Kent Fales v. State ( 2000 )

NUMBER 13-96-035-CR

and 13-96-036-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

KENT FALES,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 130th District Court of Matagorda County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden, and Justices Dorsey and Chavez

Opinion by Justice Chavez

Appellant Kent Fales pleaded guilty to aggravated sexual assault without an agreement concerning a recommendation on punishment from the State, and a jury assessed punishment of life imprisonment and a $10,000 fine. Appellant raises four points of error. In 1997, we reversed and remanded appellant's conviction, applying the Helms⁽¹⁾ rule to his first point of error. We held that appellant did not knowingly and intelligently enter a guilty plea because his plea was given with the incorrect assurance from the trial court that he could still obtain appellate review of his pretrial motions to suppress despite his guilty plea, but then, as required by Helms, was not permitted to do so. Because we found this point of error dispositive, we reversed without addressing appellant's other points of error. The State sought further appellate review. The court of criminal appeals has ordered that we review this case under its partial reversal of Helms v. State, recently set out in Young v. State.⁽²⁾ We now affirm the judgment of the trial court.

Appellant filed pretrial motions to suppress his confession and to suppress evidence from an illegal search and/or illegal arrest. At the suppression hearing, the court heard uncontested testimony that appellant had freely and voluntarily confessed, and was fully informed of his Miranda rights. The court also heard testimony from a social worker from Child Protective Services who testified to an outcry statement made by the victim of appellant's crime. The victim had made at least one outcry statement about alleged fondling by appellant, but for the first time reported other acts by appellant which constitute elements of aggravated sexual assault.

A valid plea of guilty or nolo contendere forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of and is not supported by the error. Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000). Here appellant's confession and the social worker's testimony was attacked at the suppression hearing, the judge did not grant appellant's motion to suppress, and then this evidence was used against him at trial. Therefore the judgment of guilt was supported by the trial court's ruling on the motion to suppress, and we may review the motion to suppress on appeal. Appellant has made no references to the record and provided us with no supporting authority for his motion to suppress. By failing to provide references to the record and supporting authority, appellant has waived this argument. Tex. R. App. P. 38.1(h); see Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App. 1997). We overrule appellant's first issue.

Appellant argues in his second point of error that the trial court erred by not appointing appellate counsel in a timely manner. At sentencing, the trial judge appointed appellant's trial attorney to serve as his appellate attorney. In light of appellant's trial attorney's failure to win an acquittal and less than a life sentence for appellant, appellant's trial attorney and appellant concurred that it would be better that another attorney take the case on appeal. The trial court did not appoint appellate counsel until the seventieth day after sentencing. Trial counsel remained as counsel until this time and filed a motion for new trial and notice of appeal. See Ward v. State, 740 S.W.2d 794, 796 (trial attorney's legal responsibilities do not automatically terminate at the conclusion of trial).

Appellant argues that abatement of this case is necessary so that amendments may be filed on the motion for new trial, a hearing may be requested for the motion for new trial, and so that a record may be developed to determine if appellant received effective assistance of counsel at trial. Any amendments to a motion for new trial, request for a hearing on a motion for new trial or to develop a record for our review are now untimely. Tex. R. App. P. 21.4, 21.6, 33.1. We therefore overrule appellant's second point of error.

Appellant argues in his third point of error that he received ineffective assistance of counsel. The United States Supreme Court and the Texas Court of Criminal Appeals have both promulgated a two-prong procedure to determine whether representation was so inadequate that it violated the defendant's sixth amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986). First, trial counsel's performance must fall "below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. This deficiency must be of the extent that counsel failed to function as counsel. Epps v. State, 24 S.W.3d 872, 881 (Tex. App.--Corpus Christi 2000, no pet. h.). Secondly, the appellant must prove that "the deficient performance prejudiced the defense" by "a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 686, 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 693. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700.

The burden of proving ineffective assistance of counsel is on the appellant by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). This Court considers the totality of the circumstances to determine if the Strickland requirements are met. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). The defendant must overcome a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Tijerina v. State, 921 S.W.2d 287, 289 (Tex. App.--Corpus Christi 1996, no pet.).

Appellant complains that he did not receive effective assistance of counsel because his trial counsel did not provide a record on which we can determine whether he provided effective assistance. Appellant states that trial counsel did not require the court reporter to record all bench conferences and that counsel's written motions were so general that they required presentation at an oral hearing to support them. The only pre-trial issue that appellant complains about specifically is the outcry statement by the victim of his crime. Although trial counsel failed to file a motion to suppress the outcry statement of his victim, the record before us clearly shows that the trial judge heard evidence on this issue and ruled on it at a suppression hearing. Appellant is correct that we cannot assess any harm from counsel's failure to develop a stronger record for our review. Under appellant's argument, wherever the record does not show harm, an appellant could assert that he received ineffective assistance by trial counsel's failure to develop a record to show harm. The fact remains that the law requires that, where the record does not show harm by the alleged ineffective assistance, the ineffective assistance claim must fail. See Strickland at 700.

Appellant complains that trial counsel did not fully inform him of the rights he would waive if he entered a guilty plea. The only possible consequence from the error alleged by appellant is an inability, under the old Helms rule, to appeal the suppression hearing for our review. Since, as explained above, appellant now has the right to have the suppression hearing reviewed but did not chose to exercise this right, there is no difference in the result of the proceeding.

Appellant also argues that trial counsel should have informed him that by choosing to testify at the punishment stage of the trial and by admitting the facts of his confession, he waived all previous objections to the admission of the confession. Since appellant's confession was properly admitted at trial, and the jury had therefore already heard it, this error has created no difference in the results of the proceeding. We therefore reject this argument.

Appellant argues that trial counsel should have ascertained whether appellant was mentally competent to stand trial or enter a plea and similarly, should have ascertained whether appellant was so intoxicated from the use of prescription drugs that he was unable to fully understand the implications of his plea. Appellant was under the influence of Xanax at the time of trial. Xanax is a prescription drug for panic disorders and agoraphobia. See Arky, R., M.D., Physicians' Desk Reference (1998). Common side effects include drowsiness, light-headedness, depression, dry-mouth, diarrhea, and constipation. See id. The record provides no showing of trial counsel's research into his client's mental state nor is there evidence of any deficiency in the decisions counsel made. Counsel may have researched appellant's mental health in great detail and determined that it was best not to raise the issue; we may not second guess counsel's trial strategy.

Appellant argues trial counsel made no issue of his inability to read the contents of his written statement. The only challenge appellant raises comes from a dialogue about whether he meant that he used physical or psychological pressure on his victim when he used the word "made" when he stated that he "made [the victim] have oral sex on him" in his statement. Appellant has failed show how this possible difference gave rise to either a deficient performance or prejudice to appellant's defense. We reject this argument.

Appellant argues that trial counsel improperly promised appellant that he would get ten years probation and that trial counsel failed to inform him that if he had accepted the State's plea offer of ten years confinement that he would be eligible for parole after five years. There is no proof in the record that trial counsel made an improper promise or failed to provide appellant with information about parole eligibility. We therefore reject this argument. We overrule appellant's third point of error.

In his fourth point of error, appellant argues that the trial court denied appellant due process of law because it failed to initiate an investigation to determine appellant's competency to stand trial by failing to empanel a jury for the purpose of conducting a competency hearing. A trial court may not accept a defendant's plea until it admonishes the defendant, makes a determination of his competency, and determines that his plea is free and voluntary. Tex. Code Crim. P. Ann. art. 26.13(a),(b) (Vernon 1989 and Supp. 2000). To be legally competent, appellant must have the ability to consult with his lawyer with a reasonable degree of rational understanding and have a rational and factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02, §1 (Vernon 1979).

A trial judge is required to empanel a separate jury to determine whether or not a defendant is mentally competent if the judge determines that there is evidence to support incompetency to stand trial. Williams v. State, 663 S.W.2d 832, 833 (Tex. Crim. App. 1984). We review a trial court's decision regarding whether to empanel a jury to determine whether a defendant is competent to stand trial under an abuse of discretion standard. Garcia v. State, 595 S.W.2d 538, 542 (Tex. Crim. App. 1980). An abuse of discretion occurs when a trial court's decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Under this standard, an appellate court should only reverse when the trial court's acts are arbitrary and unreasonable, and without reference to any guiding principles. Id. at 380.

Of the common side effects of Xanax,⁽³⁾ only depression could possibly raise a mental competency issue. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999) (evidence of recent severe depression may raise issue of defendant's competency to stand trial). Since the issue of mental competency was not raised by either party, the trial judge would have been required to have raised the question himself. A trial court is required to conduct a competency hearing sua sponte only when evidence comes to its attention that raises a bona fide or reasonable doubt in the judge's mind as to the defendant's competency. Loftin v. State, 660 S.W.2d 543, 546 (Tex. Crim. App. 1983). We see nothing in the record that could have alerted the trial court to consider conducting a competency hearing. We overrule appellant's fourth issue.

We AFFIRM the judgment of the trial court.

MELCHOR CHAVEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 21st day of December, 2000.

1. Under Helms, when there had been no agreement between the defendant and the State under which the defendant agreed to plead guilty in exchange for a recommendation on punishment from the State, a defendant who pleaded guilty waived appeal on all nonjurisdictional defects. Helms v. State, 484 S.W.2d 925 (Tex. Crim. App. 1972).

2. 8 S.W.3d 656 (Tex. Crim. App. 2000).

3. See Arky, R., M.D., Physicians' Desk Reference (1998).