No. 05-09-00379-CR
Opinion filed August 8, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F04-00434-WM.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
Opinion By Justice MOSELEY.
Appellant Miles Dean Fleming was charged with the July 2003 aggravated assault of Henry Davidson, a co-worker. Appellant was arrested and indicted in April 2004, and tried in 2009. A jury convicted appellant of aggravated assault and made a deadly weapon finding. His sentence was enhanced by two prior convictions. Appellant was sentenced to thirty years' imprisonment, and given back-time credit. In four issues, appellant contends: he was denied his right to a speedy trial as guaranteed by the Sixth Amendment; a report concerning his competency to stand trial was not filed, violating the code of criminal procedure; the trial court erred in allowing appellant to represent himself; and he is entitled to additional back-time credit. For the reasons set forth below, we affirm.
I. SPEEDY TRIAL
On September 7, 2004, while he was represented by counsel, appellant filed a pro se "Motion to Dismiss" asserting the State's delay in announcing ready for trial entitled him to dismissal pursuant to article 32A.02(1) of the code of criminal procedure. The record does not indicate the motion was ever presented to the trial court. In his second issue, appellant contends he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. Leaving aside the issue of hybrid representation, because appellant pursued his speedy trial motion in the trial court under the "Speedy Trial Act" and not on constitutional grounds, his issue on appeal does not comport with his trial objection. See Dunn v. State, 819 S.W.2d 510, 526 (Tex. Crim. App. 1991). Consequently, nothing is presented for review. See id. We resolve appellant's second issue against him. II. COMPETENCY REPORT
In March 2008, the trial court found appellant incompetent to stand trial and ordered him committed to the Vernon Campus of the North Texas State Hospital for a period not to exceed 120 days from admission. See Tex. Code Crim. Proc. Ann. arts. 46B.071 (West 2006), .073 (West Supp. 2010). On March 19, 2009, the trial court signed a "Judgment Restoring Competency Based on Report." Trial commenced March 23, 2009. Appellant's third issue states: "A report finding competency by the head of Vernon Treatment Facility was not filed" in violation of chapter 46B ("Incompetency to Stand Trial") of the Texas Code of Criminal Procedure. Although appellant's brief cites article 46B.080(b), the State argues, and we agree, that the provision relevant to appellant's argument is article 46B.079(b). Article 46B.079(b) provides for notification from the head of the facility or outpatient treatment program provider as follows: the provider "shall notify the court" that the head of the program believes that the defendant either has attained competency to stand trial or will not attain competency in the foreseeable future. Tex. Code Crim. Proc. Ann. art. 46B.079(b) (West Supp. 2010). It does not require that a "report" be "filed." The trial court's March 19, 2009 order recites, in pertinent part: [T]he head of that facility [i.e., Vernon Campus], having reported to this Court that said Defendant is now competent to stand trial; and a copy of said report having been served on the District Attorney and the attorney for the Defendant; and fifteen days from the date of such service having expired with no objections to the report having been presented, in writing or in open court, by the District Attorney or the attorney for the Defendant; and this [C]ourt having examined the report, and it appearing to the Court that the Defendant is presently competent; . . .
and ordered that appellant "is now competent to stand trial. . . ." Because the record shows the trial court was notified by the head of the Vernon facility that appellant was competent to stand trial, we conclude the record shows compliance with article 46B.079(b). We resolve appellant's third issue against him. III. SELF-REPRESENTATION AT TRIAL
In his fourth issue, appellant contends the trial court erred in allowing him to represent himself at trial. As discussed below, appellant's argument focuses on his competency to decide to represent himself and on certain conduct during trial. A. Applicable Law and Standard of Review
The Sixth and Fourteenth Amendments to the United States Constitution guarantee that a person brought to trial in any state or federal court may dispense with counsel and make his own defense. Faretta v. California, 422 U.S. 806, 818-20 (1975); Moore v. State, 999 S.W.2d 385, 386 (Tex. Crim. App. 1999); see U.S. Const. amends. VI, XIV. Such a decision, to be constitutionally effective, must be made: (1) competently, (2) knowingly and intelligently, and (3) voluntarily. Godinez v. Moran, 509 U.S. 389, 400-01 (1993); Faretta, 422 U.S. at 834-36; see Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp. 2010). The decision to waive counsel and proceed pro se is made "knowingly and intelligently" if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation. Moore, 999 S.W.2d at 409 n. 5 (citing Faretta, 422 U.S. at 834-36). The decision is made "voluntarily" if it is uncoerced. Id. (citing Godinez, 509 U.S. at 401 n. 12). The standard of competency to waive counsel is the same as that required to stand trial or to plead guilty: whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. See Godinez, 509 U.S. at 395 (citing Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)). In addition, judges are permitted to "take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so." Indiana v. Edwards, 554 U.S. 164, 177-78 (2008). Whether a party is competent to proceed pro se is a mixed question of law and fact turning on an evaluation of credibility and demeanor; thus, we review the trial court's ruling on the issue for an abuse of discretion. See Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010). We afford almost total deference to the trial court's rulings when the resolution of the issue turns on an evaluation of credibility and demeanor, and we view the evidence in the light most favorable to those rulings. Id. We imply any findings of fact supported by the evidence and necessary to support the ruling when the trial court failed to make explicit findings. Id. B. Discussion
The record shows that motions to withdraw by two attorneys, in 2007 and 2008, were granted. We noted above that appellant was determined to be incompetent to stand trial and committed to a state hospital in March 2008. In November 2008, a third attorney, Catherine Bernhard, was the subject of appellant's motion to dismiss counsel, and in January 2009, Bernhard also filed a motion to withdraw. The trial court heard Bernhard's motion and orally denied it, commending her legal experience and skills to appellant. On March 12, 2009, the trial court heard appellant's request to represent himself. Appellant told the trial court he had a tenth grade education and had obtained his GED. The trial court advised appellant he would be held to the same standard as an attorney and said that Bernhard would be second chair "to assist" appellant "on evidentiary procedures and things of that nature." The trial court then took the request under advisement and said he would have appellant evaluated and make his decision after receiving the psychiatrist's report. As noted above, the record includes a psychiatric evaluation, dated March 19, 2009. We have noted above the March 19, 2009 order finding appellant to be competent to stand trial. On March 20, 2009, the trial court resumed hearing appellant's request to represent himself. In response to the trial court's questions, appellant said he understood the range of punishment, acknowledged the trial court could not help him "in any aspect in this trial," and stated he was making the request "freely and voluntarily." The trial court opined that appellant was "literate, competent as evidenced by [the psychiatrist]'s evaluation understanding [sic]." The trial court orally granted appellant's motion to represent himself. Appellant also signed a "Waiver of Right to Representation by Counsel," which recited that he had been advised of his right to representation by counsel and that if he were unable to afford counsel, one would be appointed free of charge. Appellant waived that right and requested the court to proceed without an appointed attorney, and further, "I hereby waive my right to counsel." The waiver is also signed by the trial court below a paragraph stating he "having advised the Defendant of the nature of the charge pending against the Defendant, and the dangers and disadvantages of self-representation, finds the waiver is voluntarily and intelligently made." Bernhard assisted appellant at the trial. Appellant acknowledges that he was warned of the consequences of self-representation. However, appellant first argues the trial court erred in allowing him to represent himself; he argues "his mental illness prevented him from proceeding with `his eyes open' about self-representation." Appellant's reliance on a March 2008 report that he was incompetent to stand trial does not avail him here, as he was subsequently found competent to stand trial, a decision he does not attack on appeal. Appellant also directs us to the March 2009 psychiatric evaluation, which stated that appellant "does have a potentially severe mental illness, most probably schizoaffective disorder, but he can consult with counsel in a rational and reasonable manner, should he choose to do so." Further, "[h]e is taking antipsychotic medicine, and this is necessary to maintain his competency." Appellant does not point to any evidence that he was not able to maintain his competency to exercise his right to self-representation. See Dunn, 819 S.W.2d at 521-22 (evidence before trial court when appellant elected self-representation included prior psychiatric evaluation describing "antisocial personality disorder" but stating he was competent to stand trial). Next, appellant argues that during the trial, "it was obvious he did not understand the consequences of representing himself or even how to represent himself." In support of that argument, appellant relies on the circumstances during the trial regarding his testifying. The record shows appellant said he wanted to testify, but then rested and closed without doing so. Before the charge was read to the jury, the court considered and denied appellant's request to reopen to permit other witnesses to testify, but there appellant did not raise the issue that he would testify. At the punishment phase, he asked why he could not testify, and the trial court reminded him of the above sequence of events; appellant then said, "I didn't know how certain things — I didn't know how things worked about representing yourself." As pointed out in Godinez, 509 U.S. at 399, "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." The Supreme Court has reiterated that "technical legal knowledge" is "not relevant" to the determination whether a defendant is competent to waive his right to counsel. See id. at 400, Faretta, 422 U.S. at 836. Here, the record shows the trial court took "realistic account" of appellant's mental competence by considering the psychiatric evaluation. See Edwards, 554 U.S. at 177-78. Because the record does not show the trial court abused its discretion in allowing appellant to represent himself, we resolve appellant's fourth issue against him. IV. BACK-TIME CREDIT
At sentencing, the trial court pronounced sentence of thirty years and said, "Your sentence will commence today, however, you will be given credit for every day you have spent in jail on this case." In the judgment, the trial court gave back-time credit beginning April 27, 2004. In his first issue, appellant argues he is entitled to additional back-time credit. Article 42.01, section 1(18) of the code of criminal procedure provides that the sentence served shall be based on the information contained in the judgment, and the judgment shall reflect the date sentence is to commence and any credit for time served. Tex. Code Crim. Proc. Ann. art. 42.01, § 1(18) (West Supp. 2010). Article 42.03, section 2(a)(1) provides that a defendant shall be given credit on his sentence for the time the defendant has spent "in jail for the case," subject to an exception not applicable here, from the time of his arrest and confinement until his sentence by the trial court. Id. art. 42.03, § 2 (a)(1) (West Supp. 2010). Appellant argues he was arrested on April 9, 2004, and is thus entitled to an additional eighteen days of back-time credit. In support of this contention appellant refers to his pro se "Motion to Reduce Bail" in which he stated he was arrested on April 9, 2004, and that he "has now been confined for a period in excess of 90-days. . . ." This document has no file stamp, although it is part of the Clerk's Record. It is not sworn, is not supported by evidence, and nothing in the record shows it was presented to or heard by the trial court. The record includes the indictment, including a copy of the reverse side file-stamped April 19, 2004; the trial court's docket sheet notes April 19, 2004 as the date of filing, with the notation "reindictment." Appellant relies on Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd), for the proposition that this Court has the authority to reform a judgment when it has all the information necessary to make the judgment speak the truth. However, appellant relies on an allegation in a pleading, not evidence, that he was jailed for this case beginning on April 9, 2004. See Tex. Code Crim. Proc. art. 42.03, § 2(a)(1); see also Nelson v. State, 629 S.W.2d 888, 890 (Tex. App.-Fort Worth 1982, no pet.) ("A motion, sworn or otherwise, is not evidence. . . ."). We conclude the record as to appellant's entitlement to back-time credit does not meet the Asberry standard. We resolve appellant's first issue against him. V. CONCLUSION
Having resolved appellant's four issues against him, we affirm the trial court's judgment.