Vaughn v. State

Full title: ROBERT WAYNE VAUGHN, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jan 4, 2005

No. 05-03-01723-CR (Tex. App. Jan. 4, 2005)

Opinion

No. 05-03-01723-CR

Opinion Filed January 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-00573-VT. Affirm.

Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.

OPINION

CAROLYN WRIGHT, Justice.

Robert Wayne Vaughn was charged with aggravated assault with a deadly weapon and aggravated robbery. Both offenses arose from a series of events occurring on the night of September 11, 2002. Appellant entered pleas of not guilty and a jury was empaneled for a joint trial. After hearing the aggravated assault complainant's testimony, appellant changed his pleas to guilty and entered pleas of true to one enhancement paragraph in each case. After hearing punishment evidence, the jury found appellant guilty, found the enhancement paragraphs true, and assessed punishment of ninety-nine years confinement in each case. Appellant then appealed each conviction. In this appellate cause, we review the conviction for aggravated assault.¹ Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. Appellant filed a pro se response to counsel's brief. Appellant asserts there are arguable issues for appeal regarding the trial court's failure to conduct a competency inquiry and whether he received ineffective assistance of counsel. Because we conclude there are no arguable issues for appeal, we affirm the trial court's judgment.

1 Appellant's aggravated robbery conviction is the subject of appellate cause no. 05-03-01722-CR.

Background

The facts of the case are undisputed. The evidence showed the aggravated assault complainant, Martin Sarinana, had recently ended a romantic relationship with appellant because appellant was violent, had threatened him, and had tested positive for HIV. Shortly thereafter, someone broke into Sarinana's apartment and destroyed his possessions, prompting him to change the locks. On the day before the offense, appellant chased Sarinana around a car in the complex parking lot before returning his gate access key to Sarinana. Appellant warned Sarinana that he would regret what was happening. On the evening of the offense, appellant repeatedly telephoned Sarinana and then knocked on his door. Sarinana did not answer the telephone or the door. Appellant then climbed onto Sarinana's balcony and broke into Sarinana's apartment through the glass door. Sarinana ran from his apartment screaming for help with appellant in pursuit. As appellant chased Sarinana through the parking lot, appellant fired several shots at him with a handgun. Although none of the bullets struck anyone, one errant bullet impacted eight inches from a neighbor's head. When appellant ran out of ammunition, he ran from the apartment complex to a nearby car wash where he took aggravated robbery complainant Calix Reyes's truck at gunpoint. Subsequently, appellant called Irving police detective John Schingle and admitted he had committed the offenses. Appellant told Schingle he was suicidal over his breakup with the complainant and would have killed himself on the night of the offense if he had not run out of bullets. Appellant told Schingle where Schingle could find Reyes's truck. Schingle thinks appellant "has a lot of anger built up in him." Appellant fled to Ector County where his mother resided. While there, appellant aroused the suspicion of a police officer who observed him loading household items from his mother's house into what turned out to be a stolen pickup truck. When the officer approached him, appellant barricaded himself inside his mother's house for a three-hour standoff with police. Larry Kiker, an investigator for the Ector County Sheriff's Department, negotiated appellant's surrender. Kiker testified appellant would not come out because he was afraid of the circumstances surrounding the stolen truck. Kiker described appellant as suicidal, and Kiker was afraid he might attempt "suicide by cop." Appellant had access to firearms and medications in the house. Appellant told Kiker he wanted to go down like Jay Lee-his friend and possible accomplice in truck thefts who had recently committed suicide after a police pursuit. Kiker believed appellant had attempted suicide that day by swallowing medication in the house. Appellant did not, however, fire upon the officers and he surrendered peacefully and voluntarily. Kiker believed MHMR was called to evaluate appellant but he did not testify about the results of the evaluation.

Failure To Conduct Competency Hearing

In his second ground, appellant contends an arguable issue is raised regarding whether the trial court violated his right to due process of law by failing to conduct a competency hearing despite observing evidence of his "questionable mental instability" sufficient to raise a bona fide doubt about his competency to stand trial. We disagree. A conviction obtained while the defendant is legally incompetent violates due process of law. See Pate v. Robinson, 383 U.S. 375, 378 (1966); McDaniel v. State, 98 S.W.3d 704, 709 (Tex.Crim.App. 2003). A defendant is incompetent to stand trial if the defendant lacks (1) sufficient present ability to consult with counsel with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings. See Act of May 26, 1999, 76th Leg., R.S., ch. 561, § 1, 1999 Tex. Gen. Laws 3092, 3092-93, repealed by Act of April 30, 2003, 78th Leg., R.S., ch. 35, § 15, 2003 Tex. Gen. Laws 57, 72 (current version at Tex. Code Crim. Proc. Ann. Art. 46B.003 (Vernon Supp. Pamph. 2004-05)).² The trial court must conduct a competency hearing when evidence from any source raises a bona fide doubt about the defendant's competency. McDaniel, 98 S.W.3d at 710. Evidence of recent, severe mental illness, moderate or severe retardation, or evidence of truly bizarre acts by the defendant are sufficient to raise a bona fide doubt. Id. The trial court's determination not to conduct a competency hearing is reviewed for abuse of discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999). Initially, we note that the defense did not question appellant's competency in the trial court. Counsel neither requested a competency hearing nor filed any motions, affidavits, or medical records suggesting appellant was incompetent. To the contrary, counsel twice advised the trial court that appellant was competent to stand trial. Thus, any evidence raising a bona fide doubt about appellant's competency would have come from the trial court's observation of appellant during the trial proceedings. Appellant contends the trial court should have had a bona fide doubt about his competency because the trial court heard Kiker's and Schingle's testimonies showing he was depressed and suicidal at the time of the offense; it observed his outburst during the testimony that resulted in him absenting himself from part of the trial; and the trial court knew that he had attempted to commit suicide by strangling himself with his necktie while waiting in the holding cell after the outburst. Although Kiker and Schingle did testify appellant was depressed and suicidal during their encounters with him, such testimony is not sufficient to raise a bona fide doubt about appellant's competency. See Reeves v. State, 46 S.W.3d 397, 400 (Tex.App.-Texarkana 2001, pet. dism'd); Townsend v. State, 949 S.W.2d 24, 26-27 (Tex.App.-San Antonio 1997, no pet.); Thompson v. State, 915 S.W.2d 897, 902 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (op. on reh'g). A defendant can be suicidal and still be able to consult with counsel and understand the proceedings against him. See Townsend, 949 S.W.2d at 27. Similarly, appellant's evaluation by MHMR does not, by itself, raise an issue of appellant's competency. See McDaniel, 98 S.W.3d at 711; Thompson, 915 S.W.2d at 902. With regard to appellant's outburst during trial, the record shows that after appellant changed his pleas to guilty, the State called one of the complainant's neighbors to testify about what he saw on the night of the offense. While the neighbor was testifying, appellant said, "I don't want to listen to anymore of this shit. I don't want to list [sic] to this. I want to go." Appellant then voluntarily left the courtroom and spent the remainder of the day in a holding cell. While appellant was absent from the courtroom, two other neighbors testified about the offense. The trial court then excused the jury and conferred with counsel as follows:

[The Court]: Let the record reflect that prior to Mr. Vaughn leaving the courtroom it appeared to the Court that he arose, uttered some profanity and said basically I'm not going to stay in here. And he voluntarily moved toward the holding cell, and at that time the Bailiff escorted him out of the courtroom on Mr. Vaughn's own initiative. Any objection to that, Mr. Franklin?

[Counsel]: No, sir.

[The Prosecutor]: No objection from the State.

[The Court]: And he's being asked now if he desires to return to the courtroom where he would be welcome if he should so desire.

(Short pause in the proceedings)

[The Court]: Okay. Let the record reflect we're in open court outside the presence of the jury. Mr. Franklin has just communicated with his client, Mr. Vaughn. What do you have to inform the Court?

[Counsel]: The defendant is still fairly distraught. He's somewhat unstable and does not choose to hear what the witnesses have to say since he already knows the facts of the case. He doesn't want to hear it again.

The trial court then resumed the punishment phase of the trial. On the following day, before resuming the testimony, the trial court asked appellant whether he was ready to return to the courtroom. Appellant affirmed he wanted to be present and he affirmed to the trial court that he understood how important it was for him to conduct himself properly. The record does not reflect any further outbursts or unusual behavior. We cannot conclude appellant's outburst raises a bona fide doubt about his incompetency to stand trial. In rejecting a similar argument, the court of criminal appeals has stated:

[w]hile appellant's comments were inappropriate violations of court decorum, they do not constitute evidence of his inability to communicate with counsel, or factually appreciate the proceedings against him. To the contrary, appellant's outbursts were timely, topical, and logically related to the questions and answers offered during the examination of other witnesses. We reject appellant's contention that his unruly and disruptive courtroom demeanor are probative of incompetence to stand trial. If such actions were probative of incompetence, one could effectively avoid criminal justice through immature behavior.

Moore, 999 S.W.2d at 395. As in Moore, appellant's outburst was timely, topical, and logically related to the witness's testimony. Appellant's outburst shows merely that he was angry and impatient at having to listen to additional accounts of his offense after he had already pleaded guilty. Moreover, counsel's recounting to the trial court of his conversation with appellant in the holding cell shows appellant, even in his distraught state, was able to communicate effectively with counsel. We conclude the outburst cannot even arguably be viewed as raising a bona fide doubt about appellant's competency. Finally, the record does not reflect in any manner appellant's alleged suicide attempt in the holding cell. Appellant's unsupported assertions in his pro se response will not be considered on appeal. See Bell v. State, 938 S.W.2d 35, 53 (Tex.Crim.App. 1996). Even if we were to assume appellant did attempt suicide as he describes, nothing in the record suggests the trial court was aware of the suicide attempt. Therefore, the trial court's failure to take action after the alleged suicide attempt would not raise an arguable issue for appeal. We conclude the evidence was insufficient to create a bona fide doubt regarding appellant's competency. Thus, appellant's second ground does not raise an arguable issue for appeal.

Ineffective Assistance of Counsel

In his first ground, appellant contends he received ineffective assistance of counsel because counsel failed to bring before the trial court the issue of appellant's competency to stand trial. In addition to the trial evidence we have already described, appellant contends counsel was privy to conversations with him that revealed he was incompetent and counsel had access before trial to Kiker's statements regarding his suicidal state. Appellant alleges counsel was aware he was placed on suicide watch in the Ector County jail for seventy-two hours and that he was sexually assaulted by inmates in the Dallas County Jail several months before trial. Appellant contends counsel knew he was taking antidepressant medications during his incarceration in Dallas County and that he was still under the influence of those medications at trial. Appellant asserts counsel knew he had attempted suicide during the standoff in Ector County and in the holding cell during the trial. Appellant alleges counsel knew before trial that appellant's competence was an issue and counsel indicated to him that counsel would pursue all pretrial motions to have his competence evaluated. Appellant contends counsel took no action to bring the competency issue before the trial court despite counsel's awareness of facts showing appellant might be incompetent and counsel's pledge to pursue the competency issue. Appellant points out that the prosecutor, during final argument, told the jury defense counsel had done nothing to pursue the possibility that appellant might be suffering from mental health problems. Appellant contends counsel's inaction, in the face of "bona fide doubt" about appellant's competence, demonstrates he received ineffective assistance of counsel. As a result, appellant contends, he suffered harm in that counsel could have mounted a more formidable defense or at least obtained a lesser punishment. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Most of appellant's allegations about what counsel knew or observed are not supported by the record. The record does not show the content or import of pretrial discussions between counsel and appellant that would either suggest appellant was incompetent or that counsel had agreed to assert an incompetency claim. Likewise, the record does not show counsel had access to any materials before trial that would have raised a competency issue. The record does not reveal what medications, if any, appellant was taking at the time of trial, nor does it reflect an attack by fellow inmates or a suicide attempt in the holding cell during trial. Assuming, without deciding, that appellant's allegations are true, the record is not sufficiently developed to evaluate his complaints on direct appeal. See Thompson, 9 S.W.3d at 813-14. As previously discussed, neither appellant's outburst nor his suicidal depression sufficiently indicate incompetency in the absence of evidence that his illness compromised his ability to consult with counsel or understand the proceedings against him. See Moore, 999 S.W.2d at 395. Nothing in the record suggests appellant could not understand the proceedings or confer with his counsel. Rather, the record shows appellant responded coherently to questions from the trial court and consulted with counsel about trial strategy. Finally, we note that the record does not contain an explanation for why counsel chose not to pursue an incompetency claim. The record shows counsel used appellant's depression and suicidal urges to argue for a lesser punishment. We cannot condemn counsel as ineffective in the absence of counsel's explanation of his trial strategy. See Bone, 77 S.W.3d at 836. We will not hold counsel ineffective for failing to perform futile acts. See Mooney v. State, 817 S.W.2d 693, 698 (Tex.Crim.App. 1991). See also Roberson v. State, 852 S.W.2d 508, 511 (Tex.Crim.App. 1993) (concluding counsel was not ineffective for failing to secure rulings on pretrial motions in absence of evidence that rulings would have changed outcome of case). Because the record does not raise a bona fide doubt regarding appellant's competence, we cannot conclude counsel's performance fell below an objective standard of reasonableness or that the result would have been different if counsel had raised a competency issue. See Strickland, 466 U.S. at 687-88, 694. Thus, we conclude appellant's ineffective assistance complaint does not raise an arguable issue. We overrule appellant's first ground.

Conclusion

After reviewing the record, counsel's brief, and appellant's pro se response, we agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.