Anthony Johnson v. State ( 1997 )

Anthony Johnson v. The State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-97-055-CR

     ANTHONY JOHNSON,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 194th District Court

Dallas County, Texas

Trial Court # F96-00548-KM

O P I N I O N

      Appellant Johnson appeals from his conviction for burglary of a habitation with intent to commit aggravated assault, for which he was sentenced to 50 years in the Texas Department of Criminal Justice-Institutional Division and a $1,000 fine.

      Appellant was tried in two cases at the same time. In case number F93-63611 Appellant was on deferred adjudication probation for burglary of a habitation. The State filed a motion to revoke probation and to adjudicate. Appellant pled “true” to the allegations in the motion to revoke. The trial court revoked Appellant’s probation, adjudicated Appellant’s guilt, and sentenced him to 20 years in prison. Appellant has not appealed this conviction.

      In case number F96-00548, this case, Appellant pled guilty on an open plea. The court heard evidence and thereafter sentenced Appellant to 50 years in prison and a $1,000 fine.

      At two o’clock in the morning of November 8, 1995, Appellant climbed to the balcony of Ms. Amber Pickering’s second-floor apartment. Ms. Pickering, Appellant’s estranged girlfriend of 5 years and mother of his three young children, had informed Appellant two days earlier she was seeing another man, a Charles Sing. Appellant broke the sliding glass door to find Sing and Pickering together in the bedroom. Appellant then used a knife to cut Ms. Pickering’s throat and then stabbed her in the abdomen. He then stabbed himself in the neck and chest. Ms. Pickering was hospitalized three days, received eight stitches on her stomach and 18 stitches on her neck. Appellant was not seriously injured.

      Appellant appeals his conviction on 3 points of error.

      Point 1: “The trial court erred by accepting Appellant’s guilty plea because the evidence raised an issue regarding his mental competency.”

      Specifically, Appellant contends the trial court should have sua sponte conducted a competency hearing.

      Article 26.13(b), Texas Code of Criminal Procedure, provides that “no plea of guilty . . . shall be accepted by the court unless it appears that the defendant is mentally competent . . . .”

      Article 46.02, Texas Code of Criminal Procedure, provides:

      Section 1(a). A person is incompetent to stand trial if he does 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.

            Section 2(b). If during the trial evidence of defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

      A trial court is only required to hold a separate competency hearing where there has been evidence that could rationally lead to a conclusion of incompetency. Arnold v. State, 873 S.W.2d 27, 36 (Tex. Crim. App. 1993). Arnold, supra, holds that the question to be resolved is “was there any evidence that raised the issue of Appellant’s competency?” If the evidence in the trial court, from any source, raised such an issue then the separate jury determination is required. Tex. Code Crim. Proc. Art. 46.02, § 2(b).

      The test for competency to stand trial is whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rationality as well as a factual understanding of the proceedings against him. However, a judicial determination that a person is mentally ill does not constitute a determination of a person’s mental incompetency. Leyva v. State, 553 S.W.2d 158 (Tex. Crim. App. 1977); Tex. Code Crim. Proc. art. 42.02, § 1(a).

      Whether an issue of incompetency exists at the time of trial is left to the discretion of the trial judge. Therefore, in determining whether the trial court erred in not conducting a competency hearing, we must apply an abuse of discretion standard. Ainsworth v. State, 493 S.W.2d 517, 521 (Tex. Crim. App. 1973); Thompson v. State, 915 S.W.2d 897, 901 (Tex. App.—Houston [1^st Dist.] 1996, pet. ref’d).

      At no time prior to trial did Appellant or his counsel point out to the court the evidence now relied on to raise the issue of incompetency. Nor was any request made for a separate proceeding to determine the issue. Instead, Appellant claims on appeal for the first time that the court should have sua sponte halted the proceeding and conducted a competency hearing.

      The record reflects that the trial judge asked Appellant, “Are you mentally competent and able to effectively assist your attorney in the case and able to have a rational as well as a factual understanding of the charge and proceedings against you?”, to which Appellant answered, “Yes sir.” The court then asked Appellant’s attorney, “And there is no question in your mind about that, is there counsel?”, to which Appellant’s attorney responded, “There is some question about Mr. Johnson’s mental state but in terms of him understanding what’s going on and him understanding the nature of the charges against him and what we’ve done, I believe he’s competent to understand all that.” The court then asked counsel, “You’re satisfied he’s competent?”, to which counsel replied, “Yes, your honor.”

      There was evidence that Appellant had depression and problems with his thinking for several years; that he had been abused by his stepfather, and became depressed as a result. Dr. Mitchell, a psychologist, testified Appellant suffered from schizophrenia for four or five years which had a big impact on his behavior; that the schizophrenia was getting worse; that Appellant is a danger to himself and others and she recommended Appellant receive very thorough psychiatric care. She further testified that, in her opinion, he was competent to stand trial; understood the charges against him; and was able to work with his attorney in forming a defense. There is evidence Appellant attempted to kill himself twice before cutting himself on the night he slashed Ms. Pickering with his knife.

      A no time during trial did Appellant suggest that he was incompetent and could not consult with his lawyer with a reasonable degree of rationality, or that he did not have a factual understanding of the proceedings against him. His testimony was intelligent and straight forward and he gave thoughtful responses to the questions of his attorney and the prosecutor. He explained that his prior attempts on his life were because of his difficulties with Ms. Pickering.

      The trial court may rely upon personal observations, known facts, evidence presented, motions, affidavits or any reasonable claim or credible source creating a bona fide doubt of Appellant’s competency to stand trial. Appellant’s attorney did not complain of any inability to communicate with Appellant and there is no indication in the record that Appellant’s appearance or demeanor during trial was out of the ordinary.

      Assuming, without deciding, that Appellant has preserved his point of error, there is no evidence that the trial judge abused his discretion in failing to impanel a jury to determine Appellant’s competency to stand trial.

      Point 1 is overruled.

      Point 2: “The evidence is factually insufficient to support the trial court’s assessment of 50 years in the Texas Department of Corrections.”

      Specifically, Appellant asserts that the factual sufficiency standard of review of Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), is applicable to the sentenced assessed.

      Factual sufficiency review, or the holding of Clewis, does not apply to the assessment of the punishment verdict. Flores v. State, 936 S.W.2d 478, 479 (Tex. App.—Eastland 1996, no pet.); Eldridge v. State, 940 S.W.2d 649, 652 (Tex. Crim. App. 1996).

      Point 2 is overruled.

      Point 3: “The trial court assessed a sentence inconsistent with the constitutional prohibition against cruel and unusual punishment.”

      The range of punishment in Appellant’s case was not less than 5 years or more than 99 years, or life, and a fine not to exceed $10,000.

      Appellant’s punishment of 50 years and a $1,000 fine was well within the range of punishment authorized by statute.

      Punishment assessed by a judge or jury within the limits prescribed by statute is not cruel and unusual within the constitutional prohibition. Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Morales v. State, 897 S.W.2d 424, 427 (Tex. App.—Corpus Christi 1995, pet. ref’d).

      Point 3 is overruled.

      The judgment is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 5, 1997

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