Reed, Joseph v. State ( 2003 )

Affirmed and Majority and Dissenting Opinions filed July 17, 2003

Affirmed and Majority and Dissenting Opinions filed July 17, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00457-CR

  

NO. 14-02-00458-CR

____________

JOSEPH REED, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 770,116 and 770,135

M A J O R I T Y   O P I N I O N

Appellant, Joseph Reed, was indicted for the felony offenses of theft and possession of a controlled substance, enhanced with two prior convictions for felony theft.  Appellant entered a plea of guilty to the charges and true to the enhancements.  The trial court assessed punishment at 20 years= confinement for the theft offense and 35 years for the possession of a controlled substance.  Appellant subsequently appealed, arguing there was sufficient evidence to require a competency inquiry prior to sentencing.  See Reed v. State, 14 S.W.3d 438 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  A panel of this Court agreed (with one justice dissenting) and remanded the case for a competency inquiry by the judge.  See id.  On remand, the trial court held an inquiry, found that appellant was competent to stand trial, and re-sentenced appellant.  The trial court supplemented the record with a copy of a June 1998 psychiatric evaluation that found appellant was competent to stand trial, but which had not been included in the record of the original appeal.  The trial court further noted that appellant refused to comply with the trial court=s order to submit to a new evaluation. In this appeal, appellant argues the trial court committed reversible error in failing to conduct either a preliminary inquiry or a jury trial on appellant=s competency.  We affirm.

Article 46.02 of the Criminal Procedure Code governs a defendant=s competency to stand trial.  The five-step inquiry includes the following:

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, any 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 competency 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 competency hearing.^[1]

McDaniel v. State, 98 S.W.3d 704, 710-11 (Tex. Crim. App. 2003) (emphasis added); see  Tex. Code Crim. Proc. Ann. art 46.02 '' 1-4 (Vernon 1979 & Supp. 2003).  Each requirement must be fulfilled before proceeding to the next.  McDaniel, 98 S.W.3d at 711.

In the earlier appeal, this Court listed numerous examples of evidence requiring the trial court to conduct a Section 2 inquiry. See Reed, 14 S.W.3d at 439-41. On remand, the trial judge held several hearings on the issue of appellant=s competency and explained to appellant that in order for the court to re-sentence him, appellant needed to undergo a psychiatric evaluation.  Appellant refused to submit to any examination.  The trial judge found appellant competent and re-sentenced him.

Appellant now contends the trial court committed reversible error, because it did not conduct a competency inquiry or a jury trial on competency prior to re-sentencing him.  As we have already indicated, a psychiatrist initially examined appellant and found him sane and competent.  Following remand of the case, the trial court held several hearings in an attempt to convince appellant to be examined a second time.  In a hearing conducted on April 25, 2002, the trial court stated that, contrary to this Court=s first opinion, a competency inquiry was conducted prior to appellant=s pleas of guilty and that the trial court determined that appellant was sane and competent.  At the April 25 hearing, the trial court also stated that it was taking judicial notice of the clerk=s file, including the prior competency report.^[2]  The competency report is attached as an exhibit to that hearing.  The trial court further found Anothing contrary has been shown to the court@ and, following re-sentencing, again found appellant sane and competent.

Based on the complete record before us, we conclude that the trial court conducted a competency inquiry.  While part of the Ainquiry@ may have been conducted prior to our original opinion, it is clear that the trial court considered the issue and made findings.  Thus, although it was informal, a Section 2 inquiry did occur.  See Mata v. State, 632 S.W.2d 355, 358-60 (Tex. Crim. App. 1982) (holding that an informal hearing was sufficient).  Accordingly, we overrule appellant=s first issue.

            Appellant also argues the trial court erred in not conducting a jury trial on the issue of competency to stand trial during the punishment phase of trial.  Appellant contends, under  the law of the case doctrine, that this court previously determined evidence existed raising the issue of appellant=s incompetency, and as such, should not be revisited.  See Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999). 

Resolution of this appeal is not governed by the Alaw of the case @ doctrine.  In its most basic form, the doctrine provides

that an appellate court=s resolution of a question of law in a previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal.  Law of the case is a court‑made doctrine designed to promote judicial consistency and efficiency that eliminates the need for appellate courts to prepare opinions discussing previously resolved matters.  The doctrine assures trial courts that they can rely on the appellate court=s disposition of an issue in presiding over the case and provides an incentive for trial courts to follow these decisions closely.

Id. at 666 (footnote and citations omitted).

The problem with relying on the law of the case in this instance is two fold.  As discussed below, our prior opinion did not address whether appellant was entitled to a Section 4 competency hearing.  See Reed, 14 S.W.3d at 442 n.16 (AIndeed our holding is only that the trial court should have made an inquiry.@) (emphasis added).  Thus, because our prior opinion was addressing a different issue than that raised in appellant=s second point of error, it cannot have been Apreviously resolved.@  In addition, as noted above, one rationale for the doctrine is to assure that trial courts can rely on the appellate courts= disposition of an issue and provide an incentive for them to follow the decisions closely.  Here, the trial judge, in reliance on our prior opinion, and in an apparent attempt to follow the opinion closely, conducted a competency inquiry.  To now hold, as the dissent would have us do, that the trial court should have also conducted a competency hearing, is contrary to the rationale for the doctrine.

Furthermore, the twenty-one facts and circumstances which Astrongly support[] [appellant=s] claim [that] the court had evidence before it to raise a bona fide doubt of his competency [to stand trial],@ do not support the conclusion that a Section 4 hearing was required.  See Reed, 14 S.W.3d at 440-41.  The standard for granting a Section 4 competency hearing differs from that requiring a Section 2 competency inquiry.  A Section 2 competency inquiry is required if the evidence raises a bona fide doubt about a defendant=s competency to stand trial.  McDaniel, 98 S.W.3d at 710.  Evidence showing Arecent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant@ is usually sufficient to create this doubt.  Id. Evidence creating such a doubt Aneed not be sufficient to support a finding of incompetence and is qualitatively different from such evidence.@  Mata, 632 S.W.2d at 358 (emphasis added).  At the inquiry, the defendant must produce evidence Asufficient to support a finding of incompetenc[y]@ to require the trial court to hold a Section 4 competency hearing.  Id.;  Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001).

Here, no evidence was introduced at the inquiry which would support a finding of legal incompetence.  The 21 points outlined in our prior decision constitute the type of evidence that would require the trial court to hold a competency inquiryCwhich it did.  They do not, however, constitute sufficient evidence to support a finding of legal incompetence.

In determining whether there is sufficient evidence to conduct a competency hearing, the trial court is to consider only the evidence tending to show incompetency, and not evidence showing competency.  See Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000).  A trial court=s decision whether to conduct a competency hearing is reviewed for abuse of discretion.  See id.

A person is incompetent to stand trial if he does 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].  See Tex. Code Crim. Proc. Ann. art. 46.02, ' 1A(a) (Vernon Supp. 2003).  Information necessary to sufficiently raise the issue of appellant=s incompetency must be specific and illustrative of counsel=s present inability to communicate with the defendant.  See Moore, 999 S.W.2d at 394.  It is not enough for counsel to allege unspecified difficulties in communicating with the defendant.  See id.  Evidence of mental impairment alone does not require a competency hearing where no evidence indicates that a defendant is incapable of consulting with counsel or understanding the proceedings against him.  See id. at 395.  It is within the purview of the trial judge to distinguish evidence showing only impairment from that indicating incompetency as contemplated by the law.  See id. at 396.

Appellant and the dissent claim the 21 points outlined in our prior opinion satisfy this standard.  Even if it were appropriate for us to consider the Apre-inquiry@ evidence in determining whether a Section 4 hearing was required, we note that of the 21 points listed, only four^[3] arguably relate to appellant=s ability to understand the proceedings against him and to communicate with his lawyer.  The 17 other pieces of evidence relate to appellant=s head injury and mental impairment, but as previously stated, that alone does not constitute evidence of legal incompetency. 

Two of the points, 15 and 19, state that appellant filed motions with the trial court.  Appellant filed a pro se motion requesting a psychiatric evaluation, as well as other pre-trial motions, although he had already waived a trial on the merits.  Reed, 14 S.W.3d at 440-41.  Rather than demonstrating incompetency, we conclude that such behavior demonstrates appellant=s understanding of the legal process and his ability to function within it.  In addition, appellant filed numerous other proper motions with the trial court and orally demonstrated a comprehension of the law by citing to statutes.

The following two points, 12 and 20, are the only items which possibly indicate appellant=s inability to communicate with his lawyer or to understand the proceedings: (12) appellant claimed his defense counsel was conspiring against him and (20) at the sentencing hearing, appellant did not know what his plea had previously been.  Id. at 440-41.

Conflicts with defense counsel do not necessarily constitute incompetency.  The record shows that appellant had at least three different trial lawyers, and he requested two be  dismissed for ineffective assistance.  During the original proceedings, appellant filed two pro se motions to dismiss his first attorneys, Ronald N. Hayes and Samuel Knight.  In a letter to the trial court, appellant claimed Knight was conspiring against him.  After the case was remanded, appellant had an additional court-appointed attorney about whom he orally complained to the trial court.  He made no mention of a conspiracy, but rather argued that counsel was inadequately representing him.  In each instance, appellant comprehended the necessary procedure for having court-appointed counsel removed.  He filed motions, wrote a lucid and complete letter to the judge, and complained in court. This behavior is not indicative of an incompetent defendant, but rather one who does not like his appointed counsel. Distrust of  attorneys and a general failure to cooperate are not probative of competence to stand trial.  Burks v. State, 792 S.W.2d 835, 840 (Tex. App.CHouston [1st Dist.] 1990, pet. ref=d).  AIf such actions were probative of incompetence, one could effectively avoid criminal justice through immature behavior.@  Id.

As to appellant=s understanding of his plea, he admitted at the Section 2 inquiry that he knew he had pled guilty. He had a lengthy discussion with the court regarding whether the indictment properly reflected the weight of the seized cocaine.  Although appellant claimed in the same discussion that he did not know what he had pled guilty to, it appears from the record that appellant was fully aware of what he had been charged with and his plea.

In conclusion, because no evidence was adduced at the Section 2 inquiry that would support a finding of legal incompetence, the trial court did not abuse its discretion in failing to conduct a Section 4 hearing on this issue.

The judgment of the trial court is affirmed.

/s/        Leslie Brock Yates

Justice

Judgment rendered and Majority and Dissenting Opinions filed July 17, 2003.

Panel consists of Chief Justice Brister and Justices Yates and Edelman. (Brister, C.J. dissenting).

Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Prior cases interpreting article 46.02 use the words Ainquiry@ and Ahearing@ interchangeably.  For clarity, we note that Section 2 governs an inquiry and Section 4 a hearing.

^[2]   We note that in addition to the competency report, the clerk=s file also contains over 200 pages of medical records from the Texas Department of Criminal Justice.  The trial judge requested these medical records, which contain mental health screenings and evaluations, and included them as part of the trial record.

^[3]  The four points from our prior decision that we consider relevant to this inquiry are:

12.  Contrary to the dissent and State=s argument, the record shows appellant claimed his own defense counsel was conspiring against him.

15.  After his plea, appellant filed motions dealing with a trial of the merits, which he had already waived.

19.  Appellant filed pro se motions for independent psychiatric evaluation and to offer insanity as a defense.

20.  At his sentencing hearing, appellant stated he didn=t know what his plea was.

Reed, 14 S.W.3d at 440-41.