NO. 07-05-0182-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JULY 5, 2006
______________________________
BARRY DWAYNE MINNFEE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 49,678-D; HON. DON EMERSON, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Barry Dwayne Minnfee appeals his conviction for robbery via two issues. The first
concerns whether the trial court should have inquired into whether he was competent to
stand trial. The second involves whether his trial attorney rendered effective assistance.
We affirm the judgment of the trial court.
Competency
In his first issue, appellant complains that the trial court should have inquired into his
competency once his counsel filed a motion for the appointment of a psychologist and
given his supposed bizarre acts. We overrule the issue.
A person is incompetent to stand trial if he lacks a 1) sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding or 2) rational as
well as factual understanding of the proceedings against him. TEX . CODE CRIM . PROC . ANN .
art. 46B.003(a) (Vernon Supp. 2005). And, while a defendant’s potential incompetency
may be raised by motion, id. art. 46B.004(a), conclusory allegations in the motion are not
enough to trigger the need for investigation by the trial court. McDaniel v. State, 98 S.W.3d
704, 711 (Tex. Crim. App. 2003). Rather, “evidence” must be brought to the trial court’s
attention, id., and that evidence must be of the ilk to raise a bona fide doubt in the judge’s
mind about the defendant’s competency. Id.; Alcott v. State, 51 S.W.3d 596, 601 (Tex.
Crim. App. 2001). Finally, evidence is usually sufficient to create such a doubt if it shows
recent severe mental illness, moderate mental retardation, or truly bizarre acts by the
defendant. McDaniel v. State, 98 S.W.3d at 710; Alcott v. State, 51 S.W.3d at 599 n.10.
The “evidence” alluded to by appellant allegedly satisfying the McDaniel standard
consisted of the following: 1) trial counsel’s statement that he had “some questions
personally about . . . [appellant’s] ability to think clearly and . . . to help any counsel in the
preparation of his case . . .,” 2) the numerous pleadings filed by appellant, some of which
refer to his death or injury at the hands of the judge, his attorney, and the district attorney,
3) appellant’s statement that he believed his counsel was working with the district attorney,
4) appellant’s belief that the attorney general had some authority over the cause, 5)
appellant’s belief that he was being tried on a different matter, and 6) the rapidity of
appellant’s mood swings. As to the contents of the motion, none allude to acts indicative
of incompetency. Rather, defense counsel simply explained that appellant’s competency
had yet to be assessed, that he was too poor to hire his own psychologist, a psychologist
2
was needed to determine appellant’s competency and sanity, and the appointment of same
would assist in appellant’s defense. So given the absence of anything other than
conclusory statements, its contents were not evidence suggestive of incompetency.
McDaniel v. State, supra.
Nor did the pretrial conversation between defense counsel, appellant, and the trial
court provide the missing evidence. The exchange can best be described as dialogue
evincing appellant’s dislike for his trial counsel and desire for another attorney, i.e. one of
his own choosing. See Reed v. State, 112 S.W.3d 706, 711 (Tex. App.–Houston [14th Dist.]
2003, pet. ref’d) (stating that conflicts with counsel do not necessarily illustrate
incompetency). And, while appellant’s dislike for his counsel lead to his refusal to respond
to the questions asked him by the trial court, appellant’s belligerence evinced an
understanding of the proceedings, attempts at manipulation of those proceedings, and a
desire to delay his prosecution. At the very least, the trial court could so have reasonably
interpreted them.
Nor did appellant’s act of filing numerous pretrial motions, when viewed separately
or in conjunction with his conduct in general, depict evidence indicative of incompetency.
Rather, his motions to suppress evidence, for a speedy trial, to subpoena particular
witnesses, for bond, and the like evinced an understanding of his circumstances and the
legal process as well as his desire to protect what he perceived to be his rights. See Reed
v. State, supra, (noting that appellant’s filing of motions demonstrated an understanding of
the legal process and his ability to function within it).
In sum, the record before the trial court did not give rise to a bona fide doubt
regarding appellant’s present ability to consult with his attorney with a reasonable degree
3
of rational understanding or his rational and factual understanding of the legal proceedings
to which he was subjected. So, the trial court did not abuse its discretion in overruling the
motion at issue. See Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999) (holding
that the decision to hold a competency hearing lies within the trial court’s discretion).
Effectiveness of Counsel
Next, appellant contends that his trial attorney was ineffective because he failed to
1) investigate and prepare for trial, 2) bring forth evidence of appellant’s tattoos, and 3)
investigate appellant’s mental health. We overrule this issue as well.
To prevail on a claim of ineffective assistance, an appellant must show not only
deficient performance but prejudice arising from that deficiency. Andrews v. State, 159
S.W.3d 98, 101 (Tex. Crim. App. 2005). Moreover, his claim must be firmly founded in the
record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Regarding the allegation about investigating appellant’s mental competency, we
immediately note that counsel did move to have his client examined and did so at the time
he did to determine whether there actually was basis for the motion; this smacks of trial
strategy as opposed to neglect. Moreover, the record before us lacks indication of
incompetence. Thus, we can hardly criticize counsel for omitting to do that which appellant
failed to show was warranted.
As to the purported failure to investigate, appellant fails to explain what could have
been discovered and how it would have benefitted him or affected the trial’s outcome.
Given this, we cannot say that any supposed neglect on the part of his trial attorney
resulted in prejudice.
4
Finally, while appellant’s identity as the robber was at issue in trial, we cannot say
that trial counsel’s failure to have appellant show his tattoos to the jury was ineffective.
First, implicit in his argument is the assumption that appellant had tattoos when he robbed
the store; appellant cites us to no evidence establishing that. And, unless established, it
does not matter whether he had tattoos at trial. Second, tattoos may be indicative of gang
involvement or prior imprisonment and either possibility is something which a lawyer may
not care to share with a jury. In other words, what appellant deems neglect may have
actually been reasonable trial strategy, which we cannot impugn.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.
5