Joseph v. State

• Decision Date: 11 April 2013
• Docket Number: NUMBER 13-11-00461-CR
• Parties: JOHN PERRY JOSEPH, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

JOHN PERRY JOSEPH, Appellant,

v.THE STATE OF TEXAS, Appellee.

NUMBER 13-11-00461-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Delivered and filed: April 11, 2013

On appeal from the 19th District Court

of McLennan County, Texas.

MEMORANDUM OPINION¹

Before Justices Garza, Benavides, and Perkes

Memorandum Opinion by Justice Perkes

Appellant, John Perry Joseph, appeals his conviction for bail jumping and failure to appear (habitual), enhanced by two prior felony convictions, a third-degree felony.² SeeTEX. PENAL CODE ANN. §§ 38.10(a), (f); 12.42 (d) (West 2011). The jury found appellant guilty and assessed punishment at thirty-two years' confinement in the Texas Department of Criminal Justice, Institutional Division. By six issues, appellant argues that the trial court erred by: (1) failing to sua sponte conduct a competency inquiry; (2) overruling appellant's objection to not receiving reasonable notice of the State's intent to introduce extraneous-offense evidence; (3) granting the State's motion in limine; (4) improperly commenting on appellant's defenses in the jury charge; (5) sustaining the State's objection to defense counsel's jury argument; and (6) overruling appellant's objection to the discussion of parole law during jury argument at the punishment phase. We affirm.³

I. COMPETENCY INQUIRY

By his first issue, appellant contends the trial court erred by failing to sua sponte conduct an informal competency inquiry. Appellant emphasizes, "The record is clear that appellant was not able to communicate and cooperate with his attorney, engaged in delusional speculation about the offense, and disregarded his attorney's advice . . . and [that he] had been diagnosed with Post-Traumatic Stress Disorder during his Army service in Vietnam."

A. Standard of Review

A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proven incompetent by a preponderance of the evidence. TEX. CODECRIM. PROC. ANN. art. 46B.003(b) (West 2006); Salahud-din v. State, 206 S.W.3d 203, 207 (Tex. App.—Corpus Christi 2006, pet. ref'd). A defendant is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding; or (2) rational understanding as well as factual understanding of the proceedings against him. TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West 2006).

If evidence is brought to the trial court's attention that raises a bona fide doubt about the defendant's competency, the court must conduct an informal inquiry outside the jury's presence to determine if there is evidence that would support a finding of incompetence. TEX. CODE CRIM. PROC. ANN. art. 46B.004 (West Supp. 2011);⁴ Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009). "Evidence capable of creating a bona fide doubt about an accused's competency may come from the trial court's own observations, known facts, evidence presented, motions, affidavits, or any other reasonable or credible source." Hobbs v. State, 359 S.W.3d 919, 924 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Brown v. State, 129 S.W.3d 762, 765 (Tex. App.—Houston [1st Dist.] 2004, no pet.)). "A bona fide doubt may exist if thedefendant exhibits truly bizarre behavior or has a recent history of severe mental illness or at least moderate retardation." Montoya, 291 S.W.3d at 425.⁵

We review a trial court's decision to not conduct an informal competency hearing for an abuse of discretion. See id. at 426; Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A trial court abuses its discretion if its decision is arbitrary or unreasonable. Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.—Fort Worth 2005, pet. ref'd) (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). We give great deference to the trial court's first-hand factual assessment of appellant's mental competency. McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); see also Montoya, 291 S.W.3d at 426 ("those who observed the behavior of the defendant at the hearing were in a better position to determine whether [he] was presently competent.").

B. Background Facts

During pretrial, the trial court judge asked appellant if he understood the charges against him, and appellant responded, "No, I don't understand. I understand, your Honor, for the Bail Jumping, but the Enhancement, it was on another case and things, you know, and my lawyer informed me that it was dispensed of and everything." The trial court provided appellant a recess to consult with his attorney, after which the following exchange transpired:

[COURT]: I hear you've been arguing out here audibly in the courtroom with your attorney. It's obvious that there are some things that you don't understand.

[APPELLANT]: Didn't understand, yeah.

[COURT]: But I need to make sure you understand what you're accused of today.

[APPELLANT]: Yeah.

[COURT]: Do you understand that?

[APPELLANT]: Yeah. Yes, sir.

[COURT]: Do you know what you're accused of doing in the

Indictment?

[APPELLANT]: No. Explain it to me, Your Honor.

[COURT]: You are indicted for the offense of Felony Bail Jumping. Do you understand that charge?

[APPELLANT]: Yeah.

. . . .

[COURT]: . . . Do you understand that Felony Bail Jumping is a third degree felony?

[APPELLANT]: No, I don't understand that.

[COURT]: It is punishable by not less than two years nor more than 10 years in the penitentiary—do you understand that—and you could be assessed a fine in any amount not to exceed $10,000? Do you understand that?

[APPELLANT]: Yeah.

After the trial judge subsequently asked, "[D]o you understand what you're accused of, as you stand before me at this moment[?]" appellant responded, "Yeah."

Appellant thereafter made various outbursts during the trial, requiring the judge to dismiss the jury and admonish appellant to not interrupt. For example, appellant called the attorney who represented him in the earlier heroin possession case, and whom the State called as a witness, a liar at the end of his testimony. Additionally, appellant interrupted his attorney's cross-examination and demanded to represent himself.

The trial court thereafter discussed whether appellant was competent to represent himself at trial. Appellant informed the trial court that he was a disabled Vietnam War veteran; that he suffered from post-traumatic stress disorder ("PTSD") in the past; and that he receives daily medication and treatment for mood changes. Appellant also said that he has been taking medication for about thirty years and that he attended individual and group therapy sessions, but that he did not take his medication that day. Although appellant's counsel from his earlier heroin case felt that appellant should not be permitted to represent himself, his trial attorney thought that he could do so and informed the trial court that appellant was competent to stand trial. Appellant subsequently withdrew his motion to represent himself, explaining, "I could right now tell my attorney what I want him to ask." The trial judge stated, "Do you understand he's obligated to employ his professional skill in determining how to phrase the questions and exactly what to ask? Do you understand that?" Appellant responded, "Well, that's the way it should be, the way I understand it."

C. Analysis

The trial court inquired whether appellant had a factual and rational understanding of the proceedings against him. The court's lengthy pre-trial exchange with appellant,only a portion of which is described above, concerned this prerequisite to competency. That the court investigated whether appellant was competent to represent himself without the assistance of an attorney is of no moment. The competency for self-representation has never been the standard for competency to stand trial, and the trial court's concern hinged on appellant's unfamiliarity with evidentiary and procedural rules. Further, in considering whether appellant was competent to represent himself, appellant manifested the ability to consult with his attorney with a reasonable degree of rational understanding.

The record shows that appellant disagreed with the trial judge, witnesses, and, at times, his attorney's trial strategy. Being difficult or argumentative, however, does not prove one's inability to consult with an attorney with a reasonable degree of rational understanding or one's ability to rationally and factually understand the proceedings. See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West 2006); Moore, 999 S.W.3d at 395 ("While appellant's comments were inappropriate violations of court decorum, they do not constitute evidence of his inability to consult with counsel, or factually appreciate the proceedings against him."). In fact, appellant confirmed that he understood the charges and potential sentence against him, and his attempt to terminate his attorney's representation was abandoned after appellant reasoned that he could maintain control over the trial strategy, subject to his attorney's professional discretion.

The facts of this case are similar to the facts of Rojas v. State. See 228 S.W.3d 770 (Tex. App.—Amarillo 2007, no pet.). In Rojas, the defendant argued on appeal that the trial court erred by not conducting an informal inquiry into his competency to stand trial, even though "his conduct at trial was sufficiently bizarre to raise a bona fide doubt asto his competency." Id. at 772. Specifically, the defendant interrupted voir dire with comments; answered the prosecutor's questions to the venire panel; offered his unsolicited views on the benefits of legalizing drug use and provided commentary on the "differing treatment of drug users in other parts of the world;" responded during testimony with answers that "tended to go beyond the question asked"; and "seized any opportunity to express his view that police conspired to frame him." Id. at 772-73. O...