Melgar, Eduardo Santos v. State ( 2003 )

Affirmed and Memorandum Opinion filed September 25, 2003

Affirmed and Memorandum Opinion filed September 25, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00646-CR

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EDUARDO SANTOS MELGAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 851,955

M E M O R A N D U M   O P I N I O N

A jury found appellant guilty of sexual assault and assessed punishment at twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division and a $10,000.00 fine.  Appellant complains that (1) the trial court erred by failing to conduct a competency inquiry, (2) appellant=s attorney committed two acts of ineffective assistance of counsel, and (3) the trial court erred by neglecting to instruct the jury on the State=s burden-of-proof regarding extraneous offenses during punishment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant and the complainant=s family attended the same church.  After becoming friends, appellant asked the complainant=s father if someone in the family could help him become more proficient in English.  The family sent the complainant to tutor appellant on a weekly basis.  Appellant manipulated the complainant by telling her that intercourse with him would cure her acne, and it Awas God=s will.@  Appellant was charged with sexual assault.

Before trial, appellant=s two attorneys requested psychiatric examinations of appellant because he repeatedly quoted the Bible and had Alost touch with reality.@ Both times the psychiatrist found appellant sane and competent.  At trial, the jury found appellant guilty of sexual assault.  During the punishment phase, the State mentioned previous bad acts related to the offense.  The State referred to oral sex, alcohol, and pornography.  The trial court failed to instruct the jury on the burden-of-proof required for prior bad acts.

DISCUSSION

Appellant raises three points of error.  First, appellant contends the trial court abused its discretion by failing to conduct a Section 2 competency inquiry.  Tex. Code Crim. Proc. Ann. art. 46.02, ' 2(a) (Vernon 1979).  Second, appellant contends he received ineffective assistance of counsel because his attorney failed to request a mental health expert and failed to object to the State=s closing argument.  Finally, he argues the trial court erred by not instructing the jury on the State=s burden-of-proof regarding extraneous offenses during punishment.

I.       Competency Inquiry

A defendant lacks competency 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.  Id. ' 1A(a) (Vernon Supp. 203).  The issue of competency may be raised before or during trial.  See id. ' 2(a), (b).  When raising the issue of competency before trial, Texas Code of Criminal Procedure article 46.02, section 2(a) applies.  It provides the following:

The issue of the defendant=s incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.  

Id. ' 2(a).  Another provision in the Code provides for a mandatory incompetency hearing if during trial, the court determines evidence of incompetency exists.^[1]  See Tex. Code Crim. Proc. Ann. art. 46.02, ' 4 (Vernon 1979 & Supp. 2003); see also McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003).

The Texas Court of Criminal Appeals has interpreted Section 2 to require the trial court to conduct an inquiry Aif evidence of the defendant=s incompetency is brought to the attention of the court from any source.@ McDaniel, 98 S.W.3d at 710 (citing Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997) (citations omitted)).  AA Section 2 or >competency inquiry= is required only if the evidence brought to the judge=s attention raises a bona fide doubt in the judge=s mind about the defendant=s competency to stand trial.@ Id.  (citations omitted).  In fact, the Texas Court of Criminal Appeals presented five requirements that each must be fully satisfied before advancing to the next step.  See id. at 711.  The requirements include the following:

1)         if a competency issue is raised by the defendant, any party, or the court; and

2)         evidence of incompetency is brought to the attention of the trial court by the defendant, any party, or the court;

3)         of the type to raise a bona fide doubt in the judge=s mind regarding the defendant=s competency to stand trial; then

4)         the judge must conduct a Section 2 Acompetency inquiry@ to determine if there is some evidence sufficient to support a finding of incompetence, and if there is,

5)         the judge must impanel a jury for a Section 4 Acompetency hearing.@  

McDaniel, 98 S.W.3d at 710B11 (emphasis in original).  Before a trial court is required to conduct a competency inquiry, appellant must satisfy the first three requirements of McDaniel. Id.

Here, appellant established only the first step. Appellant=s counsel, on two occasions, made a motion for a psychiatric examination. This satisfied the first stepCraising the issue of competency.  Id.  The motions included counsel=s argument that, A[t]he defendant has lost touch with reality.  He cannot respond to plea negotiations.@ On both occasions, the trial court granted the motions, and a psychiatrist evaluated appellant.  Twice, the psychiatrist found appellant competent and sane.  The psychiatrist found appellant could consult with his attorney to a reasonable degree and could understand the legal proceeding against him.  The psychiatrist=s reports were the only evidence before the trial court, and those reports were evidence of competency.  Appellant never brought evidence of incompetency to the attention of the trial court.  See McDaniel, 98 S.W.3d at 710.^[2]  Even though appellant satisfied the first requirement, he did not satisfy the second and third requirementsCmandating the trial court to conduct a competency inquiry.  See id. at 711 (holding that A[a]ppellant fulfilled step one, but when no evidence was brought to the trial court=s attention to raise a bona fide doubt about his competency to stand trial, steps two and three were not satisfied@). Neither the motion nor the psychiatric evaluation, by themselves, require the trial court to conduct a competency inquiry.  See id.  We overrule appellant=s first issue.

II.      Ineffective Assistance of Counsel

Next, appellant raises two issues complaining of ineffective assistance of counsel.  The standard for determining whether a defendant has received ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 694 (1984).  See also Massaro v. U.S., 123 S. Ct. 1690, 1691 (2003); Rodriquez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995).  The standard is well-known by the parties and much-discussed in the case law.  We need not reiterate it here.

Appellant claims counsel mishandled his competency claim because he failed to request a mental health expert, and he claims counsel failed to object to the State=s closing arguments during trial.  We cannot conclude counsel was deficient in either instance because the record does not contain the attorney=s reasons for his actions and does not address the ineffective assistance of counsel arguments.  See Grant v. State, 33 S.W.3d 875, 879B80 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Without this evidence in the record, appellant fails the first part of the Strickland test, and because appellant failed the first prong, we are not required to address the second prong.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).  Therefore, we overrule his two points of error.

III.     Jury Charge

Finally, appellant complains that the trial court erred by failing to include a burden-of-proof instruction in the jury charge during the punishment phase of trial.  Appellant, in his brief, does not direct this Court to the bad acts that he believed should have received a burden-of-proof instruction.  After examining the record, the extraneous bad acts we found included the following:  (1) the complainant testified appellant would give her beer; (2) the complainant testified appellant would show her pornographic movies; and (3) the complainant testified appellant performed oral sex on her many times. We do find the trial court erred by not including the instruction; however, as we explain below, the error was not egregious. 

Appellant did not object to the jury charge at the punishment phase.  Under Huizar, even if appellant does not object, the trial court must instruct the jury on the burden-of-proof for extraneous offenses and bad acts.  Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (holding that the burden-of-proof instruction is required in the jury charge if the jury is to consider prior bad-act evidence).  However, when an appellant fails to object to the charge, that appellant must show the harm was so egregious that he Ahas not had a fair and impartial trial.@ Almanza v. State, 686 S.W.2d 157, 171B72 (Tex. Crim. App. 1985); see also Webber v. State, 29 S.W.3d 226, 235B36 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). AEgregious harm is present whenever a reviewing court finds that the case for conviction or punishment was actually made clearly and significantly more persuasive by the error.@ Gholson v. State, 5 S.W.3d 266, 269 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). We must determine whether appellant suffered actual, not just theoretical, harm.  Almanza, 686 S.W.2d at 174; Allen v. State, 47 S.W.3d 47, 51 (Tex. App.CFort Worth 2001, pet. ref=d). To determine whether the error was egregious, we consider the following four factors:  (1) the entire jury charge, (2) the state of the evidence, including contested issues, (3) the arguments of counsel, and (4) any other relevant information.  Almanza, 686 S.W.2d at 172; see also Webber, 29 S.W.3d at 236.

On June 12th, the trial court charged the jury regarding appellant=s guilt or innocence.  Included in that jury charge was a burden-of-proof instruction. The jury then deliberated and found appellant guilty.  Immediately after finding appellant guilty, the punishment phase began.  The State called three witnessesCtwo of whom had already testified in the guilt-innocence phase of trialCand then rested.  The defense admitted some evidence, but did not call any witnesses.  The trial court then instructed the jury, but failed to include a burden-of-proof instruction.  However, the charge did inform the jurors they were Athe exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given their testimony.@

Appellant does not argue on appeal that if the trial court had given a proper burden-of-proof instruction, the evidence was insufficient to prove beyond a reasonable doubt he committed those extraneous offenses.  Gholson, 5 S.W.3d at 271.  Instead, appellant did not contradict the statements in any way during the punishment phase, and focused only on informing the jury he was eligible for community supervision. 

We recently held when the Agreat weight of the evidence supports the facts giving rise to the presumption, egregious harm has not occurred.@ Webber, 29 S.W.3d at 237. Here, the great weight of the evidence found appellant guilty of sexual abuse of a minor.  The evidence displayed how appellant took advantage of the complainant, and the trust of the complainant=s family.  The focus throughout the punishment phase centered around the repeated sexual assaultsCnot the brief mention of three extraneous bad acts.

Nothing in the record suggests that the jury would have considered the extraneous offenses differently if the trial court had included the burden-of-proof instruction.  Even though the trial court erred in omitting a burden-of-proof instruction in the punishment phase, the appellant has not met his burden of showing the error was egregiously harmful as to deny him a fair and impartial trial. We overrule appellant=s last issue.

In conclusion, we overrule all of appellant=s issues and affirm the judgment of the trial court.

/s/        Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed September 25, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant spends the majority of his brief focusing on pre-trial incompetency.  He does mention statements made during trial, but he fails to fully articulate that statements or actions showing incompetency during trial fall under a different sub-section of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 46.02, ' 2(b) (Vernon 1979).  If during trial Aevidence of the defendant=s incompetency is brought to the attention of the court, ... the court must conduct a hearing ... to determine whether or not there is evidence to support a finding of incompetency to stand trial.@  Id. Only evidence that raises a Abona fide doubt in the judge=s mind@ should be used to determine competency.  See Pipkin v. State, 997 S.W.2d 710, 712 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  A bona fide doubt is shown Aif the evidence indicates recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant.@  See id. at 712B13.  Here, appellant=s responses to the trial court=s questions during trial displayed strong religious commitment.  He spoke Ain the name of Christ@ and through his faith Acovered in Christ=s blood [he knew] everything [was] going to be fine.@  First, appellant=s conduct at trial was no different from the conduct he exhibited pre-trialCand for which he received two psychological evaluations.  Both evaluations concluded he was sane and competent to stand trial. So, in essence, the trial court already had a finding as to competency to stand trial regarding these acts. Therefore, the trial court did not err in failing to conduct a hearing during trial.

^[2]  We acknowledge that footnote 19 of McDaniel provides the following:

This evidence [referred to in requirement number 2] need not be in admissible form.  Reliable information that meets the standards of Tex. R. Evid. 104(a) suffices.  Thus, for example, the defendant=s attorney might orally recite the specific problems he has had in communicating with his client, and the trial judge might consider the defendant=s conduct or statements in court.

McDaniel, 98 S.W.3d 710 n.19.  However, this does not stand for the proposition that the Aevidence@ required to show incompetency may be appellant=s Motion for Psychiatric Examination.  AAn unsworn motion requesting a psychiatrist and an unsworn statement by appellant=s attorney does not constitute >evidence= under Art. 46.02, Sec. 2(a) ... to support appellant=s motion or otherwise raise the issue of competency so as to require a hearing.@  Green v. State, 682 S.W.2d 271, 290B91 (Tex. Crim. App. 1984).