BILLY RAY WEST, Appellant v. THE STATE OF TEXAS, Appellee

Annotate this Case

AFFIRMED as MODIFIED; Opinion Filed November 1, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00990-CR
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BILLY RAY WEST, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-47941-WN
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OPINION
Before Justices Morris, Whittington, and Lang
Opinion By Justice Lang
        Billy Ray West appeals his conviction for delivery of cocaine in an amount of one gram or more, but less than four grams. Following jury selection, appellant withdrew his not guilty plea and entered a plea of guilty to the jury. The trial court instructed the jury to find appellant guilty, and the jury did so. Punishment, enhanced by two prior felony convictions, was assessed by the trial court at twenty-five years' confinement.         
        Appellant raises three issues on appeal. In his first issue, appellant contends the trial court violated his due process right to a fair trial by not conducting an inquiry into his competence to stand trial and not ordering a competency examination. In his second and third issues, appellant asserts trial counsel was ineffective for failing to properly move for and preserve his request for a continuance based on a material fact witness who could not be located and for failing to seek out and interview witnesses necessary for his defense.
        In a cross-point, the State asserts the judgment should be reformed to reflect that the trial court, not the jury, assessed punishment and that a plea agreement existed between appellant and the State.   See Footnote 1 
        Based on the record before us, we conclude the trial court did not abuse its discretion by not conducting an inquiry into appellant's competency to stand trial and not ordering a competency examination. In addition, we conclude the record does not support appellant's claims that counsel was ineffective. For these reasons, we decide appellant's three issues against him. Further, we modify the portion of the judgment labeled “PUNISHMENT ASSESSED BY:” to correctly reflect that the judge, not the jury, assessed punishment. The judgment of the trial court is affirmed as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        On January 3, 2005, Officer Kurt Manasco, an undercover Dallas police officer, purchased $100 worth of crack cocaine from appellant at a truck stop. Prior to making the purchase, Officer Manasco had photocopied bills totaling $100 in cash to be used in the transaction. After the transaction was completed, appellant was arrested and positively identified by Officer Manasco as the person who had sold him the cocaine. The arresting officers searched appellant and recovered the $100 in bills previously photocopied by Officer Manasco.
        Trial counsel was appointed to represent appellant on January 10, 2005. On the morning of June 21, 2005, the day appellant's case was set for trial, counsel made an oral motion for a continuance to secure the attendance of a witness, stating:
[T]here is a witness named Denice that I have been led to believe is a witness to the transaction in this case and the surrounding circumstances and would testify that Mr. West was not involved in the transaction alleged as the underline [sic] facts behind the indictment in this case. There was another witness that we were pursuing that we were unable to locate, and this woman, Denice, is an alternative to that witness. We just learned about her presence yesterday. And we have an idea where she lives, a six block area on a street in Oak Cliff that we have not been able to search regarding her location. We believe her testimony would be material to the facts alleged in the indictment.
 
Counsel also advised the trial court that appellant's family was willing to assist in locating Denice.
        The trial court inquired as to why appellant's family had not already attempted to locate Denice, since appellant had been incarcerated since January. Counsel stated appellant had limited contact with his family due to the expense of accepting jail calls, and appellant's family had only recently learned of the death of the original witness. Counsel told the court no search was being conducted for Denice that morning and he did not believe Denice's presence could be secured before the State rested its case.
        The trial court denied the oral motion for continuance and asked counsel to advise the court the next day regarding any progress in locating Denice. The court also declined counsel's subsequent oral request to allow appellant “to make his own plea to the Court regarding readiness.” After the indictment was read, the following ensued:
COURT:
 
And what would be your plea to that charge, Mr. West, guilty or not guilty?
 
APPELLANT:
 
Sir, it would be no contest cause-
 
COURT:
 
You wish to enter a plea of no contest?
 
APPELLANT:
 
Yes.
 
COURT:
 
You understand with the issuance of such plea, that if the evidence shows you to be guilty, you can be found guilty; you understand that?         
 
APPELLANT:
 
Sir, I am just not ready for trial, I am working on witnesses and stuff, I am kind of mixed up at the moment, sir.
 
COURT:
 
I understand that you are attempting to locate a witness.
 
APPELLANT:
 
I am not prepared for trial, the simple reason I have an ineffective assistance of counsel.
 
COURT:
 
That is a matter that can be taken up later, I have indicated to you previously that [trial counsel] must continue as your attorney, he has been your attorney for sometime. He is [a] very qualified and competent attorney?
 
APPELLANT:
 
Yes.
 
COURT:
 
Apparently you did take the Court's admonishment to heart, because you did start talking to your attorney, you have given him the name, his first name?
 
APPELLANT:
 
It is my brother's girlfriend.
 
COURT:
 
I would hope your brother can locate the witness rather than [trial counsel] having to go up and down Altamesa Street looking for the lady. Right now I need to know, and I am sure you have discussed this with [trial counsel] and he discussed this probably what you should plead to the indictment if you do want your right to a jury trial, so I need to know, is your plea one of guilty or not guilty?
 
APPELLANT:
 
Not guilty, sir.
 
        The court then asked appellant if he wished to enter pleas of true to the two enhancement paragraphs alleged in the indictment, and the exchange continued as follows:
APPELLANT:
 
Yes, sir. Sir, I am just not ready for trial because I have defective counsel- ineffective counsel, and he hadn't went over anything with me concerning this case. I didn't see him until today. I haven't seen him but once since I had this attorney.
 
COURT:
 
I am not talking about that issue at this point, I am talking about the allegations of the two prior convictions, you indicated that you wanted to plea [sic] true to those allegations, I am just asking you one more time is that what you want to do?
 
APPELLANT:
 
Yes.
 
COURT:
 
All right, sir, thank you. All right, I guess we can seat our panel and probably do the State's voir dire and then we will see how close we get to lunch.
 
STATE:
 
Yes, Your Honor.
 
 
 
        TRIAL COUNSEL:
 
Judge, I just can't let this happen to this man like this, we need time. My client seems wholly unpreparedness [sic] for this trial.
 
COURT:
 
And of course you would contradict that, wouldn't you?
 
 
 
        TRIAL COUNSEL:
 
I have appropriately notified him on the date that the trial was set, some 60 days ago. And I provided him with my office phone number. I will tell the Court this, and I will admit this on the record, Mr. West has been less than happy with my rather forthright approach to dealing with criminal cases. That is, I put forth on the table basically the bad news about what the nature of the case is, who the witnesses are I understand are against us. I start seeking for defenses and I heard from the first meeting with my client that he was going to hire an attorney. And I have not heard from him, I have not received any letters from him; and frankly, I looked up on my calendar about a week ago, noticed that it was set for trial, because I thought surely based on his sincerity at the representation that he was going to have an attorney hired by now. And I have talked to his family about the first witness who is deceased, Ms. Garcia, and he tells me that they told him the answer they told me because they don't know who I am. I called his brother and asked about this Garcia witness, and tells me he did not know her. I talked to him three days ago and said he doesn't know her. And somehow my client tells me she is deceased and that's how we got on to this lady, Denice.
 
 
 
 
 
As I read the police report, it is a straightforward case. It is a case where the jury will believe the police officer or not. And is materiality of the witness that would say my client did or did not participate in this transaction, would be useful, I have not been able to locate a witness to say that at this point with what leads I have been given. But he is assuring me at this time that we can locate this witness, Denice, to say the same thing.
 
 
COURT:
 
Well, the Court is going to proceed with jury selection today. And we will begin hearing evidence tomorrow morning. At the conclusion of the State's case, I will then listen further to any evidence or any progress you have made towards locating this missing witness and we will deal with it as I have to by the law at that time.
 
 
 
        TRIAL COUNSEL:
 
Yes, sir, Judge, I will make sure that by the beginning of court's session tomorrow that we have the motion we made in writing before the Court.
 
COURT:
 
All right. Now, let's seat the jury panel.
 
        After jury selection, the jury was released for a recess. Then, outside the presence of the jury, the trial judge inquired about counsel's search for Denice. Counsel asked if he could engage an investigator for overnight work, and the court gave approval.
        On the morning of the next day, June 22, 2005, outside the presence of the jury, the trial judge stated he had been informed appellant was contemplating changing his plea to guilty. The following ensued:
COURT:
 
Now, I have been told that Mr. West wanted to go ahead and change his plea to one of guilty, if the State acquiesce in that, the State would then represent to the Court to set the minimum punishment in the case, after Mr. West having been found guilty based on his plea and the allegations about the prior conviction having found to be true based upon his pleas of true, the State would recommend and the Court would follow the recommendation that the minimum sentencing assessed [sic], a 25-year sentence.
 
 
 
 
 
So I guess my question to [trial counsel] and Mr. West, is that how you wish to proceed at this time?
 
 
TRIAL COUNSEL:
 
Just initially, Judge, that is what we informed the other side, and I think you, the bailiff- or through them you were told that that was what we were-
 
COURT:
 
Contemplating.
 
TRIAL COUNSEL:
 
Contemplating doing to dispose of this case. And subsequent to that, conversation revealed uncertainty about that understanding, is that right, Mr. West?
 
APPELLANT:
 
Yes.
 
TRIAL COUNSEL:
 
And maybe the best spokesman for what you are wanting to do at this point is you yourself. Is that okay with the Court?
 
COURT:
 
Tell me what you wish to do, do you wish to change your plea of- change your plea of not guilty to guilty; is that what you wish to do?
 
APPELLANT:
 
I plead myself not guilty and go before the jury and let the jury be-
 
COURT:
 
All right. Ask our jury to come in, please.
 
STATE:
 
Hold on a second- did I understand you want to plead not guilty and let the jury assess?
 
TRIAL COUNSEL:
 
That's what he said.
 
STATE:
 
So good [sic] forward as planned.
 
TRIAL COUNSEL:
 
You want to plead guilty and work it out-
 
APPELLANT:
 
Yes, I will plead guilty. And work it out with the quantity. Is there a way to drop the enhancement?
 
COURT:
 
There is not a way to drop the enhancement?
 
APPELLANT:
 
No.
 
                
COURT:
 
It is not on the table. It is good for you to ask that, but the State hadn't offered that?
 
APPELLANT:
 
I ain't had no plea bargain, nobody has tried to compromise.
 
COURT:
 
The plea bargain that they are offering you now, if you change your plea to guilty, they would recommend the minimum, which is 25.
 
APPELLANT:
 
Yes, sir.
 
COURT:
 
Is this what you wish to do?
 
APPELLANT:
 
Yes, sir.
 
COURT:
 
All right. I will accept that. Now, do you have waivers, the paperwork that you were contemplating.
 
STATE:
 
We started working them up, I just didn't want to put numbers on them.
 
COURT:
 
That's what you are wanting to do is change your plea, one, of guilty, we will get you to change that. In a minute we will bring the jury in, we will put on a couple of officers, the jury will be told to find you guilty. And then the jury will be dismissed. And then we will go to the punishment phase, and the State is going to recommend a minimum sentence, and I told you I was going to follow that; you understand that?
 
APPELLANT:
 
Yes, sir.
 
        After the prosecutor read the indictment to the jury, appellant entered a plea of guilty. Officer Manasco testified and the trial court admitted appellant's judicial confession into evidence. As instructed by the trial judge, the jury found appellant guilty. Then, the court released the jury.
        At the punishment hearing on June 23, 2005, the State offered and the trial court admitted into evidence appellant's two prior convictions. Appellant was then sworn, and testified as follows:
TRIAL COUNSEL:
 
After we picked the jury, we took a different tactics [sic] of how we wanted to dispose of this case, right?
 
APPELLANT:
 
Yes.
 
TRIAL COUNSEL:
 
And at one point, we entered into an agreement with how this case was to be disposed of, didn't we; that is, you will get your 25 years?
 
APPELLANT:
 
Yes.
 
TRIAL COUNSEL:
 
And you made that decision and told me to see if I could still do it, correct?
 
APPELLANT:
 
Did I make the decision?
 
TRIAL COUNSEL:
 
You made a decision to inquire about whether or not they would still do the 25, and I asked them, and they said they would?
 
APPELLANT:
 
Sir, I am under the psych medication, I don't remember saying that. The medication that I am taking, got me all nauseated.
 
TRIAL COUNSEL:
 
Okay. You want the judge to follow this 25-year deal that we have agreed to?
 
APPELLANT:
 
This medication has got me, they say I signed some papers yesterday, I don't remember signing those.
 
TRIAL COUNSEL:
 
Who is they?
 
APPELLANT:
 
Guys who was out there.
 
TRIAL COUNSEL:
 
How do they know what you signed?
 
APPELLANT:
 
Because he was out there. He said I am signing away.
 
TRIAL COUNSEL:
 
So back to the question, do you want the Judge to follow the agreement that you entered into for 25 years?
 
APPELLANT:
 
Yes, yes, I guess so, yes. Under this medication, man, it has got me zoned, my psych, I talked to my psych. Like this morning, they didn't bring me my medication, I didn't get it. I just don't remember.
 
COURT:
 
Have you ever been to a mental hospital?
 
APPELLANT:
 
No, sir. But I had some mental problems.
 
COURT:
 
You being treated for depression?
 
APPELLANT:
 
Yes.
 
COURT:
 
All right.
 
APPELLANT:
 
It is messing with my I.Q., I can't think and I forget things.
 
COURT:
 
Some of us get older, that starts happening too?
 
APPELLANT:
 
Yes.
 
COURT:
 
How old are you?
 
APPELLANT:
 
I am 51, sir.
 
COURT:
 
Anything else [Counsel]?
 
TRIAL COUNSEL:
 
No, sir.
 
        The trial court found the enhancement paragraphs true and assessed appellant's punishment at twenty-five years' confinement. Appellant's timely motion for a new trial was denied without a hearing, and this appeal followed.
 
II. COMPETENCY
 
        In his first issue, appellant contends his due process right to a fair trial was violated when the trial court erred by not conducting a competency inquiry and ordering an examination to determine his competency to stand trial after he indicated to the court that he was on medication, his thinking ability was impaired, and his recent memory was impaired. The State argues that the record does not show evidence requiring the trial court to sua sponte conduct an inquiry into appellant's competency. We agree with the State.
 
A. Standard of Review
 
        A trial court's determination not to conduct a competency hearing is reviewed for abuse of discretion. See 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) (en banc)).
B. Applicable Law
 
        A conviction obtained while the defendant is legally incompetent violates due process of law. See Pate v. Robinson, 383 U.S. 375, 378 (1966); McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). A defendant is incompetent to stand trial if the defendant lacks: (1) sufficient present ability to consult with counsel with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1)-(2) (Vernon Supp. 2006); Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996) (en banc). See also Lawrence, 169 S.W.3d at 322. 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. 46B.003(b) (Vernon Supp. 2006).
        If evidence suggesting a person may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004(b)-(c) (Vernon Supp. 2006).   See Footnote 2  If the court determines evidence exists to support a finding of incompetency, the court shall order an examination to determine whether the defendant is incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.005(a) (Vernon Supp. 2006).
C. Application of Law to Facts
 
        Appellant raises the issue of incompetency for the first time on appeal. Appellant argues that he testified his medication affected his memory and thinking ability and made him nauseated and “zoned.” Specifically, he asserts that he testified he “did not remember saying he wanted to plead guilty or signing papers.” Appellant contends his testimony demonstrated he did not have the present ability to consult with his lawyer adequately and did not have a sufficient understanding of the proceedings to enter a plea of guilty. Therefore, he argues, his testimony required the trial court to conduct an informal inquiry into his competency and order an examination by a mental health expert.
        The test that determines when the trial court must make an informal inquiry into competency “is not whether the accused labored under some mental, behavioral, or psychological impairment,” but rather whether the evidence shows he had the ability to consult with his attorney with a reasonable degree of rational understanding and had a rational as well as factual understanding of the proceedings against him. Rice v. State, 991 S.W.2d 953, 957 (Tex. App.-Fort Worth 1999, pet. ref'd). See also LaHood v. State, 171 S.W.3d 613, 619 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (fact that defendant may have been on psychiatric medication during trial and had a history of mental problems did not mandate competency inquiry absent evidence of present inability to communicate or understand proceedings).
        The record in this case shows no evidence appellant was unable to consult adequately with counsel or did not understand the proceedings. During the plea hearing, appellant's answers to the judge's questions were responsive, coherent, and relevant. Appellant understood a plea of not guilty entitled him to a jury trial. Further, appellant was working with his attorney to locate a witness who purportedly would testify on his behalf.         On the following day, before pleading guilty, appellant asked the court whether the enhancements could be dropped, indicating he understood the potential benefit of such a possibility. In addition, upon the judge's direct inquiry, appellant stated he understood the terms to which he was agreeing by pleading guilty.
        The record indicates appellant may have experienced disagreement with his counsel and was not always cooperative. However, dissatisfaction with counsel and a failure to cooperate are not probative of competence to stand trial. See Reed v. State, 112 S.W.3d 706, 711 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd); Burks v. State, 792 S.W.2d 835, 840 (Tex App.-Houston [1st Dist.] 1990, pet. ref'd).
        Although appellant stated he was on psychiatric medication for depression and was nauseated, he testified at his punishment hearing that he had never been hospitalized for psychiatric treatment. Further, despite reporting some memory problems and stating he was “zoned,” he continued to exhibit an understanding of the proceedings and responsively answered questions from his attorney and from the judge. Evidence of mental impairment alone is insufficient to constitute incompetency. Moore, 999 S.W.2d at 395 (finding that defendant's propensity toward depression did not necessarily correlate with his ability to communicate with counsel or understand the proceedings against him).
        Because nothing in the record raised the issue of appellant's ability to consult adequately with counsel or to understand the proceedings and the charges against him, we conclude the evidence did not suggest appellant was incompetent to stand trial. See Tex. Code Crim. Proc. Ann. art. 46B.003(a), 46B.004(b). Accordingly, the trial judge did not abuse his discretion in not conducting, sua sponte, an informal inquiry into appellant's competency and not ordering a competency examination. Appellant's first issue is decided against him.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
 
        In his second and third issues, appellant contends his trial counsel was ineffective for failing to properly move for and preserve a request for a continuance based on a missing fact witness and for failing to seek out and interview witnesses necessary to appellant's defense. The State responds that appellant's claims of ineffective assistance of counsel are not supported by the record. Further, the State asserts, appellant's claim that his trial counsel rendered ineffective assistance by failing to preserve for appeal his request for a continuance in his motion for new trial is contrary to the law.
        Effectiveness of counsel is evaluated under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) (en banc). See also Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994) (en banc). To prevail on a claim of ineffective assistance of counsel, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88. Where an ineffective assistance claim arises from a guilty plea, an appellant must show a reasonable probability that, were it not for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).
        Appellate review of counsel's performance is highly deferential. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance, and the defendant must overcome that presumption. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). The reasonableness of counsel's challenged conduct is determined in context and viewed as of the time of counsel's conduct. Id. An appellate court does not inquire into trial strategy unless there exists no possible basis, in strategy or tactics, for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981). A reviewing court “should not try to second guess trial counsel's tactical decisions which do not fall below the objective standard of reasonableness.” Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999) (en banc).
        Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Furthermore, ineffective assistance of counsel claims must be firmly rooted in the record. Bone, 77 S.W.3d at 835; see also Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (en banc).
        Under normal circumstances, the record on direct appeal is not sufficient to show that counsel's representation was so deficient and lacking in tactical or strategic decision to defeat the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. When the record is silent regarding counsel's reasons for his conduct, an appellate court should defer to counsel's decision if there is at least the possibility that the conduct could have been legitimate trial strategy. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002) (en banc). Further, trial counsel ordinarily should be afforded the opportunity to explain his actions before being denounced as ineffective. See Goodspeed v. State, 187 S.W.3d 390, 393-94 (Tex. Crim. App. 2005); Rylander, 101 S.W.3d at 111.
A. Motion for Continuance
 
        Appellant contends trial counsel's representation fell below an objective standard of reasonableness because counsel's oral motion for a continuance violated the requirements of articles 29.03 and 29.06 of the Texas Code of Criminal Procedure. Appellant asserts that as a result of trial counsel's performance, he was forced to either “enter a guilty plea that he did not want” or “go to trial without a crucial fact witness who would establish that he was not guilty of the crime in which he was charged.” Further, appellant argues, he “could not have realistically raised this issue in a Motion for New Trial because this same Trial Counsel filed the generic Motion for New Trial form provided in the Trial Court without making sufficient allegations to preserve the complained of issue at the Appellate level.”
        A criminal action may be continued on the written motion of a party for sufficient cause shown. Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006). The motion must be sworn to by someone who has personal knowledge of the facts relied on for the continuance. Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 2006). When the defendant's motion for continuance is based on an absent witness, it is necessary to show (1) that the defendant has exercised diligence to procure the witness's attendance, (2) that the witness is not absent by the procurement or consent of the defense, (3) that the motion is not made for delay, and (4) the facts expected to be proved by the witness. Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 2006). It must appear to the trial court that the facts are material. Id. See also Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005).
        On the day appellant's case was set for trial, appellant's trial counsel made an oral motion for continuance to request time to locate a witness named Denice. Counsel indicated that Denice, who was purportedly the girlfriend of appellant's brother, had witnessed the drug transaction at issue and would testify appellant was not involved as alleged in the indictment. Counsel told the court such testimony would be useful and material. Counsel said he had learned of the necessity of Denice's testimony only the day before, when he had been informed by appellant that another witness, Rachel Garcia, was deceased. Further, counsel stated that although Denice's address was not known, appellant's family believed she lived within a certain six-block area of Oak Cliff. Members of appellant's family knew Denice personally and were willing to assist in locating her.
        Counsel explained to the court that appellant had limited contact with his family due to the expense of accepting jail calls, and appellant's family had only recently learned of the death of the original witness. Counsel told the court there was no search presently being conducted for Denice and he did not believe her presence could be secured before the State rested its case.
        Although the trial judge denied counsel's initial oral motion for a continuance, counsel subsequently reasserted the request, telling the judge, “[W]e need time. My client seems wholly unpreparedness [sic] for this trial.” The trial judge stated that the court would proceed that day with jury selection, but would delay hearing evidence until the following morning. At the conclusion of the State's case, the trial judge stated, the court would “listen further to any evidence or any progress you have made towards locating this missing witness and we will deal with it as I have to by the law at that time.” Counsel told the court the motion for continuance would be reduced to writing by the following morning.
        After jury selection, but outside the presence of the jury, the trial judge inquired about counsel's search for Denice. Counsel asked if he could engage an investigator for overnight work, and the judge gave approval. At the start of proceedings the following morning, appellant chose to enter his guilty plea.
        Regardless of whether counsel's initial oral motion for continuance met the requirements of article 29, the record does not indicate the court had issued a final ruling on the reasserted motion prior to appellant's guilty plea. Accordingly, appellant has not shown his claim that trial counsel's performance was deficient with regard to properly moving for a continuance is “firmly rooted in the record.” See Bone, 77 S.W.3d at 835.
        We also determine appellant has not established a reasonable probability that the result would have been different, but for counsel's alleged deficient performance. See Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The record in this case does not reflect the reason appellant chose to enter a guilty plea or identify the factors that influenced his decision. In addition, the record does not indicate whether progress had been made in locating Denice prior to the time appellant chose to plead guilty or, if so, whether Denice could provide testimony favorable to appellant. Therefore, it is not apparent from the face of the record that, had counsel rendered different representation, appellant would not have pleaded guilty but would have proceeded to trial.
        Appellant further contends counsel performed below an objective standard of reasonableness by not asserting denial of the continuance in appellant's motion for new trial in order to preserve error for appellate review. Appellant argues that the only means of preserving error in the overruling of a motion for continuance due to the absence of a witness is a motion for new trial asserting an improper denial of a motion for continuance as the grounds for relief. Because the standard motion for new trial form used by counsel did not assert the improper denial of the motion for continuance as grounds for relief, appellant contends, that issue was barred on direct appeal. However, as asserted by the State, the Texas Court of Criminal Appeals has expressly overruled prior law that to preserve error for the denial of a motion for continuance a defendant must file a motion for new trial. See Harrison, 187 S.W.3d at 433 (holding that to preserve for appellate review a claim that the trial court erred in denying a motion for continuance, the defendant need only file a motion for continuance that sufficiently advises the trial court of the request and the grounds therefor). Accordingly, counsel's performance was not deficient with regard to the alleged omissions in appellant's motion for new trial.
        Finally, appellant argues counsel's failure to file a written motion for continuance after asserting he would do so “ultimately led to Appellant's limitation to challenge this issue at the Appellant [sic] level under an abuse of discretion standard.” Appellant correctly identifies the standard under which an appellate court reviews a trial court's decision not to grant a continuance. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (en banc) (trial court's ruling on a motion for continuance is reviewed for abuse of discretion). However, to establish an abuse of discretion, there must be a showing the defendant was actually prejudiced by the denial of the continuance. Id. See also Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995) (en banc). Appellant has not established he was prejudiced by the trial court's failure to grant a continuance because he has not shown that his motion for a continuance was improperly denied or that a written motion would have been granted. As noted above, there is no evidence in the record showing Denice would have provided testimony favorable to appellant. The record therefore would not support an argument that the trial court abused its discretion in not granting a motion for continuance. Accordingly, appellant has not shown a reasonable probability that the outcome of his case would have been different but for counsel's alleged deficient performance. See Strickland, 466 U.S. at 694.
        We conclude appellant has not met the burden of proving by a preponderance of the evidence that trial counsel rendered ineffective assistance by failing to properly move for and preserve appellant's request for a continuance based on a missing witness. We decide appellant's second issue against him.
 
B. Failure to Seek Out Necessary Witnesses
 
        In his third point of error, appellant argues trial counsel was ineffective in failing to seek out and interview witnesses necessary for appellant's defense. Appellant asserts counsel's performance fell below a reasonable standard because counsel did not continue to investigate the case after he was told appellant planned to hire an attorney. Further, appellant contends that once counsel identified the need to locate Denice, counsel did little more than speak with appellant's family about her location. Appellant contends he was prejudiced because the failure of counsel to seek out witnesses on his behalf “factored heavily” in the ultimate disposition of his case.                
        “[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Wiggins v. Smith, 539 U.S. 510, 521-22 (2003) (quoting Strickland, 466 U.S. at 690-91). When assessing the reasonableness of an attorney's investigation, a reviewing court must consider the quantum of evidence already known to counsel and whether the known evidence would lead a reasonable attorney to investigate further. Id. at 527.
        The record shows trial counsel was appointed to represent appellant on January 10, 2005. Appellant told the trial judge that counsel did not review his case with him and that he saw counsel on only one occasion prior to the day of trial. Counsel stated that appellant indicated at their initial meeting that he would be hiring an attorney. Although counsel acknowledged he did not begin work on the case until approximately one week before trial, he said he provided appellant with his office phone number and notified appellant of the trial date sixty days in advance.
        The record reflects that when counsel did attempt to investigate and locate witnesses, he experienced some difficulty obtaining accurate information from appellant's family. In fact, he was not informed about the witness named Denice until the day before trial was set to begin. Counsel told the trial judge:
And I have talked to his family about the first witness who is deceased, Ms. Garcia, and he tells me that they told him the answer they told me because they don't know who I am. I called his brother and asked about this Garcia witness, and tells me he did not know her. I talked to him three days ago and said he doesn't know her. And somehow my client tells me she is deceased and that's how we got on to this lady, Denice.
 
Further, a comment from the judge to appellant indicates appellant had been less than cooperative with counsel at some previous point: “Apparently you did take the Court's admonishment to heart, because you did start talking to your attorney, you have given him the name [of the witness Denice].”
        As noted above, the court approved counsel's request for an investigator to work overnight in finding Denice. However, the record does not indicate whether progress had been made in locating Denice prior to the time appellant chose to plead guilty or, if so, whether Denice could provide testimony favorable to appellant. Based on the record before us, we cannot conclude appellant has shown counsel's investigation of his case fell below the standard of “reasonableness in all the circumstances.” See Wiggins, 539 U.S. at 521-22. Accordingly, appellant has not shown by a preponderance of the evidence that counsel's performance was deficient.
        In addition, appellant has not established he was prejudiced by counsel's alleged deficient investigation. An appellate court should not reverse a conviction for an alleged failure to investigate unless the consequence of counsel's omission is that the only viable defense could not be presented and there is a reasonable probability that, with the defense, the result of the proceeding would have been different. Valderas v. State, 134 S.W.3d 330, 336 (Tex. App.-Amarillo 2003, no pet.). As already stated, there is no evidence in the record that affirmatively indicates appellant would not have pleaded guilty but for counsel's representation.
        We conclude appellant has not shown trial counsel rendered ineffective assistance of counsel in failing to seek out and interview witnesses necessary for appellant's defense. Appellant's third issue is decided against him.
 
IV. MODIFICATION OF JUDGMENT
 
        In a cross-point, the State contends the judgment should be reformed to reflect that the trial court, not the jury, assessed punishment and that a plea agreement existed. Appellant did not reply to the State's cross-point.
        An appellate court has the power to modify an incorrect judgment to make the record speak the truth when it has the necessary information before it to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        The record reflects that the trial judge, not the jury, assessed punishment. Accordingly, the portion of the judgment labeled “PUNISHMENT ASSESSED BY:” is incorrect and is therefore modified to correctly reflect that the judge, not the jury, assessed punishment.
        The State further asserts that the record shows the trial judge sentenced appellant pursuant to a plea agreement with the State. However, the State acknowledges no written plea agreement is contained in the record. In addition, in the “Trial Court's Certification of Defendant's Right of Appeal,” the trial court certified that this “is not a plea bargain case.” We therefore determine the State has not shown the judgment should be modified to indicate a plea agreement existed. See Asberry, 813 S.W.2d at 529-30. The State's cross-point is sustained in part and overruled in part.
                                        
V. CONCLUSION
 
         Because the record shows no evidence raising the issue of appellant's ability to consult with counsel or his ability to understand the proceedings and the charges against him, we conclude the trial court did not abuse its discretion by not conducting an inquiry into appellant's competency to stand trial and not ordering a competency examination. Further, appellant's contention that counsel was ineffective is not supported by the record. Accordingly, appellant's three issues are decided against him. In addition, the portion of the judgment labeled “PUNISHMENT ASSESSED BY:” is modified to correctly reflect that the judge, not the jury, assessed punishment. The judgment of the trial court is affirmed as modified.
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE                        
 
Do Not Publish
Tex. R. App. P. 47
050990f.u05
 
 
 
 
Footnote 1 In addition, the State argues that the trial court's certification of this case as “not a plea bargain case” is inconsistent with the record and that this Court should therefore dismiss this case for want of jurisdiction pursuant to rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. We disagree that this Court lacks jurisdiction and we decide against the State in that regard.
Footnote 2 Under the law in effect prior to January 2004, the trial court was required to conduct a hearing outside the presence of the jury to determine whether there was evidence to support a finding of incompetency to stand trial if evidence of the defendant's incompetency was brought to the attention of the trial court from any source. Act of May 25, 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 530-34 (repealed 2003) (current version at Tex. Code Crim. Proc. Ann. art. 46B.004 (Vernon Supp. 2006)). Courts interpreted the former statute to require evidence that created a “bona fide doubt” in the trial court's mind about the defendant's competency before the court was required to conduct such an inquiry into the defendant's competency. McDaniel v. State, 98 S.W.3d 704, 706 (Tex. Crim. App. 2003). Courts concluded that evidence of “recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant” was generally sufficient to create a bona fide doubt. Id. at 710 (citing Alcott v. State, 51 S.W.3d 596, 602 (Tex. Crim. App. 2001)).
Although both appellant and the State cite cases applying the bona fide doubt standard to support their respective positions, no published case has decided whether the bona fide doubt standard applies to the current statute. See Lawrence v. State, 169 S.W.3d 319, 323 (Tex. App.-Fort Worth 2005, pet. ref'd) (declining to address whether “bona fide doubt” case law applies to current statute, where facts showed no evidence of incompetency as statutorily defined). Cf. Ford v. State, No. 05-04-01819-CR, 2006 WL 710946, at *1 n. 1 (Tex. App.-Dallas, Mar. 22, 2006, no pet.) (not designated for publication) (stating that, because the language of the statutes is substantially similar, “we see no reason not to apply that standard to this case”); Richardson v. State, No. 01-04-00281-CR, 2005 WL 267708, at *2 n. 3 (Tex. App.-Houston [1st Dist.] Feb. 3, 2005, no pet.) (not designated for publication) (concluding current statute's requirement to conduct an informal inquiry is substantially similar to that set forth in former article 46.02 and applying the bona fide doubt standard). We do not find it necessary to address this issue, because we conclude no evidence of “incompetency,” as that term is statutorily defined, exists in the record before us. See Tex. Code Crim. Proc. Ann. art. 46B.003(a) (Vernon Supp. 2006). See also Lawrence, 169 S.W.3d at 323.
 
 

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