Pamela Denise Douglas v. State ( 2010 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
PAMELA DENISE DOUGLAS, §
No. 08-09-00027-CR
Appellant, §
Appeal from the
v. §
292nd District Court
THE STATE OF TEXAS, §
of Dallas County, Texas
Appellee. §
(TC# F-08-54706-V)
§
OPINION
Appellant, Pamela Douglas, entered an open plea of guilty to aggravated robbery of a person
65 years of age or older, and after a punishment hearing, was sentenced to fifteen years’
incarceration. In two issues on appeal, Appellant assails the voluntariness of her guilty plea and
alleges that the trial court abused its discretion by failing to conduct an informal competency hearing.
We affirm.
BACKGROUND
Evidence presented at the punishment hearing revealed that at age 66, the complainant,
Francisco Moreno, was cleaning the parking lot at a Dallas club when Appellant ran towards him
and demanded his money. Moreno ran to the club’s door in attempt to get help, but Appellant hit
him and he fell to the ground. Appellant then jumped on Moreno and covered his mouth and nose
with her hand. Feeling as if he would suffocate, Moreno bit Appellant’s finger. Appellant struck
Moreno in the face and eye, bit his head, knocked out four of his teeth, injured his shoulder, and
caused him to bleed profusely. After a twenty-minute assault, Appellant took Moreno’s wallet and
fled. Two security guards apprehended Appellant nearby.
During the hearing, Appellant generally admitted to the offense, although she denied placing
her hand over the complainant’s nose and mouth or biting his head, and claimed he struck her first.
She also testified that when she previously worked at the club with Moreno, he told her that he was
51 or 52 and that she and her co-workers were shocked because he appeared older. Finally,
Appellant revealed that she has a drug problem and was recently diagnosed with schizoaffective
disorder. Her medical records showing her diagnosis of schizoaffective disorder, bipolar disorder,
cocaine dependency, and visual and auditory hallucinations were also admitted.
COMPETENCY HEARING
According to Appellant’s first issue, the trial court, pursuant to article 46B.004(c), should
have conducted an informal competency inquiry based on evidence presented at the plea hearing that
Appellant was recently diagnosed with schizoaffective disorder. Thus, Appellant asks that we abate
the appeal to the trial court for a “retroactive determination” of Appellant’s competency.
Preservation of Error
Initially, we address whether Appellant preserved the issue for our review. It is undisputed
that Appellant did not raise the issue of her competency at any time in the trial court and that she and
her counsel averred that she was competent. In Means v. State, 955 S.W.2d 686, 689 (Tex.
App.–Amarillo 1997, pet. ref’d), the Amarillo Court of Appeals held that the appellant did not
preserve error arising from the trial court’s failure to convene a competency hearing because the
appellant did not file a motion suggesting he was incompetent, did not request a competency hearing,
and did not object to the trial court’s failure to conduct a competency hearing. Accord Dickson v.
State, No. 13-97-693-CR, 1999 WL 33757418, at *1 (Tex. App.–Corpus Christi May 13, 1999, no
pet.) (op., not designated for publication). However, other courts, including this one, have addressed
the argument without considering whether the error must be preserved in the trial court. See Hall
v. State, 766 S.W.2d 903, 905-07 (Tex. App.–Fort Worth 1989, no pet.); Flagg v. State, Nos.
05-08-00019-CR, 05-08-00020-CR, 05-08-00021-CR, 05-08-00022-CR, 05-08-00023-CR,
05-08-00024-CR, 2009 WL 242527, at *2 (Tex. App.–Dallas Feb. 3, 2009, pet. dism’d, untimely
filed) (op., not designated for publication); Higgins v. State, No. 08-03-00171-CR, 2004 WL
1535609, at *2 (Tex. App.–El Paso July 8, 2004, no pet.) (op., not designated for publication).
Because this case has been transferred to our court from Dallas, and because the Dallas Court of
Appeals has not held that a trial court’s failure to hold a competency hearing must be preserved in
the trial court, we will proceed to address the merits. See TEX . R. APP . P. 41.3.
Standard of Review
A trial court’s decision not to conduct an informal competency inquiry is reviewed under an
abuse-of-discretion standard. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009);
Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A defendant is presumed competent
to stand trial and shall be found competent to stand trial unless proved incompetent by a
preponderance of the evidence. TEX . CODE CRIM . PROC. ANN . art. 46B.003(b) (Vernon 2006). A
defendant is incompetent to stand trial if he lacks (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. Id. at art. 46B.003(a); Luna v. State, 268 S.W.3d 594,
599 (Tex. Crim. App. 2008). Therefore, unless it appears that a defendant is mentally competent and
the plea is free and voluntary, a trial court cannot accept his plea of guilty. TEX . CODE CRIM . PROC.
ANN . art. 26.13(b) (Vernon Supp. 2009); McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App.
2003).
A 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 . PROC. ANN . art. 46B.004(a) (Vernon
2006). 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. Id. at art. 46B.004(c). But an informal inquiry
is not required unless the evidence is sufficient to create a bona fide doubt in the mind of the trial
court about whether the defendant is legally competent.1 Montoya, 291 S.W.3d at 425; McDaniel,
98 S.W.3d at 710. “A bona fide doubt is ‘a real doubt in the judge’s mind as to the defendant’s
competency.’” Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008) (quoting Alcott v. State,
51 S.W.3d 596, 599 n.10 (Tex. Crim. App. 2001)).
Application
Appellant contends that the trial court should have inquired into her competency based on
her medical records and testimony that she was recently diagnosed with schizoaffective disorder and
bipolar disorder, suffered from hallucinations, and was taking medications that quiet the voices she
hears and control her racing thoughts.2 However, nothing in the record indicates that Appellant was
incapable of consulting with counsel or did not understand the proceedings on the day of the plea
proceedings. Appellant’s testimony was lucid, her answers to the questions posed were responsive
and clear, and Appellant coherently relayed her side of the story, her long history of drug abuse, and
her desire for community supervision with drug rehabilitation. Compare Baldwin v. State, 227
1
In his brief, Appellant asserts that the bona-fide doubt standard no longer applies to competency hearings
as article 46B, having recently replaced former article 46.02, simply requires a “suggestion” that the defendant was
incompetent. Compare T EX . C O D E C RIM . P RO C . A N N . art. 46B.004(b) (stating the current standard for triggering a
competency inquiry as “evidence suggesting the defendant may be incompetent”), with T EX . C O D E C RIM . P RO C .
A N N . art. 46.02, § 2(b) (stating standard as “evidence of the defendant’s incompetency . . . from any source”),
repealed by Acts of April 30, 2003, 78th Leg., R.S., ch. 35, § 15, 2003 Tex. Gen. Laws 57, 72. However, after
Appellant filed his brief, the Court of Criminal Appeals decided that the bona-fide doubt standard still applies to
competency inquiries under article 46B. See Montoya, 291 S.W .3d at 425.
2
Appellant does not contend, nor does the record reflect, that schizoaffective disorder or bipolar disorder
is a severe mental illness.
S.W.3d 251, 256 (Tex. App.–San Antonio 2007, no pet.) (finding defendant’s testimony indicated
he could tell his side of the story and plead for leniency in a coherent manner, and none of it
suggested he lacked a rational understanding of the case against him), with Greene v. State, 225
S.W.3d 324, 329 (Tex. App.–San Antonio 2007, no pet.) (finding trial court should have conducted
informal competency hearing where defendant’s testimony was “rambling, nonresponsive,” and “of
the most bizarre quality,” which demonstrated confusion and out of touch with reality), abrogated
on other grounds by Montoya, 291 S.W.3d at 424-25. Appellant and her attorney represented to the
trial court that she was mentally competent on the day of the plea proceedings, and the trial court
found that Appellant was competent and understood the nature and consequences of the charge.
There was never any suggestion, despite the medical records and testimony admitted concerning her
recent diagnosis, that Appellant’s demeanor, which was observed by the trial court, prosecutor, and
defense attorney, was abnormal or indicated that she was unable to understand the proceedings or
confer with her attorney. See Moore, 999 S.W.2d at 395-96 (indicating that mental impairment alone
such as schizoaffective disorder does not mandate a competency hearing where no evidence
indicated defendant was incapable of consulting with counsel or unable to understand the
proceedings); LaHood v. State, 171 S.W.3d 613, 619 (Tex. App.–Houston [14th Dist.] 2005, pet.
ref’d) (absent evidence of inability to communicate or understand proceedings, competency inquiry
not required even though defendant was diagnosed with schizophrenia and was taking medication);
Lingerfelt v. State, 629 S.W.2d 216, 217 (Tex. App.–Dallas 1982, pet. ref’d) (diagnosis of
schizophrenia was no more than speculation that defendant was unable to consult with attorney).
Although evidence of recent severe mental-health issues, moderate retardation, or bizarre behavior
may indicate a bona fide doubt of competency, evidence of depression, past mental-health issues,
or mental impairment does not raise the issue of competency. Montoya, 291 S.W.3d at 425; Moore,
999 S.W.2d at 395. As there was no evidence that raised a bona fide doubt that Appellant was
incapable of consulting with her attorney or understanding the proceedings, we conclude that the trial
court did not abuse its discretion by failing to conduct an informal inquiry into Appellant’s
competency to stand trial. See Grider v. State, 69 S.W.3d 681, 684-85 (Tex. App.–Texarkana 2002,
no pet.) (evidence did not show that paranoid schizophrenic taking medication, hearing voices, and
seeing visions was incompetent); Townsend v. State, 949 S.W.2d 24, 27 (Tex. App.–San Antonio
1997, no pet.) (“A determination that a person is mentally ill does not constitute a finding that the
person is incompetent to stand trial.”). Accordingly, Appellant’s first issue is overruled.
VOLUNTARY PLEA
In her second issue presented for review, Appellant asserts that her guilty plea was not
knowing and voluntary. Relying on her testimony at the punishment hearing that alleged the victim
told her that he was in his fifties, Appellant asserts on appeal that she did not have a complete
understanding of the charged offense as she did not know that the offense could only be committed
if she had knowledge that the victim was 65 years or older. Therefore, by citing article 26.13(b),
which prohibits a trial court from accepting a plea of guilty unless it appears that the defendant is
mentally competent and the plea is free and voluntary, she implies that the trial court erred by
accepting her guilty plea. See TEX . CODE CRIM . PROC. ANN . art. 26.13(b). The State responds that
Appellant’s issue is not preserved for our review.
Generally, a party raising a complaint on appeal must have made a timely and specific
objection in the trial court and the court must have ruled on the objection. TEX . R. APP . P. 33.1(a);
Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Except for complaints involving
systemic or absolute requirements, or rights that are waivable only, all other complaints, whether
constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a). Id. at
342. A defendant’s right to plead not guilty is a waivable right. Mendez, 138 S.W.3d at 343-44.
In Mendez, the Court of Criminal Appeals held that absent a request to withdraw a guilty
plea, a defendant cannot raise the voluntariness of his plea for the first time on appeal despite
punishment evidence received by the trial court that may raise an issue as to his guilt. Mendez, 138
S.W.3d at 344. Similarly, the Dallas Court of Appeals has held that once a defendant has been fully
admonished of his rights following his plea of guilty, he may not raise the issue of voluntariness for
the first time on appeal, despite punishment evidence suggesting he did not understand an element
of the offense, without first asserting that complaint to the trial court. See Wilson v. State, Nos.
05-05-01100-CR, 05-05-01101-CR, 05-05-01102-CR, 2006 WL 1892381, at *3 (Tex. App.–Dallas
Dec. 20, 2006, pet. ref’d) (op., not designated for publication). We have also held that when a
defendant fails to contest the voluntariness of his guilty plea in the trial court, he may not raise the
issue for the first time on appeal. See Starks v. State, 266 S.W.3d 605, 613 (Tex. App.–El Paso
2008, no pet.); Hall v. State, No. 08-08-00111-CR, 2010 WL 654157, at *4 (Tex. App.–El Paso Feb.
24, 2010, no pet. h.) (op., not designated for publication).
The record before us establishes that Appellant entered a plea of guilty after being
admonished by the trial court in accordance with article 26.13 and after being advised by her
attorney. She did not at any time after the initial guilty plea ask to withdraw her plea of guilty. Even
after she testified at the punishment hearing, Appellant did not seek to withdraw her plea of guilty.
Instead, she argues for the first time on appeal that her guilty plea was involuntary based on her
testimony at the punishment hearing. We therefore conclude that Appellant may not raise this issue
for the first time on appeal. See Mendez, 138 S.W.3d at 350; Starks, 266 S.W.3d at 613; Hall, 2010
WL 654157, at *4; Wilson, 2006 WL 1892381, at *3; see also Neely v. State, No. 2-07-254-CR,
2008 WL 1932140, at *2-3 (Tex. App.–Fort Worth May 1, 2008, no pet.) (mem. op., not designated
for publication) (applying Mendez to contention that the trial court should not have accepted the
defendant’s guilty plea because evidence admitted during the guilty plea hearing showed the
defendant lacked the necessary intent to support his conviction; holding that because the defendant
did not ask to withdraw his guilty plea, he may not complain for the first time on appeal that the trial
court erred by accepting his alleged involuntary plea). Accordingly, Appellant’s second issue is
overruled.
CONCLUSION
Having overruled Appellant’s issues, we affirm the trial court’s judgment.
GUADALUPE RIVERA, Justice
May 28, 2010
Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)