Leisher, Robert Wayne ( 2015 )

no;.
56CW5
IN THE
COURT OF CRIMINAL ORIGINAL
APPEALS
...'•'! OF TEXAS
ROBERT WAYNE LEISHER,
Petitioner A
v.
THE STATE OF TEXAS
Respondent
Petition in Cause No. 07-14^00441-CR
from the Criminal District Court No^2 of Dallas County
Texas and the Court of Appeals for the Seventhipistriet of Texas
PETITION FOR DISCRETIONARY REVIEW J;^;i„ lkl
IN
COURT OF CRIMINAL APPEALS
11 ft, J
| Abel Acosta, Clerk
Robert W.! Leisher
.%': '•'•
wi TDCJ#1.969543
Michaels Unit
'. 2664 FM 2054
Tennessee Colony, Texas
Petitioner
•••'^•^tCEIVED IN
COURT OF CRIMINAL APPEALS
MAY 08 2015
e»Acosia,<
TABLE OF CONTENTS
Index of Authorities..........
Statement Regarding Oral Argument......'.....
Statement of the Case
Statement of Procedural History...........
Ground for Review.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT PROPERLY
ASSESSED THE PETITIONER'S MENTAL COMPETENCY WITHOUT A MENTAL COMPETENCY
EVALUATION BY PSYCHIATRIST (Rec. page 10-11). ;
Reason fpp Review. ^. .;>:.,. ' "/_•'../,.„', .|,; • \••*•.-. #*•••':.? •*•
Prayer fot; Relief.".v.'iV,'.:.'•"."." <•-•••.
Appendix. •- ..';
,. 2 '•; •-1
INDEX OF AUTHORITIES
CASE LAW
Ex parte De Leon,; 400 S,W. 3d 83,89 (Tex. Crim. App. 2013)
Minefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App, 11012)
Jacksonv. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)
NO; ••
IN THE
COURT OF CRIMINAL
. APPEALS
OF TEXAS. .
ROBERT WAYNE LEISHER
Petitioner
v..'''.' .
THE STATE OF TEXAS
Respondent
Petition in Cause No. 07-14-00441^CR
from the Crimiflial District Court No. 2 of Dallas County
Texas and the Court of Appeals for the Seventh District of Texas
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS: '
ROBERT WAYNE LEISHER, petitions the Court to review the judgement
affirming his conviction for fraudulent possession of the identifying
information of fifty or more persons in Cause No. 07-14-00441-CR.
STATEMENT REGARDING ORAL ARGUMENT i
Petitioner does not request oral argument.
STATEMENT OF THE CASE
The petitioner was convicted by an "open" plea of the offense of
Fraud Use/ Possession of ID (Fl); the punishment was assessed by
4
the Court at (30) years confinement in the Texas Department of
Criminal Justice, Institutional Division, and a fine of $10,000.00.
This conviction was affirmed by the Court of Appeals for the Seventh
District,April 16, 2015.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals rendered its decision affirming petitioner's
conviction on April 16, 2015. This petition was then filed with the ,
clerk of the Court of Appeals within thirty(30) days after such final
{ruling, to wit April 16, '2015. "•'••*"••••:
GROUND FOR REVIEW
THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT PROPERLY
"ASSESSED THE PETITIONER'S MENTAL COMPETENCY WITHOUT A MENTAL COMPETENCY
EVALUATION BY PSYCHIATRIST (Rec. page,10-11). ;
^REASON FOR REVIEW 1*
The petitioner informed his attorney and Court that he had been using
methamphetamines and was having withdraws and had a pre-diagnosis
mental illness (bipolar disorder) that he was not on his medication f,
at the, time of the hearing.
This information should have alerted the Court that a mental competency:
evaluation was needed to be sure that petitioner was aware and fully ;^
understood the proceedings of the hearing, however, the Court failed
to heed this.inlormation. and chose to do an evaluation of the petitioner
•for it's self. i
When a question of a defendant's mental competency is in question
a Court should be fair and order.'% evaluation by a psychiatrist ;
to determine if the defendant iscompetent. It -is a slippery'..slop
when the Court takes it; upon it's self to determine the mental competency
of a defendant that has a history of a mental Illness and is off;
,;of his medication.
BIPOLAR DISORDER
A serious psychiatric disorder characterized by extremes of moods,
including mania and depression. Bipolar disorder is also known as^
manic depressive disorder or manic depression. Individuals with bipolar
disorder may be more likely to exhibit addictive behaviors because
of their lack of impulse rcontrol when they are in a manic (overly
excited) state or because,of their extremely low mood state when
they are depressed. Some^experts believe that some undiagnosed patients
with bipolar disorder may use drugs or alcohol in an attempt to
self-medicate their psychiatric symptoms. About 1-2 percent of the
population in;the United; States is affected by bipolar disorder.
FORMS OF BIPOLAR DISORDER
There are two primary forms of bipolar disorder with several subsets
of interest to psychiatrists and other mental health professionals.
Bipolar 1 disorder is the more classic form of the illness. It is
characterized by manic episodes that may last for at least a week
and are followed by depressive periods that may last for two weeks
or more. Some patients are so manic that they require hospitalization
in order to avoid causing harm to themselves or others. Patients
may also have both a mania and a depression simultaneously, which
is called a mixed mania. These patients are at greater risk for
suicide. '
Bipolar 2 disorder is a less well-defined form of the illness and
is typified by hypomania, which is a less severe form of mania than
seen with bipolar 1 disorder. There is a predominance of depression
and depressive symptoms. This disorder is less easy to diagnose
and to treat than bipolar type 1 but causes substantial disability
in the general population.
fSUBSTANCE ABUSE; PREVALENCE WITH..,BIPOLAR, DISORDER ,. ;.- ,.
iLarge studies of patients with,bipolar 1 disorder, have Ishown that
about 61 percent developed a substance abuse disorder durnirig their
lifetimes,{abusing either alcohol or another drug. Another 41 percent
»had a drug abuse or dependence diagnosis.
Studies of patients with bipolar 2 disorder revealed that 48 percent
developed a substance abuse disorder. Another 21 percent had a drug
tor alcohol dependency.
Mood disorders ttfat occur earlier in life, such as during adolescence,
[may have a different outcome than those that occur at yjounger ages.
sAccordihg to a report, from the National Center iOh Addiction and
^Substance Abuse at Columbia University on pathways to substance abuse
i'among girls arid'young women ages 8-22 years old, "Children who develop
[mood, disorders, such as bipolar disorder, during their iteeh years
!afe ;alinost nine t;imes like-lier to develop' a substance luse disorder
compared to those whose mood disorder emerges earlier in childhood".
Some studies have shown that alcoholism and other forms of substance
abuse in patients with bipolar disorder.predictLa more severe clinical
course.(Whether there is a*cause and effect relationship is not felear.
The subitance abuse may trigger bipolar 'episode's. The,substance abuse
may cause other, brain changes that are harmful to the person with
bipolar ^disorder.
PRAYER FOR RELIEF
For the reason herein alleged, the petitioner was denied a fair hearing
in Cause No. F-1457156-I; Therefore, petitionerprays this Court
grant this petition, and upon reviewing the ijujdgejnent; entered below
reverse this cause and remand it for a hew.trial.
Respectfully Submitted,
Robert W. Leisher
Appendix: Judgement of the Seventh Court of Appeals (attached)
CERTIFICATE OF SERVICE
This is to certify that a copy of the above-entitled and numbered
petition for review have been served to the clejrk of Court of Criminal
Appeals of Texas by placing said copy in mail on the 4th day of May 2015.
Respectfully,
v- t*S?fcj2Ai? u^Ajul"
3fo W$t
Court of appeals
&etoettfh Btarrict of tKexa* at HJmartllo
No. 07-14-00441-CR
ROBERT WAYNE LEISHER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court No. F-1457156-1, Honorable Donald C. Adams, Presiding
April 16, 2015
MEMORANDUM OPINION
Before QUINN, CJ., and CAMPBELL and PIRTLE,U.
Robert Wayne Leisher entered an open plea of guilty to fraudulent possession of
the identifying information of fifty or more persons. He was sentenced by the trial court
to thirty years confinement.
Appellant's appointed counsel filed a motion to withdraw, together with an
Anders1 brief, wherein he certified that, after diligently searching the record, he
concluded that the appeal was without merit. Along with his brief, appellate counsel
See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)f
filed a copy of a letter sent to appellant informing him of counsel's belief that there was
no reversible error and of appellant's right to file a brief or response pro se. Counsel
also represented that he furnished a complete copy of the record to appellant. By letter
dated February 19, 2015, this court notified appellant of'his right to file a brief or
response by March 23, 2015, if he wished to do so, and we subsequently gave him
additional time to file his response, which he did.
In compliance with the principles enunciated in Anders, appellate counsel
discussed potential areas for appeal including a possible defect in the indictment,2 the
adequacy of the admonishments, and the sufficiency of the evidence. However, he
then explained why the issues lack merit.
Appellant also raised several issues for our consideration including 1) his
contention that his "open" plea included a promise by the State that there would be an
upper cap in his prison term of not more than fifteen years, 2) alleged promises by the
State that it would recommend a ten-year prison term and drop the enhancement
paragraph, 3) the involuntariness of his plea because he was not taking medication for
his bipolar disorder, and 4) the ineffective assistance of his counsel in not objecting to
the State's failure to abide by the "pre-hearing negotiations." Evidence of the plea
agreement claimed by appellant does not appear in the record, and we must look to the
written agreement and the formal record to determine the terms of such an agreement.
Ex parte De Leon, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013). Moreover, appellant was
informed orally and in writing that the range of punishment was up to life in prison. We
also note that the State did drop the enhancement paragraph and recommend a term of
2Appellant waived his right to complain of"any and all defects, errors, or irregularities, whether of
form or substance in the charging instrument."
imprisonment of ten years, but nothing in the record indicates that the trial court was
bound by that recommendation or by any upper limit other than the statutory range. A
plea agreement is not binding until the trial court approves it. Bland v. State, 417
S.W.3d 465, 471-72 (Tex. Crim. App. 2013).
As to appellant's competency, appellant's attorney signed a written statement to
the effect that she believed her client was competent, and the judge also stated that
appellant appeared mentally competent. Although there was testimony from appellant
that he was not taking medication for his bipolar disorder, his testimony was lucid and
gave no indication of impairment. To the extent that appellant claims his counsel was
ineffective for failing to object to the punishment assessed, we have already noted that
the record does not support his contention of an agreed cap. Menefield v. State, 363
S.W.3d 591, 592 (Tex. Crim. App. 2012) (stating that claims of ineffective assistance
must be firmly founded in the record). When counsel has not been given a chance to
explain why he or she failed to do something, we should not generally find deficient
performance. Id. at 593.
In addition, we conducted our own review of the record to assess the accuracy of
appellate counsel's conclusions and to uncover any arguable error pursuant to In re
Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) and Stafford v. State, 813 S.W.2d
508 (Tex. Crim. App. 1991). Although the State requested a punishment often years,
the court sentenced appellant to thirty years. Yet, the punishment is within the statutory
range for a first degree felony, see Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.
App. 1984) (stating that a punishment assessed within the statutory range will generally
not be reversed), and appellant had four prior felony convictions and one misdemeanor.
He had also failed in the past to successfully complete probation. We fail to find any
error.
Accordingly, the motion to withdraw is granted, and the judgment is affirmed.3
Brian Quinn
Chief Justice
Do not publish.
3 Appellant has the right to file a petition for discretionary review with the Court of Criminal
Appeals.