Alexander Carenzo Carter v. State

Opinion issued June 5, 2008

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-07-00741-CR

____________

ALEXANDER CARENZO CARTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from 262nd District Court

Harris County, Texas

Trial Court Cause No. 1104376

MEMORANDUM OPINION

Appellant, Alexander Carenzo Carter, was charged with the felony offense of

aggravated robbery. Tex. Pen. Code Ann. § 29.03(a)(1), (2) (Vernon 2007). Carter

pleaded guilty to the indictment. After deliberating, the jury assessed punishment at

35 years’ confinement, plus a $10,000 fine.

In three points of error, Carter contends (1) the trial court erred in failing to

conduct an inquiry with regard to his competency, (2) he received ineffective

assistance of counsel because his attorney failed to request that the court conduct a

competency inquiry to determine his fitness to stand trial, and (3) he received

ineffective assistance of counsel because his attorney failed to move to suppress his

videotaped statement.

We affirm. I. Factual Background

On Valentine’s Day 2007, Carter and an accomplice attacked Roberta Martinez

after she left her office building. Martinez had opened the door to her vehicle when

Carter shoved her across the driver’s seat and demanded her keys and cellular phone.

Carter lay on top of Martinez’s body, threatened her with obscenities, and held a knife

to her neck with one hand. With his other hand, he choked Martinez. Carter dragged

Martinez out of the car, instructed her to keep her head down, and told her to avoid

looking at him. Carter then ordered Martinez to “run to the left,” threatening to kill

her if she ran in another direction or turned back to look at Carter and his accomplice.

Carter and his accomplice eventually drove away in Martinez’s vehicle.

Martinez returned to her office building, called the police, and provided them

with her vehicle information. Shortly thereafter, while on patrol, Officer Hefferin

with the Bellaire Police Department received a radio report of the car theft. Hefferin

recognized the stolen car in traffic from the radio description and began to chase the

vehicle. After the pursuit ensued, Carter crashed the stolen vehicle into a gate of an

apartment complex; Carter and his accomplice exited the vehicle. Hefferin

immediately apprehended Carter’s accomplice, but Carter fled through the apartment

complex and hid behind a gate. After a few minutes, Carter surrendered to an officer

with the Houston Police Department.

During the guilt-innocence phase of Carter’s trial, Detective Lacy, also with

the Bellaire Police Department, testified on behalf of the State. Lacy testified that he

had advised Carter of his Miranda rights after officers had taken him to the police

department. Lacy recounted that Carter indicated that he understood his

constitutional rights, and Carter signed a document stating that he understood those

rights. Carter indicated that he was willing to waive those rights and speak with

Lacy. The trial court admitted a videotape of Detective Lacey’s interview.

In his videotaped confession, Carter acknowledged that he had participated in

the theft of Martinez’s vehicle with a man named “Ghost.” Carter denied that any

weapon was used in the commission of the crime. Carter stated that he robbed

Martinez to get back to the north side of town, and so that he could take his girlfriend

out for Valentine’s Day.

The next day, before resuming trial, Carter’s trial counsel informed the trial

court that Carter had elected to withdraw his plea of “not guilty” and to plead guilty,

leaving the issue of punishment to the jury. The following exchange then took place

outside the presence of the jury:

Trial Court: We’re outside the presence of the jury back on the record

. . . . We’re presently in trial on this matter, the jury, having been

selected. I’ve been told by the lawyers in this case that Mr. Carter now

wishes to change his plea from not guilty to guilty [of] the alleged

offense . . . . Is that the understanding that everyone has?

Trial prosecutor: Yes, Your honor.

Carter’s Counsel: Yes, it is, Your Honor.

. . .

Trial Court: Let me explain this to you, Mr. Carter, during the pendency

of this case, you have done several things that do not give me great

comfort. You went into some type of fit in the holdover, and hit the

glass. Then you came out and said you were incompetent, but then

when you realized I wasn’t buying it, you suddenly regained your

competency. I just want to make sure you understand something, if

you’re doing this for any reason other than the one stated, and you plan

to disrupt this trial or do something along those lines, that will not be a

good thing to do. All right. I’m taking you at your word that this is

what you want to do. You need to take me at my word. I’m dead

serious about how we run business in this court; and this is a very

serious offense. This jury is very sincere in their approach to the case,

as is the attorney for the State, as is your lawyer, as am I and the court

reporter; and I will allow you to do this if this is what you wish to do.

If this is some ill-advised scheme to try to gain advantage and then do

something to disrupt this court, I just advise against it. Are we all

square on ths?

Carter: Yes, sir.

Trial Court: And this is what you wish to do?

Carter: Yes, sir.

Trial Court: All right. Are you pleading guilt[y] to this because you are

guilty of it?

Carter: Yes, sir.

Trial Court: That includes using a knife?

Carter: Yes, sir.

Following Carter’s guilty plea before the jury, the trial proceeded to the

punishment phase. There, Carter testified on his own behalf. Carter explained that

it was his accomplice’s idea to rob Martinez. He testified that he thought about his

actions in jail and was sorry for committing the offense. He told the jury that he

committed the robbery in order to obtain money to take his girlfriend out for

Valentine’s Day. Carter denied holding a knife to Martinez’s neck during the

robbery, stating he instead held the knife by his hip. Finally, Carter testified he was

“traumatized” by the robbery.

II. Discussion

A. Competency to Stand Trial

Carter first contends that the trial court abused its discretion in accepting his

plea of guilty and proceeding with punishment without a competency inquiry.

We review a trial court’s decision not to conduct a competency inquiry under

an abuse of discretion standard. Moore v. State , 999 S.W.2d 385, 393 (Tex. Crim.

App. 1999); Lawrence v. State , 169 S.W.3d 319, 322 (Tex. App.—Fort Worth 2005,

pet. ref’d). A defendant 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. 46B.003 (b) (Vernon Supp. 2007). A

defendant is incompetent to stand trial if he lacks: (1) sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding or (2) a

rational, as well as factual, understanding of the proceedings against him. Id . art.

46B.003 (a). Either party may suggest by motion, or the trial court may suggest on

its own motion, that the defendant may be incompetent to stand trial. Id . art.

46B.004(a). If evidence suggesting the defendant may be incompetent to stand trial

comes to the attention of the court, the court on its own motion shall suggest that the

defendant may be incompetent to stand trial. Id . art. 46B.004(b) (Vernon Supp.

2007). 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 be incompetent to stand trial. Id .

art. 46B.004(c).

In this case, the trial court ordered that Carter undergo a psychiatric evaluation

prior to trial. In the trial court’s order, it noted that Carter stated he was having

memory problems. Id . Carter asserts that reports from court personnel that Carter

had, at some point, exhibited symptoms of a “mental disturbance” raised the question

of his fitness to stand trial. Carter further asserts that the fact that he underwent the

court ordered psychiatric examination before trial and was on some type of

medication should have alerted the trial court to make a further inquiry into his

competence.

Upon review, we conclude that the trial court did not abuse its discretion in not

holding an informal inquiry into Carter’s competence to stand trial because no

evidence exists in the record that suggests that Carter did not have (1) sufficient

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

understanding or (2) a rational as well as factual understanding of the proceedings

against him. See Tex. Code Crim. Proc. art. 46B.003(a) (Vernon Supp. 2007).

There is no evidence indicating recent severe mental illness, moderate mental

retardation, or truly bizarre acts by Carter. See Salahud-Din v. State , 206 S.W.3d

203, 209 (Tex. App.—Corpus Christi 2006, pet. ref’d). Significantly, Carter testified

lucidly in the punishment phase of trial and responded appropriately to questions

from both defense counsel and the State. See id . at 209. Nothing in Carter’s

testimony in this case is irrational; he testified that he regretted committing the crime,

but that his accomplice and his need for money pressured him into it. See id .

Finally , Carter was able to communicate with the trial judge and appeared to have a

rational and factual understanding of the proceedings against him.

We hold that Carter’s assertions do not establish the required elements of

incompetency concerning his ability to consult with his counsel with a reasonable

degree of understanding or a rational and factual understanding of the proceedings

against him. See Brown , 129 S.W.3d at 766; Tex. Code Crim. Proc. Ann . art.

46B.003(a) (Vernon Supp. 2006). Accordingly, the trial court’s failure to conduct a

competency inquiry did not constitute an abuse of discretion.

B. Ineffective Assistance of Counsel

1. Trial Counsel’s Failure to Move for a Competency Inquiry

In his second point of error, Carter contends he received ineffective assistance

of counsel at trial because his attorney failed to move for an inquiry by the court to

determine Carter’s mental competence to stand trial.

We review claims of ineffective assistance of counsel under the standard set

forth in Strickland v. Washington , 466 U.S. 668 , 104 S. Ct. 2052 (1984). Under the

Strickland test, a defendant must prove (1) his trial counsel’s representation was

deficient, and (2) the deficient performance was so serious that it deprived the

defendant of a fair trial. Id . at 687, 104 S. Ct. at 2064 . To establish both prongs, the

defendant must prove by a preponderance of the evidence that counsel’s

representation fell below the objective standard of prevailing professional norms, and

there is a reasonable probability that, but for counsel’s deficiency, the result of the

proceeding would have been different. Id. at 690–94, 104 S. Ct. at 2066–68. An

defendant’s failure to satisfy one prong makes it unnecessary for a court to consider

the other prong. Id . at 697, 104 S. Ct. at 2069 . This test is applied to claims arising

under the Texas Constitution as well as those arising under the United States

Constitution. Hernandez v. State , 726 S.W.2d 53 , 56–57 (Tex. Crim. App. 1986).

Our review of defense counsel’s performance is highly deferential, beginning

with the strong presumption that the attorney’s actions were reasonably professional

and were motivated by sound trial strategy. Jackson v. State , 877 S.W.3d 768 , 771

(Tex. Crim. App. 1994). When the record is silent as to trial counsel’s strategy, we

will not conclude that defense counsel’s assistance was ineffective unless the

challenged conduct was “‘so outrageous that no competent attorney would have

engaged in it.’” Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)

(quoting Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

When considering the first prong of Strickland , we must decide whether there

is sufficient evidence in the record to refute the strong presumption that trial counsel

rendered adequate assistance and made all decisions in the exercise of reasonable

professional judgment. Bone v. State , 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

To this end, the Strickland standard requires Carter to rebut the presumption of

adequate assistance by a preponderance of the evidence. See Hernandez v. State , 988

S.W.2d 770, 772 (Tex. Crim. App. 1999).

The analysis we used in Carter’s first issue on appeal applies to Carter’s claim

of ineffective assistance of counsel. Nothing indicates that defense counsel possessed

credible information to present to the trial court regarding Carter’s incompetency to

stand trial. See Jackson v. State , 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (claim

for ineffective assistance of counsel must be affirmatively supported by the record).

As Carter’s brief notes, “the record . . . is bereft of any evidence of the history of

[Carter’s] psychiatric illness, or of its exact nature[.]” Carter thus has not rebutted the

presumption that trial counsel made her decision not to request a competency inquiry

in the exercise of reasonable professional judgment. Gamble v. State , 916 S.W.2d 92,

93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) . In light of these facts, we hold

that the record is insufficient to show trial counsel’s performance was deficient.

2. Trial Counsel’s Failure to Move to Suppress Carter’s Videotaped

Confession

Carter further complains he received ineffective assistance because his trial

counsel did not move to suppress his videotaped confession on the basis that he was

incompetent to give it. Again, the record lacks evidence that Carter was incompetent

at the time he gave his confession and, therefore, that his counsel should have moved

to suppress the confession on these grounds. At the time Carter gave his statement,

he said he understood his rights, waived them, and voluntarily spoke to officers. We

hold that trial counsel’s failure to move to suppress Carter’s statement on this basis

appears to have been made in the exercise of reasonable professional judgment. See

Jackson , 973 S.W.2d at 955 .

III. Conclusion

We conclude that the trial court did not abuse its discretion in failing to inquire

into Carter’s competency to stand trial, and that counsel did not render ineffective

assistance. We therefore affirm the judgment of the trial court.

Jane Bland,

Justice

Panel consists of Justices Taft, Jennings, and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).