Opinion
No. 05-14-01134-CR No. 05-14-01135-CR No. 05-14-01136-CR
01-07-2016
RALIAN BANDA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F13-62067-M, F13-62108-M, & F14-00312-M
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Fillmore
A jury convicted Ralian Banda of evading arrest or detention, robbery, and burglary of a habitation. In the evading arrest or detention case, Banda pleaded true to two enhancement paragraphs, one of which was a prior conviction for evading arrest or detention. In both the robbery and burglary cases, Banda pleaded true to one enhancement paragraph. The trial court found the alleged enhancements to be true and sentenced Banda to eight years' imprisonment in the evading arrest or detention case and thirty years' imprisonment in the robbery and burglary of a habitation cases. Banda asserts the trial court erred by denying his motion for continuance and his request to file an untimely intent to assert an insanity defense. We affirm the trial court's judgments.
Background
At approximately 11:15 a.m. on November 2, 2013, Banda broke a patio door at Delanee Williams's house. Delanee's mother, Melba Williams, who was over sixty-five years of age, went downstairs to investigate the noise and screamed when she saw Banda pushing over furniture. Banda demanded that Melba give him money. He threw a box at Melba, hitting her in the shoulder, and went up the stairs.
When Delanee heard her mother scream, she ran into the bathroom, locked the door, and called 9-1-1. Banda kicked the door to the bathroom open and demanded that Delanee tell him where the money was located. He hit Delanee in the face with his fist, bent back her wrist, and scratched her wrist. He ultimately took Delanee's cellphone away from her and turned to leave the bathroom. Melba, who had followed Banda up the stairs, hit him in the head with a box containing a pair of shoes. Banda continued to demand money from the two women and went into an upstairs bedroom at the front of the house. Delanee and Melba ran into the third bedroom and locked the door.
Banda failed to disconnect the call made to 9-1-1 from Delanee's cellphone, and a recording of that call contains what the 9-1-1 operator described as "running sounds" as well as the 911 operator's conversation with one of the police officers who detained Banda. At the time of his detention by police officers, Banda also had in his possession a video camera he had taken from the house. Banda was indicted for felony evading arrest or detention with two enhancement paragraphs, one of which was a previous conviction for evading arrest or detention; robbery with one enhancement paragraph; and burglary of a habitation with one enhancement paragraph.
As relevant to this appeal, a person commits the offense of evading arrest or detention if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him. TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2015). The offense is a state jail felony if the person has been previously convicted of evading arrest or detention. Id. § 38.04(b)(1). A state jail felony is punishable as a third degree felony if the defendant has previously been convicted of two state jail felonies. Id. § 12.425(a) (West Supp. 2015).
As relevant to this appeal, a person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally, knowingly, or reckless causes bodily injury to another. TEX. PENAL CODE ANN. § 29.02(a)(1) (West. 2011).
As relevant to this appeal, a person commits burglary of a habitation if, without the effective consent of the owner, the person enters a habitation with intent to commit injury to a person sixty-five years of age or older. TEX. PENAL CODE ANN. §§ 22.04(a)(3),(c)(2), (f) (West Supp. 2015); 30.02(a)(1), (3) (West 2011).
Trial was set for Monday, August 18, 2014. On the Friday prior to trial, Banda's counsel attempted to meet with Banda in the trial court's "holdover." As counsel approached the holdover, he could hear someone yelling and screaming. The trial court's bailiff went to the holdover and informed counsel that Banda was the person yelling and screaming. Banda's counsel spoke to him about the trial scheduled for Monday. Banda responded that he "never signed up for trial." Banda stated he felt as if he was going out of his mind and that something was not right. Banda's counsel notified the trial court and the prosecutor of Banda's behavior, and the trial court appointed Dr. Karen Compton to perform a competency evaluation of Banda.
Mid-day on Sunday, August 17, 2014, Banda's counsel visited Banda in jail. Banda stated he had not seen the doctor yet, but was hearing voices in his head. Dr. Compton performed a competency evaluation of Banda at some point on August 17, 2014. In Dr. Compton's opinion:
The results of the interview and standardized assessment indicate [Banda] is malingering and no bona fide mental impairment was detected. His self-report of symptoms and of having no awareness of his case is not considered valid and is considered to be a willful attempt to evade prosecution.Dr. Compton opined that Banda was competent to stand trial.
The morning of trial, Banda filed an unsworn motion for continuance on the ground that counsel had been unable to adequately communicate with Banda the previous day because "Banda kept saying he [was] hearing voices in his head and kept looking behind him as if someone was standing over his shoulder." The motion also requested that Banda undergo a psychological evaluation prior to a trial. Based on Dr. Compton's opinion that Banda was malingering about his illness and was competent to stand trial, the trial court denied the motion for continuance. Banda then pleaded not guilty to the charges.
After giving an overview of the trial process and conducting a brief voir dire of the venire panel, the trial court released the panel for lunch. During the break, Banda filed a notice of intent to plead not guilty by reason of insanity. The notice requested the trial court "continue[] this cause not for the purpose of delay, but for the sole purpose that justice may be served." The notice of intent to plead not guilty by reason of insanity was not sworn. The trial denied the request because it had not been timely filed. See TEX. CODE CRIM. PROC. ANN. art. 46C.051(a), (b)(2) (West 2006) (notice of intent to plead not guilty by reason of insanity must be filed at least twenty days before date case is set for trial). A jury was then selected.
The following day, Banda changed his pleas to all three charges to guilty and signed written judicial confessions. The trial court instructed the jury in the charge in each case to find Banda guilty. The jury found Banda guilty of all three offenses, and the cases proceeded to punishment before the trial court. Banda pleaded true to all alleged enhancements. After hearing evidence in the punishment phase, the trial court found the alleged enhancements to be true and assessed punishment of eight years' imprisonment on the evading arrest or detention offense and thirty years' imprisonment on both the robbery and burglary of a habitation offenses.
Denial of Motion for Continuance
In his first issue, Banda asserts the trial court erred by denying his motion for continuance because his sanity was at issue and due process required the trial court to appoint a psychologist to examine him prior to trial.
The code of criminal procedure provides for a continuance in a criminal action only upon the filing of a written motion setting forth sufficient cause. TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006). The motion must be sworn to "by a person having personal knowledge of the facts relied on for the continuance." Id. art. 29.08 (West 2006). A "motion for continuance not in writing and not sworn preserves nothing for [appellate] review." Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); see also Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012). Although Banda filed a written motion for continuance, the motion was not sworn. Accordingly, he has waived any error by the trial court in denying the motion. See Kirvin v. State, 394 S.W.3d 550, 564 (Tex. App.—Dallas 2011, no pet.) (written, unsworn motion for continuance failed to preserve claim for appellate review); Lowrey v. State, 469 S.W.3d 318, 327 (Tex. App.—Texarkana 2015, pet. ref'd) (citing Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995)).
However, even if Banda had preserved this issue for our review, it is without merit. We review the trial court's denial of a motion for continuance for abuse of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). To establish an abuse of discretion, the defendant must show the trial court erred by denying the motion and the error resulted in actual harm. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010). The first prong of Gonzales requires the defendant to demonstrate "the case made for delay was so convincing that no reasonable trial judge could conclude that scheduling and other considerations as well as fairness to the State outweighed the defendant's interest in delay of the trial." Id. (citing George E. Dix & Robert O. Dawson, 42 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 28.56 (2d ed. 2011), at 533). The second prong requires that the error result in actual prejudice. Id. at 842; Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (per curiam). The defendant must prove the prejudice with considerable specificity, Gonzales, 304 S.W.3d at 842-43; mere speculation and bare assertions are insufficient to justify reversing the trial court's decision. See Renteria v. State, 206 S.W.3d 689, 702 (Tex. Crim. App. 2006).
Relying on Ake v. Oklahoma, 470 U.S. 68 (1985) and De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993), Banda argues he established his sanity would be an issue at trial, due process required the trial court to provide him access to an independent psychologist, and the trial court abused its discretion by denying the motion for continuance to allow for the psychological evaluation. Due process may require that an indigent defendant be granted access to expert assistance if the expert can provide assistance which is "likely to be a significant factor" at trial. Ake, 470 US. at 74, 76 (addressing issue of sanity at time of offense); see also Ex parte Jimenez, 364 S.W.3d 866, 876 (Tex. Crim. App. 2012). Three factors are relevant to the determination of whether a defendant is entitled to the requested expert: (1) the private interest that will be affected by the State's action; (2) the governmental interest that will be affected if the safeguard is to be provided; and (3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Ake, 470 U.S. at 77; Ex parte Jimenez, 364 S.W.3d at 876. The type of expert and the nature and complexity of the field of specialty must be considered in deciding if an expert will be helpful or a significant factor at trial. Griffith v. State, 983 S.W.2d 282, 286 (Tex. Crim. App. 1998). "The key question appears to be whether there is a high risk of an inaccurate verdict absent the appointment of the requested expert." Busby v. State, 990 S.W.2d 263, 271 (Tex. Crim. App. 1999).
The burden is on the defendant to make a sufficient threshold showing of his need for the expert's assistance. Ehrke v. State, 459 S.W.3d 606, 615 (Tex. Crim. App. 2015); Rey v. State 897 S.W.2d 333, 339 (Tex. Crim. App. 1995). In order to carry this burden, a defendant must offer more "than undeveloped assertions that the requested assistance would be beneficial." Williams v. State, 958 S.W.2d 186, 192 (Tex. Crim. App. 1997) (quoting Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985)); Rey, 897 S.W.2d at 339 (quoting same). A defendant must also show more than the mere conclusions of defense counsel. Norton v. State, 930 S.W.2d 101, 111 (Tex. App.—Amarillo 1996, pet. ref'd). The defendant must show both that there exists a reasonable probability an expert would be of assistance and that denial of expert assistance would result in a fundamentally unfair trial. Davis v. State, 905 S.W.2d 655, 659 (Tex. App.— Texarkana 1995, pet. ref'd). In doing so, a defendant is generally required to file a motion making his defensive theory clear to the trial court and to support it with factual allegations or evidence that expert testimony would support his theory. Rey, 897 S.W.2d at 341. A defendant typically fails to make a sufficient showing where he fails to provide the trial court with affidavits or other evidence in support of his defensive theory, explain his defensive theory and why expert assistance would be helpful in establishing that theory, or show there was a reason to question the State's expert and proof. Id.; see also Ehrke, 459 S.W.3d at 615. We analyze whether a defendant made a sufficient threshold showing by examining the facts and arguments before the trial court at the time of the defendant's motion. Rey, 897 S.W.2d at 342 n.9.
Neither Banda's motion for continuance nor his notice of intent to plead guilty by reason of insanity, in which he also requested a continuance, was supported by affidavits. There was no testimony in support of the either pleading. The only facts set out in Banda's pleadings, and presented to the trial court by counsel's argument, were (1) the Friday before trial, Banda was yelling and screaming in the holdover and told his counsel something was wrong and that he felt as if he were losing his mind; and (2) the Sunday before trial, Banda told his counsel he was hearing voices and kept looking over his shoulder as if someone was standing there. The trial court also had before it Dr. Compton's evaluation of Banda in which she stated he was malingering, had no bona fide mental impairment, and was competent to stand trial. Banda did not proffer any evidence establishing there was a reason to question Dr. Compton's opinion or that the appointment of an expert to perform a psychological evaluation would either be of assistance to Banda or the denial of such assistance would result in a high risk of an inaccurate verdict. See Ehrke, 459 S.W.3d 614-15; Rey, 897 S.W.2d at 341; Busby, 990 S.W.2d at 271.
Banda failed to make the threshold showing that the appointment of a psychologist was required in this case. See Ivie v. State, 407 S.W.3d 305, 311-12 (Tex. App.—Eastland 2013, pet. ref'd) (trial court did not abuse its discretion by denying defendant's motion requesting appointment of psychologist or psychiatrist because motion, although verified by counsel, was not supported by affidavits and contained only vague and conclusory assertions about defendant's mental condition). Accordingly, Banda has failed to establish the trial court abused its discretion by refusing to continue the trial until such an expert was appointed. We resolve Banda's first issue against him.
Intent to Plead Not Guilty by Reason of Insanity
In his second issue, Banda contends the trial court erred by finding there was not good cause for the untimely filing of his notice of intent to plead not guilty by reason of insanity. We review a trial court's determination of whether good exists to permit the late filing of a notice of intent to plead not guilty by reason of insanity for an abuse of discretion. Wagner v. State, 687 S.W.2d 303, 306 (Tex. Crim. App. [Panel Op.] 1984), superseded by statute on other grounds as noted in Jackson v. State, 160 S.W.3d 568, 572-73 (Tex. Crim. App. 2005); Newsome v. State, 235 S.W.3d 341, 343 (Tex. App.—Fort Worth 2007, no pet.) (concluding trial court did not abuse its discretion by finding defendant had not shown good cause for untimely notice).
Insanity may be raised as a defense to a criminal prosecution. TEX. PENAL CODE ANN. § 8.01(a) (West 2011). However, the defendant is required to give notice of his intention to raise the defense at least twenty days before the case is set for trial. TEX. CODE CRIM. PROC. ANN. art. 46C.051(a)-(b). If the notice is not timely filed, the trial court may, on a finding of good cause for failure to serve timely notice, still allow evidence of insanity. Id. art. 46C.052. Banda admits he failed to timely file the notice of intent to plead not guilty by reason of insanity, but contends he showed good cause for his failure to do so through his counsel's explanation that the notice was based on Banda's conduct on the Friday and the Sunday prior to trial and counsel's identification of the bailiff as a witness to Banda's conduct in the holdover the Friday before trial.
In Newsome, the defendant filed a notice of intent to raise the insanity defense after the jury had been sworn. 235 S.W.3d at 342. The notice stated good cause existed for the late filing because it was being filed at the same time that counsel became aware there could be an issue of the defendant's competence to stand trial. Id. Affidavits were attached to the notice from counsel and the defendant's family members that attested the defendant had, for some years, heard voices and seen people who were not apparent to others and that counsel first learned about this behavior on the first day of trial. The affidavits, however, did not address good cause for the delay in filing the notice. Id. at 342-43. Newsome, therefore, stands for the proposition that counsel's late discovery of the defendant's alleged mental condition is not, standing alone, good cause for the late filing of a notice of intent to assert the insanity defense.
Counsel in this case first learned of Banda's alleged incompetency to stand trial shortly before trial and filed the notice of intent to assert the insanity defense during voir dire. Other than Dr. Compton's report, there was no evidence offered to the trial court regarding Banda's competency or of Banda's mental condition at the time he committed the offenses. Even if we consider counsel's explanation that he learned of Banda's behavior shortly before trial and that he identified the bailiff as a witness to Banda's behavior in the holdover, this does not, standing alone, establish good cause for failing to timely file the notice of intent to plead not guilty by reason of insanity. See id.
See also Lee v. State, No. 13-09-00360-CR, 2010 WL 2697172, at *2 (Tex. App.—Corpus Christi, July 8, 2010, no pet.) (mem. op., not designated for publication) (good cause for failing to timely file notice of intent to assert insanity defense not shown through "counsel's bare assertions that he had not discovered the potential insanity issue until the morning of the trial"). --------
We conclude the trial court did not abuse its discretion by finding Banda had failed to show good cause for the late filing of the notice of intent to plead not guilty by reason of insanity. We resolve Banda's second issue against him.
We affirm the trial court's judgments.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not Publish
TEX. R. APP. P. 47 141134F.U05
JUDGMENT
On Appeal from the 194th Judicial District, Court, Dallas County, Texas
Trial Court Cause No. F13-62067-M.
Opinion delivered by Justice Fillmore, Justices Myers and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 7th day of January, 2016.
JUDGMENT
On Appeal from the 194th Judicial District, Court, Dallas County, Texas
Trial Court Cause No. F13-62108-M.
Opinion delivered by Justice Fillmore, Justices Myers and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 7th day of January, 2016.
JUDGMENT
On Appeal from the 194th Judicial District, Court, Dallas County, Texas
Trial Court Cause No. F14-00312-M.
Opinion delivered by Justice Fillmore, Justices Myers and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 7th day of January, 2016.