Opinion
No. 11-04-00121-CR
August 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Taylor County.
OPINION
Allan Wayne Brubaker appeals his conviction upon his plea of guilty to the offense of murder. Pursuant to a plea bargain, Brubaker was sentenced to 30 years in the Texas Department of Criminal Justice, Institutional Division. He contends in two issues that the trial court erred in accepting his guilty plea where there was a prior unvacated adjudication of incompetency resulting in the establishment of a guardianship and that the trial court abused its discretion in failing to grant his motion for new trial based upon claims of insanity at the time of the alleged offense, incompetence to stand trial, and claims of an involuntary plea because he was incompetent at the time of his plea. We affirm. Both of Brubaker's issues are based upon his contention that his plea of guilty was involuntary as a matter of law because he was under a guardianship, he was unable at the time of his plea to make a rational and informed decision as a reasonably prudent person would, and he had an inadequate time to make the decision to enter his plea. We construe all of these to be challenges that the plea was involuntary because Brubaker was incompetent to stand trial. A defendant may challenge his competency to stand trial in a motion for new trial. Edwards v. State, 993 S.W.2d 171, 175 (Tex.App.-El Paso 1999, pet'n ref'd). Because a new trial hearing occurs after sentencing and not during trial, the trial court applies the traditional standard used to determine whether to grant a motion for new trial. Id. at 176. The court considers all the evidence presented, judges the credibility of the witnesses, and resolves conflicts in the evidence. Id. In evaluating this issue on appeal, we consider all of the competency evidence presented at the motion for new trial hearing and reverse the trial court only if it abused its discretion. Id. A defendant is incompetent to stand trial if he or she does not have either (1) sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him or her. TEX. CODE CRIM. PRO. ANN. art. 46B.003(a) (Vernon Pamph. Supp. 2004-2005), formerly TEX. CODE CRIM. PRO. art. 46.02, § 1(a) (1979). Brubaker testified at the hearing on his motion for new trial that, at the time of his plea, he was represented by attorney Jim Smart with whom he had discussed the case. He indicated that the State's plea offer changed from 60 years to 30 years on the day of trial. He stated that everything happened so fast that he did not get a chance to really process the understanding of what he was doing. He concluded that he did not enter into his plea freely, voluntarily, and knowingly. He asserted that he did not understand what he was pleading to. He acknowledged that his attorney had tried to explain it to him. Brubaker testified that he suffered a severe head injury in 1997 when a tree fell on him while he was working as a lumberjack. He related that doctors did a craniotomy on his right posterior temple. He said that they took out the part of his brain that was injured and that the portion removed was part of his short-term memory, executive functioning, and his cognitive "stuff." He stated that he had to be retrained to learn how to think again. He related that he had been under a doctor's care ever since the injury in 1997. Brubaker testified that, since his injury, he had spent time on more than one occasion in River Crest Hospital. He said that he had also spent time at Tangram Premier Rehabilitation Center being treated for his brain injury. He also stated that he had spent time at Hermann Hospital, Rusk State Hospital, and a brain injury rehab center at Conroe. Brubaker testified that in April 2003 he was interviewed by Dr. Crowley for 30 minutes. Brubaker acknowledged that he had read his motion for new trial and that he understood what it was when he read it. He stated that his attorney at trial showed him Dr. Crowley's evaluation and that they talked about it. He acknowledged that he and the attorney talked about why he committed the offense and about what he was thinking prior to it happening. Brubaker testified that the judge at his plea hearing went over everything that he signed and that he did not have a problem understanding what he had said until he went back to his cell. He insisted that it took him time to process certain things. He acknowledged that he had signed the documents of his own free will. He further acknowledged that it was his idea, after his attorney had passed on to him a plea bargain for 40 years, to either go to a jury trial or take 30 years. He stated that it was possible to talk about things that he did not understand. James H. Smart, Jr., Brubaker's attorney at the time of his plea, testified concerning the negotiations that resulted in the plea. He related that, on the day of the trial, the district attorney for the first time reduced his plea offer from 60 to 40 years. He said that he was sure that, when he presented the offer of 40 years to Brubaker, he refused that amount and said that he would take 30. He acknowledged that probably about 30 minutes elapsed from the time he got back from his discussion that morning with the district attorney until the plea papers were signed. Smart said that, because of Brubaker's record of mental problems, he requested that Brubaker be examined for issues of competency and/or sanity. He stated that he discussed the offense, defenses, and other matters relating to trial preparation. He insisted that he believed that, on the date of trial, Brubaker understood what was happening as far as the trial; that he understood the nature of a plea offer; and that he understood the effect of what he was doing when he presented the number of years that he would take. He also testified that, in his opinion, Brubaker understood the nature of the plea papers he was signing. He said that he was looking for indications that Brubaker might not be competent on that day to stand trial but that Brubaker did not give him any such indications. He concluded that he thought that Brubaker entered his plea voluntarily and knowingly. In his report to the trial court, Dr. John D. Crowley indicated, among other things, that Brubaker had been functioning in the borderline intellectual functioning range since the time of his 1997 brain injury and that these deficits had been complicated by intermittent difficulties with significant substance abuse. He related that, despite such difficulties, Brubaker had a reasonably good understanding of the criminal court process and seemed to have intellectual command of the pertinent details relating to his case. Dr. Crowley concluded that he believed Brubaker would be able to effectively work with his defense attorney in presenting his case before a court. He said, with respect to the issue of Brubaker's sanity at the time of the offense, that he recognized what he had done was wrong because he attempted to cover up the crime scene. Dr. Crowley concluded that, by the Texas legal definition of insanity, Brubaker was sane at the time of the offense. The record also includes a March 13, 2002, report from Samuel D. Brinkman, Ph.D., a clinical neuropsychologist. In the report, Dr. Brinkman stated that he told Brubaker that he felt Brubaker was able to manage his own affairs but that it would require a great deal of self-discipline and emotional control on his part. Dr. Brinkman indicated that he had discussed with Brubaker the bad decisions that Brubaker had made and that Brubaker promised to try a policy of not making any decisions without first investigating the situation and waiting 24 hours. In a report dated February 17, 2001, Dr. Brinkman refered to Brubaker as having recently attempted suicide and having difficulty learning to adjust to his decline in overall intellectual functioning, management of daily living, management of memory deficits, executive functioning, emotionality, and anger intensity. He also stated in the report that Brubaker had difficulty organizing his thoughts and had a poor ability to maintain concentration and attention. In a speech-language pathology initial evaluation summary from Tangram Premier, the evaluating professional indicated that Brubaker exhibited high level cognitive deficit in executive functions, specifically sustained and divided attention. Guardianship proceedings in the County Court at Law of Taylor County reflect that the court appointed an individual and then later an agency as guardians of Brubaker's estate. In subsequent pleadings filed in April 2002, seeking to restore Brubaker's capacity, Brubaker's attorney stated that he believed Brubaker had the capacity to retain him because Brubaker had retained his services for a worker's compensation claim as well as for the motion for restoration. The proceedings in connection with the restoration do not reflect that an ad litem was appointed in the proceeding or that a licensed physician's report was filed. Additionally, at the plea hearing before the same judge who heard the motion for new trial and after consulting with his attorney, Brubaker stated that he was pleading guilty. He indicated that he understood the written plea admonishment, the range of punishment, and the plea agreement. Brubaker asserted that he was entering his plea of guilty freely and voluntarily. Having considered all of the evidence presented in connection with Brubaker's motion for new trial, we conclude that there was ample evidence from which the trial court could reasonably conclude that Brubaker was competent to stand trial, that Brubaker's guilty plea was knowingly and voluntarily entered, and that he was legally sane at the time of the alleged offense. The record does not show that Brubaker was incompetent to stand trial as a matter of law. Consequently, no error is shown by the trial court's acceptance of Brubaker's plea of guilty or the trial court's failure to grant Brubaker's motion for new trial. Brubaker suggests that the trial court's acceptance of his guilty plea constituted an abuse of discretion by the trial court under the standard announced in Garcia v. State, 595 S.W.2d 538 (Tex.Cr.App. 1980). We find Garcia to be distinguishable. In Garcia, the court granted the defendant's motion for an examination by a psychiatrist. Id. at 540. Both the defendant's mother and wife testified that they had trouble communicating with him. Id. His mother testified that he had previously been hospitalized for a nervous breakdown and that his present behavior evidenced a recurrence. Id. His wife also indicated that his present behavior was the same as his behavior at the time of the nervous breakdown. Id. One of his defense attorneys testified that he was "almost to the point of being catatonic." Id. The attorney stated that he was unable to discuss the facts and the seriousness of the case with his client. Id. He also indicated that he thought his client was losing touch with reality because he thought he could open the jailhouse doors by tying knots in a string. Id. A minister with extensive training in the mental health field who had visited Garcia in jail recounted a conversation with Garcia about how tying some strings together would keep him safe and how, if he touched a certain knot, it would open jailhouse doors. Id. at 540-41. The minister concluded that Garcia was out of touch with reality and incompetent to act in a rational way. Id. at 541. In rebuttal, the State had presented a jailer who testified that he had never observed any unusual behavior on Garcia's part but who acknowledged that he had never had a conversation with him. Id. The record reflects that the trial court's decision not to impanel a jury was based on the report of the psychiatrist who examined Garcia and that the psychiatrist concluded that Garcia was competent to stand trial. Id. However, the report, including its conclusion, was neither admitted nor included in the record. Id. The Garcia court, considering all of the evidence except for the psychiatrist's conclusion, held that the trial court abused its discretion in refusing to impanel a jury on the issue of competency. Id. at 542. In Garcia, the court noted that the only admitted evidence of any significant probative value was to the effect that Garcia was incompetent. Id. In the case at bar, there was abundant evidence, including the examining psychiatrist's report which is contained in this record, that would reasonably support a conclusion that Brubaker was competent at the time of trial. Brubaker insists that the trial court should have granted his motion for new trial because the facts showing that he was under a guardianship, he was unable to make a rational and informed decision as a reasonably prudent person, and his neuropsychologist had advised that he think about important decisions 24 hours before making them rendered his guilty plea involuntary as a matter of law. He also noted that no mental health witness indicated that he was competent at the time of his plea. As to Brubaker's assertion that he was unable to make a rational and informed decision as a reasonably prudent person, the evidence was at best conflicting as to that issue. With respect to the guardianship and the advice that he think about important decisions for 24 hours, we note that there was abundant evidence that, despite either of those considerations, Brubaker was competent to stand trial. Also, as noted by Brubaker, a probate court's order determining one's competency to manage one's own affairs is not evidence of incompetency to stand trial. Koehler v. State, 830 S.W.2d 665, 666-67 (Tex.App.-San Antonio 1992, no pet'n). We overrule issues one and two. The judgment is affirmed.