NO. 12-06-00390-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MICHAEL BELTRAN, § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Michael Beltran appeals from his conviction for aggravated assault on a correctional officer with a deadly weapon, raising six issues. We affirm.
Background
Appellant is an inmate in the Texas Department of Criminal Justice. He was serving a twenty–five year sentence for aggravated sexual assault and aggravated kidnapping when he assaulted prison guard Jerry Smelley. He assaulted Smelley as he was directing inmates returning to their cells after a meal. Smelley testified that he heard someone call his name and, as he turned around, he saw a broom being swung in his direction. Appellant was wielding the broom and he hit Smelley in the midsection with it. The broom broke but Appellant continued to strike Smelley, first across the nose, then in the hand, and then again in the face. The last blow to the face caused Smelley to fall to the floor, whereupon Appellant continued the assault, hitting him in the back. Another officer came to help, but Smelley was helpless on the floor and unable to assist the other officer.
Smelley was admitted to the hospital for his injuries and stayed for two or three days. The case was tried to a jury four years later. At that time Smelley testified that he still had pain in his nose and that he had a nine inch hematoma in his abdomen that had not healed. The jury found Appellant guilty as charged of aggravated assault on a correctional officer with a deadly weapon. The jury assessed punishment at imprisonment for life. Appellant filed a motion for new trial asserting that he was incompetent during the trial. The trial court overruled the motion for new trial following a hearing, and this appeal followed.
Competency to Stand Trial
In his first and second issues, Appellant argues that the trial court should have halted the trial and conducted a separate jury trial on the issue of his competence to stand trial and should have granted his motion for new trial on the basis that he was incompetent to stand trial.
Applicable Law
A person is competent to stand trial unless he lacks sufficient ability to consult with counsel with a reasonable degree of rational understanding or lacks a rational as well as factual understanding of the proceedings. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (Vernon Supp. 2007). A person is presumed to be competent. Id. art. 46B.003(b). When a party so moves, or when the trial court becomes aware of evidence suggesting that a defendant is incompetent, the trial court must conduct an “informal inquiry” to determine if there is some evidence to support a finding that the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004(c) (Vernon Supp. 2007). If there is such evidence, the trial court must order an examination to determine if the defendant is competent and hold a trial on the issue of the defendant’s competency. Tex. Code Crim. Proc. Ann. art. 46B.005(a), (b) (Vernon Supp. 2007); Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001) (applying predecessor statute).
We review the trial court’s decision whether to conduct an inquiry and whether to order a full competency trial for an abuse of discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). We likewise evaluate a trial court’s decision to deny a motion for new trial for an abuse of discretion. See Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). Motions for new trial may be granted for a number of reasons, including in the interest of justice. Tex. R. App. P. 21.3; State v. Aguilera, 165 S.W.3d 695, 698 n.9 (Tex. Crim. App. 2005) (citing State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993)). A convicted person may raise the issue of competency to stand trial in a motion for new trial and may present evidence developed after trial in support of that motion. See Brown v. State, 960 S.W.2d 772, 778 (Tex. App.–Dallas 1997, pet. ref’d). But because the motion for new trial hearing occurs after sentencing and not “during trial,” the trial court applies the traditional standard for determining whether to grant a motion for new trial—the trial court considers all the evidence presented, judges the credibility of the witnesses, and resolves conflicts in the evidence. Id. (citing Hafford v. State, 864 S.W.2d 216, 217 (Tex. App.–Beaumont 1993, no pet.)). Applying this standard, the trial court determines whether the defendant was incompetent, thereby impugning integrity of its judgment. Id.
Facts
Before trial, the court had ordered and received a report about Appellant’s competency to stand trial.1 The report indicated that Appellant appeared to be experiencing auditory hallucinations, or that he was hearing distortions of actual sounds to which he ascribed a different meaning. Furthermore, Appellant labored under delusions about being surveilled extensively, to a much greater extent than an ordinary prisoner is watched. The doctor tentatively concluded that Appellant may suffer from schizo–affective disorder and thought this diagnosis was more fitting to Appellant’s presentation than a diagnosis of schizophrenia, delusional disorder, or bipolar disorder. The doctor noted further that Appellant sought to downplay his difficulties, denied that he had any mental illness, and differed from many inmates in that he did not seek to gain a benefit by being diagnosed as mentally ill. The doctor concluded that despite these difficulties, Appellant’s knowledge of the criminal proceedings was “adequate and accurate” and that he had a “rational and factual knowledge of the proceedings against him,” was able to assist his attorney, and was competent to stand trial.
During trial, Appellant appeared to lose his composure. He interrupted the proceedings and began to try to tell the trial court that a witness “lipped” to the jury. Appellant’s counsel sought a break in the proceedings, which the trial court granted. Following an early lunch recess, Appellant’s counsel asked the trial court to abate the proceedings and impanel a jury to make a competency determination. The trial court denied that request. Appellant’s counsel made a similar request later in the proceedings. After that was denied, Appellant’s counsel stated that she believed she had obtained Appellant’s consent to rest without his testifying.
Analysis
Appellant does not complain that the trial court did not conduct an informal inquiry into the matter of his competency. Rather, he complains that the trial court was obligated to stop the trial and hold another jury trial on the issue of his competency. We conclude that the trial court did not abuse its discretion in denying Appellant’s motion. Appellant’s counsel detailed for the record some of the problems she was having with Appellant. She said that he laughed inappropriately, mumbled to himself, and lost his composure. She also said she was having difficulty communicating with him and was concerned that she could not gain his assistance. She said that in the past he had become unsettled, but that he was able to assist her once he could calm down. Later, she said that she was having a very difficult time having a rational discussion with him, but moments later said she believed she had his consent to rest without his testimony.
Without the competency report, the trial court would have been obligated, based on the statements of an officer of the court, as well as Appellant’s behavior, to conduct an informal inquiry into Appellant’s competency. See Tex. Code Crim. Proc. Ann. art. 46B.004(c). But as to holding a separate trial, nothing in Appellant’s behavior was inconsistent with the assessment in the report on Appellant’s competency that the trial court had in its possession. The report indicated that Appellant had some delusional beliefs and that these beliefs sometimes caused him to act irrationally. Nevertheless, the doctor concluded that Appellant was competent. The trial court could have reasonably concluded that Appellant’s behavior was consistent with the report and agreed with counsel’s assessment that Appellant just needed some time to calm down.2 Indeed, the trial court recessed the proceedings, and Appellant did not have another outburst. Appellant’s counsel stated that she had concerns about Appellant’s ability to assist her, but she never stated that she had lost his assistance or that he had lost his ability to understand the proceedings. Also, we cannot simply dismiss the trial court’s first person assessment of Appellant’s behavior, or discount the possibility that Appellant’s misbehavior was willful. See, e.g., Burks v. State, 792 S.W.2d 835, 840 (Tex. App.–Houston [1st Dist.] 1990, writ ref’d). In this context, the trial court reasonably concluded that there was not evidence to support a finding that Appellant was incompetent. We overrule Appellant’s first issue.
With respect to whether the trial court was obligated to grant a motion for new trial, we hold that it was not. More evidence was presented at the motion for new trial hearing, including a competency evaluation done in the months before the trial. From that competency evaluation, as from the first one, the doctor concluded that Appellant was competent to stand trial. Furthermore, the doctor who evaluated Appellant testified at the punishment phase of the trial, and the trial court had the benefit of his further explanation. His testimony was consistent with his reports—Appellant had challenges but was able to assist his attorney and understand the proceedings.
There was also more specific evidence in the form of testimony from Appellant’s trial counsel. Trial counsel stated that Appellant was not helpful when she was making decisions about which jurors to strike. But she did not testify that this was because he was incompetent, just that her clients were not usually of much help to her in that process and that she had another lawyer assisting her. More troublesome was her testimony that Appellant was not “lucid” again after his outburst in court. She did testify that he was better behaved later in the trial and that she never reported to the court that her client was incompetent.3 These statements are difficult to reconcile. But in a motion for new trial, the trial court resolves factual issues. The court observed Appellant during trial, had the benefit of two formal competency evaluations, and heard the testimony of the doctor who evaluated Appellant. Each evaluation stated that Appellant had some mental health issues that were consistent with the actions the trial court observed. Nevertheless, the doctor concluded that Appellant was competent to stand trial. In that context, the trial court did not abuse its discretion by determining that its judgment had not been impugned and by overruling the motion for new trial. We overrule Appellant’s second issue.
Self Defense
In his third and fourth issues, Appellant argues that the trial court should have instructed the jury on the law of self defense on its own motion and that his attorney rendered ineffective assistance of counsel for failing to request such an instruction.
Standard of Review
A defendant must object before the jury is charged to preserve a complaint about the jury charge. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2007); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Relief may be granted when there is not an objection, but only for egregious errors. Almanza, 696 S.W.2d at 171.
Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires an appellant to demonstrate that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
The second step requires the appellant to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel’s deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
We begin with the strong presumption that counsel’s conduct falls with the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As part of this presumption, we begin with a presumption that counsel’s actions and decisions were reasonable and were motivated by sound trial strategy, and an appellant has the burden of proving ineffective assistance of counsel. See id.
Analysis
Appellant’s counsel prepared the jury charge that was given by the trial court. Counsel did not object to the jury charge and did not request a self defense instruction.
The trial court is not required to give a defensive instruction if the defendant does not request it. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). In Posey, the court of criminal appeals concluded based on the relevant statutes, and the legislative intent behind them, that a trial court did not commit “error” if it did not give an unrequested defensive instruction and that it was antithetical to the judicial function for a trial court to engage in what is essentially a strategic decision to be made by an advocate. Id. at 62–63.
Consistent with this principle, the court of criminal appeals has held that absent a request, it is not error for a trial court not to instruct the jury on the law regarding lesser included offenses, defense of a third person, or mistake of fact. See Delgado v. State, 235 S.W.3d 244, 250 Tex. Crim. App. 2007); Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007); Thompson v. State, No. PD-0044-06, 2007 Tex. Crim. App. LEXIS 871, at *32 (Tex. Crim. App. June 27, 2007); see also Denton v. State, Nos. 12-06-00003-CR, 12-06-00004-CR, 2007 Tex. App. LEXIS 1706, at *24–25 (Tex. App.–Tyler Mar. 7, 2007, no pet.) (mem. op., not designated for publication) (not error for trial court not to give self defense instruction when not requested).
The trial court is obligated to properly state the law, and when it gives a defensive instruction, it can be egregious error if the instruction does not correctly state the law. See State v. Barrera, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998). But it is not “error” at all when a trial court does not give an unrequested defensive instruction. See Thompson, 2007 Tex. Crim. App. LEXIS 871, at *32 (“The charge contained no instruction regarding the mistake of fact defense, but Appellant failed to request its submission, and as a result, no error occurred with respect to the absence of that defensive instruction.”). Appellant did not request a self defense instruction. Therefore, this complaint is not preserved for our review, and there is no error. We overrule Appellant’s third issue.
Appellant argues in the alternative that counsel’s failure to request a self defense instruction is ineffective assistance of counsel. We disagree. Our analysis of ineffective assistance of counsel affords substantial deference to trial counsel’s strategic decisions and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance. See Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002). Appellant made no record to support his claim of ineffective assistance of counsel—the issue was not raised at the hearing on the motion for new trial—and as such has not rebutted the presumption of competent counsel. See Thompson v. State, 9 S.W.3d 808, 815 (Tex. Crim. App. 1999) (presumption not overcome, in part, because appellant did not show reason for counsel’s failure to object). There was scant evidence to support a self defense claim in this case, and we presume that counsel made a reasonable and strategic decision about how to conduct the defense. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Appellant has not overcome the presumption that counsel rendered effective assistance. We overrule Appellant’s fourth issue.
Use of Restraints During Trial
In his fifth issue, Appellant argues that the trial court abused its discretion when it ordered him to be restrained during trial.
Generally, a criminal defendant has the right to be tried without the use of restraints, and a trial court must have a compelling reason to use visible restraints on a defendant during trial. Deck v. Missouri, 544 U.S. 622, 630–31, 125 S. Ct. 2007, 2013, 161 L. Ed. 2d 953 (2005). We review a trial court’s decision to restrain a defendant for an abuse of discretion. Culverhouse v. State, 755 S.W.2d 856, 859–60 (Tex. Crim. App. 1988). Efforts must be made to shield the restraints from the jury if that is possible. Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991). And restraints are only to be used as a last resort. See Culverhouse, 755 S.W.2d at 760; Molina v. State, 971 S.W.2d 676, 679 (Tex. App.–Houston [14th Dist.] 1998, pet. ref’d).
The trial court concluded restraints were appropriate, apparently in response to Appellant’s outburst. The court asked the defense if there was an objection to the restraints. Appellant’s counsel asked, “Your honor, can we take up another matter before responding to that?” Then the lawyers discussed whether the trial had to be abated so that another trial could be held on the issue of incompetency. Counsel never objected to the restraints.4
This issue is not preserved for our review because Appellant did not object to the restraints. While a trial court is not required to hold a formal hearing on the issue of restraints, the court is obliged to clearly state the reasons for the restraint, and the record “must affirmatively reflect those reasons, not in general terms but with particularity.” See Culverhouse, 755 S.W.2d at 860 (suggesting in footnote that such a hearing “may be advisable”).
The record here does not contain an explicit description of the reasons for the shackling or the measures taken, how long they were in place, or whether they were visible to the jury. These particulars are missing because Appellant did not object, perhaps because the reasons for the restraints were obvious to those present. If there had been an objection, the trial court would have been obligated to place the reasons for the restraints on the record, and we could review that decision. We have found no authority, and Appellant has provided none, exempting this complaint from the ordinary procedural default rules. See Tex. R. App. P. 33.1(a)(1)(A). There was no objection, and so Appellant has not preserved this issue for our review. We overrule Appellant’s fifth issue.
Sufficiency of the Evidence to Support Deadly Weapon Finding
In his sixth issue, Appellant argues that the evidence is legally insufficient to support the jury’s verdict. Specifically, Appellant argues that the broom he used to assault Smelley was not a deadly weapon.
Applicable Law
We review the legal sufficiency of the evidence to support a criminal conviction to assess whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). As charged, the State had to prove that Appellant assaulted a public servant and used a deadly weapon in the commission of the offense. Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2007). A deadly weapon is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2007); Drichas, 175 S.W.3d at 798. Ordinary items may be deadly weapons depending on the manner in which they are used during the commission of an offense. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991).
Analysis
A broom is not usually considered a weapon. The State’s theory was that Appellant’s manner of use or intended use of the broom made it a deadly weapon. Appellant argues that the broom is not a deadly weapon because the prison did not secure their brooms, because testimony that it was used as a spear was “extensively impeached,” because the broom broke and did not cause significant injuries, because the expert testimony on the issue of whether the broom was a deadly weapon was “very limited,” and because the State failed to lay the proper foundation and predicate for the expert testimony.
The jury saw the broom. An expert, a prison guard, testified that it was capable of causing serious bodily injury and that it was a deadly weapon, akin to his riot baton. Smelley testified about the assault. He testified that when he was hit in the abdomen it “almost knocked [him] out.” He said that when Appellant hit him in the hands, it hurt so much that he had to stop shielding his face with his hands, that Appellant eventually beat him to the floor, and that he continued to beat him while on the floor. Smelley testified that he was treated in the hospital for several days for his injuries. He testified that he still had a nine inch hematoma where he was struck in the abdomen and that he still had some pain from the incident, despite the passage of several years.
Our review of the evidence is in the light most favorable to the verdict. A rational jury could have discounted Appellant’s argument that the broom was not a deadly weapon because the prison officials allowed them to be on the cell block. Certainly that is a suggestion that the prison authorities did not consider it to be immediately dangerous, but it does not mean that the jury could not have concluded that the broom was a deadly weapon as it was used. Likewise, a rational jury could disagree with Appellant’s contention that the testimony about the spearing was impeached, and disagreed with the assessment that the injuries were not serious or that death or serious bodily injury could not have occurred. There was testimony, including expert testimony that the jury could have credited, that the broom was, as used, a deadly weapon and that the victim sustained injuries. Furthermore, because of the seriousness of the assault, the jury could have concluded that the manner of use or intended use of the broom was to cause serious bodily injury or death. Accordingly, we hold that the evidence in this case, viewed in a light most favorable to the verdict, supports a conclusion that a rational trier of fact could have determined beyond a reasonable doubt that the broom was a deadly weapon. We overrule Appellant’s sixth issue.
Disposition
Having overruled Appellant’s six issues, we affirm the judgment of the trial court.
JAMES T. WORTHEN Chief Justice
Opinion delivered November 30, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 Two competency assessments were completed prior to trial; one was done in March 2005 and the second was done in March 2006. The trial was held in July 2006. During the hearing on the motion for new trial, Appellant’s counsel testified that the first report had been furnished to the court prior to trial. It is not clear whether Appellant gave the second report to the trial court before the hearing on his motion for new trial.
2 Appellant argues that the trial court’s twice characterizing Appellant’s actions as “irrational” means that the trial court agreed that he was incompetent. We disagree. Appellant’s counsel argued that he was suffering from a mental illness. The court responded that his actions were irrational. This does not establish that the court believed he was unable to assist in his defense or understand the proceedings, just that he was behaving in an inappropriate way.
3 [Prosecutor]: Okay. And did you ever argue to the Court that, “No he needs a psychologist. I really feel like he’s incompetent.”
[Appellant’s Counsel]: No, I did not.
4 The court said, “With all due respect I’ll deny your motion to stay. We’re going to continue on.” Counsel responded, “Okay. And your Honor, I don’t know at what point . . . I have to object. I guess for now I want to object to proceeding with the defendant.” The court then repeated that it was going to leave Appellant restrained, asked whether there was anything else, and continued with the trial. Counsel’s objection was to proceeding without a competency trial. Counsel never objected to proceeding with Appellant in restraints.