Kenneth Richardson v. State

Opinion issued February 3, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00281-CR

____________

KENNETH RICHARDSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 917575

MEMORANDUM OPINION

Appellant, Kenneth Richardson, pleaded guilty to the offense of aggravated

robbery

without an agreed punishment recommendation from the State, and the trial

court assessed his punishment at confinement for 60 years. In three points of error,

appellant contends that the trial court erred in not impaneling a jury to determine

whether he was competent to enter his guilty plea, in denying his motion for a new

trial, and in not affording him an opportunity, prior to the pronouncement of his

sentence, to state why his sentence should not be pronounced. We affirm.

Procedural Background

On January 26, 2004, prior to accepting appellant’s guilty plea, the trial court

asked appellant whether he had ever been mentally ill, and appellant responded that

he had previously been diagnosed as “bipolar” with paranoid schizophrenia.

However, in response to the trial court’s other questions, appellant replied that he

understood the nature of the particular proceeding, was not taking any psychological

medications at the time of his plea, was satisfied with his attorney’s work on his case,

understood that he had signed a confession that he had committed the charged

offense, understood that he was giving up his right to a jury trial, and had not been

forced or threatened to enter a guilty plea. Appellant’s lawyer also stated that she was

comfortable with appellant’s competency and his ability to understand her. The trial

court accepted appellant’s guilty plea but withheld its finding of guilt. The trial court

reset the case for a pre-sentence investigation (PSI) hearing.

At the PSI hearing, held on March 24, 2004, the trial court, without objection

by either party, included an addendum to a PSI report that explained that appellant

had AIDS, was taking medication for the disease, and had expressed his desire that

the trial court take his illness into consideration when determining his sentence. After

the admission of the letter, appellant’s attorney made the following record:

In light of the particular addendum being added, we would—I would

like to make a record concerning the fact that I have talked with Mr.

Richardson on numerous occasions in court and over at the jail, and I

feel very confident that he has understood clearly all our discussions.

Every time during my conversations with him, he has been lucid, had

made comments that are absolutely relevant to his case. I feel confident

that I have been able to communicate with him, and he is currently in a

clear thinking state and able to make decisions. May I ask him for the

record if he feels that he is mentally—feeling all right now to proceed?

The trial court then allowed appellant’s lawyer to ask appellant a series of

questions regarding his mental health, to which appellant replied that he understood

that he was at a PSI hearing, that he was thinking clearly and able to proceed that day,

that he had been able to proceed during the course of his case, and that he had

understood everything he and his attorney had discussed. In response, the trial court

stated that it took “judicial notice that at the time [it] accepted the plea, [it] found him

to be competent.”

Competency to Enter Plea

In his first point of error, appellant argues that the trial court abused its

discretion in not impaneling a jury to conduct a competency hearing before it

sentenced appellant because “substantial evidence raised a bona fide issue as to

[a]ppellant’s mental health and competence.”

A trial court shall not accept a guilty plea unless it appears that the defendant

is mentally competent and the plea is voluntary. Tex. Code Crim. Proc. Ann. art.

26.13(b) (Vernon 1989). A person is incompetent to stand trial if he does not have

sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding, or a rational, as well as factual, understanding of the

proceedings against him. Id . art. 46B.003(a) (Vernon Supp. 2004-2005). 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. Id . art. 46B.003(b) (Vernon

Supp. 2004-2005). We review a trial court’s decision not to conduct a competency

hearing for an abuse of discretion. See Moore v. State , 999 S.W.2d 385, 393 (Tex.

Crim. App. 1999). A trial court abuses its discretion if its decision is arbitrary or

unreasonable. Lewis v. State , 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).

If evidence suggesting that a defendant may be incompetent to stand trial

comes to the trial court’s attention, the court, on its own motion, shall suggest that the

defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art.

46b.004(b) (Vernon Supp. 2004-2005) . 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

become incompetent to stand trial. Id . art. 46B.004(c) (Vernon Supp. 2004-2005).

The trial court must conduct a competency inquiry only if the evidence raises a bona

fide doubt in the trial court’s mind about the defendant’s competency to stand trial.

See McDaniel v. State , 98 S.W.3d 704, 710 (Tex. Crim. App. 2003) (explaining that

competency inquiry under former article 46.02 was required only if evidence brought

to trial court’s attention raised bona fide doubt in trial court’s mind about defendant’s

competency to stand trial).

Evidence is usually sufficient to create a bona fide doubt

if it shows “recent severe mental illness, at least moderate retardation, or truly bizarre

acts by the defendant.” Id. If, after an informal inquiry, the court determines that

evidence exists to support a finding of incompetency, the court shall order an

examination to determine whether the defendant is incompetent to stand trial. Tex.

Code Crim. Proc. Ann. art. 46B.005(a) (Vernon Supp. 2004-2005) . Furthermore,

generally, if the court determines that evidence exists to support a finding of

incompetency, the court shall hold a hearing before determining whether the

defendant is incompetent to stand trial, and, on the request of either party or on the

court’s motion, a jury shall make the determination as to whether the defendant is

incompetent. Id . art. 46B.005(b), 46B.051(Vernon Supp. 2004-2005) .

Appellant asserts that several “red flags” within the PSI report “should have

alerted the trial court as to the [in]competency of the [a]ppellant.” Appellant notes

that, as provided in the PSI report, the investigator elicited the following information

from appellant: (1) appellant’s mother “is disabled and has always suffered from

mental illness and health problems” and “that she had real bad ‘nerves’”; (2) his

family life was dysfunctional; (3) he had been sexually abused as a child;

(4) appellant made allegedly inconsistent statements to the investigator by first stating

that he was not guilty of the charged offense and was pleading guilty only to avoid

a life sentence, but then stating that “he has not done an offense this ‘stupid’ since he

was a kid”; (5) he is bipolar and has been treated for manic depression but has

stopped taking his psychotropic medication. In a handwritten letter included as part

of the PSI report, appellant wrote that (1) he has contracted AIDS/HIV from his

common-law wife; (2) as a young man, he was caught up in a “cycle of self-destructive behavior”; (3) he attempted suicide one time “from the pressure of trying

to do too much too soon” after he was paroled in 1994 and after his brother died of

AIDS; (4) he was admitted into a psychiatric hospital on three different occasions for

mental problems; and (5) he began to self-medicate after learning that he had been

infected with AIDS/HIV from his common-law wife and that their child might also

have been infected with the disease. Finally, many of appellant’s family and friends

stated in their character references, included in the PSI report, that appellant has had

to endure long-term mental and physical abuse. Thus, appellant argues that “the

evidence specified above was of such a nature demonstrating not only a recent, but

ongoing severe mental illness that the [t]rial [c]ourt should have empanelled [sic] a

jury to determine the issue of [a]ppellant’s competence and should not have relied

solely on an informal inquiry.”

However, in the instant case, the trial court, at appellant’s plea, questioned

appellant as to his competence. At the PSI hearing, after appellant responded to

questions from his attorney concerning his mental ability, the trial court took “judicial

notice that at the time [it] accepted the plea, [it] found him to be competent.” Thus,

it appears that the trial court made an informal competency inquiry at both the plea

hearing and the PSI hearing that did not reveal evidence of recent severe mental

illness, moderate retardation, or truly bizarre acts by appellant. Furthermore, the

record reveals no evidence from any source, including the PSI report, that

documented any present or recent clinical proof of appellant’s incompetency at any

time prior to his plea and sentencing. Appellant’s previous mental and behavioral

impairments, his depression, his attempted suicide, and his use of narcotics do not

establish the required elements of incompetency concerning his “present ability to

consult with his counsel with a reasonable degree of understanding” and his “rational

and factual understanding of the proceedings against him.” See Brown v. State , 129

S.W.3d 762, 766 (Tex. App.—Houston [1st Dist.] 2004, no pet. ) ( holding defendant’s

previous mental and behavioral impairments, inability to recall past events, inability

to recall circumstances of charged offense, and depression did not establish required

elements of competency); Reeves v. State , 46 S.W.3d 397, 399-400 (Tex.

App.—Texarkana 2001, pet. dism’d) (evidence that defendant’s birth mother drank

heavily while pregnant with defendant and of defendant’s drug addiction and suicide

attempt did not reflect on defendant’s ability to understand and participate in

proceedings against her); Rice v. State , 991 S.W.2d 953, 957 (Tex. App.—Fort Worth

1999, pet. ref’d) (holding competency test is not whether someone labored under

mental, behavioral, or psychological impairment); Townsend v. State , 949 S.W.2d 24,

27 (Tex. App.—San Antonio 1997, no pet.) (holding competency test is not met by

evidence of depression or mental illness); Ward v. State , 906 S.W.2d 182, 185 (Tex.

App.—Austin 1995, pet. ref’d) (evidence regarding nature and causes of defendant’s

drug addiction raised no issue regarding his ability to understand proceedings against

him or to consult with his attorney with a reasonable degree of rational

understanding). Here, the evidence presented in the PSI report did not support a

finding that appellant was incompetent to stand trial.

Because nothing in the record raised the issue of appellant’s ability to consult

with his counsel or his ability to understand the proceedings and the charges against

him at anytime during the proceedings, the evidence was insufficient to create a bona

fide doubt as to appellant’s competency. Accordingly, we hold that the trial court did

not abuse its discretion in not impaneling a jury for a competency hearing.

We overrule appellant’s first point of error.

Denial of Appellant’s Motion for New Trial

In his second point of error, appellant argues that the trial court erred in

denying his motion for new trial because “[s]ubstantial evidence concerning the

[a]ppellant’s mental health and his competency had been raised from the time

[a]ppellant was interviewed for the PSI, through the sentencing hearing, and in the

Motion for New Trial” and that such failure “denied him due process

and due course

of law

by prohibiting him from raising the issue of the [a]ppellant’s competence to

stand trial for sentencing.” Appellant did not attach any affidavits to his motion, nor

did he request a hearing on his motion. The trial court denied the motion without

conducting an evidentiary hearing.

A defendant may challenge his competency to stand trial in a motion for new

trial on a plea of guilty. Godoy v. State , 122 S.W.3d 315, 320 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref’d). When the competency issue is raised in this manner, a

trial court does not look to see whether the evidence raises a bona fide doubt as to

competence but applies the traditional standard to determine whether to grant a

motion for new trial. Purchase v. State , 84 S.W.3d 696, 699 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref’d). Thus, we review a trial court’s denial of a motion for

new trial for an abuse of discretion. Salazar v. State , 38 S.W.3d 141, 148 (Tex. Crim.

App. 2001); Purchase , 84 S.W.3d at 699 .

A motion for new trial is a mere pleading and does not prove itself. Vaughn

v. State, 456 S.W.2d 141, 142 (Tex. Crim. App. 1970) ; Williams v. State , 651 S.W.2d

820, 821 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d). Unproved allegations in

a motion for new trial present nothing for our review. See Jones v. State, 501 S.W.2d

677, 680 (Tex. Crim. App. 1973) . While not required by statute , i f a motion for new

trial alleges facts outside the record , it must be supported by an affidavit. Reyes v.

State , 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); Bearden v. State , 648 S.W.2d

688, 690 (Tex. Crim. App. 1983); Flores v. State , 18 S.W.3d 796, 798 (Tex.

App.—Austin 2000, no pet.); see Tex. R. App. P. 21.2 . A motion for new trial

alleging facts outside the record unsupported by affidavit is fatally defective, and the

trial court does not err in refusing to entertain such motion. See Dugard v. State , 688

S.W.2d 524, 529 (Tex. Crim. App. 1985) ; Bearden , 648 S.W.2d at 690 ; Flores , 18

S.W.3d at 798 ; Bahlo v. State , 707 S.W.2d 249, 250-51 (Tex. App.—Houston [1st

Dist.] 1986, pet. ref’d) .

Here, in his motion, appellant alleged that (1) he has filed a formal complaint with

the State Bar of Texas against his trial counsel for ineffective assistance; (2) he has

a history of mental health issues that were not explored by the trial court; (3) there

exists new evidence regarding the issue of identity; and (4) he has a documented

history of mental health problems. He concluded, thus, that “a new trial should [have

been] ordered to have [appellant] evaluated for sanity and competency and have such

new evidence considered as part of continued criminal proceedings against

[a]ppellant.” However, appellant did not attach any accompanying affidavits to

support the allegations made in his motion for new trial. Thus, appellant presented

no evidence to support the contentions in his motion for new trial . Accordingly, we

hold that the trial court did not abuse its discretion in denying appellant’s motion for

new trial.

We overrule appellant’s second point of error.

Right of Allocution

In his third point of error, appellant contends that the trial court erred in not

inquiring of him, prior to pronouncing its sentence, as to whether he had anything to

say why the sentence should not be pronounced, precluding him from raising the

issue of his competency. See Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon Supp.

2004-2005).

Article 42.07 provides:

Before pronouncing sentence, the defendant shall be asked whether he

has anything to say why the sentence should not be pronounced against

him. The only reasons which can be shown, on account of which

sentence cannot be pronounced, are:

. . . .

2. That the defendant is incompetent to stand trial; and if evidence be

shown to support a finding of incompetency to stand trial, no

sentence shall pronounced, and the court shall proceed under Chapter

46B. . . . Id . art. 42.07.

However, no error is preserved for review on appeal when a defendant does not

object to the trial court’s failure to provide an appellant his right to allocution or

when appellant fails to timely assert the existence of any statutory reason set forth in

Article 42.07 to prevent pronouncement of the sentence. Tenon v. State , 563 S.W.2d

622 (Tex. Crim. App. 1978); Graham v. State , 498 S.W.2d 197 (Tex. Crim. App.

1973) ; N icholson v. State , 738 S.W.2d 59, 63 (Tex. App.—Houston [1st Dist.] 1987,

no pet.); see Tex. R. App. P. 33.1( a ) .

Here, the record shows that the trial court did not inquire as to whether

appellant had anything to say as to why the sentence should not have been

pronounced against him. However, appellant did not object to the trial court’s failure

to ask him if he had anything to say as to why the sentence should not be pronounced

against him, and appellant did not contend that he was incompetent at any time before

he was sentenced. Thus, we hold that appellant waived any error for our review. See

Tenon , 563 S.W.2d at 623-24 .

We overrule appellant’s third point of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Alcala .

Do not publish. Tex. R. App. P. 47. 2(b).