Opinion issued February 24, 2005
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-04-00176-CR
NO. 01-04-00177-CR
NO. 01-04-00178-CR
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FERNANDO MORA DE LA CRUZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause Nos. 945993, 945851, 945881
MEMORANDUM OPINION
Appellant, Fernando Mora DeLaCruz, pleaded guilty to two separate offenses of aggravated robbery and to the offense of aggravated assault. Following a presentence investigation, the trial court assessed punishment at 25 years’ imprisonment for each of the aggravated robberies, and ten years’ imprisonment for the aggravated assault, each sentence to run concurrently. In four issues, appellant contends that the trial court erred by not conducting a competency inquiry sua sponte and by denying appellant’s motion for new trial, which asserted that his pleas of guilty were not voluntarily made, and that his trial counsel was ineffective by not requesting a competency hearing and by not moving to withdraw appellant’s guilty pleas. We affirm the judgments of the trial court.
Background
A. Plea Hearing—October 3, 2003
At his plea hearing, appellant stated on the record that he (1) understood the charges against him, (2) understood that, having previously signed a waiver of jury trial, he had forfeited his right to a trial by jury, (3) pleaded guilty to all three charged offenses, and (4) realized that, by pleading guilty, he would be sentenced to not less than five and not more than 99 years or life in prison for the two aggravated robbery offenses, not less than two and not more than 20 years in prison for the aggravated assault, and could be fined up to $10,000 for each offense. In response to further direct questioning by the trial court, appellant affirmed that he was “in good mental health.” The trial court allowed appellant’s trial counsel additional time before the punishment hearing to obtain a psychological evaluation of appellant.
. Presentence-Investigation Hearing—February 7, 2004
The record of the presentence-investigation (PSI) hearing shows that appellant robbed 14-year-old Richard Mayorga at gunpoint and took his backpack shortly after 6 a.m., during the predawn hours of April 16, 2003, while Mayorga was waiting for his school bus. A short time later, appellant and an accomplice robbed Albert Sainz. Sainz was in the driveway outside his home and checking under the hood of his car before leaving for work when appellant and others approached him and asked for directions to an address. When Sainz said that the address was not in that area, an accomplice approached Sainz while holding a shotgun pointed at him. Appellant demanded and received Sainz’s car keys, wallet and money and forced him to the ground while the accomplice held the gun to Sainz’s head. Appellant yelled at the accomplice to “shoot [Sainz] in the head,” but the assailants fled when neighbors of Sainz intervened.
An accomplice fled in the vehicle used to arrive at the scene, and appellant fled in Sainz’s vehicle, which appellant crashed when police arrived in pursuit. Appellant fled the crash scene on foot. He attempted to hide from police by running into John Caster’s backyard, where he shouted to Caster in Spanish and pointed his weapon at him. Police later found appellant hiding in a nearby shed. Appellant claimed no memory of the offenses, but did remember taking Xanax during the night before while he was celebrating with friends. He also remembered that one of his friends stole a radio from a car after breaking a window, and being told to run because police were in pursuit. Appellant acknowledged that he used marihuana, stated that he had been depressed, and expressed remorse about the offenses.
Appellant’s adoptive mother described appellant as learning disabled. He had been treated for hyperactivity and left school, where he did not do well, after the ninth grade. Appellant began work in roofing construction, did well at that, earned a good salary, and contributed to the household. Appellant’s mother acknowledged his substance-abuse problem and also described a head injury that appellant sustained as a young child, in which he fell two stories from a roof and was in a coma for two days.
The psychologist who examined appellant acknowledged that hyperactivity can sometimes result from brain trauma, that appellant once had an adverse reaction to a drug administered for his learning disabilities, and that Xanax is increasingly associated with violent behaviors. The psychologist interpreted appellant’s school records as indicating that “he followed the rules and was basically a good kid,” although he had below normal intelligence. In the psychologist’s opinion, appellant was not a violent or aggressive person, but was depressed. The psychologist recommended further neurological testing, including an MRI to detect any brain damage, treatment for depression, and therapy for appellant and his family, but found nothing that would prevent appellant from functioning as a normal, working adult, which he, in fact, was before committing the offenses.
C. Hearing on Motion for New Trial—April 19, 2004
Appellant’s trial counsel explained that he believed that appellant was competent and understood the proceedings until he learned, two days before the PSI hearing, about appellant’s head injury during childhood and a more recent, on-the-job head injury. Appellant’s trial counsel stated that, had he known about these earlier, he would have requested a competency hearing to “mitigate” punishment. An additional factor that counsel found significant was that appellant had berated him for not accepting a 20-year plea bargain that the State had never offered. Counsel also stated that appellant was not able to assist in his defense, although he agreed that this was because appellant had used drugs just before committing the offenses. In addition, counsel also acknowledged that, despite recommending an MRI and therapy, the psychologist who examined appellant expressed no reservations about his competency, either to counsel or during the PSI hearing.
Competency to Stand Trial
In his first issue, appellant contends that the trial court erred by failing to conduct a hearing, sua sponte, to assess appellant’s competency to stand trial. A person 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. 46.02 § 1A(b); see Brown v. State, 129 S.W.3d 762, 765 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing same). A person is incompetent to stand trial if the person does not have (1) the sufficient present ability to consult with that person’s lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against the person. Tex. Code Crim. Proc. Ann. art. 46.02 § 1A(a); see Brown, 129 S.W.3d at 765. When, as here, a defendant pleads guilty, the trial court is not required to hear evidence concerning competency unless the issue is raised at that time. See Kuyava v. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976); Godoy v. State, 122 S.W.3d 315, 320 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
Former article 46.02, section 2(a) contemplates that questions of a defendant’s competency be raised before trial. See Tex. Code Crim. Proc. Ann. art. 46.02 § 2(a). But, if evidence of the defendant’s incompetency is brought to the attention of the trial court from any source during trial, the trial court must then conduct a hearing out of the presence of the jury to determine whether evidence supports a finding of incompetency. Tex. Code Crim. Proc. Ann. art. 46.02 § 2(b); McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003); Brown, 129 S.W.3d at 765. The Legislature adopted former section 2(b) to ensure a defendant’s constitutional right to a fair trial when evidence of his incompetence is raised during the trial process. See Alcott v. State, 51 S.W.3d 596, 599 (Tex. Crim. App. 2001).
The trial court’s duties under former article 46.02, section 2(b) encompass the following five steps, and the requirements of each step must be fulfilled before proceeding to the next step. McDaniel, 98 S.W.3d at 710-11; Brown, 129 S.W.3d at 765. If (1) 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 itself and is (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 competency inquiry to determine whether 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. McDaniel, 98 S.W.3d at 710-11 (emphasis in original); Brown, 129 S.W.3d at 765; see Tex. Code Crim. Proc. Ann. art. 46.02 § 4.
A “section 2(b),” or “competency,” inquiry is required only if the evidence brought to the judge’s attention raises a bona fide doubt in the judge’s mind about the defendant’s competency to stand trial. Alcott, 51 S.W.3d at 599; McDaniel, 98 S.W.3d at 710; Brown, 129 S.W.3d at 765. A “bona fide doubt” is a “real doubt in the judge’s mind as to the defendant’s competency.” Mata v. State, 632 S.W.2d 355, 358 (Tex. Crim. App. 1982). Evidence that raises a bona fide doubt “need not be sufficient to support a finding of incompetence and is qualitatively different from such evidence.” Id.
Evidence capable of creating a bona fide doubt may come from the trial court’s own observations, known facts, evidence presented, motions, affidavits, or any other claim or credible source. Brown, 129 S.W.3d at 765. Evidence that shows recent, severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant, is usually sufficient to raise a bona fide doubt as to competency. Id. When the record does not demonstrate that a defendant lacked ability to consult with his counsel or ability to comprehend the proceedings factually and rationally, however, a trial court does not abuse its discretion by not conducting a competency inquiry. McDaniel, 98 S.W.3d at 712. A defendant’s mere assertion that he is incompetent, without offering supporting facts or evidence, is not sufficient to require a sua sponte competency inquiry. Id. Courts have also recognized that evidence of a defendant’s drug addiction, depression, or attempt at suicide can be insufficient to raise a bona fide dispute concerning the defendant’s competency to stand trial. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999); Reeves v. State, 46 S.W.3d 397, 399-40 (Tex. App.—Texarkana, 2001, pet. dism’d). Likewise, a defendant’s memory gaps concerning the events of a crime do not necessary give rise to a bona fide dispute concerning competency. See Jackson v. State, 548 S.W.2d 685, 691 (Tex. Crim. App. 1977).
We review former article 46.02, section 2(b) inquiries for abuse of discretion, according to the five-step analysis recognized in McDaniel. See McDaniel, 98 S.W.3d at 710-11; Moore, 999 S.W.2d at 393; Brown, 129 S.W.3d at 765. Although former article 46.02(2)(b) applies only to trial proceedings, see also Alcott, 51 S.W.3d at 599, appellant also relies on evidence submitted to the trial court during the hearing on the motion for new trial filed by appellant’s newly appointed counsel. A defendant’s competency to stand trial may be challenged by a motion for new trial on a plea of guilty, as occurred here. See Godoy, 122 S.W.3d at 320 (concluding that a defendant who pleads true to motion to revoke community supervision may challenge competency to stand trial through motion for new trial); see also Purchase v. State, 84 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding that defendant convicted by jury may raise competency for first time by motion for new trial).
Postconviction challenges are also reviewed for abuse of discretion, but not according to the five-step McDaniel inquiry. Instead, we apply the traditional standard that governs a trial court’s ruling on a motion for new trial. See Godoy, 122 S.W.3d at 320; Purchase, 84 S.W.3d at 699; Edwards v. State, 993 S.W.2d 171, 176 (Tex. App.—El Paso 1999, pet. ref’d). In applying this standard, we consider all of the evidence submitted to the trial court on the competency issue at the hearing on the motion for new trial, which we review from the standpoint that the trial court has broad discretion to judge the credibility of the witnesses and to weigh the evidence in determining whether a different result would occur. Godoy, 122 S.W.3d at 320; Edwards, 993 S.W.2d at 176; Dusenberry v. State, 915 S.W.2d 947, 949-50 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).
Given appellant’s contentions on appeal, the record before us, and the standards stated above, we review the trial court’s exercise of its discretion in this case at three phases, as follows: the plea hearing, the PSI-sentencing hearing, and the hearing on appellant’s motion for new trial.
A. The Plea Hearing
Nothing in the record of the plea hearing triggered a duty in the trial court to conduct a competency hearing. The trial court’s questions to appellant and his responses show that he understood the charged offenses, had signed each of three waivers of his right to a jury trial and realized the full range of sentences and fines that he could possibly receive for each offense, but still wished to plead guilty to each charged offense. When asked whether he was in “good mental health,” appellant replied “yes.” See generally Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-2005) (admonishments required by trial court on plea of guilty). In addition to the trial court’s having complied with the requirements of article 26.13, the sworn documents, which the trial court and counsel approved at the plea hearing, reflect two different recitals in which appellant affirmed his competency to stand trial.
Because nothing before the trial court triggered a duty in the trial court to conduct a competency hearing sua sponte under the first three McDaniel factors, see id. at 710-11, the presumption of competency controlled. See Kuyava, 538 S.W.2d at 628; Tex. Code Crim. Proc. Ann. art. 46.02 § 1A(a). We therefore conclude that the trial court did not abuse its discretion at the plea hearing by not conducting an article 46.02, section 2(b) competency hearing sua sponte.
B. The PSI Hearing
The record of the PSI hearing contains the first evidence that appellant’s mother abused drugs and alcohol, and that he sustained a head injury as a child, had a recent fall, was learning disabled, had below normal intelligence, and had abused controlled substances, including the Xanax that he voluntary ingested on the night before the offenses. Yet, none of these, nor a combination of these, under the record in this case, rose to a sufficient level to indicate recent, severe, mental illness, mental retardation, or truly bizarre acts, to raise a bona fide doubt as to appellant’s competency. See Alcott, 51 S.W.3d at 599; Brown, 129 S.W.3d at 765. Likewise, appellant’s claimed lack of memory of the events did not, of itself, raise a bona fide doubt as to his competency, see Jackson, 548 S.W.2d at 691, especially when weighed against events that he did recall, including that he took Xanax, and his expression of remorse for his involvement in the offenses, which tended to contradict lack of competency.
The psychologist who examined appellant at his counsel’s request expressed no concerns about appellant’s competency after a thorough examination of appellant that included assessments of the significance of appellant’s childhood brain trauma, an incident in which appellant experienced an adverse reaction to a drug administered for learning disabilities, and appellant’s having consumed Xanax during the night before the offense. The psychologist emphasized that appellant’s history demonstrated that he knew the rules and followed them. Although the psychologist recommended further treatment and therapy for appellant, this was to treat his depression and not because of concerns about appellant’s competency.
Depression and drug use do not suffice to raise a bona fide dispute as to competency. See Moore, 999 S.W.2d at 395; Reeves, 46 S.W.3d at 399-40. The psychologist emphasized that appellant was neither violent nor aggressive, and, although the psychologist recommended further neurological testing to detect any brain damage from the head trauma, he nevertheless concluded that appellant’s problems did not prevent him from functioning as a normal adult. As the psychologist further observed, with the exception of the charged offenses, appellant had functioned in that manner in his family life and work.
The record before the trial court at the PSI hearing did not suggest either that appellant could not consult with his counsel, with the exception of his inability to recall the offenses because of having ingested Xanax, or that he could not understand the proceedings. See McDaniel, 98 S.W.3d at 712. Accordingly, the record did not give rise to a bona fide doubt concerning appellant’s competency under the first three steps of the McDaniel five-step analysis. See id. at 710-11. We therefore conclude that the trial court did not abuse its discretion by not inquiring, sua sponte, into appellant’s competency at the PSI hearing.
C. The Hearing on Appellant’s Motion for New Trial
At the hearing on appellant’s motion for new trial, appellant’s trial counsel testified that he was concerned that appellant might not have been competent to stand trial. Trial counsel based this concern on appellant’s outburst to counsel for not accepting an offer that the State had never made. Counsel believed that this confusion might have some connection with the head trauma that occurred when appellant was a child and appellant’s adverse reaction to a drug administered for his learning disabilities, both of which counsel discovered only shortly before the PSI hearing. Trial counsel conceded, however, that he believed appellant was competent until that time, and that the psychologist who examined appellant never conveyed any doubt about appellant’s competency, either to counsel, before the PSI hearing, or at the PSI hearing.
Despite counsel’s expressed concerns at the hearing on the motion for new trial, that appellant was incompetent to stand trial, the trial court acted within its discretion by determining that counsel’s testimony was insufficient to show that appellant was incompetent to stand trial. See Godoy, 122 S.W.3d at 320. Appellant’s confusion over the terms of a plea bargain and his outburst do not necessarily show that he was incompetent. See Mata, 632 S.W.2d at 358; Jackson, 548 S.W.2d at 691. More importantly, the psychologist who assessed appellant did not express concerns about appellant’s competency, despite his past injuries and history. In addition, the record reflects that appellant’s inability to recall details of the offenses was due to his having voluntarily consumed Xanax during the night before the offenses. Finally, the trial court could have balanced trial counsel’s expressed concerns about appellant’s competency against counsel’s acknowledgment that he hoped that his concerns would mitigate punishment.
After considering the evidence before the trial court at the hearing on the motion for new trial, and after reviewing that evidence within the trial court’s broad discretion to consider and weigh evidence pertaining to competency, we conclude that the trial court did not abuse its discretion by denying appellant’s motion for new trial. See Godoy, 122 S.W.3d at 320.
We overrule appellant’s first issue.
Voluntariness of Pleas
In his third issue, appellant contends that the trial court erred by denying appellant’s motion for new trial on the grounds that his pleas of guilty were not voluntarily made because he “did not know what he was doing when he entered his plea[s].” As addressed above, the trial court’s admonishments to appellant conformed to the requirements of article 26.13 of the Code of Criminal Procedure, and appellant’s sworn statements and waivers recite his awareness of the consequences of his guilty pleas.
The record of the trial court’s admonishments to the defendant at the plea hearing determines whether the plea was knowingly and voluntarily given. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Appellant recognizes that a proper admonishment on punishment, as occurred here, constitutes a prima facie showing that his pleas were voluntary, and that the burden therefore shifted to him to show that he entered his pleas without understanding the consequences. See Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985). Just as nothing before the trial court at the plea hearing gave rise to a bona fide issue concerning appellant’s competency, nothing in the record of that hearing suggests that appellant’s pleas were involuntary. Because appellant averred that each of his pleas was voluntary at the original plea hearing, both orally and in writing, he has a heavy burden on appeal to show, from a later hearing, that his pleas were involuntary. See id.; Dusenberry, 915 S.W.2d at 949.
The totality of circumstances of each case determines voluntariness. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.] 1996, no pet.). We review the entire record to determine whether appellant met his burden, but are entitled to presume, based on the record of the plea hearing and appellant’s sworn statements, that the proceedings and the judgments were regular. Dusenberry, 915 S.W.2d at 949; see Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986).
The trial court acted within its discretion by rejecting, as incredible, appellant’s claim that he “did not know what he was doing,” because that claim conflicts with the following: (1) appellant’s oral and written statements to the trial court during the hearing on his pleas of guilty; (2) the testimony of appellant’s psychologist, who expressed no concerns about appellant’s competency and noted that appellant functioned as an adult despite learning disabilities and depression; and (3) the remorse that appellant expressed concerning the offenses, all of which contravene appellant’s claim that he pleaded guilty involuntarily.
Based on the record of all the proceedings before the trial court, including the hearing on appellant’s motion for new trial, the trial court could have reasonably concluded that appellant had not met his burden to defeat the showing, in his plea papers and at his plea hearing, that his plea was involuntary on the grounds that he did not understand its consequences. See Fuentes, 688 S.W.2d at 544. Accordingly, the trial court did not abuse its discretion by denying appellant’s motion for new trial on that ground. See Dusenberry, 915 S.W.2d at 949.
We overrule appellant’s third issue.
Ineffective Assistance of Counsel
In his second and fourth issues, appellant contends that his trial counsel was ineffective because (1) he did not request a competency hearing and (2) did not move to withdraw appellant’s guilty plea. We review claims of ineffective assistance of counsel under the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). To be entitled to a new trial on the ground that his trial counsel was ineffective, appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and that (2) but for counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. In determining whether the Strickland test has been met, we focus on the totality of the representation afforded, under the circumstances presented by each case, and do not focus on individually alleged errors. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
The defendant bears the burden to prove ineffective assistance of counsel and must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances of the case. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Gamble, 916 S.W.2d at 93. A claim of ineffective assistance of counsel must be firmly supported in the record, McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), and the defendant must prove his contention by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). The constitutional right to counsel does not mean errorless counsel or counsel whose competency is judged by hindsight. Doherty v. State, 781 S.W.2d 439, 441 (Tex. App.—Houston [1st Dist.] 1989, no pet.). Likewise, counsel is not ineffective for not pursuing actions or motions that would have proved useless or futile. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); see also Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993) (concluding that counsel not ineffective for failing to secure rulings on pretrial motions without showing that rulings would have changed outcome of case).
Appellant’s contentions, that his trial counsel was ineffective by not requesting that appellant be examined for competency and by not moving to withdraw appellant’s guilty plea on the grounds of incompetency, relate to and are controlled by our dispositions of his first and third issues. In addressing these issues, we concluded that the trial court had no duty to conduct a competency inquiry sua sponte, and that the trial court did not abuse its discretion by rejecting appellant’s claim that he pleaded guilty involuntarily and denying appellant a new trial. Those conclusions compel the additional conclusion that requesting a competency examination and moving to withdraw appellant’s guilty plea on the grounds of lack of voluntariness would have been useless or futile. Settled law prohibits finding counsel ineffective for failing to request what would have been useless or futile to request because of lack of grounds to support the request. See Mooney, 817 S.W.2d at 698; Roberson, 852 S.W.2d at 511. Having thus concluded that trial counsel was not ineffective, we need not address the second prong of the Strickland test.
We overrule appellant’s second and fourth issues.
Conclusion
We affirm the judgments of the trial court.
Elsa Alcala
Justice
Panel consists of Justices Nuchia, Jennings, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).