Troy L. Wheeler v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

No. 04-99-00795-CR

Troy L. WHEELER,

Appellant

v.

The STATE of Texas,

Appellee

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 96-CR-3101

Honorable Sid L. Harle, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 29, 2000

AFFIRMED

On July 26, 1996, appellant, Troy L. Wheeler, pled nolo contendere to a charge of aggravated assault on a public servant. The trial court denied Wheeler=s request for deferred adjudication and sentenced him to five years confinement, a $1,500 fine, restitution, and 320 hours of community service. The trial court then probated the prison sentence for five years with electronic monitoring and a continuation of psychological counseling. Following a trial to the bench on the State=s motion to revoke probation, Wheeler=s probation was revoked, and the trial court instituted the previously imposed five year sentence.

In his first issue, Wheeler complains his original plea of nolo contendere was involuntary because of ineffective assistance of counsel. In his second issue, Wheeler claims he was incompetent to stand trial both during the initial plea and during the subsequent revocation of his probation. We affirm the judgment of the trial court.

Ineffective assistance of counsel

As a preliminary matter, the State argues we lack jurisdiction to review the voluntariness of Wheeler=s original plea. As a general rule, a defendant must appeal the voluntariness of his plea in an appeal following the imposition of probation rather than after the revocation of probation. Manuel v. State, 994 S.W.2d 658, 662 (Tex. Crim. App. 1999); Davis v. State, 977 S.W.2d 859, 861 (Tex. App.BDallas 1998, no pet.). Because Wheeler failed to appeal the voluntariness of his plea at the time he was initially sentenced, we lack jurisdiction to review his claim following the revocation of his probation. See Daniels v. State, No. 1612-99, 2000 WL 1506200, at *1 (Tex. Crim. App. Oct. 11, 2000) (claims relating to underlying plea, including voluntariness, must be appealed timely following original conviction); Wise v. State, 477 S.W.2d 578, 579 (Tex. Crim. App. 1972) (defendant cannot attack voluntariness of original plea on appeal from revocation of probation). We overrule Wheeler=s first point of error.

Competence

In his second issue, Wheeler contends he was incompetent to stand trial both at the time of his original plea and at the time his probation was revoked.

As to his original plea, Wheeler did not raise an issue of competence at the time, either at trial or subsequently by a motion for new trial or direct appeal. Having failed to raise the issue of competence at the time the trial court initially imposed sentence, Wheeler cannot now complain of the trial court=s failure to investigate his competence. See Kuyava v. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976); Heiskell v. State, 522 S.W.2d 477, 479 (Tex. Crim. App. 1975); Kinnard v. State, 767 S.W.2d 916, 919 (Tex. App.BFort Worth 1989, pet. ref=d).

With respect to the revocation of probation, again, Wheeler failed to raise the issue of competence at the time of trial or thereafter in a motion for new trial. Under Tex. Code Crim. Proc. Ann. art. 46.02 ' 2 (Vernon 1979), the trial court is not required to hold a competency hearing unless, at the time of trial, evidence from some source raises a bona fide doubt as to the defendant=s competence. Arnold v. State, 873 S.W.2d 27, 37 (Tex. Crim. App. 1993); Brown v. State, 960 S.W.2d 772, 774-75 (Tex. App.BDallas 1997, pet. ref=d). We review the trial court=s action for an abuse of discretion, viewing the evidence in the light most favorable to the party with the burden of securing a finding and disregarding all contrary inferences. Brown, 960 S.W.2d at 776.

There is no evidence in the record to suggest Wheeler was incompetent at the time of his revocation hearing. At most, the records from the initial plea and the revocation hearing indicate Wheeler may have a problem with alcohol and with personal relationships. This is insufficient to raise an issue of competence to stand trial. See Arnold, 873 S.W.2d at 37 (finding of mental illness does not constitute determination of incompetence to stand trial); Rice v. State, 991 S.W.2d 953, 957 (Tex. App.BFort Worth 1999, pet. ref=d) (evidence of some mental, behavioral, or psychological impairment does not meet inquiry necessary to suspect incompetence); Brown, 960 S.W.2d at 777-78 (severe behavioral problems and learning difficulty did not raise bona fide doubt as to competence). We overrule Wheeler=s second issue.

Conclusion

We overrule Wheeler=s issues and affirm the judgment of the trial court.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH