Richard Wright v. State ( 2004 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RICHARD WRIGHT,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

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No. 08-03-00167-CR Appeal from the 363rd District Court of Dallas County, Texas (TC#F-0272320-VW)

MEMORANDUM OPINION

Richard Wright appeals from the revocation of his community supervision following his plea of true.  He asserts the court erred by allowing the State to amend its revocation motion on the date of the hearing, and that his plea of true was not voluntary because he was suffering from severe drug addiction withdrawal at the time of the hearing.  We affirm.

Factual Summary

In June of 2002, Wright negotiated a plea on two counts of burglary of a habitation, received a ten-year probated sentence, and was ordered to complete the Special Alternative Incarceration Program, informally known as boot camp.  After boot camp, the court suspended Wright=s sentence and placed him on six years= community supervision in each case.  On December 4, 2002, the State filed motions to revoke Wright=s community supervision for failing to report and failing to pay fines and restitution.  On December 19, 2002, the State charged Wright with three new counts of burglary of a habitation.  On January 23, 2003, the State filed an amended motion to revoke probation that included the newly-charged offenses.  On the same day, Wright pleaded guilty to the new charges and true to the allegations in the amended motion to revoke probation.  In that hearing, the judge made all required judicial inquiries and admonitions, including:

Q:  Have you ever gone to a mental hospital?

A:  No, ma=am.

Q:  You ever been seen by a psychiatrist?

A:  No, ma=am.

Q:  Do you think you are competent?

A:  No, ma=am.

Q:  You understand what=s going on.  You been able to help your lawyer get ready for trial.

A:  (Wright=s counsel) Yes, ma=am.

Q:  You understand the proceedings against you.

A:  Yes.

Q:  If you understand all that, then you are competent. Do you think you are competent?

A:  Yes, ma=am.

Q:  You think your client is competent?

A:  (Wright=s counsel) Yes.

Wright told the judge that he began taking drugs three years earlier after being sexually assaulted by his stepfather.  He said he had taken PCP and cocaine and had committed the burglaries to pay for the drugs.  The court revoked Wright=s probation on the two earlier cases and accepted his plea of guilty on two of the new cases.  He was sentenced to eight years on each charge.

Wright Waived Right to Appeal Amended Revocation Motion

In his first point of error, Wright asserts he is entitled to a new revocation proceeding because no good cause was shown by the State for amending the motions to revoke on the day of the revocation hearing.  The Texas Code of Criminal Procedure article 42.12, section 21(b) states:

In a felony case, the state may amend the motion to revoke community supervision any time up to seven days before the date of the revocation hearing, after which time the motion may not be amended except for good cause shown, and in no event may the state amend the motion after the commencement of taking evidence at the hearing. Tex. Code Crim. Proc. Ann. art. 42.12, ' 21(b) (Vernon Supp. 2004).

However, there is nothing in the code that says a defendant cannot waive his right to a good cause showing.  A reading of the record shows the amended motions were filed some time before the trial court began questioning Wright, so it cannot be asserted that it was filed after the commencement of taking evidence at the hearing.  There are no objections in the record to the amended motions.  The Texas Rules of Appellate Procedure rule 33.1 requires that as a prerequisite to appellate review, the record must show that a complaint was made to the trial court by a timely request, objection or motion.  There was no such complaint.  Rather, Wright admitted that he committed the crimes and that he violated his probation.  His testimony and judicial confessions alone are enough to support the revocations. As Wright has not preserved the issue for appellate review, we overrule his first point of error.

Voluntariness of Pleas

In his second point of error, Wright states that, A[i]f appellant was under the influence of drugs or if he was experiencing severe withdrawal, his pleas would have been involuntary,@ but cites to no case law or statute which supports that statement.  He argues the trial court should have, sua sponte, conducted a competency inquiry during the plea hearing and asked him if his Auntreated drug addiction prevented him from knowingly waiving his rights and entering his pleas.@ He urges the Court to consider Townsend v. Sain, 372 U.S. 293, 304-309, 83 S. Ct. 745, 752-755, 9 L. Ed. 2d 770 (1963). That case dealt with a confession, not a plea, and the confession was given while the defendant was being administered Atruth serum,@ so that case, in finding the confession to be involuntary, hinged on the appellant being under the present influence of a substance.  Wright seems to be arguing that his plea was involuntary because he was not on drugs at the time of the hearing.  Wright provides no evidence that he was Aexperiencing severe withdrawals@ during the hearing.  The other cases he cites also involve confessions given while defendants were under the effects of drugs like thorazine, valium, and morphine, and thus do not support his argument.  The State argues there was no evidence that Wright could not communicate with his attorney or did not understand the proceedings against him.  Edwards v. State, 993 S.W.2d 171, 176 (Tex. App.--El Paso 1999, pet. ref=d). We agree.  Unless there is an issue made during the hearing at the time of plea, a trial court is not obligated to inquire into mental competency. See Kuyava v. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976).  The trial court did inquire into his competence, and was assured by both Wright and his counsel that he was competent to make his pleas, and understood the proceedings against him.  Wright=s second point of error is overruled.

Conclusion

Having overruled both points of error, the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

February 26, 2004

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)