Opinion
No. 05-01-00664-CR.
Opinion Filed March 4, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80681-00. AFFIRM and MODIFIED.
Before Justices WRIGHT, BRIDGES, and RICHTER.
OPINION
Following an open nolo contendere plea, the trial court convicted Richard Anthony Lisai of aggravated assault and assessed punishment at ten years confinement. On appeal, Lisai contends (1) the court erred by refusing to grant his request for new counsel; (2) counsel was ineffective; and (3) his plea was involuntary. We affirm. Because the sufficiency of the evidence is not at issue, we recite only those facts necessary for the disposition of the appeal. In his first point of error, appellant maintains the court erred by refusing to grant either of his two pro se pre-trial motions to dismiss and replace his court-appointed attorney. Appellant bases his argument on the original four-volume reporter's record consisting entirely of the plea proceedings. Because the reporter's record does not include a record of any hearings on either of appellant's motions, appellant presumes the court took no action. Appellant also maintains he carried his burden of showing why he was entitled to new counsel and, thus, the court should have appointed new counsel. We reject appellant's contentions. A defendant seeking new counsel must bring the matter to the trial court's attention and carries the burden of proof. Garner v. State, 864 S.W.2d 92, 99 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (citing Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim. App. [Panel Op.] 1982)). Further, to preserve error for appellate review, the defendant must obtain a ruling on his motion. See Tex. R. App. P. 33.1(a)(1). In this case, the clerk's record reflects appellant abandoned his first motion for new counsel. Additionally, although the original reporter's record does not show the court took any action on either of appellant's motions, the reporter filed a supplemental record documenting the hearings on each of the motions. This record reflects appellant presented no evidence or argument in support of his motions at either hearing. Rather, at both hearings, appellant unequivocally testified he was abandoning the motions and was satisfied with counsel. Based on appellant's representations, the court did not rule on the motions. Because appellant abandoned his motions and did not obtain a ruling on them, there is nothing for us to review. See Tex. R. App. P. 33.1(a)(1). We overrule his first point of error. In his second point, appellant complains counsel was ineffective in failing to obtain a pre-trial competency evaluation. Appellant notes he stabbed himself twice with a knife following the offense, was subsequently under psychiatric care for a week, and had a violent past. Appellant further notes the record reflects appellant "passed" a court setting "to be evaluated for competency." Although the record is silent as to whether counsel actually obtained a competency evaluation, appellant maintains counsel did not. In support of this contention, appellant points to his plea testimony showing he would submit to a psychological evaluation if he received deferred adjudication because a "formal one [has not been] done." Appellant maintains counsel's failure in obtaining the evaluation amounted to deficient performance and resulted in a finding of guilt and lengthy sentence. We disagree. To prevail on an ineffective assistance of counsel claim, an appellant who pleaded guilty or nolo contendere must prove (1) deficient performance, and (2) a reasonable probability that, but for counsel's errors, he would not have pleaded guilty but would have insisted on going to trial. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)), cert. denied, 528 U.S. 1081 (2000); Tabora v. State, 14 S.W.3d 332, 336 (Tex.App.-Houston [14th Dist.] 2000, no pet.). In determining whether counsel provided effective assistance, we look to the totality of the representation. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985); Courtney v. State, 39 S.W.3d 732, 737 (Tex.App.-Beaumont 2001, no pet.). We strongly presume counsel's competence and do not judge counsel's trial decisions in hindsight. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App. 1994); Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim. App. 1992); Marshall v. State, 28 S.W.3d 634, 639 (Tex.App.-Corpus Christi 2000, no pet.). We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for counsel's actions. Weeks v. State, 894 S.W.2d 390, 391 (Tex.App.-Dallas 1994, no pet.). Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence, see Moore, 694 S.W.2d at 531, and an allegation of ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Courtney, 39 S.W.3d at 737. Without the required showing of deficient performance or prejudice, the presumption of reasonable counsel will not be overcome. Thompson, 9 S.W.3d at 813. When an appellant raises an issue as to his competence at trial, he must show he lacked (1) a sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and (2) a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02, § 1A(a) (Vernon Supp. 2003); Loftin v. State, 660 S.W.2d 543, 545-46 (Tex.Crim.App. 1983); Clark v. State, 47 S.W.3d 211, 215 (Tex.App.-Beaumont 2001, no pet.). The mere fact that an appellant has been treated by a psychiatrist does not constitute evidence of incompetency. See Thompson v. State, 915 S.W.2d 897, 902 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). In this case, the record is silent as to counsel's strategy. Appellant did not file a motion for new trial asserting an ineffectiveness of counsel claim and did not otherwise develop a record showing the reasons behind counsel's alleged inaction. However, the record does reflect appellant signed written admonishments indicating he was competent and testified at the plea proceeding that he had discussed his case with counsel, understood counsel's advice, the various waivers and admonitions, the significance and consequences of an open plea, and conditions of community supervision. Additionally, the record reflects that shortly after the court setting was passed "for a competency evaluation," appellant appeared before the court on his motion for new counsel and showed an understanding of the proceeding, charges against him, and upcoming plea proceeding. Given this record, it is a reasonable conclusion that appellant's trial counsel either decided not to pursue the issue of competency because of appellant's ability to consult with him and understanding of the proceedings against him, or obtained an "informal" evaluation which did not support the incompetency allegation. See Easley v. State, 978 S.W.2d 244, 250-51 (Tex.App.-Texarkana 1998, pet. ref'd) (concluding results of mental status and competency evaluation could have influenced counsel to decide not to request appointment of expert on insanity and thus, counsel not ineffective in failing to move for expert). In fact, appellant's plea papers contain an acknowledgment by counsel that appellant was competent to enter into the plea. While the record also shows appellant may have suffered from a mental illness and was willing to submit to a "formal psychological evaluation," we cannot conclude, given the entire record, that any illness affected his ability to communicate with counsel or understand the proceedings against him. Accordingly, we conclude appellant has failed to show his counsel was deficient. We overrule appellant's second point. In his third point, appellant complains his plea was involuntary because "it was not shown [he] was mentally competent to enter his plea." We disagree. A defendant's competence to enter a plea is presumed, and an appellant challenging the voluntariness of his plea on this ground bears the burden of showing otherwise. Tex. Code Crim. Proc. Ann. art. 46.02, § 1A(b); Arista v. State, 2 S.W.3d 444, 446 (Tex.App.-San Antonio 1999, no pet.). In determining the voluntariness of a plea, we look to the totality of the circumstances. Ducker v. State, 45 S.W.3d 791, 796 (Tex.App.-Dallas 2001, no pet.). In arguing his plea was involuntary because he was incompetent, appellant relies on the same evidence upon which he relied in support of his ineffective assistance of counsel claim. However, we have already concluded this evidence, when taken in context with the entire record, does not show appellant was unable to either communicate with counsel or understand the proceedings. Appellant has failed to meet his burden. We overrule appellant's third point of error. We note, and the State points out, that the trial court's judgment denotes the offense as a first degree felony. However, aggravated assault, as charged in this case, is a second degree felony. See Tex. Pen. Code Ann. § 22.02(b) (Vernon 1994). Accordingly, we modify the judgment to reflect the offense committed is a second degree felony. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). As modified, we affirm the trial court's judgment.