Opinion
No. 11-02-00197-CR
December 18, 2003. DO NOT PUBLISH. See Tex.R.App.P. 47.2(b).
Appeal from Jones County.
Panel consists of ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
Appellant entered an open plea of guilty to the offense of aggravated sexual assault. TEX. PENAL CODE ANN. § 22.021 (Vernon 2003). The jury assessed punishment at 99 years confinement, and the trial court sentenced appellant based on the jury's assessment. We affirm.
Issues Presented
In four appellate issues, appellant claims that his trial counsel was ineffective because: (1) he failed to investigate the nature and extent of appellant's mental condition and, therefore, failed to pursue an insanity defense and provided defective advice to plead guilty; (2) he failed to request a jury instruction on temporary insanity during the punishment phase of the trial; and (3) he elicited harmful testimony during the direct examination of appellant's psychiatrist, Dr. Lek Tratnik.Background Facts
The grand jury indicted appellant for the offense of aggravated sexual assault of Annette Harrison. The offense occurred during the early morning hours of March 3, 1999. The trial court appointed counsel to represent appellant during the trial proceedings. Appellant's trial counsel believed that the evidence of guilt against appellant was overwhelming. Appellant claimed that he drank a substantial number of beers in the hours leading up to the sexual assault and that he could not remember sexually assaulting Harrison. Appellant's trial counsel learned that appellant had been diagnosed with "major depressive disorder" by Dr. Tratnik before the date of the aggravated sexual assault. Appellant's trial counsel hoped that he could develop insanity as a defense to guilt. However, after speaking with appellant and Dr. Tratnik about appellant's condition, appellant's counsel concluded that insanity was not a viable defense. Appellant's counsel advised appellant to plead guilty to the offense and to have the jury assess punishment. Appellant followed the advice of his counsel. The trial court, after admonishing appellant, accepted appellant's guilty plea. The case then proceeded to the punishment phase. Appellant's trial counsel offered evidence during the punishment phase of appellant's mental condition. A number of witnesses testified about appellant's mental condition: (1) appellant; (2) Julie Michelle Talbott, appellant's ex-wife; (3) Sharon Lee Boyd, appellant's mother; (4) Trina Talbott Finnell, appellant's sister; and (5) Dr. Tratnik. In summary, these witnesses testified that appellant had attempted suicide twice in 1998; that appellant had received treatment for depression; that appellant was a "whole different person" and a better person when he was on medication for his depression; that appellant had stopped going to treatment and taking medication sometime in 1998; that appellant drank alcohol to "self medicate" his depression; that drinking made appellant not care; that appellant became violent when he drank alcohol; that appellant was drunk when he sexually assaulted Harrison; and that appellant could not remember sexually assaulting her. Appellant testified that he would not drink anymore. Dr. Tratnik testified that he had diagnosed appellant with major depressive disorder in 1998. Dr. Tratnik said that appellant's condition was getting worse. Dr. Tratnik said that he doubted his initial diagnosis of major depressive disorder was correct and that the correct diagnosis would probably be schizophrenia or schizoaffective disorder. Dr. Tratnik also said that mental illnesses are incurable but, hopefully, manageable with medication. Appellant's counsel requested the jury to place appellant on probation. The jury, however, sentenced appellant to the maximum sentence of 99 years. Appellant raised his ineffective assistance issues in a motion for new trial. Appellant's trial counsel addressed the issues while testifying at the hearing on the motion. He said that he investigated whether appellant was insane at the time of the commission of the offense and that he believed his investigation of the case was adequate. He said that, in light of the overwhelming evidence of guilt against appellant, he had hoped to pursue an insanity defense. However, based on his discussions with appellant and Dr. Tratnik, he did not believe that insanity was a viable defense. He thought that appellant's voluntary intoxication really hurt the chance of using insanity as a defense to guilt. Appellant's trial counsel testified that his trial strategy was for appellant to plead guilty, go to the jury for punishment, and ask the jury for mercy — a light sentence. He said that he advised appellant to enter an open plea of guilty and to have the jury assess punishment. Appellant's counsel said that he explained appellant's options and the consequences of a guilty plea to appellant. He further said that appellant made the decision to plead guilty. Appellant's trial counsel also testified that he introduced the evidence about appellant's mental condition during the punishment phase of the trial in an effort to mitigate the punishment. He said that his failure to request an instruction on temporary insanity during the punishment phase of the trial was inadvertence. Appellant's trial counsel also said that Dr. Tratnik's testimony that mental illnesses are "incurable" hurt the defense and that he wished he would not have called Dr. Tratnik as a witness. Boyd testified at the hearing on the motion for new trial. She said that appellant was on medication during trial and was unable to comprehend what was happening. She also said that the first time she learned of Dr. Tratnik's schizophrenia diagnosis was during his trial testimony. Appellant also testified at the hearing on the motion for new trial. He said that he was in a trance state during trial. He testified that his trial counsel recommended for him to plead guilty. Appellant said that he wanted to plead insanity but that his trial counsel argued with him, and he gave up. He also said that he and his trial counsel discussed temporary insanity quite a bit when they first talked but that his counsel told him that pursuing an insanity defense was not a good idea.Ineffective Assistance of Counsel
The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas Constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App. 1986). To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his counsel's performance fell below an objective standard of reasonableness and that there is a "reasonable probability" that the result of the proceeding would have been different but for counsel's deficient performance. Strickland v. Washington, supra; see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Cr.App. 2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, supra at 55. The purpose of this two-pronged test is to determine whether counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Cr.App. 1999) (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App. 1992), cert. den'd, 508 U.S. 963 (1993)). The adequacy of defense counsel's assistance is based upon the totality of the representation rather than by isolated acts or omissions. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. den'd, 514 U.S. 1021 (1995). Our review of counsel's representation is highly deferential, and we must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Tong v. State, 25 S.W.3d 707, 712 (Tex.Cr.App. 2000), cert. den'd, 532 U.S. 1053 (2001). To defeat the presumption of reasonable representation, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, supra at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App. 1996), cert. den'd, 519 U.S. 1119 (1997)).Voluntariness of Guilty Plea
To be valid, a guilty plea must be made freely and voluntarily. TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 Supp. 2003). Proper admonishments by the trial court create a prima facie showing that a plea of guilty 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). However, a guilty plea may not have been made voluntarily or knowingly if it was based upon erroneous advice or misinformation from trial counsel. Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Cr.App. 1991). When a defendant pleads guilty on the advice of counsel but subsequently challenges the voluntariness of the plea based upon ineffective assistance of counsel, the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Cr.App. 1997), cert. den'd, 525 U.S. 810 (1998). Before accepting appellant's guilty plea, the trial court properly admonished appellant, informed him of the consequences of a guilty plea, and determined that appellant was competent on the date of the offense and competent to stand trial. Appellant, however, asserts that his plea was involuntary because it was based on the defective advice of his trial counsel. The issue under the first Strickland prong is whether appellant's trial counsel's advice to plead guilty was within the range of competence demanded of attorneys in criminal cases. Appellant's trial counsel testified that he believed his investigation of the case was adequate; and, based on his investigation of appellant's mental condition, he concluded that insanity was not a viable defense. The elements of the affirmative defense of insanity are set forth in TEX. PENAL CODE ANN. § 8.01 (Vernon 2003). Section 8.01 provides that "[i]t is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." There was no evidence — either at trial or at the hearing on the motion for new trial — that appellant "did not know that his conduct was wrong." Thus, the record does not demonstrate that appellant's trial counsel, with additional investigation, would have been able to pursue an insanity defense or that his advice to appellant would have or should have been different. Based on the evidence in the record, we cannot conclude that appellant's trial counsel's advice to plead guilty was not within the range of competence demanded of attorneys in criminal cases. Appellant has not shown that his trial counsel's advice to plead guilty was defective or that his plea was involuntary. Appellant's first two issues are overruled. Failure to Request Temporary Insanity Instruction During Punishment Phase TEX. PENAL CODE ANN. § 8.04(b) (Vernon 2003) provides that a defendant may introduce evidence of temporary insanity caused by intoxication in mitigation of the penalty attached to the offense for which the defendant is being tried. A defendant is entitled to a jury instruction on temporary insanity if "the evidence raised the issue of intoxication sufficient to render [the defendant] temporarily insane." Easley v. State, 978 S.W.2d 244, 252 (Tex.App.-Texarkana 1998, pet'n ref'd) (citing San Miguel v. State, 864 S.W.2d 493, 495-96 (Tex.Cr.App. 1993)). Evidence showing intoxication and nothing more does not justify the submission of the temporary insanity issue to the jury. Easley v. State, supra; Sawyers v. State, 724 S.W.2d 24, 33 (Tex.Cr.App. 1986). Rather, to be entitled to an instruction on temporary insanity, the defendant must show both (1) that he was intoxicated and (2) that he did not know that his conduct was wrong or that he was incapable of conforming his conduct to the requirements of the law he violated at the time of the offense. Arnold v. State, 742 S.W.2d 10, 16 (Tex.Cr.App. 1987). Appellant testified that he was intoxicated when he committed the offense and that he could not remember committing it. Appellant's lack of recall of the crime is no evidence that he did not know that his conduct was wrong or that he was incapable of conforming his conduct to the requirements of the law. Easley v. State, supra at 253. There was no evidence — either at trial or at the hearing on the motion for new trial — that appellant did not know that his conduct was wrong or that he was incapable of conforming his conduct to the requirements of the law at the time that he sexually assaulted Harrison. Appellant has not met the second Arnold requirement and, therefore, has not shown that he was entitled to an instruction on temporary insanity caused by intoxication. We, therefore, cannot find that appellant's trial counsel was ineffective in failing to request an instruction on temporary insanity. Easley v. State, supra. Appellant's third issue is overruled. Eliciting Harmful Testimony from Dr. Tratnik Appellant asserts that his counsel was ineffective in eliciting testimony from Dr. Tratnik that mental illnesses are "incurable." Dr. Tratnik testified, in part, as follows:Q: So he has to stop drinking and he really needs medication?
A: Yes.
Q: If he doesn't get the medication what will happen to his psychological disorder?
A: It will relapse and the relapse they act differently. It's unpredictable what these type of people can do. They are just uncontrollable and they just cannot control themselves.
Q: So without medication, he could become uncontrollable?
A: Yes.
Q: Could he get better without medication? Could he recover?
A: Probably not.
Q: Do you ever recover from mental illness?
A: I would say it is rare. That could be, but — if they don't have the stress in their life and a supportive family, they could go through that, but usually mostly they need medication.
Q: So you either withdraw completely from life or you have to have medication to help you handle your mental illness?
A: Yes.
Q: Does this problem change with age as a person ages or would they have the same problem ten years, 20 years?
A: Usually they have the same problem. It is incurable and they have to be on medication the rest of their life.
Q: So it's incurable, but hopefully manageable?
A: Yes.The State focused on Dr. Tratnik's use of the word "incurable" during closing argument. Appellant's trial counsel testified at the hearing on the motion for new trial that Dr. Tratnik's testimony "hurt" appellant and that he wished that he had not called Dr. Tratnik as a witness. Appellant's trial counsel, based upon the overwhelming evidence of guilt against appellant, developed a trial strategy that appellant should plead guilty and seek mercy from the jury during the punishment phase. Appellant's counsel hoped that, based on appellant's mental condition, the jury would sentence appellant to probation. As part of the trial strategy, appellant's counsel called Dr. Tratnik as an expert witness on the issue of appellant's mental condition. Appellant had been under Dr. Tratnik's care before committing the offense, and appellant's counsel felt that it was necessary to have Dr. Tratnik explain appellant's condition to the jury. Dr. Tratnik's testimony was consistent with, and supported, the testimony of appellant's lay witnesses. For example, Dr. Tratnik's testimony that appellant needed medication supported Talbott's testimony that appellant was a "whole different person" while he was taking medication. While Dr. Tratnik's testimony that mental illnesses are "incurable" may not have been favorable to appellant, we do not find that appellant's trial counsel's performance was deficient. See Chatham v. State, 889 S.W.2d 345, 353-54 (Tex.App.-Houston [14th Dist.] 1994, writ ref'd). Appellant's fourth issue is overruled. This Court's Ruling The judgment of the trial court is affirmed.