Opinion
Nos. 05-08-01226-CR, 05-08-01227-CR
Opinion issued May 12, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F03-01236-W F03-63395-W.
Before Justices RICHTER, FRANCIS, and LANG-MIERS. Opinion By Justice FRANCIS.
MEMORANDUM OPINION
Eugene Robert VanNortrick pleaded guilty to two charges of aggravated sexual assault of a child and was sentenced by a jury to life in prison. In two issues, appellant asserts the trial court erred in (1) failing to sua sponte conduct a competency hearing and (2) failing to admonish him on the punishment range. We affirm. In August 2003, appellant entered open pleas of guilty before a jury to charges that he penetrated the sexual organ of B.C. with his sexual organ and his finger. The jury assessed punishment at ninety-nine years in prison and a $2,500 fine in each case. On appeal, this Court reversed the convictions after determining the trial court had not admonished appellant on the deportation consequences of his guilty plea and remanded for a new trial, and the Texas Court of Criminal Appeals affirmed our judgment. See VanNortrick v. State, 191 S.W.3d 490, 490-91 (Tex.App.-Dallas 2006), aff'd, 227 S.W.3d 706 (Tex.Crim.App. 2007). At the retrial, appellant again entered open pleas of guilty and went to the jury for punishment. The child complainant, B.C., testified that appellant was her stepfather's brother. She said that on two occasions, appellant put his "wiener" in her vagina when she was eight years old, once in the bathroom and another time in a shed. Although B.C. said she did not remember telling people that appellant also touched her with his hand, her medical records showed that B.C. reported that he also "rubbed [her] down there" during the assault in the shed. In addition to B.C.'s testimony and her medical records, the State also adduced evidence that appellant was previously convicted of attempted criminal sexual conduct, first degree, in Michigan for attempting to have anal intercourse with his four-year-old nephew and had a juvenile record for criminal sexual conduct, second degree. As mitigation evidence, appellant's sister testified appellant had been sexually abused by their father as a child, and the rights of their parents had been terminated. She also testified appellant was hit in the head with a baseball bat when he was in first grade and had been "affected." In his first issue, appellant contends the trial court erred in failing to conduct, on its own motion, an informal inquiry into his competency pursuant to article 46B.004 of the Texas Code of Criminal Procedure. We review a trial court's decision to conduct an informal competency inquiry for an abuse of discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999). A defendant is incompetent to stand trial if he does not have "sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding" or "a rational as well as factual understanding of the proceedings against" him. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1), (2) (Vernon 2006). If evidence suggesting the defendant may be incompetent comes to the attention of the trial court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial. Id. at 46B.004(b). On such suggestion, the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial. Id. at 46B.004(c). The Texas Court of Criminal Appeals has reiterated that the evidence must, however, raise a bona fide doubt about the defendant's competency before an informal inquiry is required. See Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App. 2008), cert. denied, 129 S. Ct. 904 (2009). A bona fide doubt "need not be sufficient to support a finding of incompetence and is qualitatively different from such evidence." Id. Evidence is 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." Id. Appellant argues evidence of his incompetency was raised by statements made by his counsel as well as testimony at trial. In particular, he relies on evidence that he (1) was sexually abused by his father between the ages of six and twelve, and when he was twelve years old, had "some type of sexual contact" with a ten-year-old boy; (2) was hit on the head with a baseball bat when he was in the first grade and, according to trial counsel's opening statement, his "IQ was lowered significantly," he was "a great deal slower" and had problems "functioning;" (3) attempted anal sexual intercourse with his four-year-old nephew, which he describes as "bizarre" behavior; and (4) signed a judicial confession and pleaded guilty to digital penetration of B.C. in this case, although B.C. testified only to penile penetration, which he contends should have alerted the trial court that he was not competent. Having reviewed the record, we disagree. Evidence appellant was sexually abused as a child may have served as a factor for the jury to consider in assessing punishment, but it did not raise an issue with respect to appellant's competence. As for the separate incidents involving a ten-year-old boy and appellant's four-year-old nephew, we cannot conclude appellant's prior criminal history suggests anything more than that he is a pedophile; otherwise, any defendant with a prior history of sexual abuse of a child would be entitled to an informal competency hearing by virtue of nothing more than evidence of his past crimes. Counsel's statements that appellant was "slower" and had problems "functioning" after being hit in the head with a bat may suggest some mental limitations, but no facts show appellant suffered "at least moderate retardation." Cf. Reed v. State, 112 S.W.3d 706, 710-11 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) ("Evidence of mental impairment alone does not require a competency hearing where no evidence indicates that a defendant is incapable of consulting with counsel or understanding the proceedings against him."). Trial counsel, who had been representing appellant since 2003 in this case, never complained appellant's mental limitations impacted his ability to consult with her or understand the proceedings. To the contrary, when appellant entered his plea, counsel questioned appellant about his understanding of the proceedings and his competency. Appellant testified (1) he understood he had a right to a jury trial but was pleading guilty and having a jury determine punishment; (2) he understood the proceedings and what was "going on;" and (3) he was competent. Finally, with respect to the complaining witness's testimony in this case, B.C. was thirteen years old and was testifying to events that occurred when she was eight and indicated confusion at different points. While she did not testify appellant penetrated her with his finger, her medical records were admitted into evidence and show that, within days of the incident in 2003, she reported appellant "put his wee-wee in me and wet stuff came out and he rubbed me down there, too." Consequently, we fail to see how appellant's judicial confession raises any issue of incompetency. Having considered the record, we cannot conclude the evidence raised a bona fide doubt as to whether appellant had a (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. Under these circumstances, we conclude the trial court did not abuse its discretion in failing to sua sponte conduct an informal inquiry into his competency to stand trial. We reject his first issue. In his second issue, appellant argues the trial court reversibly erred in failing to admonish him on the punishment range for the offenses as required by article 26.13 of the code of criminal procedure. Before accepting a plea of guilty, the trial court must admonish a defendant, either orally or in writing, of the range of punishment for the offense. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1), (d) (Vernon 2009). Failure to admonish a defendant about the punishment range before accepting a guilty plea is subject to harmless error analysis under Texas Rule of Appellate Procedure 44.2(b). Aguirre-Mata v. State, 125 S.W.3d 473, 474 (Tex.Crim.App. 2003). In conducting the harm analysis, we must disregard the error unless it affected the appellant's substantial rights. Tex. R. App. P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). In the context of a guilty plea, an error affects substantial rights when, considering the record as a whole, we have a fair assurance the defendant's decision to plead guilty would not have changed had the trial court properly admonished him. Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App. 2006). At the time appellant entered his pleas of guilty, the trial court asked him if he had been over the punishment range with his attorney and if he understood the range. Appellant affirmatively replied to both questions. The trial court, however, never orally or in writing admonished appellant on the punishment range. By failing to do so, the trial court erred and we must therefore determine whether appellant's substantial rights were affected. Having reviewed the record, we conclude the record provides fair assurance that appellant's decision to plead guilty would not have changed had the trial court properly admonished him. During voir dire, the State explained to the potential jurors that the punishment range for the offenses was "anywhere from 5 years all the way up to 99 years or life, and up to a $10,000 fine." Similarly, in response to a juror's question on the "prison sentence," defense counsel explained "the only range of punishment would be 5 years up to 99 or life." In addition, members of the venire panel were questioned extensively on their ability to consider the full range of punishment. Nothing in the record indicates appellant did not hear or understand these discussions, and, in fact, appellant represented at the time he entered his pleas that he had been over the range of punishment with his lawyer and understood it. Although appellant argues his "mental disability" should negate any inference that he heard and understood the punishment range, we have previously concluded that no evidence suggested appellant was incompetent and we reject any similar argument within this issue. We conclude appellant's substantial rights were not violated. See Burnett, 88 S.W.3d at 639-40 (setting out discussions in voir dire on punishment range and concluding appellant not harmed by trial court's failure to admonish); Moore v. State, 278 S.W.3d 444, 448 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (concluding appellant's substantial rights not violated when voir dire included discussion of applicable punishment range). We overrule the second issue. We affirm the trial court's judgments.