Nos. 05-08-00019-CR, 05-08-00020-CR, 05-08-00021-CR, 05-08-00022-CR, 05-08-00023-CR, 05-08-00024-CR
Opinion Filed February 3, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F-06-63248-U, F-06-63299-U, F-06-67465-U, F-06-67466-U, F-06-67558-U, and F-06-67569-U.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
ELIZABETH LANG-MIERS, Justice.
This is a consolidated appeal of six cases, in which appellant was convicted on one count of failing to register as a sex offender, three counts of indecency with a child by contact, and two counts of aggravated sexual assault of a child younger than fourteen years of age. Appellant waived trial by jury, waived his right to have his cases heard separately, signed judicial confessions, pleaded true to enhancement allegations, and pleaded guilty in each case. During appellant's plea hearing, appellant's counsel assured the magistrate judge that appellant was competent, and appellant answered, "Yes, Ma'am," when the magistrate judge asked him if he "understood everything that's gone on today in court." The magistrate judge made an affirmative finding that the evidence proved beyond a reasonable doubt that appellant is mentally competent. The trial court accepted appellant's pleas, found him guilty in each case, and heard punishment evidence. Appellant was sentenced to ten years in prison and a $2,000 fine for failing to register as a sex offender. In each of the five other cases, the trial court sentenced appellant to life in prison and a $2,000 fine. The trial court also ordered the life sentences to run consecutively. Appellant filed motions for new trial in each case, on the "sole ground" that "the evidence is legally insufficient to support the convictions." Those motions were overruled by operation of law.
Appeal number 05-08-00019-CR, trial court cause number F-06-63248-U.
In appeal number 05-08-00020-CR, trial court cause number F-06-63299-U, the offense was committed on March 3, 2006, and the complainant was E.M. In appeal number 05-08-00022-CR, trial court cause number F-06-67466-U, the offense was committed on May 20, 2006, and the complainant was N.V. In appeal number 05-08-00023-CR, trial court cause number F-06-67558-U, the offense was committed on May 15, 2006, and the complainant was R.P.
In appeal number 05-08-00021-CR, trial court cause number F-06-67465-U, the offense was committed on May 5, 2006, and the complainant was R.P. In appeal number 05-08-00024-CR, trial court cause number F-06-67569-U, the offense was committed on May 1, 2006, and the complainant was D.S.
Issues on Appeal
Appellant raises five issues in this consolidated appeal. In his first issue, appellant argues that the trial court erred by not conducting an informal inquiry as to whether some evidence existed that would support a finding that appellant was not competent to stand trial. In his second issue, appellant argues that his guilty pleas were not knowing and voluntary because he is mentally impaired and learning disabled. In his third issue, appellant argues that his guilty pleas in the five sex-offense cases were not freely and voluntarily entered because he was unaware that the trial court could order his sentences to run consecutively. In his fourth issue, appellant argues that his convictions must be reversed because the record does not affirmatively demonstrate that he had a full understanding of his guilty pleas and their consequences. In his fifth issue, appellant argues that his pleas in the five sex-offense cases were not knowingly and voluntarily entered because the magistrate failed to admonish him regarding the full range of punishment, including the fact that the trial court could order his sentences to run consecutively. Analysis
In his first issue, appellant argues that the trial court erred when it failed to conduct, on its own motion, an informal inquiry into his competency pursuant to article 46B.004 of the Texas Code of Criminal Procedure. In response, the State argues that appellant has not preserved this issue for appellate review. Alternatively, the State argues that the trial court was not required to conduct an informal inquiry in this case. It is undisputed that appellant did not raise the issue of his competency at any time in the trial court and that he and his counsel affirmatively told the court that he was competent. Some appellate courts have addressed a criminal defendant's claim of incompetence for the first time on appeal. See Hall v. State, 766 S.W.2d 903, 905-07 (Tex.App.-Fort Worth 1989, no pet.) (appellant challenged competence to enter guilty plea for first time on appeal); Higgins v. State, No. 08-03-00171-CR, 2004 WL 1535609, at *2 (Tex.App.-El Paso July 8, 2004, no pet.) (not designated for publication) (same). Conversely, in Means v. State, 955 S.W.2d 686, 689 (Tex.App.-Amarillo 1997, pet. ref'd), the court held that the appellant did not preserve error arising from the trial court's failure to convene a competency hearing because the appellant did not file a motion suggesting he was incompetent, did not request a competency hearing, and did not object to the trial court's failure to conduct a competency hearing. But even if we assume, without deciding, that appellant can raise this issue for the first time on appeal, we conclude that the trial court did not err. We review a trial court's decision not to conduct an informal 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 cannot accept a plea of guilty "unless it appears that the defendant is mentally competent and the plea is free and voluntary." Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2008). 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. Id. art. 46B.003(b) (Vernon 2006). A defendant is incompetent to stand trial if he lacks (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. Id. art. 46B.003(a). Either party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial. Id. art. 46B.004(a). If evidence suggesting the defendant may be incompetent to stand trial 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. art. 46B.004(b). On suggestion that the defendant may be incompetent to stand trial, 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. art. 46B.004(c). An informal inquiry is not required, however, unless the evidence is sufficient to create a bona fide doubt in the mind of the trial court about whether the defendant is legally competent. McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003). "Evidence is usually sufficient to create a bona fide doubt [regarding competency] if it shows `recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.'" Id. Evidence capable of creating a bona fide doubt about a defendant's competency may come from the trial court's own observations, known facts, evidence presented, motions, affidavits, or any other claim or credible source. Brown v. State, 129 S.W.3d 762, 765 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Appellant argues that the trial court should have conducted an informal inquiry into his competency because (1) he had an IQ of 65, (2) his mother testified that he "acted child-like and responded `very slow,'" and (3) his psychological records introduced into evidence by the State "revealed that he had difficulty in understanding `. . . ideas that were abstract or multi-faceted and difficulty in comparing and contrasting verbal concepts at an average level.'" In response, the State argues that an informal inquiry was not warranted for several reasons. First, the State notes that appellant and his counsel repeatedly assured the trial court, both orally and in writing, that appellant was competent and understood the proceedings, including the consequences of his pleas and the punishment ranges, and was pleading guilty freely and voluntarily. And although "at least moderate retardation" may be sufficient to create a bona fide doubt about a defendant's competence, the State also notes that appellant's IQ only demonstrated mild retardation. The State also notes that the detective who arrested appellant testified that he did not observe anything about appellant that indicated that appellant was mentally challenged, and appellant appeared to understand what was happening and knew that his conduct was wrong. Finally, the State also notes that the judge heard evidence that appellant was able to live on his own, take public transportation, and write out a statement to police in his own handwriting. After reviewing the record, we conclude that there is no evidence in the record to suggest, or raise a bona fide doubt, that appellant lacked (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. See Tex. Code Crim. Proc. Ann. art. 46B.003(a). There is no evidence indicating recent severe mental illness, moderate mental retardation, or truly bizarre acts by appellant. See Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App. 1997); Salahud-din v. State, 206 S.W.3d 203, 209 (Tex.App. -Corpus Christi 2006, pet. ref'd). Moreover, there is no evidence that appellant was incapable of consulting with his counsel or understanding the proceedings against him. 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."). Consequently, we cannot say that the trial court abused its discretion in failing to conduct an informal inquiry into appellant's competence. We overrule appellant's first issue. In his second, third, and fifth issues, appellant argues that his guilty pleas were not voluntary because he is mentally impaired and learning disabled and he was unaware that his sentences could be cumulated or stacked by the trial court. As a threshold matter, we consider whether appellant preserved error on these issues. Appellant did not complain to the trial court about the voluntariness of his guilty pleas either before or after his sentencing, including in his motion for new trial. Under Texas Rule of Appellate Procedure 33.1, a party must first complain to the trial court and obtain a ruling in order to preserve most complaints for appellate review. See Tex. R. App. P. 33.1. The court of criminal appeals and this Court have held that the rule 33.1 requirement of preservation of error applies to complaints about the voluntariness of a guilty plea. See Mendez v. State, 138 S.W.3d 334, 339, 350 (Tex.Crim.App. 2004); Aldrich v. State, 53 S.W.3d 460, 468-69 (Tex.App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App. 2003). We conclude that appellant has not preserved his complaints about the voluntariness of his guilty pleas for appellate review. In his fourth issue, appellant argues that his convictions must be reversed because the record does not affirmatively demonstrate that he had a full understanding of his guilty pleas and their consequences. In response, the State argues that appellant did not preserve this issue for appellate review. Alternatively, the State argues that the record affirmatively shows that appellant understood his guilty pleas and their consequences. Appellant did not complain to the trial court at any time about the court's acceptance of his guilty pleas, including in his motion for new trial. Appellant does not contend that he preserved this issue for appellate review or argue that it may be raised for the first time on appeal. And the court of criminal appeals has held that in order to preserve a complaint that a trial court should have sua sponte withdrawn a guilty plea, the complaint must be raised in trial or in a motion for new trial. Mendez, 138 S.W.3d at 339, 350. We conclude that appellant has not preserved this issue for our review. See Tex. R. App. P. 33.1.Conclusion
We overrule appellant's issues and affirm the trial court's judgments.