Melgar v. State

Full title: EDUARDO SANTOS MELGAR, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Sep 25, 2003

No. 14-02-00646-CR (Tex. App. Sep. 25, 2003)

Opinion

No. 14-02-00646-CR

Memorandum Opinion filed September 25, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause No. 851,955.

Panel consists of Chief Justice BRISTER and Justices FOWLER and EDELMAN.

MEMORANDUM OPINION

WANDA McKEE FOWLER, Justice.

A jury found appellant guilty of sexual assault and assessed punishment at twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division and a $10,000.00 fine. Appellant complains that (1) the trial court erred by failing to conduct a competency inquiry, (2) appellant's attorney committed two acts of ineffective assistance of counsel, and (3) the trial court erred by neglecting to instruct the jury on the State's burden-of-proof regarding extraneous offenses during punishment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant and the complainant's family attended the same church. After becoming friends, appellant asked the complainant's father if someone in the family could help him become more proficient in English. The family sent the complainant to tutor appellant on a weekly basis. Appellant manipulated the complainant by telling her that intercourse with him would cure her acne, and it "was God's will." Appellant was charged with sexual assault. Before trial, appellant's two attorneys requested psychiatric examinations of appellant because he repeatedly quoted the Bible and had "lost touch with reality." Both times the psychiatrist found appellant sane and competent. At trial, the jury found appellant guilty of sexual assault. During the punishment phase, the State mentioned previous bad acts related to the offense. The State referred to oral sex, alcohol, and pornography. The trial court failed to instruct the jury on the burden-of-proof required for prior bad acts.

DISCUSSION

Appellant raises three points of error. First, appellant contends the trial court abused its discretion by failing to conduct a Section 2 competency inquiry. Tex. Code Crim. Proc. Ann. art. 46.02, § 2(a) (Vernon 1979). Second, appellant contends he received ineffective assistance of counsel because his attorney failed to request a mental health expert and failed to object to the State's closing argument. Finally, he argues the trial court erred by not instructing the jury on the State's burden-of-proof regarding extraneous offenses during punishment.

I. Competency Inquiry

A defendant lacks competency 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. Id. § 1A(a) (Vernon Supp. 203). The issue of competency may be raised before or during trial. See id. § 2(a), (b). When raising the issue of competency before trial, Texas Code of Criminal Procedure article 46.02, section 2(a) applies. It provides the following:

The issue of the defendant's incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.

Id. § 2(a). Another provision in the Code provides for a mandatory incompetency hearing if during trial, the court determines evidence of incompetency exists.¹ See Tex. Code Crim. Proc. Ann. art. 46.02, § 4 (Vernon 1979 Supp. 2003); see also McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003). The Texas Court of Criminal Appeals has interpreted Section 2 to require the trial court to conduct an inquiry "if evidence of the defendant's incompetency is brought to the attention of the court from any source." McDaniel, 98 S.W.3d at 710 (citing Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App. 1997) (citations omitted)). "A Section 2 or '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. (citations omitted). In fact, the Texas Court of Criminal Appeals presented five requirements that each must be fully satisfied before advancing to the next step. See id. at 711. The requirements include the following:

1) if a competency issue is raised by the defendant, any party, or the court; and

2) evidence of incompetency is brought to the attention of the trial court by the defendant, any party, or the court;

3) of the type to raise a bona fide doubt in the judge's mind regarding the defendant's competency to stand trial; then

4) the judge must conduct a Section 2 "competency inquiry" to determine if there is some evidence sufficient to support a finding of incompetence, and if there is,

5) the judge must impanel a jury for a Section 4 "competency hearing."

McDaniel, 98 S.W.3d at 710-11 (emphasis in original). Before a trial court is required to conduct a competency inquiry, appellant must satisfy the first three requirements of McDaniel. Id. Here, appellant established only the first step. Appellant's counsel, on two occasions, made a motion for a psychiatric examination. This satisfied the first step — raising the issue of competency. Id. The motions included counsel's argument that, "[t]he defendant has lost touch with reality. He cannot respond to plea negotiations." On both occasions, the trial court granted the motions, and a psychiatrist evaluated appellant. Twice, the psychiatrist found appellant competent and sane. The psychiatrist found appellant could consult with his attorney to a reasonable degree and could understand the legal proceeding against him. The psychiatrist's reports were the only evidence before the trial court, and those reports were evidence of competency. Appellant never brought evidence of incompetency to the attention of the trial court. See McDaniel, 98 S.W.3d at 710.² Even though appellant satisfied the first requirement, he did not satisfy the second and third requirements — mandating the trial court to conduct a competency inquiry. See id. at 711 (holding that "[a]ppellant fulfilled step one, but when no evidence was brought to the trial court's attention to raise a bona fide doubt about his competency to stand trial, steps two and three were not satisfied"). Neither the motion nor the psychiatric evaluation, by themselves, require the trial court to conduct a competency inquiry. See id. We overrule appellant's first issue.

II. Ineffective Assistance of Counsel

Next, appellant raises two issues complaining of ineffective assistance of counsel. The standard for determining whether a defendant has received ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 694 (1984). See also Massaro v. U.S., 123 S.Ct. 1690, 1691 (2003) ; Rodriquez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App. 1995). The standard is well-known by the parties and much-discussed in the case law. We need not reiterate it here. Appellant claims counsel mishandled his competency claim because he failed to request a mental health expert, and he claims counsel failed to object to the State's closing arguments during trial. We cannot conclude counsel was deficient in either instance because the record does not contain the attorney's reasons for his actions and does not address the ineffective assistance of counsel arguments. See Grant v. State, 33 S.W.3d 875, 879-80 (Tex.App. — Houston [14th Dist.] 2000, pet. ref'd). Without this evidence in the record, appellant fails the first part of the Strickland test, and because appellant failed the first prong, we are not required to address the second prong. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). Therefore, we overrule his two points of error.

III. Jury Charge

Finally, appellant complains that the trial court erred by failing to include a burden-of-proof instruction in the jury charge during the punishment phase of trial. Appellant, in his brief, does not direct this Court to the bad acts that he believed should have received a burden-of-proof instruction. After examining the record, the extraneous bad acts we found included the following: (1) the complainant testified appellant would give her beer; (2) the complainant testified appellant would show her pornographic movies; and (3) the complainant testified appellant performed oral sex on her many times. We do find the trial court erred by not including the instruction; however, as we explain below, the error was not egregious. Appellant did not object to the jury charge at the punishment phase. Under Huizar, even if appellant does not object, the trial court must instruct the jury on the burden-of-proof for extraneous offenses and bad acts. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000) (holding that the burden-of-proof instruction is required in the jury charge if the jury is to consider prior bad-act evidence). However, when an appellant fails to object to the charge, that appellant must show the harm was so egregious that he "has not had a fair and impartial trial." Almanza v. State, 686 S.W.2d 157, 171-72 (Tex.Crim.App. 1985); see also Webber v. State, 29 S.W.3d 226, 235-36 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). "Egregious harm is present whenever a reviewing court finds that the case for conviction or punishment was actually made clearly and significantly more persuasive by the error." Gholson v. State, 5 S.W.3d 266, 269 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). We must determine whether appellant suffered actual, not just theoretical, harm. Almanza, 686 S.W.2d at 174; Allen v. State, 47 S.W.3d 47, 51 (Tex.App. — Fort Worth 2001, pet. ref'd). To determine whether the error was egregious, we consider the following four factors: (1) the entire jury charge, (2) the state of the evidence, including contested issues, (3) the arguments of counsel, and (4) any other relevant information. Almanza, 686 S.W.2d at 172; see also Webber, 29 S.W.3d at 236. On June 12th, the trial court charged the jury regarding appellant's guilt or innocence. Included in that jury charge was a burden-of-proof instruction. The jury then deliberated and found appellant guilty. Immediately after finding appellant guilty, the punishment phase began. The State called three witnesses — two of whom had already testified in the guilt-innocence phase of trial — and then rested. The defense admitted some evidence, but did not call any witnesses. The trial court then instructed the jury, but failed to include a burden-of-proof instruction. However, the charge did inform the jurors they were "the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given their testimony." Appellant does not argue on appeal that if the trial court had given a proper burden-of-proof instruction, the evidence was insufficient to prove beyond a reasonable doubt he committed those extraneous offenses. Gholson, 5 S.W.3d at 271. Instead, appellant did not contradict the statements in any way during the punishment phase, and focused only on informing the jury he was eligible for community supervision. We recently held when the "great weight of the evidence supports the facts giving rise to the presumption, egregious harm has not occurred." Webber, 29 S.W.3d at 237. Here, the great weight of the evidence found appellant guilty of sexual abuse of a minor. The evidence displayed how appellant took advantage of the complainant, and the trust of the complainant's family. The focus throughout the punishment phase centered around the repeated sexual assaults — not the brief mention of three extraneous bad acts. Nothing in the record suggests that the jury would have considered the extraneous offenses differently if the trial court had included the burden-of-proof instruction. Even though the trial court erred in omitting a burden-of-proof instruction in the punishment phase, the appellant has not met his burden of showing the error was egregiously harmful as to deny him a fair and impartial trial. We overrule appellant's last issue. In conclusion, we overrule all of appellant's issues and affirm the judgment of the trial court.