Sharon Stepherson Newsome v. The State of Texas--Appeal from 185th District Court of Harris County

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: January 19, 2000

MOTION TO WITHDRAW GRANTED; AFFIRMED

We withdraw the opinion issued in this case on January 12, 2000, and substitute the following opinion in its stead.

Sharon Stepherson Newsome pleaded guilty to aggravated assault and was sentenced to five years in prison. Newsome appeals.

Newsome's court-appointed appellate attorney filed a brief in which he raises two arguable points of error, but nonetheless concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel states Newsome was provided a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief.

Under the first arguable point of error, Newsome's counsel contends the trial court erred in failing to conduct a hearing to determine Newsome's competency to stand trial. Newsome's trial attorney requested and received a psychiatric examination for his client. However, Newsome did not subsequently move for an incompetency hearing. Furthermore, the trial court was required to hold an incompetency hearing on its own motion only if sufficient facts or circumstance were brought to its attention that constituted evidence of incompetency. Hackbarth v. State, 617 S.W.2d 944, 948 (Tex. Crim. App. [panel op.] 1981). The fact that Newsome underwent psychiatric treatment in the past and requested a psychiatric evaluation before trial is not evidence the she was incompetent to stand trial. Johnson v. State, 564 S.W.2d 707, 711 (Tex. Crim. App. 1977), overruled on other grounds, Williams v. State, 663 S.W.2d 832, 834 (Tex. Crim. App. 1984); Leyva v. State, 552 S.W.2d 158, 161 (Tex. Crim. App. 1977). Because there is no evidence in the record otherwise suggesting Newsome was incompetent to stand trial, the trial court did not err in failing to hold an incompetency hearing. See Hackbarth, 617 S.W.2d at 948.

Under his second arguable point of error, Newsome's counsel contends the trial court erred in failing to admonish Newsome in accordance with article 26.13 of the Texas Code of Criminal Procedure before accepting her guilty plea. The trial court admonished Newsome in writing and in strict accordance with article 26.13(a). Because the admonishment was in writing, the trial court further obtained a statement by Newsome and her attorney that Newsome understood the admonishments and was aware of the consequences of her plea. See Tex. Code Crim. Proc. art. 20.13(d). Therefore, the trial court properly admonished Newsome under article 26.13.

Having reviewed the record and briefs, we agree the appeal is frivolous and without merit. We therefore affirm the trial court's judgment and grant the motion to withdraw filed by Newsome's

counsel. See Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.--San Antonio 1997, no pet.); Bruns, 924 S.W.2d 176. 177 n.1 (Tex. App.--San Antonio 1996, no pet.).

Sarah B. Duncan, Justice

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