Brian Keith Loud v. State ( 2012 )


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  •                                  IN THE
    TENTH COURT OF APPEALS
    No. 10-11-00063-CR
    BRIAN KEITH LOUD,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 361st District Court
    Brazos County, Texas
    Trial Court No. 10-02171-CRF-361
    MEMORANDUM OPINION
    The jury convicted Brian Loud of the offense of robbery, found the enhancement
    paragraphs to be true, and assessed his punishment at confinement for life. We affirm.
    Background Facts
    There is no challenge to the sufficiency of the evidence. Cassie Bailey, a bank
    teller at Wells Fargo Bank, testified at trial that on the morning of February 2, 2010 a
    man came into the bank and handed her a note that said:
    I have a gun, I don’t want to hurt you, keep your hands where I can see
    them put the money in here. Anything goes wrong before I’m out the
    door. I’ll kill you!
    Bailey gave the man all of the money out of her drawer, and the man left the bank.
    Bailey identified Loud at trial as the person who robbed the bank.
    Detective Lance Matthews testified that he received information naming Loud as
    a possible suspect in the robbery and giving an address where Loud could be located.
    Detective Matthews went to the residence, and Loud’s brother answered the door.
    Detective Matthews stated that upon entering the residence, he saw Loud down on his
    knees with his hands in the air. Loud voluntarily talked to Detective Matthews and
    denied being involved in the robbery. Detective Matthews received consent to search
    the residence. He found a black hoodie, black knit cap, and black pants matching those
    worn by the suspect as seen on surveillance video from the bank.
    Detective Matthews obtained an arrest warrant, and Loud was placed under
    arrest.    In an interview the following day, Loud admitted robbing the bank, but
    indicated that he did so at the request of another individual. Loud told the detective
    that they planned to use the money to buy drugs and then sell the drugs to “double” or
    “triple” the amount of money.
    Competency to Stand Trial
    In his first issue, Loud complains that the trial court erred in not conducting a
    sua sponte informal inquiry into his competency. A person is incompetent to stand trial
    if the person does not have sufficient present ability to consult with counsel with a
    reasonable degree of rational understanding; or a rational as well as factual
    Loud v. State                                                                        Page 2
    understanding of the proceedings against him. TEX. CODE CRIM. PRO. ANN. art. 46B.003
    (West 2006). Either party may suggest by motion, or the trial court may suggest on its
    own motion, that the defendant may be incompetent to stand trial. TEX. CODE CRIM.
    PRO. ANN. art. 46B.004 (a) (West Supp. 2011).1 If evidence suggesting the defendant
    may be incompetent to stand trial comes to the attention of the court, the court on its
    own motion shall suggest that the defendant may be incompetent to stand trial. TEX.
    CODE CRIM. PRO. ANN. art. 46B.004 (b) (West Supp. 2011). On suggestion that the
    defendant may be incompetent to stand trial, the court shall determine by informal
    inquiry whether there is some evidence from any source that would support a finding
    that the defendant may be incompetent to stand trial. TEX. CODE CRIM. PRO. ANN. art.
    46B.004 (c) (West Supp. 2011).
    An inquiry into competency must be conducted when there is evidence
    sufficient to raise a bona fide doubt in the mind of the judge whether the defendant is
    legally competent. Gonzales v. State, 
    313 S.W.3d 840
    , 842 (Tex. Crim. App. 2010). A bona
    fide doubt may exist if the defendant exhibits truly bizarre behavior or has a recent
    history of severe mental illness or at least moderate mental retardation. 
    Id. 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).
    Loud first argues that his behavior when the police arrived at his brother’s
    residence to investigate the offense is evidence of bizarre behavior. Loud was on his
    1TEX. CODE CRIM. PRO. ANN. art. 46B.004 was amended effective September 1, 2011. The changes apply
    only to proceedings conducted after September 1, 2011. Because Loud was tried in February 2011, the
    new provisions are not applicable in this case.
    Loud v. State                                                                               Page 3
    knees with his hands in the air. We do not find Loud’s apparent submission to police
    authority to be an exhibition of truly bizarre behavior.
    Loud next argues that his confession indicates that he is easily influenced by
    others and demonstrates incompetence.        We do not find that the circumstances of
    Loud’s confession are sufficient to raise a bona fide doubt as to his competency.
    Loud further argues that the evidence of his mental health issues is sufficient
    evidence for the trial court to conduct a sua sponte inquiry into his competence. Loud
    presented evidence that he was housed in the medical section of the Brazos County Jail
    and that he was taking medicine for mental health issues. Evidence that Loud was on
    psychiatric medication and had a history of mental problems did not mandate a
    competency inquiry absent evidence of a present inability to communicate or
    understand the proceedings. Moore v. 
    State, 999 S.W.2d at 395-96
    ; LaHood v. State, 
    171 S.W.3d 613
    , 619 (Tex. App.─Houston [14th Dist.] 2005, pet. ref’d).
    The record does not support a finding that Loud was unable to communicate or
    understand the proceedings. The record shows that Loud and his counsel discussed
    whether Loud should testify at trial and that Loud decided against testifying. The
    record further shows that Loud and his counsel discussed trial strategy on a possible
    defense. Loud responded appropriately when questioned by counsel. The trial court
    did not abuse its discretion in failing to conduct a sua sponte informal inquiry into
    Loud’s competency. We overrule the first issue.
    Loud v. State                                                                       Page 4
    Batson Challenge
    In his second issue, Loud argues that the State used its peremptory challenges to
    eliminate all African-Americans from the jury and did not give a racially neutral
    explanation for the challenges pursuant to Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    ,
    
    90 L. Ed. 2d 69
    (1986). In Batson, the United States Supreme Court held that, while a
    prosecutor ordinarily may exercise peremptory strikes for any reason related to his
    views concerning the outcome of the trial, "the Equal Protection Clause forbids the
    prosecutor to challenge potential jurors solely on account of their race." Grant v. State,
    
    325 S.W.3d 655
    , 657 (Tex. Crim. App. 2010). A Batson challenge to a peremptory strike
    consists of three steps: 1) the opponent of the strike must establish a prima facie
    showing of racial discrimination; 2) the proponent of the strike must articulate a race-
    neutral explanation; and 3) the trial court must decide whether the opponent has
    proven purposeful racial discrimination. 
    Id. The trial
    court's ruling in the third step must be sustained on appeal unless it is
    clearly erroneous. 
    Id. Because the
    trial court's ruling requires an evaluation of the
    credibility and demeanor of prosecutors and venire members, and because this
    evaluation lies within the trial court's province, we defer to the trial court in the absence
    of exceptional circumstances. 
    Id. After the
    parties submitted their peremptory strikes, Loud informed the trial
    court that the State used peremptory strikes to remove the two African-American venire
    members within the strike zone. The trial court asked for an explanation. The State
    responded that it struck Juror 23 because she is a secretary for the Texas Department of
    Loud v. State                                                                          Page 5
    Criminal Justice and that it struck Juror 33 because he was formerly a parole officer for a
    member of Loud’s family.
    Loud’s counsel disputed the State’s explanation as to Juror 23.2 Loud’s counsel
    stated that in his experience it is defense attorneys who do not want TDCJ employees
    on the jury. The State explained that people affiliated with TDCJ sometimes have a
    close relationship with inmates and that can affect their decision on punishment. The
    State further explained that it often strikes employees of TDCJ. The trial court found
    the State’s explanations for Jurors 23 and 33 to be race neutral.
    Loud did not dispute the State’s explanation for striking Juror 33.                      Loud
    disagreed with the State’s explanation for striking Juror 23, but did not further cross-
    examine the prosecutor on his motives. The record shows that Loud was in custody at
    the Brazos County Jail prior to trial. Employees of the Brazos County Jail testified on
    Loud’s behalf during the punishment phase of the trial. The trial court’s finding that
    the State offered race neutral explanations for the strikes was not clearly erroneous. We
    overrule the second issue.
    Conclusion
    We affirm the trial court’s judgment.
    AL SCOGGINS
    Justice
    2Loud’s counsel initially referred to Juror 33 as being employed by TDCJ; however, the record shows that
    Juror 23 was the TDCJ employee.
    Loud v. State                                                                                    Page 6
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    Affirmed
    Opinion delivered and filed February 8, 2012
    Do not publish
    [CRPM]
    Loud v. State                                  Page 7