Timothy Cornett v. State

Opinion issued December 17, 2020

In The

Court of Appeals

For The

First District of Texas

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NO. 01-19-00944-CR

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TIMOTHY CORNETT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1603103

MEMORANDUM OPINION

A trial court convicted appellant Timothy Cornett of aggravated assault with

a deadly weapon and sentenced him to eight years in prison. See TEX. PENAL CODE

§ 22.02(a)(2). On appeal, Cornett argues that he received ineffective assistance of

counsel when his attorney allegedly failed to file a motion for a sanity evaluation

close in time to the offense and proceeded to trial without obtaining a competency

evaluation. He also argues that the trial court erred by failing to conduct an informal

inquiry into his competency to stand trial.

Because Cornett’s issues are not supported by the appellate record, we affirm.

Background

Benjamin Trowbridge is a certified optician. He commuted to work by bus,

riding an hour and a half each way. One evening, he stopped at a grocery store on

his route before returning to a nearby bus stop with snacks and an evening meal.

As Trowbridge approached the bus stop, he saw Cornett crouched behind one

end of the bus-stop enclosure putting items in a plastic bag. At trial, Trowbridge

described Cornett’s eyes as “kind of saucery” and said, “he just looked very bizarre.”

Trowbridge moved to the other end of the bus stop, put down his backpack, and

began to eat his snack. Just then, Trowbridge heard Cornett banging on the enclosure

and yelling. Trowbridge told Cornett if he did not stop banging on the bus-stop

enclosure, he would call the police. Cornett approached Trowbridge, held a piece of

trash to Trowbridge’s face, and asked if he wanted it. Trowbridge asked Cornett to

walk away.

Cornett then spotted Trowbridge’s backpack and moved to pick it up. Inside

the backpack were precision optical tools, Trowbridge’s dinner, and a baton-type

weapon. Trowbridge had purchased the baton two or three months earlier because

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acquaintances warned him that he was travelling on a dangerous bus route and

advised him to carry a weapon for self-defense.

Trowbridge attempted to block Cornett and push him away from the

backpack. According to Trowbridge’s trial testimony, Cornett then struck and

punched him about the head and face several times. They grappled on the ground for

less than a minute. When he was able, Trowbridge took the baton from his bag, and

he swung it at Cornett. Cornett lunged forward, grabbed the baton, and used it to

beat Trowbridge. After three or four minutes, Cornett stopped, and Trowbridge ran

to the side of the road to wave down traffic and wait until METRO police arrived.

METRO Police Department Officer Z. Balthazar responded to the assault-in-

progress call. He spoke to Cornett, who was already in custody, and to Trowbridge.

At trial, Officer Balthazar described Cornett as “very aggressive” and said that

Cornett had “maybe a laceration to the front forehead.” Officer Balthazar testified

that Trowbridge had “major lacerations to his face” and that he had “to be put in a

C-brace collar because of possible or potential injury to the neck.”

Officer Balthazar testified that Cornett told him, at the scene, that he had been

attacked by Trowbridge and acted in self-defense. At the scene, officers found the

baton used in the assault. Officer Balthazar testified that a “baton is considered an

impact tool” and that it could cause serious bodily injury. He also said that he had

seen a baton used on people and that it caused skin lacerations and broken bones.

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Officer H. Bolanos also responded to the scene. He testified that Cornett was

“irate” and loud but not aggressive toward him. Cornett told Officer Bolanos and

Officer Balthazar that he was homeless. Officer Bolanos included that information

when he wrote the police report. However, the report did not mention Cornett

punching Trowbridge or grappling on the ground before the baton was used. Officer

Bolanos did not notice any blood on Cornett or his clothing but he recalled seeing a

bandage on Cornett’s head where he had “a small laceration.”

Cornett was arrested and indicted for aggravated assault with a deadly

weapon. Defense counsel was appointed, and the same day, counsel requested a

competency examination. In the motion for a psychiatric examination to determine

whether Cornett was competent to stand trial, defense counsel wrote:

Defendant does not answer correctly the questions asked by his

attorney. Also he claims he has a clear record and he has many priors

including an aggravated robbery. He appears to be homeless but said

he is living in a number of hotels. He just does not make sense and he

is very hostile w/the defense attorney.

The trial court granted the motion for a competency examination.

A case reset form dated October 26, 2018 indicates that the competency exam

had not been done and that the reason for the reset until November 9, 2018 was to

allow time for a full mental health evaluation. No competency examination report

appears in the record. The docket sheet does not clearly indicate whether a

competency hearing occurred. The entries for November 9, 2018 state:

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11/9/2018 Defendant CORNETT, TIMOTHY appeared with counsel

PUBCHARA, SILVIA V.

11/9/2018 Reset by Agreement of Both Parties, 12/21/2018 09:00AM

Arraignment

Thus, the docket sheet does not state whether the competency hearing occurred on

November 9; it merely states that arraignment had been reset to a later date by

agreement of the parties. The case was subsequently reset by agreement seven more

times before trial.

Cornett waived his right to trial by jury, and the court held a bench trial.

Officer Balthazar and Trowbridge were the State’s only witnesses. Both identified

Cornett in open court. Officer Balthazar testified that Cornett was the person he

encountered when he arrived at the scene, and Trowbridge testified that Cornett was

“absolutely” the man who beat him with the baton.

Officer Balthazar testified that Cornett told him at the scene that he had been

assaulted first, but Officer Balthazar noticed that Trowbridge was more severely

injured. Officer Balthazar identified the baton that was recovered in a grassy area

near the bus stop. He testified that it was capable of causing serious bodily injury,

including lacerations and broken bones. He saw no evidence that Cornett had acted

in self-defense.

Trowbridge testified that the assault caused him to bleed heavily. He said that

he was taken by ambulance to a hospital where his blood-soaked clothes were

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discarded. Trowbridge testified that he had three fractures to his right eye orbital

bone, a scratched cornea, a conjunctive hemorrhage of his right eye, a broken nose,

a laceration to his face that required stitches, and several large lacerations on top of

his head. He was out of work for more than a week, and it took a month for the top

of his head to heal.

The defense called Officer H. Bolanos, Jr., who was Officer Balthazar’s

partner. He testified that Cornett was irate and loud but not aggressive. He also did

not recall Trowbridge telling him that the men had fought while on the ground.

Cornett also testified. He said that on the evening of the assault, he had been

walking along the sidewalk and, as he approached the bus stop, a man ran across the

street toward him. Cornett repeatedly insisted that the man who approached him was

not Trowbridge, of whom Cornett said, “I never saw him before in my life, Judge.”

Cornett testified that Trowbridge had been lying when he identified Cornett. Cornett

testified that the man who had run across the street assaulted him by spitting in his

face, hitting him with the brim of his baseball cap, grabbing and twisting his groin,

and hitting him with the baton. Cornett also testified that the man assaulted him after

he fell to the ground. Cornett testified that his left wrist and elbow were injured along

with his knee, shin, and forehead. He denied that Trowbridge was the man who

assaulted him.

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On cross-examination, Cornett denied having any criminal history, but on

further questioning, he admitted that he pled guilty to theft in 2011, “accepted” a

deadly conduct charge in 2008, and was charged with assault in 2000. As to both the

2000 and 2008 charges, he testified that he had been assaulted by or fighting with

another person who was not arrested. And he said he received ineffective

representation in connection with the 2011 theft charge. Finally, on further direct

examination, Cornett was asked whether he recalled being hospitalized in a

psychiatric hospital in 2009 and the diagnosis he received at that time. He recalled

going to “that place” for twenty days for an evaluation.

The trial court found Cornett guilty of aggravated assault with a deadly

weapon and assessed punishment at eight years in prison. Cornett appealed.

Analysis

On appeal, Cornett raises two issues. First, he asserts that he received

ineffective assistance of counsel for proceeding to trial without obtaining a

competency evaluation report and for not seeking a sanity evaluation early in the

case. Second, he asserts that the trial court abused its discretion by not holding an

informal inquiry as to his competency based on a suggestion that he was incompetent

and the absence of a competency report. Both issues relate to Cornett’s competency

to stand trial.

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I. Competency to stand trial

“A criminal defendant who is incompetent may not be put to trial without

violating due process.” Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App.

2013). “The constitutional standard for competency to stand trial asks whether the

defendant has a sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding and whether he has a rational as well as factual

understanding of the proceedings against him.” Id. at 689. Because due process

requires that states adopt procedures that adequately assure that incompetent

defendants are not put to trial, the constitutional standard for competency to stand

trial has been incorporated into the statutory scheme in Texas. Id. at 689–90.

“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. PRO. art. 46B.003(b). A defendant is not competent to

stand trial when he lacks (1) a sufficient present ability to consult with his attorney

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). A defendant’s

competency to stand trial may be raised by either party or on the court’s own motion.

Id. art. 46B.004.

When a suggestion of incompetency has been made, the court must conduct

an informal inquiry to determine “whether there is some evidence from any source

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that would support a finding that the defendant may be incompetent to stand trial.”

Id. art. 46B.004(c). When a court determines that some evidence exists that could

support a finding of the defendant’s incompetency, it “shall order an

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

a criminal case.” Id. art. 46B.005. The Code of Criminal Procedure contemplates

that the expert appointed to examine the defendant will provide the court with a

report stating his opinion about competency or why he is unable to state such

opinion. Id. art. 46B.025. The competency trial may be to the bench or to a jury. Id.

art. 46B.051. “If the court or jury determines that the defendant is competent to stand

trial, the court shall continue the trial on the merits.” Id. art. 46B.053.

Neither mental illness nor a defendant’s obstinate refusal to cooperate with

counsel alone demands a finding that the defendant is incompetent to stand trial.

Turner, 422 S.W.3d at 691. But when there is some evidence that the defendant’s

mental illness fuels his obstinate refusal to consult with his attorney and participate

in his defense, the trial court must hold a formal competency trial. Id. at 696.

II. Ineffective assistance of counsel

The United States Constitution, the Texas Constitution, and the Texas Code

of Criminal Procedure guarantee an accused the right to assistance of counsel. See

U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. art. 1.051.

As a matter of state and federal law, this right includes the right to reasonably

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effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686

(1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).

In his first issue, Cornett argues that he did not receive effective assistance of

counsel because his attorney proceeded to trial without obtaining a competency

report and failed to request a sanity evaluation close in time to his arrest.

A. Standard of review

To prevail on a claim of ineffective assistance of counsel, the defendant must

prove by a preponderance of the evidence that (1) counsel’s performance was

deficient and (2) a reasonable probability exists that but for counsel’s deficient

performance, the result of the proceeding would have been different. Strickland, 466

U.S. at 687, 694. Under the first Strickland prong, we presume that trial counsel

performed within professional norms. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). Under the second Strickland prong, a reasonable probability is a

“probability sufficient to undermine confidence in the outcome.” See Strickland, 466

U.S. at 694; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A failure

to make a showing under either prong defeats a claim for ineffective assistance.

Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, that course should be followed.”);

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (failure to prove

either Strickland prong defeats claim of ineffective assistance of counsel).

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Allegations of ineffectiveness must be firmly founded in and affirmatively

demonstrated by the record. Thompson, 9 S.W.3d at 813. An appellant must

overcome the strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance or might reasonably be considered sound trial

strategy. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).

The record on direct appeal in ineffective assistance of counsel cases rarely

provides the reviewing court an opportunity to conduct a fair evaluation of the

merits. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007); Randon v.

State, 178 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.] 2005, no pet.). When the

record is silent as to trial counsel’s strategy, we will not conclude that appellant

received ineffective assistance 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)); Wood v. State, 260 S.W.3d 146, 148 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (“We will not speculate to find trial counsel

ineffective when the record is silent on counsel’s reasoning or strategy.”). In the

majority of cases, the appellant is unable to meet the first prong of the Strickland test

because the record is underdeveloped and does not adequately reflect the alleged

failings of trial counsel. See Mata, 226 S.W.3d at 430.

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B. The record is not sufficiently developed for Cornett to establish

ineffective assistance of counsel.

On appeal, Cornett argues that his trial counsel was ineffective because she

filed a motion for a competency evaluation but proceeded to trial without first

obtaining a competency report or hearing and because she did not request an

evaluation of Cornett’s sanity at the time of the offense. Appellate counsel argued

that she could “think of no strategy” that would justify those actions.

The record indicates that the court granted a motion for a competency

evaluation and set the case for a competency hearing. On the designated day, Cornett

appeared in court with counsel. The docket sheet indicates only that the case was

reset for arraignment. It does not affirmatively indicate whether the court held a

competency hearing on that day. No competency examination report appears in the

appellate record.

Cornett’s trial counsel may have decided not to file a motion for a competency

hearing because the court affirmatively set the case for a competency hearing

without a request. In addition, the docket sheet entry for the date of Cornett’s trial

indicates that he “appear[ed] to the Court to be sane.”

The record in this case is “nearly bare as to counsel’s trial strategy.” See

Randon, 178 S.W.3d at 102 (holding that “nearly bare” record was inadequate to

allow the court of appeals to determine counsel’s effectiveness). No motion for new

trial was filed, and nothing in the record demonstrates why counsel proceeded in the

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manner that she did. The motion for competency hearing that was filed on the day

defense counsel was appointed stated that Cornett “just does not make sense” and

that he was “very hostile with the defense attorney.” The record indicates that

Cornett subsequently appeared in court with trial counsel ten times, but it is

otherwise silent as to whether Cornett cooperated with trial counsel or participated

in his own defense. Cornett did, however, testify at trial, and his testimony, if

believed, would have raised a doubt about the identity of the person who assaulted

Trowbridge.

On appeal, Cornett argues that his trial testimony was itself some evidence

that he was not sane at the time of the offense. In particular, he focuses on his

testimony that: (1) he was assaulted by an unknown man and had never before seen

Trowbridge; (2) he had no criminal history because all his prior charges and

convictions had been the result of unfair arrests, poor representation, and his

consequent acceptance of a plea bargain; and (3) he recalled being in a psychiatric

hospital in 2009 for “an evaluation.” Appellate counsel calls Cornett’s trial

testimony “delusional,” but the record reflects only that his testimony differed from

other evidence adduced at trial and was ultimately rejected by the factfinder. Cf.

Turner, 422 S.W.3d at 701 (P.J. Keller, dissenting) (appellant “concocted a far-

fetched story to attempt to show his innocence. It might not be an exaggeration to

say that his position was extremely shortsighted and wrongheaded, but that does not

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make him incompetent.”). Nothing in the record indicates that at the time of the

offense, Cornett, “as a result of severe mental disease or defect, did not know that

his conduct was wrong.” TEX. PENAL CODE 8.01(a) (“It is an affirmative defense to

prosecution that, at the time of the conduct charged, the actor, as a result of severe

mental disease or defect, did not know that his conduct was wrong.”).

Cornett also asserts that the record shows he was “evaluated as suffering from

schizophrenic paranoia in 2009” and “most likely, was suffering from untreated

schizophrenia at the time of the incident.” The only reference to schizophrenic

paranoia in the record is counsel’s question to Cornett:

Q. Did they tell you [that] you suffered from schizophrenia

paranoia?

A. Whatever they said that I suffered from, it was just an evaluation.

Although his counsel asked about “schizophrenia paranoia,” Cornett did not confirm

that he ever had that diagnosis. No other evidence in the record suggests that Cornett

suffered from any mental condition which caused him not to know his assaultive

conduct was wrong. See id.

Here, counsel’s alleged deficiencies are not “so outrageous that no competent

attorney” would have acted in that manner. See Goodspeed, 187 S.W.3d at 392;

Garcia, 57 S.W.3d at 440; Wood, 260 S.W.3d at 148. Nothing in the record

demonstrates why counsel proceeded in the manner that she did, and without

counsel’s explanation or a finding that counsel’s conduct was outrageous, a

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conclusion that counsel was deficient would be based on nothing more than mere

speculation. See, e.g., Rylander, 101 S.W.3d at 110–11 (rejecting ineffective

assistance of counsel claim where record was silent regarding reasons for counsel’s

alleged deficiencies). In accordance with binding precedent from the Court of

Criminal Appeals and the United States Supreme Court, we overrule Cornett’s first

issue.

III. Informal competency inquiry

In his second issue, Cornettt argues that the trial court abused its discretion by

failing to hold a sua sponte informal inquiry into his competency to stand trial

because the record reflects that there was a suggestion he was incompetent but there

was no competency report.

An informal competency inquiry is required when evidence is brought to the

court’s attention “rais[ing] a bona-fide doubt in the judge’s mind about the

defendant’s competency to stand trial.” Brown v. State, 129 S.W.3d 762, 765 (Tex.

App.—Houston [1st Dist.] 2004, no pet.) (citing McDaniel v. State, 98 S.W.3d 704,

710 (Tex. Crim. App. 2003)); see TEX. CODE CRIM. PROC. art. 46B.004. “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.” Brown,

129 S.W.3d at 765.

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In this case, on the day of her appointment to represent Cornett, trial counsel

filed a motion for a competency evaluation. The trial court heard and granted the

motion. No other evidence in the record indicates that Cornett was incompetent to

stand trial, and the trial court’s judgment states: “It appeared to the Court that

Defendant was mentally competent to stand trial.”

Cornett argues, specifically, that his and Trowbridge’s testimony demonstrate

that he suffered from mental illness and may have been incompetent to stand trial.

He asserts that the combination of his trial testimony and the absence of a

competency evaluation report required the trial to hold an informal inquiry into his

competency.

As we explained in regard to Cornett’s ineffective assistance of counsel issue,

the undeveloped record does not support this issue. Cornett appeared in court ten

times with his counsel. Aside from the motion filed on the day Cornett first met his

counsel, nothing in the record indicates that he was unable to cooperate and

participate in his own defense. Moreover, mental illness alone is not enough to

justify a finding of incompetency to stand trial. See Turner, 422 S.W.3d at 691. To

raise a question about a defendant’s competency to stand trial, there must be some

evidence of mental illness that fuels a defendant’s refusal or inability to participate

in his own defense. See id. The record does not show that Cornett was unwilling or

unable to participate in his own defense, let alone that any such refusal or inability

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was fueled by recent mental illness. See id. The undeveloped record in this case does

not include evidence that would support a conclusion that a second informal inquiry

was required or that the trial court abused its discretion by not holding such a hearing

on its own motion. We overrule Cornett’s second issue.

Conclusion

We affirm the judgment of the trial court.

Peter Kelly

Justice

Panel consists of Chief Justice Radack and Justices Lloyd and Kelly.

Do not publish. TEX. R. APP. P. 47.2(b).

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