Opinion
No. 05-03-00452-CR.
Opinion Filed February 2, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F02-34731-KI. Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
OPINION
Vickie Lee Chesko appeals her conviction for aggravated assault. In two issues, she complains she received ineffective assistance of counsel and the trial court erred in failing to sua sponte conduct a competency hearing. We affirm the trial court's judgment. Appellant was placed on deferred adjudication community supervision for five years. Five months later, the State filed a motion to adjudicate appellant guilty, alleging she (1) did not report to the probation officer for two months, (2) did not pay her probation fees, and (3) failed to participate in the Mental Health and Mental Retardation Special Needs Offender Program. At the hearing on the motion to adjudicate guilt, appellant pleaded true to the allegations. She also testified she could not comply with all of her conditions because she was "having an emotional breakdown." She asked the judge to put her back on probation and said she would be willing to comply with all conditions. She stated she wanted "medical help" for her "psychological problems" and had been diagnosed with schizophrenia. The trial judge sentenced appellant to two years in prison. In her first issue, appellant complains she was denied effective assistance of counsel because trial counsel did not (1) object to the trial judge's failure to conduct a punishment hearing and (2) offer testimony in mitigation of punishment. The State first argues we have no jurisdiction over this point because appellant's complaint was part of the adjudication process. We disagree. Although a defendant cannot appeal the trial court's decision to adjudicate guilt, she can appeal aspects of the "second phase to determine punishment." Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001). Here, appellant is not complaining about the decision to adjudicate guilt; she is complaining about punishment issues. Consequently, we have jurisdiction over this issue. To prevail on an ineffective assistance of counsel claim, an appellant has the burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant, that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 466 U.S. 688 (1980)). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. An application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. Although appellate counsel filed a motion for new trial in this case, he did not raise ineffective assistance of counsel as a ground. We note that while a separate punishment hearing was not held after the trial court adjudicated appellant guilty, appellant did testify and offered mitigation evidence about her health problems. It is immaterial that this evidence was presented before the trial court actually adjudicated guilt. Further, there is nothing in the record to show what other evidence appellant would have presented that could or would have impacted the judge's decision on punishment. Under these circumstances, we conclude the first issue is without merit. In her second issue, appellant complains the trial court erred in failing to stop the adjudication hearing and sua sponte conduct a competency inquiry. Again, the State argues we are without jurisdiction to consider this point because it is part of the trial court's decision to adjudicate guilt, which is not appealable. Although the court of criminal appeals has not yet decided this issue, our sister courts are divided. Compare Nava v. State, 110 S.W.3d 491, 493 (Tex.App.-Eastland 2003, no pet.) (concluding article 42.12, section 5(b) prohibition against appealing decisions to adjudicate does not permit appellate court to determine if evidence "brought to the judge's attention" raises a "bona fide doubt" as to defendant's competency to stand trial); Arista v. State, 2 S.W.3d 444, 445-46 (Tex.App.-San Antonio 1999, no pet.) (concluding appellate court had no jurisdiction because court of criminal appeals "has suggested that any decision not related to the trial court's jurisdiction is intrinsically part of the trial court's decision to adjudicate guilt and is therefore not appealable") with Marbut v. State, 76 S.W.3d 742, 747 (Tex.App.-Waco 2002, pet. ref'd) (concluding appellate court had jurisdiction because defendant's issues on appeal pertained to validity of proceedings and not trial court decision to adjudicate guilt); Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.-Amarillo 1993, no pet.) (concluding court had jurisdiction because competency issue was "possible error of constitutional magnitude on the part of the trial court"). After reviewing these cases, we conclude we need not determine the jurisdictional question because even assuming we have jurisdiction, appellant's argument lacks merit. A person is incompetent to stand trial if he does not have (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. Tex. Code Crim. Proc. Ann. art. 46.02, 1A(a) (Vernon Supp. 2004). The trial court must conduct a competency inquiry on whether to hold a jury trial on a defendant's competency "if evidence of the defendant's competency is brought to the attention of the court from any source." McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003). A competency inquiry is required only if the evidence brought to the judge's attention raises a bona fide doubt in the judge's mind about the defendant's competency to stand trial. Id. Evidence is usually 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. We review the trial court's decision under an abuse of discretion standard. See Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999). Appellant complains evidence of her incompetency was raised by the following: (1) she incorrectly stated that she had pleaded no contest to the charge when she had in fact pleaded guilty; (2) she testified she was having an "emotional breakdown" and needed help for her "psychological problems;" (3) she had been diagnosed as schizophrenic at some time in the past; and (4) she was prescribed Zoloft but had not taken it while in jail because she had to see a psychiatrist first. This evidence does not show recent severe mental illness or any bizarre acts by appellant. Prior hospitalizations, treatment for depression, or a determination that a person is mentally ill do not constitute a per se finding that the person is incompetent to stand trial. See Reeves v. State, 46 S.W.3d 397, 399-400 (Tex.App.-Texarkana 2001, pet. dism'd). A defendant's propensity toward depression does not necessarily correlate with his ability to communicate with counsel or his ability to understand the proceedings against him. Moore, 999 S.W.2d at 395. At the hearing, appellant did not appear to be confused at all. She explained why she entered her initial plea; she stated that she went over the motion to adjudicate with her attorney and understood the allegations against her; she stated she understood the criminal penalties; and she understood her rights and waived them. She pleaded true to the allegations in the motion but said she "had circumstances," which she later explained. During her testimony, she was articulate and focused. On cross-examination, she explained that she did not participate in the MHMR special needs program because she was not "comfortable" with the environment and believed her "physical problems outweighed" her drug problems. She told the judge that if he let her out of jail, she would stay at a shelter and when her finances improved, she could "work on other things." Considering the record, there is nothing to suggest appellant did not have (1) sufficient present ability to consult with her lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against her. Under these circumstances, we cannot conclude the trial court abused its discretion in failing to sua sponte conduct an inquiry into appellant's competency to stand trial. We reject her second issue. We affirm the trial court's judgment.