In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-01-371 CR
____________________
CHARLES MATTHEW FARMER, Appellant
V.
THE STATE OF TEXAS, Appellee
Orange County, Texas
Trial Cause No. B-980,336-R
A jury convicted Charles Matthew Farmer of burglary of a habitation and sentenced him to ninety-nine years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Farmer raises three issues on appeal.
First, Farmer claims the trial court's failure to hold a competency inquiry deprived him of his right to due process. Farmer stated at a pretrial hearing that he had previously been on medication under the care of Charter Hospital and a psychiatrist while trying to "get off of alcohol and drugs," had been misdiagnosed a year earlier at MHMR and given "26 different kinds of psychotic medications." At the sentencing phase of his trial, Farmer testified he has taken psychiatric medications since 1991, and was an alcoholic and drug addict. Farmer argues this amounted to "some evidence" of his incompetency to stand trial so as to trigger a competency inquiry by the trial court.
The pretrial hearing at which Farmer testified was conducted pursuant to a motion for a continuance, which was granted. Farmer first raised his prior hospitalization and addictions in regards to his prior convictions. Trial counsel indicated that Farmer told him only that morning that he (Farmer) had mental problems in the past. Farmer then testified to entering Charter of his own accord in 1991 and that "[s]omehow probation got involved" and he was sent to MHMR.
To trigger a hearing, the evidence must be sufficient to create a bona fide doubt in the mind of the court whether the defendant meets the test of legal competence. See Tex. Code Crim. Proc. Ann. art. 46.02, § 2(b) (Vernon 1979); Mata v. State, 632 S.W.2d 355, 357-358 (Tex. Crim. App. 1982). "The test of legal competence to stand trial is whether the defendant has the present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. . . . Generally, there must be evidence of recent severe mental illness or bizarre acts by the defendant or of moderate retardation." See Thompson v. State, 915 S.W.2d 897, 901-02 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd).
The record does not demonstrate Farmer was unable to consult with his attorney or lacked understanding of the proceedings against him. See Rice v. State, 991 S.W.2d 953, 958-59 (Tex. App.--Fort Worth 1999, pet. ref'd). There is no evidence of recent mental illness or bizarre acts by Farmer. The evidence available to the trial court did not raise a bona fide doubt as to Farmer's competency so as to require the trial court to conduct the threshold section 2 hearing. Accordingly, issue one is overruled.
Farmer next contends he was denied effective assistance of counsel and notes various deficiencies. First, that trial counsel failed to object to the complaining witness' testimony, "even though the testimony was vague and equivocal." The testimony referenced is set forth below:
Q. [State] Okay. And the person that you saw in your driveway that you had the conversation with who said, "I'm still looking for 3300 Allie Payne," that's the same person who was in your mother's driveway a few moments earlier?
A. [Witness] I think it was. It was the same car. The man was in his car again, but it was -- it looked to me to be the same person.
. . . .
Q. [State] All right. And for the ladies and gentlemen of the jury, tell them what they're looking at if they were to look on State's Exhibit 11, which, I think, is a door.
A. [Witness] Yes. This is the door to my kitchen facing on the north side of the kitchen, which faces west at my house, and it's standing open in this picture. I believe it might have been the way the burglar got into my house the night that the TV and VCR were stolen, and I think that the front door was the way he got out.
Appellate counsel does not inform this court what objection should have been made to the complaining witness' testimony, no argument is made that any objection would have been successful, and no harm analysis is conducted. While the testimony does contain some speculation, it could be acceptable trial strategy to permit the witness to testify and then cross-examine her on the uncertainty of her testimony. In the absence of an evidentiary hearing in which counsel was called upon to explain his actions, we cannot presume otherwise. See Jones v. State, 37 S.W.3d 552, 554 (Tex. App.--Beaumont 2001, no pet.).
Farmer contends trial counsel erred in several respects regarding the complaining witness' identification: that counsel failed to object to the introduction of State's exhibits 1, 7 and 8; trial counsel failed to move to suppress the photographic line-up identification; and trial counsel failed to move to suppress the eyewitness identification. State's exhibit 1 is the first photographic line-up the complaining witness was shown. She was unable to pick a suspect out of that array. State's exhibit 7 is the second photographic line-up the complaining witness was shown and she picked the defendant out. State's exhibit 8 is a copy of State's Exhibit 7.
Appellate counsel does not identify any basis for excluding the exhibits so as to render trial counsel's failure to object erroneous. Appellate counsel asserts the introduction of State's exhibit 7 "allowed the state to reinforce evidence submitted by it." No harm is alleged from the cumulative effect of introducing the original after a copy was admitted. Likewise, appellate counsel offers no legal theory for suppressing the identification, only noting that the complaining witness could not pick anyone out of the first line-up she was shown and there was an issue concerning her ability to identify the man she saw at her home. Appellate counsel's only argument is that a hearing on the motion to suppress would have provided material for cross-examination and possibly led to suppression of the identification. No authority is cited in support of this speculation. There having been no showing that a motion to suppress was even arguable, we cannot say trial counsel erred in failing to file such a motion.
The same is true of trial counsel's failure to object to the introduction of State's exhibit 3, Farmer's statement, or move to suppress it. Again, appellate counsel does not offer any basis for exclusion of the statement and no authority in support of his contention that trial counsel erred. Considering the exculpatory nature of the statement, we cannot say there was no reasonable trial strategy employed.
Farmer also complains trial counsel allowed him to take the stand, where he made statements injurious to himself. The statement referenced is an admission that Farmer had been arrested for driving while intoxicated. During cross-examination, Farmer said the statement given to police was taken "three hours after I was put in a holding cell for D.W.I." The entirety of appellate counsel's argument is "if counsel had not put [Farmer] on the stand, damaging testimony would not have been before the jury, it might not have sentenced [Farmer] to the maximum." There is no contention, and no evidence in the record, that it was trial counsel's decision, or even recommendation, that Farmer take the stand. Appellate counsel cites no authority, and we are aware of none, supporting his assertion that trial counsel could have prevented the defendant from testifying in his own defense and erred in not doing so.
Farmer further contends trial counsel erred in failing to object to the testimony of Roxanne Duggan and Charles Duggan. Farmer argues both were accomplices and therefore their testimony was required to be verified by other evidence and a jury instruction should have been sought on accomplice witness testimony. Again, no authority is cited in support. Farmer's brief does not explain how Roxanne and Charles aided Farmer in the commission of the offense. It appears from the record that it could have been trial strategy to suggest Charles as the culprit, rather than an accomplice. This is not an unreasonable strategy as naming accomplices and including a jury instruction to that effect would, at the very least, imply an admission on the part of Farmer. Accordingly, we cannot say trial counsel erred in failing to object to the Duggans' testimony.
Farmer also complains that during the punishment phase, trial counsel failed to object when the State introduced evidence of his prior convictions during the punishment phase. A stipulation of Farmer's prior convictions was introduced into evidence as State's exhibit 14. Also introduced into evidence was State's exhibit 15, further evidence of two of those convictions. It is apparently State's exhibit 15 to which appellate counsel contends trial counsel should have objected. However, no argument is made, and no authority cited, that the evidence was inadmissible. We note that under Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2003), during the punishment phase of a trial evidence may be offered as to any matter the trial court deems relevant. See Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).
Farmer also claims trial counsel erred in failing to object to the admission of a prior misdemeanor conviction. Farmer contends because the conduct occurred before January 1, 1996, it was not admissible. We agree. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(i) (Vernon Supp. 2003). Accordingly, trial counsel should have objected. However, there is no showing, or even argument, as to "whether there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different." Considering Farmer's two prior felony convictions, we cannot say trial counsel's omission led to a different result. For all of the above reasons, issue two is overruled.
Farmer's final issue argues he was deprived of his constitutional right to be heard by the trial court. The record reflects that after voir dire, before the jury was seated and sworn, Farmer wished to move for a continuance. Trial counsel would not join in that motion and the trial court refused to consider it stating "[b]ecause you have a lawyer representing you, I'm not going to receive pro se motions from you." Appellate counsel contends the trial court and trial counsel thereby deprived Farmer of his constitutional right to be heard. Appellate counsel offers no explanation as to how the error, if any, contributed to the conviction or punishment. Issue three is overruled.
The judgment of the trial court is AFFIRMED.
PER CURIAM
Submitted on January 30, 2003
Opinion Delivered February 12, 2003
Do not publish
Before McKeithen, C.J., Burgess, and Gaultney, JJ.