Dewitt, Daniel Julian Londale v. State ( 2013 )


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  • Dismiss in part; Affirm in part; Opinion Filed July 3, 2013.
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    Nos. 05-12-00583-CR,
    05-12-00584-CR, 05-12-00585-CR
    DANIEL JULIAN LONDALE DEWITT, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 401st Judicial District Court
    Collin County, Texas
    Trial Court Cause Nos. 401-82426-10, 401-82490-10, & 401-82491-10
    MEMORANDUM OPINION
    Before Justices Moseley, Lang-Miers, and Evans
    Opinion by Justice Evans
    Daniel Julian Londale DeWitt was indicted for theft, aggravated assault with a deadly
    weapon, and assault by strangulation. At trial, appellant pleaded guilty to the two assault
    charges, and the trial court considered the theft offense pursuant to article 12.45 of the code of
    criminal procedure. Appellant now complains on appeal that the State is barred from trying him
    for the theft offense in the future and the trial court erred in failing to inquire into his
    competency. We dismiss the theft appeal and affirm appellant’s two assault convictions. The
    background of the case and the evidence adduced at trial are well known to the parties, and
    therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas
    Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
    In his sole point of error in the theft case, cause number 05-12-00583-CR, appellant states
    that “a penal code [sic] 12.45 dismissal bars future prosecution for the theft offense.” After the
    trial court considered the theft offense during the punishment phase of appellant’s trial for the
    two assault offenses, it granted the State’s motion to dismiss prosecution of the theft case. There
    is no appealable judgment or order in cause number 05-12-00583-CR. We therefore dismiss the
    theft case for want of jurisdiction. See TEX. R. APP. P.25.2(a)(2); Bohannan v. State, 
    352 S.W.3d 47
    , 48 (Tex. App.—Fort Worth 2011, pet. ref’d).
    In both of the assault cases, appellant complains that the trial court erred by failing to
    conduct an informal inquiry into his competency sua sponte. He specifically argues that his
    previous mental health issues combined with his expressed difficulties communicating with his
    appointed attorney demonstrated the need for a competency inquiry.
    A person is incompetent to stand trial if he does not have sufficient present ability to
    consult with his lawyer with a reasonable degree of rational understanding or a rational as well as
    factual understanding of the proceedings against him.         See TEX. CODE CRIM. PROC. art.
    46B.003(a) (West 2006). A judge must inquire into a defendant’s mental competence if the issue
    is sufficiently raised. See McDaniel v. State, 
    98 S.W.3d 704
    , 709 (Tex. Crim. App. 2003). The
    initial inquiry is informal and is required when evidence suggesting incompetency comes to the
    trial court’s attention. See TEX. CODE CRIM. PROC. ANN. art. 46B.004(b),(c) (West Supp. 2012);
    Jackson v. State, 
    391 S.W.3d 139
    , 141 (Tex. App.—Texarkana 2012, no pet.). We review a trial
    court’s decision not to conduct an informal competency inquiry for an abuse of discretion. 
    Id. at 426.
    The evidence in appellant’s cases did not suggest he was incompetent to stand trial. The
    clerk’s records show that the trial court ordered a psychiatric evaluation shortly after the cases
    were filed, but the records do not reveal the results of any evaluation. Evidence presented
    –2–
    showed that, years before the instant offenses, appellant had spent time in the psych ward while
    serving in the Army. He had been diagnosed with post-traumatic stress disorder and bipolar
    disorder in the Army, but he stopped taking his medication. Later, he was admitted to a mental
    hospital because he had cut himself with a knife. Appellant receives disability payments for
    PTSD each month.
    Appellant’s former wife, the complainant in the two assault cases, testified that appellant
    faked the symptoms of PTSD in order to obtain a PTSD diagnosis that prevented him from
    deploying to Afghanistan. About one year before the assaults, appellant tried to re-enlist in the
    military and underwent a psychiatric evaluation.       Records from that evaluation show that
    appellant did not appear to have any “significant mood or other active psychiatric issues at this
    time.” Nothing in the records before us shows appellant behaved strangely during the trial
    proceedings or with his lawyer.
    Appellant acknowledges in his briefs that his actions were “unlikely to be considered
    truly bizarre.” He contends nevertheless that the records show he was unable to communicate
    with his lawyer due to a “communication lapse.” Appellant sent hand-written complaints to the
    court about his difficulties in getting his lawyer to meet with him, filed his own well-written
    motions, filed motions to proceed pro se that he later withdrew, and at one point filed a grievance
    against his lawyer with the Texas State Bar. At trial, however, appellant made clear that he was
    completely satisfied with his representation and was aware that his grievance action might be
    dismissed. He also expressed his understanding of the proceedings and of his lawyer’s advice.
    As the State notes in its briefs, a failure to consult with counsel does not demonstrate a
    lack of competence; instead, a defendant must be unable to consult with counsel. Appellant’s
    communications with the court show that he understood the proceedings against him and was
    sometimes frustrated with his lawyer, but not unable to communicate with the lawyer due to
    –3–
    deficiencies in his mental abilities. The trial court did not abuse its discretion in failing to
    conduct an informal inquiry on appellant’s competence. We overrule appellant’s sole point of
    error in cause numbers 05-12-00584-CR and 05-12-00585-CR.
    We dismiss cause number 05-12-00583-CR for lack of jurisdiction and affirm the trial
    court’s judgments in cause numbers 05-12-00584-CR and 05-12-00585-CR.
    /David Evans/
    DAVID EVANS
    JUSTICE
    Do Not Publish
    TEX. R. APP. P. 47
    120583F.U05
    –4–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    DANIEL JULIAN LONDALE DEWITT,                        On Appeal from the 401st Judicial District
    Appellant                                            Court, Collin County, Texas
    Trial Court Cause No. 401-82426-10.
    No. 05-12-00583-CR         V.                        Opinion delivered by Justice Evans.
    Justices Moseley and Lang-Miers
    THE STATE OF TEXAS, Appellee                         participating.
    Based on the Court’s opinion of this date, we DISMISS the appeal for want of
    jurisdiction.
    Judgment entered this 3rd day of July, 2013.
    /David Evans/
    DAVID EVANS
    JUSTICE
    –5–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    DANIEL JULIAN LONDALE DEWITT,                        On Appeal from the 401st Judicial District
    Appellant                                            Court, Collin County, Texas
    Trial Court Cause No. 401-82490-10.
    No. 05-12-00584-CR         V.                        Opinion delivered by Justice Evans.
    Justices Moseley and Lang-Miers
    THE STATE OF TEXAS, Appellee                         participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
    Judgment entered this 3rd day of July, 2013.
    /David Evans/
    DAVID EVANS
    JUSTICE
    –6–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    DANIEL JULIAN LONDALE DEWITT,                        On Appeal from the 401st Judicial District
    Appellant                                            Court, Collin County, Texas
    Trial Court Cause No. 401-82491-10.
    No. 05-12-00585-CR         V.                        Opinion delivered by Justice Evans.
    Justices Moseley and Lang-Miers
    THE STATE OF TEXAS, Appellee                         participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
    Judgment entered this 3rd day of July, 2013.
    /David Evans/
    DAVID EVANS
    JUSTICE
    –7–
    

Document Info

Docket Number: 05-12-00583-CR

Filed Date: 7/3/2013

Precedential Status: Precedential

Modified Date: 10/16/2015