Opinion
Nos. 05-04-01111-CR, 05-04-01112-CR
Opinion issued November 7, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-56024-QR, F02-56025-QR. Affirmed.
Before Justices MORRIS, WRIGHT, and FRANCIS.
MEMORANDUM OPINION
Ronnie Zuniga appeals his convictions for robbery and evading arrest. After appellant pleaded guilty before the jury, the jury assessed punishment at sixty years' confinement and a $5000 fine in the robbery case, and two years' confinement and a $2000 fine in the evading arrest case. In three issues, appellant contends (1) the trial court erred by failing to admonish him regarding the possibility of deportation; (2) the trial court should not have accepted his guilty pleas without further inquiry regarding his competency; and (3) his robbery conviction must be reversed because the indictment was lost. We overrule appellant's issues and affirm the trial court's judgments. In his first issue, appellant contends the trial court reversibly erred by failing to admonish him regarding the possibility of deportation. A trial court errs if it accepts a defendant's guilty plea without admonishing him regarding the deportation consequences of his plea in accordance with article 26.13 of the Texas Code of Criminal Procedure. See Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App. 1998). Here, the record does not show appellant was admonished regarding the possibility of deportation and we therefore conclude the trial court erred. See id. However, when, as here, the record conclusively shows that an appellant is a United States citizen, any error in failing to give the deportation admonishment is harmless. Splawn v. State, 949 S.W.2d 867, 876 (Tex.App.-Dallas 1997, no pet.) (citing Matchett v. State, 941 S.W.2d 922, 929 (Tex.Crim.App. 1996)). The record contains a "pen packet" from the Texas Department of Criminal Justice to which appellant stipulated that he was the person convicted of the offenses in State's Exhibit 7 and to which he raised no objection at trial. The pen packet shows appellant's place of birth as Dallas County, Texas, and his nationality as "American." Thus, the record shows appellant is a United States citizen and the trial court's failure to admonish him on the possibility of deportation could not have affected or contributed to his convictions or punishment. We overrule appellant's first issue. In his second issue, appellant contends the trial court erred by accepting appellant's pleas without inquiring further regarding appellant's competency. We review a trial court's failure to conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999). A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proven incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon Supp. 2004-05). A defendant is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding, or (2) rational as well as factual understanding of the proceedings against him. Id. art. 46B.003(a). The trial court must conduct a competency inquiry on whether to hold a jury trial on a defendant's competency "if evidence of the defendant's competency is brought to the attention of the court from any source." McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003). A competency inquiry is required only if the evidence brought to the trial court's attention raises a bona fide doubt about the defendant's competency to stand trial. Id. Evidence is usually sufficient to create a bona fide doubt if it shows "recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant." Id. Appellant first complains that "counsel's perfunctory assurance" to the trial court regarding his competency and his "minimal responses" to the court were insufficient to "validate a belief" in his competency. Unless an issue of an accused's mental competency is raised at the time of the plea, the trial court need not inquire into the accused's mental competency, and it is not error for the trial court to accept the plea. Ducker v. State, 45 S.W.3d 791, 797 (Tex.App.-Dallas 2001, no pet.) (citing Kuyava v. State, 538 S.W.2d 627, 628 (Tex.Crim.App. 1976)). Appellant maintains that evidence of his incompetency was raised by the following: (1) he has "had a longstanding battle with alcohol;" (2) there is some evidence appellant had been drinking at the time of the crime; (3) appellant had suffered "psychological damage" following the death of his wife some years before; and (4) the jury's note indicates it was concerned regarding appellant's alcohol use. This evidence does not show recent severe mental illness or any bizarre acts by appellant, and neither his alcohol use or grief following his wife's death necessarily correlate with his mental competency, his ability to communicate with counsel, or his ability to understand the proceedings against him. At the hearing, appellant did not appear to be confused. He stated he understood the allegations against him; the criminal penalties; and his rights. Considering the record, there is nothing to suggest appellant did 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. Under these circumstances, we cannot conclude the trial court abused its discretion in failing to sua sponte conduct an inquiry into appellant's competency to stand trial. We overrule appellant's second issue. In his third issue, appellant contends we must reverse his conviction in the robbery case and remand for presentment of another indictment. After appellant filed his brief, this Court abated the appeal and ordered a hearing be conducted concerning the lack of the indictment in the clerk's record for cause number 05-04-01111-CR. Following a hearing, the record was supplemented with a copy of the indictment pursuant to article 21.25 of the Texas Code of Criminal Procedure. The record having been supplemented, appellant's third issue is moot. Accordingly, we affirm the trial court's judgments.