Byron Gene Murphy v. State ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Byron Gene Murphy

Appellant

Vs.                   No.  11-02-00297-CR C Appeal from Collin County

State of Texas

Appellee

Byron Gene Murphy pleaded guilty to the offense of aggravated sexual assault of a child. Pursuant to the terms of a plea bargain agreement reached between appellant and the State, the trial court assessed appellant=s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 20 years. Appellant raises three points of error on appeal which attack the trial court=s actions in addressing his incompetency claim. We affirm.

  Appellant filed his original notice of appeal on August 26, 2002.  The version of Rule 25.2(b)(3) (2002)^[1] in effect at the time appellant filed his notice of appeal read as follows:

(3) But if the appeal is from a judgment rendered on the defendant=s plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice [of appeal] must: 

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C) state that the trial court granted permission to appeal.

Rule 25.2(b)(3) (2002) placed both procedural and substantive limitations on the appellate rights of plea-bargaining defendants.  Woods v. State, 108 S.W.3d 314, 316 (Tex.Cr.App.2003); Cooper v. State, 45 S.W.3d 77, 83 (Tex.Cr.App.2001); Whitfield v. State, 111 S.W.3d 786, 788 (Tex.App. B Eastland 2003, pet=n filed).  From a procedural standpoint, Rule 25.2(b)(3) (2002) required a plea-bargaining defendant=s notice of appeal to specify one of the grounds enumerated in the rule.^[2]  Appellant=s original notice of appeal did not specify any of the three grounds listed in the rule. Appellant subsequently filed an amended notice of appeal which specified that the substance of the appeal was raised by written motion filed before trial.^[3]  Therefore, appellant=s amended notice of appeal satisfied the procedural requirements of Rule 25.2(b)(3) (2002).

From a substantive standpoint, appellant is limited, as a plea-bargaining defendant, in the matters which he can raise on appeal to attack his conviction.  See Rule 25.2(b)(3) (2002); Woods v. State, supra at 316; Cooper v. State, supra at 83; Whitfield v. State, supra at 788.  We are only authorized to address points of error which raise jurisdictional defects, matters raised by written motion prior to trial, and matters for which the trial court has granted permission to appeal.  Woods v. State, supra at 316.  Prior to entering his plea of guilty, appellant filed a written motion seeking a psychiatric/psychological examination in order to determine his competency to stand trial.  The trial court granted this motion by entering an order directing Dr. Richard Neiman to conduct a competency examination.  Dr. Neiman submitted a report to the trial court which indicated his belief that appellant was competent to stand trial.  The record does not reflect that the trial court made any additional inquiry into appellant=s competency other than asking appellant if he was competent at the time appellant entered his guilty plea.   

Appellant asserts in his first point of error that the trial court erred by failing to conduct a hearing on appellant=s incompetency contentions.  Appellant is essentially attacking the voluntariness of his guilty plea based on his contention of incompetency.  We do not have jurisdiction to consider appellant=s general complaint that his plea was involuntarily made.   Cooper v. State, supra at 83; Whitfield v. State, supra at 788. However, we have jurisdiction to consider matters raised by written motion prior to trial.  Woods v. State, supra at 316; Cooper v. State, supra at 83; Whitfield v. State, supra at 788. Accordingly, we will address appellant=s complaints regarding the manner in which the trial court addressed his incompetency claim since this matter was raised by a written, pretrial motion.

The procedures applicable to a claim of incompetency to stand trial are set out in TEX. CODE CRIM. PRO. ANN. art. 46.02 (Vernon 1979 & Pamph. Supp. 2003). The Texas Court of Criminal Appeals recently addressed these procedures in McDaniel v. State, 98 S.W.3d 704, 709-13 (Tex.Cr.App. 2003).  With respect to claims of incompetency raised before trial, the statute provides two levels of proceedings.  A Acompetency inquiry@ is a nonjury hearing to determine whether to hold a jury trial on the defendant=s competency.  Article 46.02, section 2; McDaniel v. State, supra at 710.  The jury trial to determine the defendant=s competency is referred to as a Acompetency hearing.@  Article 46.02, section 4; McDaniel v. State, supra at 710.   The court outlined the following procedural steps in McDaniel regarding a pretrial claim of incompetency:

1) if a competency issue is raised by the defendant, any party, or the court; and

2) evidence of incompetency is brought to the attention of the trial court by the defendant, and party, or the court;

3) of the type to raise a bona fide doubt in the judge=s mind regarding the defendant=s competency to stand trial; then

4) the judge must conduct a Section 2 Acompetency inquiry@ to determine if there is some evidence sufficient to support a finding of incompetence, and if there is,

5) the judge must impanel a jury for a Section 4 Acompetency hearing.@

McDaniel v. State, supra at 710-11.  The requirements of each step must be fulfilled before moving on to the next step. McDaniel v. State, supra at 711. 

Appellant=s motion requesting a psychiatric/psychological examination fulfilled step one of McDaniel=s analysis in that it raised the issue of competency.  We must then determine if sufficient evidence was brought to the attention of the trial court to raise a bona fide doubt regarding the defendant=s competency to stand trial.  McDaniel v. State, supra at 710-11. Evidence is usually sufficient to create a bona fide doubt as to competency if it shows recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.  McDaniel v. State, supra at 710.

Appellant=s motion requesting a psychiatric/psychological examination only contained an unverified assertion by appellant=s trial counsel that appellant had suffered from seizures for 20 years due to a traumatic head injury.  Appellant argues on appeal that evidence of his incompetency was presented to the trial court in a handwritten document that he filed with the court.  The document outlines appellant=s versions of the allegations made against him and his dealings with the police officers that investigated the matter.  Appellant asserted in the document that the allegations made against him by family members were fabricated in retaliation for the large inheritance left to appellant by his father.  The document is more indicative of appellant=s competency rather than incompetency to stand trial.  Dr. Neiman=s report of his examination of appellant stated as follows:

[Appellant] was oriented to person, place and time, as well as the situation.  He recalled cities in the McKinney area, various states in the union, and had concept of land distances.  He did well with abstractions and judgment questions, and did simple arithmetic.  He has a good working vocabulary.  As noted, his attitude of suspicion prevailed during the interview, but he could understand a joke, and laugh at a humorous point.

I found [appellant] capable of understanding procedure and capable of constructive conversation.  I feel he is competent to stand trial, and would recommend no specific treatment.

The record does not contain evidence raising a bona fide doubt concerning appellant=s competency.  Without such evidence, the trial court was not required to conduct either a competency inquiry or a competency hearing.  Appellant=s first point of error is overruled. 

Appellant argues in his second point that the trial court erred in considering Dr. Neiman=s report on the basis that the report did not comply with the requirement of either the statute or the trial court=s order.  Article 46.02, section 3(d) of the statute provides that the report Ashall include a description of the procedures used in the examination, the examiner=s observations and findings pertaining to the defendant=s competency to stand trial, and the recommended treatment.@ The trial court=s order requiring the examination of appellant tracked this language from the statute.  Dr. Neiman stated in his report that he examined appellant by means of a direct interview.  He further provided his observations, findings, and recommended treatment. Accordingly, Dr. Neiman=s report addressed the elements set forth in the statute and the trial court=s order.  Moreover, the record does not reflect that appellant either raised any deficiencies in Dr. Neiman=s report with the trial court or requested an additional competency examination.   Therefore, appellant is precluded from asserting deficiencies with Dr. Neiman=s report on appeal.  See TEX.R.APP.P. 33.1.  Appellant=s second point of error is overruled.

Appellant asserts in his third point of error that the trial court erred in failing to consider his pro se motion for new trial wherein he alleged incompetency.^[4]  Appellant did not submit any additional evidence in support of the motion other than his assertion of incompetency.  The trial court did not err in overruling the motion for new trial in the absence of evidence raising a bona fide doubt concerning appellant=s competence.  McDaniel v. State, supra at 710-11.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

December 4, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]The Court of Criminal Appeals amended TEX.R.APP.P. 25.2 effective January 1, 2003.  All references in this opinion to ARule 25.2(b)@ or ARule 25.2(b)(3)@ refer to the version of TEX.R.APP.P. 25.2 in effect in 2002 when appellant filed his original notice of appeal.

     ^[2]The requirements of former Rule 25.2(b)(3) (2002) for the plea-bargaining defendant=s notice of appeal have been replaced with the procedure for the certification of the defendant=s right of appeal by the trial court as set forth in TEX.R.APP.P. 25.2(d) (2003).

     ^[3]This court granted leave for appellant to file the amended notice of appeal on September 4, 2003.  See TEX.R.APP.P. 25.2(f) (2003).  Upon the filing of the amended notice of appeal, the trial court executed a certification of defendant=s right of appeal. See Rule 25.2(d) (2003).

     ^[4]Appellant=s pro se motion for new trial alleged numerous other grounds in addition to incompetency. Appellant only presents the incompetency ground for appellate review.