Opinion
No. 4-05-00478-CR
Delivered and Filed: June 21, 2006. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-0370, Honorable Mary Roman, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Ethyl Mae Hill pled no contest to the charge of murder in the first degree and was sentenced by the trial court to twenty years confinement pursuant to a plea bargain agreement. In two issues on appeal, Hill complains: 1) the trial court erred in refusing to include her presentence report in the appellate record; and 2) she was denied effective assistance of counsel. We affirm the judgment of the trial court.
Presentence Investigation Report
In her first issue, Hill contends that the trial court erred in refusing to include her presentence investigation (PSI) in the appellate record. At the conclusion of the hearing on Hill's motion for new trial, defense counsel's request to have the PSI included in the appellate record was denied. Hill argues that because she suffers from a mental impairment, the trial court was "required to order the preparation of a presentence report." See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(i) (Vernon Supp. 2005) (a presentence investigation conducted on a defendant convicted of a felony offense who appears to have a mental impairment shall include a psychological evaluation which determines defendant's IQ and adaptive behavior score). The record reflects, however, that the trial court did order a PSI and also reviewed it in determining the appropriate punishment for Hill. Hill's argument then, is that the trial court erred in denying her oral request to have the PSI included in the clerk's record for review on appeal. The burden is on the appellant to have the PSI included in the appellate record. See Dalgleish v. State, 787 S.W.2d 531, 537 (Tex.App.-Beaumont 1990, pet. ref'd). Inclusion of the PSI in the appellate record is not automatic; the rules of appellate procedure state that a request for inclusion of items in the clerk's record must be written and specific. See Tex.R.App.P. 34.5(b)(1), (2). Because Hill did not make a written request for the inclusion of the PSI, we hold that the trial court did not err in denying Hill's oral request. Under rule 34.5(c)(1), we could direct the trial court to supplement the record by including the PSI. See Id. at 34.5(c)(1) (if a relevant item has been omitted from the clerk's record, the appellate court may by letter direct the trial court to prepare, certify, and file in the appellate court a supplement containing the omitted item). It is clear from a review of the record, however, that the PSI is not necessary to the resolution of this appeal. See Jackson v. State, 989 S.W.2d 842, 846-47 (Tex.App.-Texarkana 1999, no pet.). The trial court was aware of Hill's mental impairment, stating, "not only does she have a mental health problem[,] but she is also mentally retarded." We must assume that the trial court considered the PSI, including its assessment of Hill's mental health, when pronouncing Hill's punishment. Hill's first issue is overruled.Ineffective Assistance of Counsel
In her second issue, Hill argues that she was denied her constitutional right to effective assistance of counsel. The United States and Texas Constitutions guarantee the right to reasonably effective counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. The standard for an ineffective assistance of counsel claim is set out in Strickland v. Washington, 466 U.S. 668 (1984), and was adopted by Texas in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986). The Strickland standard applies at both the guilt-innocence and punishment phases of a trial. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). To reverse a criminal defendant's conviction on the grounds of ineffective assistance of counsel, 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 under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88; Hernandez, 726 S.W.2d at 55. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Whether this standard has been met is judged by "the totality of the representation." Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). To prevail on a claim of ineffective assistance of counsel, the defendant must identify in the record the acts or omissions of counsel that are alleged to have been the result of unreasonable professional judgment. Strickland, 466 U.S. at 690; Thompson v. State, 9 S.W.3d at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Hill's first basis for her claim of ineffective assistance is counsel's failure to offer evidence of self-defense at punishment. Hill pled no contest to the charge of murder and waived a jury trial. The legal effect of a nolo contendere plea is the same as that of a guilty plea. Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989). Self-defense is a defense to a prosecution for an offense. See Tex. Pen. Code Ann. §§ 2.03, 9.02, 9.32 (Vernon 2003). By pleading "no contest," Hill indicated that she did not intend to contest the charged offense by trying to establish a defense or justification. See State v. Masonheimer, 154 S.W.3d 247, 252 (Tex.App.-Eastland 2005, pet. granted). Furthermore, there is no requirement that the jury, or in this case the trial court, be instructed as to a defense after the defendant has already been convicted and the jury, or trial court, is assessing punishment. See Patterson v. State, 788 S.W.2d 220, 221 (Tex.App.-Fort Worth 1990, pet. filed). Once the trial court found Hill guilty and the guilt-innocence portion of the proceedings was complete, there was no reason for counsel to present a defense on Hill's behalf. Because counsel could not raise the issue of self-defense at punishment, he was not ineffective in failing to do so. Hill next complains of counsel's failure to offer evidence at punishment that she committed murder under the influence of sudden passion arising from adequate cause. At the punishment stage of a murder trial, "the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause." Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). Unlike self-defense, sudden passion is a mitigating factor which, if proven, reduces the offense of murder to a felony of the second degree. Id; see also Jackson v. State, 160 S.W.3d 568, 573 (Tex.Crim.App. 2005). The Penal Code defines "sudden passion" as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Tex. Pen. Code Ann. § 19.02(a)(2). "Adequate cause" means "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id. § 19.02(a)(1). If a defendant presents evidence raising the issue of sudden passion, she is entitled to an instruction on this mitigating circumstance, even if the evidence raising such an issue is contradicted, weak, impeached, or unbelievable. Treviño v. State, 100 S.W.3d 232, 238 (Tex.Crim.App. 2003). The record in this case indicates that counsel did in fact raise the issue of sudden passion during sentencing. Counsel argued that Hill, a paranoid schizophrenic, feared that the decedent was breaking into her apartment to steal her television. He claimed that Hill's statement to the decedent after the stabbing, "[w]hy did you make me do this to you?," is evidence that the murder was committed in response to sudden passion arising from adequate cause. Evidence of fear alone is insufficient to raise sudden passion. See Moore v. State, 694 S.W.2d 528, 530 (Tex.Crim.App. 1985). Counsel also argued that Hill had suffered past physical and sexual abuse and that this trauma conditioned her to respond in a violent manner. Sudden passion, however, must be directly caused by and arising out of provocation by the person killed. See Tex. Pen. Code Ann. § 19.04(b) (Vernon 2003); see also Hernandez v. State, 127 S.W.3d 206, 213 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). There is no evidence in the record that the decedent physically or sexually abused Hill. Since there was no evidence raising the issue of sudden passion, we cannot conclude that trial counsel's performance was deficient for failing to request such an instruction. Hill next faults counsel for failing to offer evidence at punishment that she was mentally ill and mentally retarded. The record from the sentencing proceeding, however, makes clear that counsel did argue extensively to the court regarding Hill's mental condition: "We're talking about the state of mind of a person who is mentally retarded and is suffering from severe mental illness, who suffers from hallucinations." "The fact that [Hill] is severely mentally ill [and] is also mentally retarded goes a long way to reducing her moral culpability." While counsel argued that Hill had a history of mental illness, including schizophrenia, both the State and defense experts reported that she was competent to stand trial and was legally sane. At the hearing on the motion for new trial, counsel testified that it was his strategic decision not to call his psychiatric expert, Dr. Rosenthal, to testify at punishment because Dr. Rosenthal did not believe that Hill was mentally retarded. Furthermore, in assessing punishment at twenty years confinement, the trial court stated that when a person with a mental health problem refuses to take medication, the safety of the community becomes a concern. Clearly, the trial court was fully aware of Hill's mental impairment. Accordingly, Hill's claim that trial counsel did not offer evidence of her mental condition at the punishment phase has no merit, and fails to satisfy the deficiency prong of Strickland. Finally, Hill argues that her mental illness and mental retardation prevented her from knowingly, intelligently, and voluntarily entering her plea of nolo contendere. When a defendant challenges the voluntariness of her plea based on ineffective assistance of counsel, she must establish: (1) counsel's advice was not within the range of competence demanded of attorneys in criminal cases, and (2) there is a reasonable probability that, but for counsel's errors, she would not have pled no contest and would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Hill's plea of nolo contendere had the same legal effect as that of a guilty plea. Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989). It is well-settled that a guilty plea must be intelligently, knowingly, and voluntarily made. See Brady v. United States, 397 U.S. 742, 748 (1970); Mitschke v. State, 129 S.W.3d 130, 132 (Tex.Crim.App. 2004). When the record reflects that the defendant was properly admonished, it presents a prima facie showing that a guilty plea was knowing and voluntary. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998); Crawford v. State, 890 S.W.2d 941, 944 (Tex.App.-San Antonio 1994, no pet.). The burden then shifts to the defendant to show the plea was not voluntary. See Cantu v. State, 993 S.W.2d 712, 717 (Tex.App.-San Antonio 1999, pet. ref'd). The record reflects that Hill was admonished both orally and in writing. Hill and her attorney signed the "Court's Admonishment and Defendant's Waivers and Affidavit of Admonitions." She also signed a waiver and consented to stipulated evidence. Hill was further admonished by the trial court as to the voluntary nature of her plea:The Court: Do you understand that a plea of no contest has the same legal effect as a plea of guilty?
Hill: Yes, ma'am.
The Court: And did anyone force you to enter into that plea?
Hill: No, ma'am.
The Court: Or mistreat you in any way?
Hill: No, ma'am.
The Court: Are you pleading no contest freely and voluntarily?
Hill: Yes, ma'am.
The Court: And are you pleading no contest because you have discussed this with your attorney and believe that this is in your best legal interest?
Hill: Yes, ma'am.Because the record shows that Hill was duly admonished, the burden shifts to her to show that her plea was involuntary. Cantu, 993 S.W.2d at 716-17. Hill claims that her mental impairment prevented her from understanding the proceedings. Specifically, Hill claims she would not have entered her plea if she had understood the terms of the plea bargain agreement, or if she had known that her attorney would not offer any evidence or testimony at her punishment hearing. At the hearing on the motion for new trial, counsel testified that he discussed the plea bargain with Hill and that she decided to plead no contest in the hope that she would receive less than a twenty-year sentence. Counsel also testified that he informed Hill of the full range of punishment she faced if she elected to go to trial, which was five years to ninety-nine years or life. He stated that, in his opinion, proceeding to trial would have been risky because Hill refused to testify and also had trouble controlling her emotional outbursts. Further, an attorney's failure to investigate or present witnesses will be a basis for establishing ineffective assistance of counsel only where it is affirmatively shown that the presentation of that evidence would have benefitted appellant. See Ex parte Cruz, 739 S.W.2d 53, 59 (Tex. Crim App. 1987), overruled on other grounds by Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999). Hill made no such showing here; in fact, all of the witnesses to the crime gave police statements incriminating Hill. Hill's police confession was also included in the record. There is simply no evidence in the record that counsel's advice led Hill to enter an involuntary plea. Hill's claim of ineffective assistance of counsel is therefore overruled.