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concluding that the defendant's testimony that he was "confused" was a conclusory statement which was not enough to support a conclusion of incompetency
Summary of this case from Arias v. StateOpinion
No. 14-03-00923-CR
Memorandum Opinion filed November 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 914,829. Affirmed.
Panel consists of Justices ANDERSON, HUDSON, and FROST.
MEMORANDUM OPINION
In five issues, appellant Jerome Harris Mitchell challenges his conviction for aggravated robbery, alleging (1) the trial court erred in failing to conduct a jury trial on the issue of appellant's competence and (2)-(5) the evidence is legally and factually insufficient to support appellant's conviction. We affirm.
I. FACTUAL BACKGROUND
On July 18, 2001, an armed man entered a pawn shop managed by Gerardo Paez. The man pointed a gun at Paez and demanded all of the shop's money. Paez gave the gunman the money in the shop's drawer. The gunman then ordered everyone in the shop to lie down and start singing while he left the shop. After a couple of minutes, Paez got up and called the police. The police put together a "wanted" poster using footage from a surveillance video in the pawn shop. An anonymous tip then led to appellant's arrest. Appellant was convicted of aggravated robbery.II. ISSUES AND ANALYSIS
A. Did the trial court err in failing to conduct a trial on the issue of appellant's competency? In his first issue, appellant contends the trial court erred in failing to conduct a jury trial on the issue of whether appellant was incompetent to stand trial. The conviction of an incompetent defendant violates due process. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex.Crim.App. 2003). A defendant is incompetent 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. Reed v. State, 112 S.W.3d 706, 710 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); see also TEX. CODE CRIM. PROC. art. 46B.003(a) (Vernon Supp. 2004). The process for evaluating a defendant's competency is:(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 . . . "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 . . . "competency hearing."McDaniel, 98 S.W.3d at 710-11 (internal footnote omitted). The trial court conducted a competency inquiry, so we need only determine whether the trial court erred in not conducting a competency hearing. In deciding whether a competency hearing is required, the trial court must determine "whether there is some evidence, 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. 1980). The trial court is to consider only the evidence tending to show incompetency, and to disregard evidence tending to show competency. Id.; Reed, 112 S.W.3d at 710. We review the trial court's decision whether to conduct a competency hearing for an abuse of discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999); Reed, 112 S.W.3d at 710. Appellant argues that he presented more than a scintilla of evidence because he testified that he was "confused" and that he was taking the anti-psychotic medications Prozac, Depakote, and Reserpine. Appellant's conclusory statement that he was confused, without any additional evidence, is not sufficient to support a conclusion of incompetency. See McDaniel, 98 S.W.3d at 711 ("The naked assertion, `I am incompetent,' unsupported by any facts or evidence, is not sufficient, by itself, to require . . . a jury `competency hearing. . .'"). Nor is appellant's statement that he is taking anti-psychotic medications sufficient to support a conclusion of incompetency. See Reed, 112 S.W.3d at 710. Although these factors are the type of evidence that would require the trial court to hold a competency inquiry, which it properly did, they do not constitute sufficient evidence that appellant was unable to consult with his counsel or understand the proceedings against him. See id. Appellant also argues that he presented more than a scintilla of evidence because his trial counsel testified that appellant was not able to assist in preparation of the case due to appellant's apparent inability to recall the facts of the charged offense:
Counsel: Judge, my concern is he really hasn't been able to tell me what happened out there.
The Court: Well, that's not true `cause you told me what he has told you.
Counsel: Well, I mean I asked him some things about what happened out there. He says, "I don't remember."
The Court: Well, he has told you in the past what happened out there 'cause you've told me what he has told you about what happened out there.
Counsel: There are some things he has told me. He can't tell me everything, though.Appellant's inability to recall the events of the charged offense would not support a conclusion of incompetency. See Brown v. State, 129 S.W.3d 762, 766 (Tex.App.-Houston [1st Dist.] 2004, no pet.) ("Appellant's . . . inability to recall past events [and] his inability to recall the circumstances of his charged offense . . . do not establish the required elements of incompetency. . . .") Additionally, "[i]t is not enough for counsel to allege unspecified difficulties in communicating with the defendant." Reed, 112 S.W.3d at 711. Because appellant did not present more than a scintilla of evidence that he was incapable of consulting with his counsel or understanding the proceedings against him, the trial court did not abuse its discretion in not conducting a competency hearing. See id. at 710-11. We overrule appellant's first issue.
B. Is the evidence legally and factually sufficient to support appellant's conviction?
In his second through fifth issues, appellant contends the evidence is legally and factually insufficient to support his conviction because the evidence failed to show that he intended to permanently deprive Paez of his property (issues 2-3) and the evidence failed to show appellant used a firearm (issues 4-5). In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that the appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). In evaluating a factual-sufficiency challenge, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481-82.1. Is the evidence legally and factually sufficient to show appellant intended to deprive Paez of his property permanently?
In his second and third issues, appellant contends the evidence is legally and factually insufficient to show he intended to deprive Paez of his property permanently. The offense of aggravated robbery requires proof that the defendant committed theft, which, in turn, requires proof that the defendant intended to deprive the owner of the property permanently or for an extended period of time. See Tex. Penal Code Ann. § 29.02-.03 (Vernon 2003), § 31.01(2)(A), 31.03 (Vernon Supp. 2004). Appellant relies on testimony that the money taken during the heist was left at the pawn shop to show that he did not intend to take the money permanently or for an extended period of time. In evaluating legal sufficiency, we disregard this testimony because the jury could have chosen to disbelieve it. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Instead, we consider only evidence tending to support the verdict. See Wesbrook, 29 S.W.3d at 111. The verdict is supported by Paez's testimony that appellant pointed a gun at him and said, "You know what this is, give me the money." After appellant was given the money from one drawer, he also demanded: "Give me the other drawer. I want the money in the other drawer. . . . [O]pen up the safe. I want the money out of the safe." A rational jury could have concluded from this evidence that appellant intended to deprive Paez of his property permanently. We conclude the evidence is legally sufficient, and overrule appellant's second issue. See id. In evaluating factual sufficiency, we evaluate all of the evidence, including that contrary to the verdict. See Zuniga, 144 S.W.3d at 484. The only evidence contrary to the verdict is the following testimony by Paez:Q: Did [appellant] leave the gun?
A: Yes, he did.
Q: And did he leave the money?
A: Yes, he did.However, the jury rationally could have disbelieved this evidence or considered it a misstatement in light of conflicting testimony that a large sum of money ($300) was taken and that the gun was never recovered. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1998). Finally, even if the jury determined appellant left the pawn shop without the money, the jury nonetheless could have determined that appellant acted with the intent to deprive Paez of his property permanently. See Romo v. State, 700 S.W.2d 633, 635 (Tex.App.-Houston [14th Dist.] 1985, no pet.) (affirming conviction for aggravated robbery in which no money was taken because "[t]he code does not require the completion of the act of theft; rather, the act need only be committed with the intent to obtain or maintain control of the property."). We conclude the evidence is factually sufficient and overrule appellant's third issue. See Zuniga, 144 S.W.3d at 481-85.