Opinion
No. 05-16-00850-CR
07-06-2017
TYREN DESHUN PHILLIPS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F-1557777-H
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Stoddart
Tyren Deshun Phillips appeals the trial court's judgment adjudicating him guilty of burglary of a habitation. In three issues, appellant argues the trial court abused its discretion by failing to conduct an informal competency evaluation, the evidence is insufficient to prove he violated the terms of his community supervision by committing aggravated robbery, and the trial court erred by sentencing him to a term of sixteen years. We affirm the trial court's judgment.
In his first issue, appellant asserts the trial court abused its discretion by failing to conduct an informal competency evaluation. We review a trial court's decision not to conduct an informal competency inquiry for an abuse of discretion and we will not disturb the ruling absent a showing that the decision was arbitrary and unreasonable. See Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute, TEX. CODE CRIM. PROC. ANN. art. 46B.004, on other grounds as recognized in Turner v. State, 422 S.W.3d 676, 692 (Tex. Crim. App. 2013); Clemens v. State, No. 05-15-00025-CR, 2016 WL 347149, at *3 (Tex. App.—Dallas Jan. 28, 2016, no pet.) (mem. op., not designated for publication) (considering whether trial court abused its discretion by failing to conduct informal competency inquiry).
The prosecution and conviction of a defendant while he is legally incompetent violates due process. Morris v. State, 301 S.W.3d 281, 299 (Tex. Crim. App. 2009). Although a defendant is presumed to be competent to stand trial, see TEX. CODE CRIM. PROC. ANN. art. 46B.004(a), upon suggestion that the defendant may be incompetent to stand trial, the trial court shall make an informal inquiry whether there is some evidence from any source that would support a finding the defendant is incompetent. Id. art. 46B.004(c). Evidence suggesting the need for an informal inquiry may be based on observations made in relation to one or more of the factors described by article 46B.024 or on any other indication that the defendant is incompetent. Id. The 46B.024 factors are whether the defendant can (a) rationally understand the charges against him and the potential consequences of the pending criminal proceedings; (b) disclose to counsel pertinent facts, events, and state of mind; (c) engage in a reasoned choice of legal strategies and options; (d) understand the adversarial nature of criminal proceedings; (e) exhibit appropriate courtroom behavior; and (f) testify. Id. art. 46B.024(1)(A-F). The trial court may raise the competency issue on its own motion. See id. art. 46B.004(a).
When the revocation hearing began, appellant's counsel informed the trial court that appellant chose not to go into the courtroom, but rather to remain in a cell where the proceedings would be broadcast to him. Counsel advised him not to take that action, but he refused to follow counsel's advice. After a lunch break, appellant appeared in the courtroom. He told the trial judge that he did not like his counsel and they did not get along. The judge reviewed the proceedings with appellant, including the State's allegations in the motion to revoke, the State's burden of proof, and that he could face consecutive sentences. Appellant acknowledged he understood these matters. Appellant also made clear that he would not accept any plea bargain. Appellant's counsel never informed the trial court that he had any concern for appellant's competency or that appellant lacked sufficient ability to consult with him or understand the proceedings against him.
After reviewing the record, we conclude the evidence does not support any of the 46B.024 factors or any other indication appellant was incompetent. Although appellant told the trial judge that he takes "psych meds," having a mental illness does not mean a person is incompetent. See Turner v. State, 422 S.W.3d 676, 691 (Tex. Crim. App. 2013). We conclude the trial court did not abuse its discretion by failing to sua sponte conduct an informal inquiry into appellant's competency to stand trial. We overrule appellant's first issue.
In his second issue appellant argues the evidence is insufficient to show he violated the terms of his community supervision by committing aggravated robbery. The State's motion to adjudicate alleged appellant violated several conditions of community supervision. Appellant pleaded not true to the allegations. However, following a hearing, the trial court found appellant violated the following conditions as alleged by the State:
(a) did violate condition (a) by violating the laws of the State of Texas in that on or about 02.07.16 in Dallas County, Texas, s(he) did commit the offense of AGG ROBBERY as alleged in cause #F1651970.The trial court found the State failed to establish two other alleged violations.
(a) did violate condition (a) by violating the laws of the State of Texas in that on or about 02.07.16 in Dallas County, Texas, s(he) did commit the offense of EVADING ARREST DETENTION W/VEH OR WATERCRAFT as alleged in cause #F1651971.
(l) did violate condition (l) in that s(he) did not complete Community Service hours as directed.
(s) Defendant failed to participate in intensive outpatient substance counseling through a court approved program.
We review a trial court's decision to adjudicate guilt based on the violation of a condition of community supervision for abuse of discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see also Hardin v. State, No. 05-16-00621-CR, 2016 WL 7384164, at *1 (Tex. App.—Dallas Dec. 21, 2016, pet. ref'd) (mem. op., not designated for publication). Adjudication is appropriate when a preponderance of the evidence supports one of the State's allegations that the defendant violated a condition of his community supervision. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012); Hardin, 2016 WL 7384164, at *1. A single violation of a term of community supervision is sufficient to support the trial court's decision to proceed with an adjudication of guilt. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009).
Appellant only challenges the sufficiency of the evidence supporting the aggravated robbery finding. Because a single violation of a term of community supervision is sufficient to support the trial court's decision to proceed with an adjudication of guilt, we conclude the violations of the other three conditions—which appellant does not challenge—are sufficient to support the trial court's decision to revoke. We overrule appellant's second issue.
In his third issue, appellant argues the trial court abused its discretion by sentencing him to a term of sixteen years, rather than the seven he requested. Appellant believes he needs treatment rather than incarceration, relying on section 1.02 of the penal code. See TEX. PENAL CODE § 1.02. The State responds this objection was not preserved at the trial court. We agree.
"To preserve alleged error relating to excessive punishment, a defendant must make a timely request or motion in the trial court." Garza v. State, No. 05-11-01626-CR, 2013 WL 1683612, at *1-2 (Tex. App.—Dallas Apr. 18, 2013, no pet.) (citing TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.)). In this case, as in Garza, appellant did not complain about his sentence either at the time it was imposed or in a motion for new trial. We conclude any error is not preserved. Even if the argument had been preserved, as a general rule, punishment that is assessed within the statutory range for an offense is not excessive. See Austin v. State, No. 05-16-00531-CR, 2017 WL 1245420, at *2 (Tex. App.—Dallas Apr. 5, 2017, no pet.) (citing Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd)). We overrule appellant's third issue.
We affirm the trial court's judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
160850F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 1, Dallas County, Texas
Trial Court Cause No. F-1557777-H.
Opinion delivered by Justice Stoddart. Justices Lang and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 6th day of July, 2017.