Michael Vincent Dally v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00272-CR
MICHAEL VINCENT DALLY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 84th District Court
Hutchinson County, Texas
Trial Court No. 12644, Honorable Curt W. Brancheau, Presiding
August 2, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant, Michael Vincent Dally, was convicted by a jury of unlawful possession
of a firearm by a felon,1 double enhanced, and sentenced to confinement for thirty-five
years. By three issues, he contends (1) the trial court abused its discretion when it
admitted State’s Exhibit 12 (body camera footage of a police interview) in violation of his
right against self-incrimination; (2) his competency trial was invalid; and (3) his trial
1 TEX. PENAL CODE ANN. § 46.04(a)(1).
counsel was ineffective in not pursuing a motion for a mental health evaluation before a
determination of guilt. We affirm.
BACKGROUND
Late in the evening hours of October 24, 2020, law enforcement responded to a
call of shots fired near an apartment complex. The first officer on the scene, Sergeant
Stanford, interviewed a few witnesses who implicated Appellant as the shooter. The
officer located Appellant at his girlfriend’s house and interviewed him. Appellant denied
being the shooter and claimed he was popping fireworks.
Sergeant Stanford then responded to another call but later returned to interview
Appellant a second time. During this interview, which was admitted at trial as State’s
Exhibit 12, the sergeant conducted a pat down search for weapons given the nature of
the call and asked Appellant to empty his pockets. Appellant eventually admitted he fired
the shots and directed the sergeant to where he had buried the gun but claimed he had
fired the shots because his home was being burglarized.
Because Appellant had a prior final felony conviction for forgery from 2016, he was
charged with possession of a firearm by a felon and convicted. The punishment phase
commenced and, after the State presented its evidence, the trial court recessed until the
following day. When the proceedings reconvened, defense counsel bench-filed a motion
raising the issue of Appellant’s incompetency to stand trial pursuant to article 46B.004 of
the Texas Code of Criminal Procedure.
Outside the jury’s presence, the trial court held an informal inquiry into Appellant’s
mental state and heard testimony from Appellant and one other witness familiar with
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Appellant. The court found “some evidence” to justify a competency evaluation. The trial
court informed the jury continuation of the punishment phase would be delayed. The
mental evaluation was conducted that evening. The next morning the trial court
announced Appellant was “deemed incompetent due to substance abuse disorder,
methamphetamine, as well as an unspecified psychotic disorder.” The doctor’s report
reflected that an opportunity for Appellant to detox would alleviate his communication
issues and he would be deemed competent. The court recessed until Appellant could be
re-evaluated.
Appellant was re-evaluated and when proceedings reconvened approximately
three weeks later, the trial court found him competent to continue the trial and that he had
the ability to consult with defense counsel. The court ruled there was no evidence he was
not competent during the first day of trial. The proceedings continued with Appellant
presenting his punishment evidence. The jury returned a verdict of thirty-five years’
confinement.
ISSUE ONE—ADMISSIBILITY OF STATE’S EXHIBIT 12
Appellant asserts the trial court violated article 38.23 of the Texas Code of Criminal
Procedure by admitting State’s Exhibit 12, body camera footage of Sergeant Stanford’s
second interview with him. We disagree.
At the pretrial hearing a week before trial in which Appellant expressed
dissatisfaction with trial counsel’s representation, counsel addressed Appellant’s
admissions and explained, “Judge, there was no arrest. There was no Miranda required.
That’s why there’s no Motion to Suppress filed.” However, just prior to commencement
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of trial, the court held a “last-minute” suppression hearing to determine the admissibility
of State’s Exhibit 12. Appellant objected under article 38.23 and failure to receive
warnings under Miranda v. Arizona.2 He alleged he was the subject of a custodial
interrogation when interviewed a second time by Sergeant Stanford and asked to empty
his pockets which he asserts resulted in an illegal search.
APPLICABLE LAW
A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion
and should be reversed only if it is outside the zone of reasonable disagreement. Wexler
v. State, 625 S.W.3d 162, 167 (Tex. Crim. App. 2021) (citations omitted). Custody is a
mixed question of law and fact that does not turn on credibility and demeanor unless the
testimony, if believed, would always decide the custody question. Id. (citing State v.
Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013)). We apply a bifurcated standard
of review, giving almost total deference to the trial court’s factual assessment of the
circumstances surrounding the questioning and reviewing de novo the ultimate legal
determination of whether the person was in custody under those circumstances. Saenz,
411 S.W.3d at 494.
When a trial court denies a motion to suppress and does not enter findings of fact,
we view the evidence in the light most favorable to the ruling and assume the trial court
made implicit findings of fact that support its ruling as long as those findings are supported
by the record. Herrera v. State, 241 S.W.3d 520, 527 (Tex. Crim. App. 2007). The
prevailing party is afforded the strongest legitimate view of the evidence and all
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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reasonable inferences which may be drawn from that evidence. State v. Garcia-Cantu,
253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
Miranda and article 38.22 of the Texas Code of Criminal Procedure can render
statements produced by custodial interrogation inadmissible without the appropriate
warnings. Wexler, 625 S.W.3d at 167. A person is in custody if, under the circumstances,
a reasonable person would believe his freedom of movement was restrained to the
degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.
Crim. App. 1996). Four general situations may constitute custody: (1) the suspect is
physically deprived of his freedom of action in any significant way; (2) a law enforcement
officer tells the suspect he cannot leave; (3) officers create a situation which would lead
a reasonable person to believe his freedom of movement has been significantly restricted;
or there is probable cause to arrest and officers do not tell the suspect he is free to leave.
Id. at 255. The first three scenarios must reflect the restriction of freedom of movement
amounted to the degree associated with an arrest as opposed to an investigative
detention. Id. The fourth situation requires the officer’s knowledge of probable cause be
manifested to the suspect and custody is established only if that manifestation, combined
with other circumstances, would lead a reasonable person to believe he is under restraint
to a degree associated with an arrest. Id. Finally, a defendant has the burden to establish
his statement was the product of custodial interrogation. Herrera, 241 S.W.3d at 526.
ANALYSIS
The second interview lasted approximately twenty minutes. Appellant was
questioned on his front porch in the presence of several officers and other individuals.
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His girlfriend arrived during the interview and sat near him. He initially denied discharging
a firearm and told the officers he was popping fireworks. Appellant was aware of the
consequences of a felon possessing a gun and at one point speculated he might “get 30
years.” At Sergeant Stanford’s direction, early in the interview, Appellant emptied his
pockets producing what the officers believed was part of a pipe for smoking
methamphetamine. The sergeant testified he asked Appellant to empty his pockets as a
pat down search for safety reasons given the report of shots fired. He further testified he
had probable cause to search because he was looking for a gun.
Appellant was informed he could be taken to jail for possession of the pipe, but the
sergeant indicated to him regardless of any statements regarding a gun, he would not be
taken to jail that day. Although Sergeant Stanford testified “he wasn’t exactly free to
leave” while the investigation continued, “he wasn’t going to go to jail.” During the
interview, the officers did not use angry, threatening, or condescending words. They
spoke in a calm tone and agreed it was not unreasonable for a person to possess a gun
to protect his property. During the interview, officers maintained their distance from
Appellant and at no time was he restrained, in custody, or under arrest. After Appellant
led the officers to the gun’s location, the interview was terminated, and he was free to
leave.
Appellant did not satisfy his burden to establish his statement was the product of
a custodial interrogation. He was questioned on his front porch and was assured he
would not be going to jail. He was not physically restrained nor were his movements
restricted in any significant way. He was free to go after questioning. We conclude a
reasonable person would not have believed he was in custody or that his freedom of
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movement was restricted to the degree associated with a formal arrest. The facts do not
present a custodial interrogation which would have required Miranda warnings to be
administered. We cannot say the trial court abused its discretion in admitting State’s
Exhibit 12 into evidence. Issue one is overruled.
ISSUE TWO—COMPETENCY INQUIRY
Appellant questions the validity of the competency inquiry because the evidence
concerned only his current mental state and not his competency when the trial began.
We conclude the inquiry was not invalid.
By the Motion for Mental Health Evaluation filed during trial, defense counsel
asserted Appellant was completely uncooperative, specifically as follows:
• Defendant has failed to return phone calls and text messages;
• Defendant has failed to meet for any meaningful length of time with counsel
to prepare for trial;
• Defendant has walked out during the very few and very brief meetings with
defense counsel;
• Most of defense counsel’s phone calls (which have been few in number)
with Defendant have ended due to the remote end of the connection (phone
call) being terminated; and
• Defendant has been confused and has even confused “Todd,” a different
attorney, with Q. Todd Hatter, simply because of having a similar name.
Due to that confusion, defense counsel believes denfendant’s [sic]
confusion has added to the complications of defense counsel’s attempts to
conference with the Defendant due to what Defendant mistaking [sic]
believes he has experienced in the past.
Defense counsel also included the following:
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• Defendant has demonstrated what appears to be anxiety, frustration,
outbursts of anger, uncontrollable excitement or anger, confusion and lack
of understanding of the proceedings and terminology;
• Defendant appears to have a very minimal ability to read and comprehend
what he is reading; and
• Defendant frequently appears confused.
Finally, in praying for the trial court to order an evaluation, defense counsel expressed
concern Appellant was “possibly unable to effectively participate in his own defense in
trial preparation, trial, and mitigation of punishment.”
APPLICABLE LAW—INCOMPETENCY
A criminal defendant who is incompetent may not be put to trial without violating
due process. Turner v. State, 422 S.W.3d 676, 688–89 (Tex. Crim. App. 2013). The
constitutional standard for competency to stand trial is set forth in article 46B.003(a) of
the Texas Code of Criminal Procedure. Id. at 689. “A defendant is presumed competent
to stand trial and shall be found competent to stand trial unless proved incompetent by a
preponderance of the evidence.” TEX. CODE CRIM. PROC. ANN. art. 46.003(b).
ANALYSIS
As noted earlier, the trial court recessed proceedings during the punishment phase
to hold an inquiry on Appellant’s competence. Defense counsel advised the court he
observed conduct and demeanor from Appellant during the punishment phase which
caused him deep concern in effectively representing Appellant without cooperation.
Counsel expressed the possibility Appellant was suffering from a mental illness but was
unwilling to say it rose to the level of incompetency.
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The trial court indicated Appellant “seemed competent and normal” but provided
the opportunity for evidence on the motion to be presented. Appellant took the stand and
engaged in questioning until he was asked if he knew his mother’s whereabouts. He left
the stand, broke down in tears, threw down his jacket, and “stomped back into the gallery.”
Questioning resumed and Appellant expressed thoughts on his mother’s murder and
believed his counsel was involved with her death.
Another witness who has known Appellant for more than a decade testified
Appellant is a heavy drug user and his demeanor and mental state change when he is
using. He claimed Appellant’s courtroom outburst was out of character. After hearing
testimony, the trial court ordered a competency evaluation. The examination revealed
Appellant was incompetent. He was, however, deemed competent three weeks later
following a period of detox from methamphetamine.
Appellant contends his competency inquiry was invalid for failing to include
evidence of his mental state before the guilty verdict. He claims he was unable to
understand the charges against him and was unable to engage in reasoned choices of
legal strategies and options. He attributes inappropriate courtroom behavior to confusion
which he claims began as early as pretrial proceedings.
During pretrial hearings, defense counsel advised the court Appellant was not
accepting his advice to consider an offer from the State to resolve all his legal issues
because he was unhappy with the offer. The court informed Appellant he could accept
the offer or go to trial but could not obtain new counsel merely because he disagreed with
counsel’s advice.
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The motion for a mental health evaluation focused primarily on counsel’s inability
to contact and communicate with Appellant prior to trial and a possible mental illness.
“Neither mental illness nor a defendant’s obstinate refusal to cooperate with counsel
demands a finding that the defendant is incompetent.” Turner, 422 S.W.3d at 691. The
trial court had noted earlier that Appellant was not incompetent on the first day of trial.
There was no evidence to rebut the presumption of Appellant’s competency prior to the
punishment phase. We conclude the competency inquiry was not invalid. Issue two is
overruled.
ISSUE THREE—INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant contends trial counsel was ineffective in failing to move for a mental
health evaluation prior to the guilty verdict. We disagree.
APPLICABLE LAW—INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim of ineffective assistance of counsel, the defendant must prove
by a preponderance of the evidence counsel’s performance was deficient, and a
reasonable probability exists that but for counsel’s deficient performance, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Allegations of ineffectiveness must be firmly
founded and affirmatively demonstrated by the record. Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). The record on direct appeal rarely provides a reviewing
court an opportunity to conduct a fair evaluation on the merits. Mata v. State, 226 S.W.3d
425, 430 (Tex. Crim. App. 2007). When the record is silent on trial counsel’s strategy, we
will not conclude a defendant received ineffective assistance unless the challenged
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conduct is “so outrageous no competent attorney would have engaged in it.” Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
ANALYSIS
The record shows counsel did not become concerned with Appellant’s mental state
until the punishment phase. Even the trial court observed Appellant “seemed competent
and normal” until his outburst. There is nothing to suggest counsel’s decision to move for
a mental health evaluation in the middle of the punishment phase was so outrageous no
attorney would have done so. An appellate court should not denounce counsel’s
performance without counsel having had an opportunity to explain his trial strategy.
Goodspeed, 187 S.W.3d at 392. We cannot say counsel’s performance was ineffective.
Issue three is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Alex Yarbrough
Justice
Do not publish.
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