Lashundra Adams v. State ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Lashundra Adams

Appellant

Vs.                   No. 11-03-00052-CR B Appeal from Dallas County

State of Texas

Appellee

Lashundra Adams waived her right to a jury trial, made a judicial confession, and entered a guilty plea to the indictment which charged her with possessing Awith intent to deliver@ more than four grams of cocaine.  There was no plea bargain, and the trial court ordered a presentence investigation. After that report was filed, the trial court sentenced appellant to confinement for five years.^[1]  We affirm the conviction.

                                                                Sole Point of Error

Appellant=s court-appointed lawyer filed a brief which contains only one point of error. Appellant argues that the trial court erred Ain not stopping the plea proceedings@ to investigate her mental state.  Appellant=s brief refers to these two sentences in a lengthy presentence report:

[Appellant] said that the doctor in jail has given her celexa for antidepressant. She did look depressed.

                                                        Hearing on October 18, 2002

The trial court examined appellant under oath at the first hearing to make sure that she understood the indictment; that she was pleading guilty because the allegations in the indictment were true; that she realized that she was charged with a first-degree felony^[2]; and that she understood  that this was an Aopen plea@ which meant that there was Ano deal, promise, or understanding@ as to any particular outcome at the time of sentence.  Appellant told the court that she was able to read and write, that she had read the papers which she had signed (the Aplea agreement@ and the Ajudicial confession@), and that she understood them.  The court made sure that she realized that she was giving up her right to a jury trial. After appellant=s trial counsel said that he was Asatisfied that this lady is competent,@ the trial court accepted her plea and ordered a presentence investigation.

                                                      Hearing on November 15, 2002

The State asked the court to take judicial notice of the presentence report which had been prepared.  Appellant=s trial counsel said that there was Ano objection@ to the report.  Relevant portions of that report read as shown:

LASHUNDRA ADAMS is a 26-year old black female, charged with the offense of Possession of Controlled Substance with intent to deliver more than 4 but less than 200 grams.  She was interviewed at the North Tank at Lew Sterrett on October 21, 2002.  She was cooperative in answering questions.  She said that the doctor in jail has given her celexa for antidepressant.  She did look depressed.

                                                           *    * *

She said that she had been selling drugs on and off for five years.

                                                           *    * *

If she could change anything in her life, it would be Anot having sex early.@ 

                                                           *    * *

She said that she had lived with a boyfriend when she was 14 years old.  She lived with him for two years.  They had a son who is now 12 years old.  They separated when he Astarted to fight on me.@ [She] had another boyfriend when she was 17 years old.  She did not live with him.  They had a son who is now nine years old.  She had a boyfriend who fathered three children, now ages five, four, and three.  She met him when she was 20 years old.  She said that her latest relationship is with somebody she had met in jail.  She had seen him one time.  They write to each other.  He is in jail for probation violation and expects to be released next month.  She said that none of the children of three girls and two boys live with her.  She sees all of them.

                                                           *    * *

MESSAGE TO THE JUDGE

AI want to be on probation.  I have never been in jail before.  During eight months in jail, I have [had] time to think about what I did wrong and made up my mind jail is not for me.  I will never come back.  If you give me probation, I will prove to you this place is not for me, and show you that I will never be back.@

OFFICER=S IMPRESSIONS AND RECOMMENDATION

The defendant...admitted ownership of the drugs....[S]he has been dealing in drugs on and off for the last five years....She appears to have a substance abuse problem that she is not willing to admit.  She has not had any kind of substance abuse treatment.

Based on the information provided, she is a poor candidate for probation.  If given probation, the conditions of probation must include at least supportive outpatient drug treatment, GED, and drug offender program.  Assignment to the Day Reporting Center is appropriate so that she could have lifeskills classes.  (Emphasis added)

After the State rested, appellant was called as a witness by her trial counsel.  Relevant portions of her testimony read as shown:

Q: Lashundra, you know why you are here today, correct?

A: Yes.

Q: This is in effect your trial, you are going to tell His Honor a little bit about you, explain the circumstances of your life and this offense and sum it up, you are going to ask His Honor to grant you probation; is that correct?

A: Yes.

                                               *    * *

Q: Now, a lot of folks come before His Honor and they present their problems and they ask that he grant mercy and we talked about that and you said you wanted to talk a little bit about your plans for the future if you are afforded the opportunity to have probation?

A: Yes, sir.

Q: You said you wanted to get an honest job, what are you interested in?

A: I am interested in home health care.  I did it before.  But I would like to go to school for it and get a license for it so I can do it.

Q: You said you wanted to get your GED?

A: Yeah.

                                               *    * *

Q: Do you think you can [make your probation work]?

A: I can get my GED and get me a good job and support my children like they need to be supported.

Q: And your children range in age from what?

A: Twelve to three.

During her cross-examination by the State, appellant admitted that she had a gun for protection, that she had been selling drugs Afrom age 17 off and on,@ and that she had installed surveillance cameras in the house where she sold drugs. 

                                 Relevant Law on Competency to Stand Trial

The due process right to a fair trial prevents the government from subjecting a person to trial if the person=s Amental condition@ is such that he or she lacks the capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in preparing the defense. Drope v. Missouri, 420 U.S. 162, 171 (1975); Pate v. Robinson, 383 U.S. 375 (1966). 

While discussing these two cases, our Court of Criminal Appeals said in Alcott v. State, 51 S.W.3d 596, 599 (Tex.Cr.App.2001):

To adequately guard the right to a fair trial where evidence of the defendant=s incompetence is raised during trial, our Legislature, consistent with the Supreme Court=s opinion in Pate and with this Court=s jurisprudence on the subject, adopted Section 2(b).^[3]  Prior to Section 2(b)=s adoption and after Pate, this Court held that evidence from any reasonable or credible source must raise a bona fide doubt as to a defendant=s competency to stand trial before a trial judge is required sua sponte to hold a competency hearing. After Section 2(b)=s adoption, this Court in Johnson v. State, [564 S.W.2d 707, 710 (Tex.Crim.App.1977)], recognizing Texas common law, found that the Legislature did not intend to abrogate the Abona fide doubt@ standard, but rather to codify that standard in cases where evidence of the defendant=s incompetence was raised during trial.

In Sisco v. State, [599 S.W.2d 607, 613 (Tex.Crim.App.1980)], we adhered to our position in Johnson that Section 2(b) maintains the Abona fide doubt@ standard. But we said that a different standard governs Article 46.02, Section 2(a).^[4]  We explained that the language of Section 2(a), which requires the trial court to conduct a hearing before trial where the court Adetermines there is evidence to support a finding of incompetency to stand trial,@ means that the trial court must determine Awhether there is some evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetence.@

                                                           *    * *

The statutory language, and our cases construing it, thus persuade us that the court of appeals correctly concluded that Aevidence of the defendant=s incompetency,@ as used in the opening clause of Section 2(b), is that evidence sufficient to create a bona fide doubt in the judge=s mind as to the defendant=s competence to stand trial.  This clause triggers the determination of whether the trial court need conduct a competency inquiry sua sponte.  (Emphasis in original)

See also McDaniel v. State, 98 S.W.3d 704, 709 (Tex.Cr.App.2003).

                                                    This Court=s Ruling

The sole point of error is overruled.  The trial court did not err by failing to stop the plea proceedings.  The evidence before the court did not show that appellant was incompetent to stand trial. Her testimony at the two hearings showed that she had the mental capacity Ato understand the nature and object of the proceedings, to consult with counsel, and to assist in preparing the defense.@  The fact that she was Adepressed@ and taking medicine was not sufficient to create a bona fide doubt in the trial court=s mind of her competency to stand trial.  Alcott v. State, supra.

The judgment of the trial court is affirmed.        

BOB DICKENSON

SENIOR JUSTICE

July 10, 2003 

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

Panel consists of: Arnot, C.J., and

Wright, J., and Dickenson, S.J.^[5]

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^[1]The trial court denied her request for deferred adjudication and community supervision.

^[2]The trial court made sure that appellant understood that the minimum sentence was 5 years and that the maximum sentence was 99 years or life, plus a fine of up to $10,000.

^[3]TEX. CODE CRIM. PRO. ANN. art. 46.02, ' 2(b) (Vernon 1979) provides:

If during the trial evidence of the defendant=s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial. (Emphasis added)

^[4]TEX. CODE CRIM. PRO. ANN. art. 46.02, ' 2(a) (Vernon 1979) provides:

The issue of the defendant=s incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.  (Emphasis added)

^[5]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.