Reginald B. Jones v. State ( 2003 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-02-470 CR ____________________

REGINALD JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 159th District Court Angelina County, Texas Trial Cause No. 22,317

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OPINION  

Reginald Jones pleaded guilty to the felony offense of family violence assault. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2) (Vernon 2003). In accordance with a plea bargain agreement, the trial court placed Jones on community supervision for five years. The State subsequently filed a motion to proceed with an adjudication of guilt. Jones pleaded "not true" to the allegations. The trial court found that Jones violated the terms of the community supervision order by failing to timely report to his community supervision officers. After conducting a sentencing hearing, the trial court convicted Jones and sentenced him to seven years of confinement in the Texas Department of Criminal Justice, Institutional Division. Jones filed a pro se general notice of appeal and retained appellate counsel. He presents three issues on appeal.   

To invoke appellate jurisdiction, notices of appeal filed before January 1, 2003, in plea-bargained cases must comply with the notice requirements of former Rule 25.2(b)(3). Johnson v. State, 84 S.W.3d 658, 660 (Tex. Crim. App. 2002). The trial court conducted three hearings in this case: (a) on September 20, 2001, it received the appellant's guilty plea, deferred adjudication of guilt, and placed the appellant on community supervision; (b) on September 24, 2002, it heard the State's motion to adjudicate guilt and found some, but not all, of the State's allegations to be true, revoked community supervision, and ordered a presentence investigation report; and (c) on November 19, 2002, it heard additional evidence, adjudicated guilt, convicted Jones, and imposed sentence. As recently noted by Judge Onion in Lopez v. State, 96 S.W.3d 406, 414 (Tex. App.--Austin 2002, pet. ref'd), a plea of guilty in a bench trial results in a unitary trial in which the issues of guilt and punishment are submitted at the same time. Because Jones received deferred adjudication as part of a plea bargain agreement, however, our jurisdiction extends only to those issues that are unrelated to the conviction. See Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).

First, Jones argues that his sentence was unlawful "because he was incompetent to stand trial." Assuming arguendo that the issue raised falls within the narrow scope of issues cognizable in an appeal from a conviction following deferred adjudication of guilt, ⁽¹⁾ we hold the trial court did not err in failing to impanel a jury to determine appellant's competency. See Tex. Code Crim. Proc. Ann. art. 46.02, § 4(a) (Vernon Supp. 2003). A trial judge need not perform a competency inquiry ⁽²⁾ unless evidence is presented that raises a bona fide doubt in the judge's mind regarding the defendant's present ability to consult with his lawyer with a reasonable degree of rational understanding or the defendant's rational as well as factual understanding of the proceedings. McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003). When a bona fide doubt does exist, the trial court must conduct a competency inquiry to determine if there is "some evidence" to support a finding of incompetency, and, if so, to commence a Section 4 hearing before a jury. Id. In this case, the trial court questioned Jones extensively during the first hearing after receiving an affirmative response to a question of whether Jones had ever been committed to a mental institution. At the conclusion of the second hearing, Jones told the court that he had attempted suicide while on community supervision. The trial court expressed concern over the possibility of mental health issues, but defense counsel admitted that Jones had "been able to assist in his defense." Before the final hearing, defense counsel filed a motion for a mental health status evaluation that alleged that defense counsel was not qualified to evaluate whether Jones was competent to stand trial, but did not allege that Jones was in fact incompetent. The trial court ordered an examination, but the presentence investigation report ⁽³⁾ noted that the examination did not occur because Jones refused to see the psychologist. After the hearing concluded, Jones read aloud a statement in which he claimed that he had previously used medical records from "1993 SSI and Disability to prove incompetency." The same statement included what Jones asserted was a doctor's recital that "in [the doctor's] opinion the patient is not mentally ill[.]" It appears the trial court made an informal competency inquiry that did not reveal evidence of recent severe mental illness, moderate retardation, or truly bizarre acts by the defendant. In this case as in McDaniel, the trial court satisfied itself that the defendant understood the nature of the proceedings and assisted defense counsel in his defense. Issue one is overruled.

Issue two urges that the sentence is unlawful because Jones received ineffective assistance of counsel due to counsel's failure to object to the admission of two prior offenses: 1) a judgment which Jones had challenged by filing a petition for a writ of habeas corpus; ⁽⁴⁾ and 2) a deferred adjudication order placing Jones on community supervision for assault causing bodily injury. A claim of ineffective assistance of counsel during the punishment hearing is "unrelated to" a claim regarding the propriety of the conviction. Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001). Effectiveness of counsel was not challenged in a motion for new trial, however, and there is no firm evidentiary support in the record to overcome the presumption that trial counsel's actions were part of a reasonable trial strategy. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.). Based upon the totality of this record, we cannot conclude that appellant has established that trial counsel's performance fell below an objective standard of reasonableness. Furthermore, the appellant has not demonstrated that the exhibits in question were subject to a valid objection. See Vaughn v. State, 931 S.W.2d 564, 566-67 (Tex. Crim. App. 1996); Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2003). Issue two is overruled.

Issue three argues that the sentence is unlawful because the trial court considered improper punishment evidence. Jones refers to the same documents that are the subject of his second issue. On appeal, Jones argues that the trial court "used against" him "the fact that a writ had been filed." The "Order Designating Issues," which pertains to the application for writ of habeas corpus, was offered into evidence by the defendant, not the prosecution. The deferred adjudication order was admitted into evidence without objection. Jones failed to preserve error. See Tex. R. Evid. 103; Tex. R. App. P. 33.1. Issue three is overruled. The judgment is affirmed.

AFFIRMED.

   PER CURIAM

Submitted on June 17, 2003

Opinion Delivered July 16, 2003

Do Not Publish

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. The intermediate appellate courts disagree on whether the issue is cognizable under

Vidaurri. See Nava v. State, Nos. 11-02-00219-CR and 11-02-00220-CR, 2003 WL 21108283 (Tex. App.--Eastland May 15, 2003, no pet. h.)(Article 42.12, § 5(b) "does not permit an appellate court to review the evidence to determine if the evidence 'brought to the judge's attention' raises a 'bona fide doubt' as to a defendant's competency to stand trial."); contra Marbut v. State, 76 S.W.3d 742 (Tex. App.--Waco 2002, pet. ref'd)(The issue of competency at a hearing to adjudicate guilt "pertain[s] to the validity of the proceedings whereby her guilt was adjudicated and she was sentenced to prison[,]" not to the trial court's decision to adjudicate guilt.).

2. The competency inquiry is a preliminary step to the competency hearing before a jury that is raised in issue one.

3. The PSI report, which is not in the appellate record, apparently included a letter in which the psychologist concluded that Jones is competent to stand trial.

4. Jones does not assert that the judgment has been vacated.