State, 49 S.W.3d 880 (Tex. Crim. App. 2001), for the proposition that an appellant may Aassert error regarding irregularities surrounding the proceedings in which his guilt was adjudicated and punishment assessed.@ Appellant does not provide a pinpoint citation, and we are unable to find support for this broad proposition in that case. In Vidaurri, the defendant appealed the trial court=s failure to hold a hearing on punishment after the court determined to adjudicate his guilt and assess punishment. Id. at 881. The case does not touch upon the trial court=s determination to revoke community supervision and adjudicate guilt. Thus, it is not applicable to the case before us. [3] The indictment charged appellant with aggravated assault with a deadly weapon. Appellant pleaded guilty to the charged offense. The plea papers signed by appellant included a notation that he agreed to a recommendation of punishment that included an affirmative deadly weapon finding.