Opinion
No. 04-06-00587-CR
Delivered and Filed: February 20, 2008. DO NOT PUBLISH.
Appealed from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-1149, Honorable Sharon MacRae, Judge Presiding. Affirmed.
Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice (concurring without opinion).
MEMORANDUM OPINION
Appellant Carl Evans was indicted on one felony count of aggravated assault. After withdrawing his original plea of no contest, Evans entered a plea of not-guilty and was subsequently convicted by a jury and sentenced to fifty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Evans asserts ineffective assistance of counsel and due process violations because the trial court failed to sua sponte order a competency hearing. We affirm the judgment of the trial court.
Ineffective Assistance of Counsel
Evans' first two appellate points assert ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. See U.S. Const. amend. VI.A. Standard of Review
To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate, by a preponderance of the evidence, that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). A claim of ineffective assistance of counsel must be "firmly founded in the record" and "the record must affirmatively demonstrate" the meritorious nature of the claim. Thompson, 9 S.W.3d at 813. Counsel's conduct is reviewed with great deference and without "the deleterious effects of hindsight." Id. In assessing any ineffective assistance claim, we apply a strong presumption that trial counsel was competent. Id. at 813. We also presume that trial counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). We also note that a direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim. Raising an ineffective assistance of counsel claim for the first time on appeal deprives counsel of the chance to explain their actions and generally leaves the record undeveloped on this issue. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392.B. Analysis
While the case was pending before the trial court, Evans' trial counsel filed pre-trial motions, cross-examined the State's witnesses, objected to questionable evidence and made arguments to the jury. Evans was convicted on August 17, 2006 and filed a pro se motion for new trial on August 23, 2006. Appellate counsel was appointed on August 28, 2006. The record, however, does not show that the motion for new trial was either heard or ruled on by the trial court. On appeal, Evans asserts his trial counsel erred in failing to subject the State's case to meaningful adversarial testing which resulted in harm to Evans. An appellant must present a record and show harm by the failure to file or act on specific motions. Huynh v. State, 833 S.W.2d 636, 638 (Tex.App.-Houston [14th Dist.] 1992, no pet.); see also Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003) (stating the record was insufficient to support ineffective assistance of counsel claim where the record was silent regarding reason counsel failed to call expert witness, failed to file pre-trial motions, and failed to adequately prepare witnesses); Mares v. State, 52 S.W.3d 886, 891 (Tex.App.-San Antonio 2001, pet. ref'd) (determining failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of trial strategy). Yet Evans encourages this court to avoid the "blow by blow" inquiry into the missteps of trial counsel and the strategic reasons behind counsel's decision making. Instead, Evans suggests an overall review to determine if a fair trial occurred. Considering current case law, we decline the suggestion. This court will not speculate as to what counsel's trial strategy or reasons might have been with regard to the alleged errors. Absent a record to the contrary, we must presume that trial counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-14. The fact that another attorney may have pursued a different course of action, or tried the case differently, does not establish ineffective assistance of counsel. Dickerson v. State, 87 S.W.3d 632, 637 (Tex.App.-San Antonio 2002, no pet.). The record is simply devoid of any explanation of counsel's thought process or trial strategy. Because trial counsel has not had the opportunity to respond to Evans' allegations of ineffective assistance, Evans has failed to overcome the strong presumption that his trial counsel acted reasonably. See Mallett v. State, 65 S.W.3d 59, 67 (Tex.Crim.App. 2001). Further, we can find no act or omission of trial counsel that could be described as "outrageous." See Goodspeed, 187 S.W.3d at 392. Ultimately, the record is silent as to any harm to Evans. Accordingly, we overrule appellate issues one and two.Competency Hearing
Evans next asserts the trial court violated his due process rights by failing to hold an evidentiary hearing once the evidence raised a bona fide doubt as to Evans' competence to stand trial. Additionally, Evans contends the trial court's failure to hold such a hearing violated the mandatory procedures of Texas Code of Criminal Procedure Chapter 46B. We review a trial court's decision to not conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999); Lawrence v. State, 169 S.W.3d 319, 322 (Tex.App.-Fort Worth 2005, pet. ref'd). A trial court abuses its discretion only if its rulings are arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Article 46B.003 provides:(a) A person is incompetent to stand trial if the person does not have:
(1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against the person.
(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.Tex. Code Crim. Proc. Ann. art 46B.003 (Vernon 2006). Either party or the trial court may suggest that the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. Art. 46B.004 (a). "If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial." Tex. Code Crim. Proc. Ann. art. 46B.004(b). Additionally, upon suggestion that the defendant may be incompetent, the court must conduct an informal inquiry into whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004(c). Some evidence is defined as "a quantity more than none or a scintilla that rationally may lead to a conclusion of incompetency." Sisco v. State, 599 S.W.2d 607, 613 (Tex.Crim.App. [Panel Op.] 1980). Simply stated, "the question for the trial court is whether with respect to incompetency there is 'any' evidence or 'no' evidence." Id. If the court determines after an informal inquiry that evidence exists to support a finding of incompetency, the court must order an examination to determine whether the defendant is incompetent to stand trial in a criminal case. Tex. Code Crim. Proc. Ann. art. 46B.005(a). On appeal, Evans asserts that early in the proceedings, the trial court was "placed on clear written notice that Mr. Evans had problems trusting and communicating with counsel, and that he did not have a rational understanding of the facts pertinent to the case." The alleged notice to which appellate counsel points was found in a Motion to Withdraw filed by Evans' previous counsel, over eighteen months prior to the case being called for trial. Although Evans' previous defense counsel raised a concern as to Evans' ability to understand and work with counsel, he provided no evidence supporting this assertion. A statement that a defendant is or may be incompetent is not by itself sufficient to warrant a competency examination. McDaniel v. State, 98 S.W.3d 704, 711 (Tex.Crim.App. 2003). Evans subsequently retained different counsel to represent him during the trial. The record lacks any evidence suggesting Evans was incapable of consulting with his trial counsel or understanding the proceedings against him. Further, Evans' trial counsel informed the trial court that he believed Evans to be competent and that Evans was able to assist him in the preparation of the case. Evans did not provide any evidence, either on appeal or during trial, that he lacked either the ability to consult with his attorney or an understanding of the proceedings against him. We, therefore, hold that the trial court did not abuse its discretion in failing to conduct a competency examination based on the allegations raised by Evans' prior counsel. Moreover, Evans made an articulate and well reasoned argument for the trial court to allow him to withdraw his guilty plea and proceed to trial by jury. His own statements suggest that he read and understood the statements taken during the investigation of the case and understood the charges against him. The trial court proceedings do not evince any conflicts between Evans and his trial counsel. Further, Evans filed a pro se Motion for New Trial asserting, among other things, his attorney's ineffective assistance of counsel. Each of these events demonstrates a clear comprehension of the proceedings. There is simply no testimony suggesting that Evans lacked a rational understanding of the case against him. See Tex. Code Crim. Proc. Ann. art. 46B.003(a). After a review of the record, we conclude that the trial court did not abuse its discretion by failing to sua sponte conduct a competency examination because nothing was raised requiring the trial court to do so. See Tex. Code Crim. Proc. Ann. art. 46B.003(a). Because the trial court did not abuse its discretion, we overrule Evans' remaining two issues on appeal.