Reyes v. State

Full title: ADAM NICHOLAS REYES, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 10, 2009

Nos. 05-08-00634-CR, 05-08-00635-CR (Tex. App. Mar. 10, 2009)

Opinion

Nos. 05-08-00634-CR, 05-08-00635-CR

Opinion Filed March 10, 2009. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-40152-SN F07-40954-XN.

Before Justices RICHTER, LANG, and MURPHY. Opinion By Justice MURPHY.

OPINION

MARY MURPHY, Justice.

Adam Nicholas Reyes waived a jury and pleaded guilty to two aggravated robbery offenses. The trial court sentenced appellant to ten years' confinement with a $5000 fine on the first offense and to fifteen years' confinement with a $10,000 fine on the second offense. In six points of error, appellant contends (1) trial counsel was ineffective by proceeding on appellant's guilty pleas because the pleas were involuntary due to appellant's mental incompetency; (2) appellant's post-trial counsel was ineffective by failing to call trial counsel to testify about trial strategy at the hearing on appellant's motions for new trial; and (3) the judgment in each case should be modified to show that appellant entered a non-negotiated guilty plea. We modify the judgment in each case to reflect appellant entered a non-negotiated plea of guilty and, as modified, affirm the trial court's judgments.

Background¹

1 Appellant has not challenged the legal or factual sufficiency of the evidence. Accordingly, we limit our review of the evidence and the proceedings in the trial court to that necessary to put appellant's complaints into context.

Prior to trial, the trial court ordered appellant to be examined to determine if he was competent to stand trial. Dr. Michael Pittman examined appellant on October 19, 2007 for approximately fifty minutes. Pittman noted appellant was alert and oriented, his memory was intact, and he had a normal attention span. Appellant's thought processes were logical and goal-directed, and he was able to explain to Pittman the various roles of courtroom personnel. Pittman diagnosed appellant with major depressive order, but concluded appellant (1) had the ability to understand the proceedings against him; (2) was capable of cooperating with his attorney in formulating a defense with a reasonable degree of rational understanding; (3) understood the charges against him and the potential consequences of the proceedings; (4) was able to make reasonable choices in matters concerning his legal situation; (5) understood the adversarial nature of the courtroom; (6) could testify in his own behalf; and (7) was competent to stand trial. On November 6, 2007, appellant pleaded guilty to both charges. In response to the trial court's inquiry, trial counsel stated appellant was mentally competent. Appellant responded to the trial court's admonishments by affirming that he understood the charges, had discussed the indictments with his attorney, was familiar with and understood the range of punishment for the offenses, and was a citizen of the United States. Appellant also affirmed he wished to waive his right to a jury and that he was pleading guilty freely and voluntarily. In response to questions from the trial court and trial counsel, appellant testified he had met with trial counsel on several occasions and had discussed the cases in depth. Appellant indicated he understood the plea bargain offered by the State; that trial counsel had explained the available options, including going to trial; and that appellant chose to plead guilty. Appellant also stated he understood he would be sentenced at a later date. At the sentencing hearing on November 29, 2007, appellant presented testimony he was sexually assaulted in high school by two teammates on the baseball team. After that incident, appellant changed and began using drugs heavily. Appellant also presented testimony about his hospitalization on a mental health warrant obtained by his mother based on appellant's threats of suicide and that he was diagnosed with anxiety disorder, depressive disorder, and probably substance abuse. Appellant also presented testimony he would benefit from residential psychiatric and substance abuse treatment. The trial court sentenced appellant to imprisonment in each case. New counsel appeared on appellant's behalf and filed a motion for new trial in each case asserting appellant's guilty pleas were not entered freely, knowingly, or voluntarily because appellant was not competent to stand trial on November 6, 2007. At the May 1, 2008 hearing on appellant's motions, appellant testified he was aware he was charged with two aggravated robberies and was able to identify his trial counsel. Appellant further stated that sometime in 2007, he was treated for mental illness and was prescribed psychotropic medication. When appellant took the medication, he was able to think clearly. Appellant testified that after he was arrested, he was not given his medication. He felt "fuzzy" and "confused." Appellant did not recall talking to Pittman in jail, but did recall talking to the "psyche" doctor one time for less than fifteen minutes. Appellant testified he saw trial counsel two times to talk about his case. Trial counsel did not explain anything to appellant about what was going to happen in the case. Appellant stated the judge was the person who prosecuted him, determined what happened to him, and represented the State in trying to have him found guilty. Appellant testified defense counsel was supposed to represent him. The lawyer who worked against trial counsel was the "offensive lawyer." He also testified the "DA" was the "person working with the Judge." Appellant testified his trial counsel told him the State had offered a fifteen-year sentence and was not going to make a better offer. When trial counsel suggested an open plea, appellant "just rolled with it." Although appellant claimed he "didn't know what was going on" when he pleaded guilty, he admitted he knew he was going to the plea hearing to plead guilty. He recalled signing the plea papers, but testified he did not read them. Trial counsel told him to sign them, but did not tell him to read them. He just did as he was told. He admitted he could have read the plea documents if he had taken the time to do so. His mind was not clear at the time. Elizabeth Reyes, appellant's mother, testified that appellant was prescribed psychotropic medication after he was hospitalized. The medication improved appellant's mental stability. Appellant could understand things better and was no longer angry. After his arrest, appellant was not given his medications. Appellant became very angry and "antsy" and started having mood swings. Prior to the sentencing hearing, appellant's mental processes were very slow. She did not believe appellant fully knew what was happening. The trial court denied appellant's motions for new trial.

Ineffective Assistance of Counsel

In his first two points of error, appellant contends his trial counsel was ineffective by allowing appellant to plead guilty to each offense when appellant was incompetent to stand trial. In points of error three and four, appellant contends his post-trial counsel was ineffective by failing to call trial counsel to testify about trial strategy at the motion for new trial hearing. To prevail on an ineffective assistance of counsel claim, a defendant must show counsel's performance fell below an objective standard of reasonableness and that a reasonable probability exists that the results of the proceeding would have been different but for the deficiency. Strickland v. Washington, 466 U.S. 668, 688 (1984). In the context of a claim the defendant's plea was involuntary due to ineffective assistance of counsel, the defendant must show (1) counsel's advice was outside the range of competence demanded of attorneys in criminal cases and (2) that, but for counsel's erroneous advice, there is reasonable probability the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Accordingly, allegations of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).

Plea Hearing

In his first two points of error, appellant contends trial counsel was ineffective in allowing appellant to plead guilty when appellant was not mentally competent to do so. A trial court may not accept a plea of guilty "unless it appears that the defendant is mentally competent and the plea is free and voluntary." Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006). A defendant is incompetent to stand trial if he does not have (1) a 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. Tex. Code Crim. Proc. Ann. § 46B.003(a); Luna v. State, 268 S.W.3d 594, 598 (Tex.Crim.App. 2008). The defendant is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. § 46B.003(b). Prior to trial, Pittman examined appellant and concluded appellant was competent to stand trial pursuant to the statutory requirements. Appellant contends it should have been evident to trial counsel that appellant's mental state had deteriorated in the two weeks between Pittman's examination and the plea hearing. However, nothing in the record of the plea hearing supports appellant's claim he did not understand the proceedings or lacked the ability to consult with his trial attorney with a reasonable degree of rational understanding. Rather, the record shows that during the plea hearing, appellant said he understood the consequences of his pleas, the charges against him, and the range of punishment attached to each offense. He also stated he had discussed the indictments with his attorney and he was entering his pleas freely and voluntarily. Appellant gave lucid and coherent responses to both the trial court's and trial counsel's questions. Appellant points to the evidence from the motion for new trial to support his claim he was incompetent to enter the guilty pleas. However, we may not consider evidence from that hearing. Appellant was sentenced on November 29, 2007, but the motion for new trial hearing was not held until May 1, 2008, 154 days after sentencing. Because the trial court did not rule on the motions for new trial within seventy-five days of sentencing, the motions for new trial were overruled by operation of law and the trial court lost jurisdiction to rule on the motions. Tex. R. App. P. 28.1; State v. Garza, 931 S.W.2d 560, 562 (Tex.Crim.App. 1996); Parmer v. State, 38 S.W.3d 661, 666 (Tex.App.-Austin 2000, pet. ref'd). Any hearing conducted after a motion for new trial has been overruled by operation of law is not authorized and any facts developed in the hearing will not be considered on appeal. Parmer, 38 S.W.3d at 667 (citing Laidley v. State, 966 S.W.2d 105, 107-08 (Tex.App. -Houston [1st Dist.] 1998, pet. ref'd)). Because we may not consider the evidence from the motion for new trial hearing, the record contains no evidence appellant was incompetent to enter guilty pleas. However, even if the facts developed at the motion for new trial hearing were properly before this Court for review, we conclude that appellant failed to satisfy his burden under Strickland. Appellant admitted at the hearing on his motions for new trial that he knew he was entering an open plea and had gone to court to plead guilty. Appellant's claim at the motion for new trial hearing that his mind was "fuzzy" and "confused" and evidence appellant had a mental illness does not establish appellant was incompetent to stand trial. Lingerfelt v. State, 629 S.W.2d 216, 217 (Tex.App.-Dallas 1982, pet. ref'd) (diagnosis of schizophrenia was no more than speculation that appellant was unable to consult with attorney); see Grider v. State, 69 S.W.3d 681, 684 (Tex.App.-Texarkana 2002, no pet.); Townsend v. State, 949 S.W.2d 24, 27 (Tex.App.-San Antonio 1997, no pet.) (despite evidence of suicidal tendencies and depression, record did not support finding of incompetency). Because appellant's ineffective assistance claim is not demonstrated in the record, he has failed to establish trial counsel was ineffective. We overrule points of error one and two.

Motion for New Trial Hearing

In points of error three and four, appellant argues his post-trial counsel was ineffective by failing to call trial counsel to testify at the motion for new trial hearing about trial counsel's strategy. We first note that trial counsel's testimony at the motion for new trial hearing could not have influenced the outcome because the hearing was not held until after appellant's motions for new trial were overruled by operation of law. Tex. R. App. P. 21.8. Further, appellant did not complain of ineffective assistance of post-trial counsel in the trial court. We do not know, therefore, why trial counsel was not called to testify at the hearing on the motions for new trial. It is possible, as pointed out by the State, that post-trial counsel "did not call [trial counsel] as a witness because [trial counsel's] testimony would have been harmful to appellant's cases." Because the record is silent regarding any explanation for post-trial counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). We overrule points of error three and four.

Modification of Judgment

In his fifth and six points of error, appellant argues the judgment in each case incorrectly reflects he pleaded guilty pursuant to a plea bargain. The State agrees appellant entered an open plea without the benefit of a plea bargain. We sustain points of error five and six and modify each judgment to reflect appellant entered a non-negotiated plea of guilty. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgments.