Lacey Kersey v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00066-CR
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LACEY KERSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 32625-B
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

On April 6, 2006, Lacey Kersey waived her right to a jury trial and pled guilty to the offense of sexual assault, see Tex. Penal Code Ann. 22.011 (Vernon Supp. 2006), without the benefit of a negotiated plea agreement. Kersey now appeals, contending the trial court erred by failing to order a competency hearing, pursuant to Tex. Code Crim. Proc. Ann. art. 46B.004 (Vernon Supp. 2006). A trial court's failure to conduct a separate "inquiry" regarding the defendant's competency is a matter that we review on appeal for abuse of discretion. See, e.g., Auldridge v. State, 533 S.W.2d 821, 822 (Tex. Crim. App. 1976) (quoting Ainsworth v. State, 493 S.W.2d 517 (Tex. Crim. App. 1973)); Ballard v. State, 514 S.W.2d 267, 268 (Tex. Crim. App. 1974); Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.--Fort Worth 2005, pet. ref'd). A trial court abuses its discretion if it acts without reference to any guiding rules or principles, or if its decision is arbitrary or unreasonable. Malone v. State, 163 S.W.3d 785, 793 (Tex. App.--Texarkana 2005, pet. ref'd).

During the plea colloquy, the following exchange occurred between Kersey and the trial court:

THE COURT: Do you have any history of insanity, and by that I mean, have you ever been confined to a mental institution or under the care of a psychiatrist for mental problems?

 

[Kersey]: Yes, sir.

 

THE COURT: Tell me about that, when?

 

[Kersey]: I was young, I was about nine. I was confined to Saint Mary's Hospital, mental institution in Rochester, Minnesota.

 

THE COURT: For how long?

 

[Kersey]: For a year.

 

THE COURT: Okay. Have you had any type of psychiatric care since that time?

 

[Kersey]: Yes, sir, on and off all my life.

 

THE COURT: When was the last time?

 

[Kersey]: About a year ago, I went through Sabine Valley to get started back on my medication.

 

THE COURT: Do you know where you are right this minute?

 

[Kersey]: Yes, sir.

 

THE COURT: Where are you?

 

[Kersey]: Gregg County.

 

THE COURT: Well, where?

 

[Kersey]: Courtroom, Gregg County courtroom.

 

THE COURT: Why are you here?

 

[Kersey]: Because of this case?

 

THE COURT: What case?

 

[Kersey]: The sexual assault.

 

THE COURT: Okay. Mr. Scott [Kersey's trial counsel], how long have you known her?

 

[Counsel for Kersey]: I've known her for about three months, sir.

 

THE COURT: During the period of time you've been acquainted with her, has anything come to your attention to indicate or suggest there's anything mentally wrong with her at this time?

 

[Counsel for Kersey]: No, your Honor.

 

THE COURT: Based on the contacts that you've had with her, in your opinion, is she presently mentally competent to appear before this Court?

 

[Counsel for Kersey]: She is, your Honor.

 

THE COURT: You are charged by grand jury indictment with the offense of sexual assault. You have a right to have the indictment read to you at this time if you wish. Do you want the indictment read to you or not?

 

[Kersey]: No, sir.

 

THE COURT: Are you telling me you fully understand, you fully comprehend the exact nature of the accusation being brought against you by the bill of indictment?

 

[Kersey]: Yes, sir.

 

During the remainder of the plea admonishments, Kersey tells the trial court that she understands (1) the applicable range of punishment; (2) that the trial court is not obligated to consider awarding community supervision; (3) that any award of community supervision would be granted pursuant to a deferment of an adjudication of guilt; (4) that the trial court could impose 180 days' confinement as a condition of community supervision; (5) that, should she decide to move to another state and have her community supervision transferred, the recipient state is under no obligation to accept the transfer of community supervision; (6) that, if she is granted community supervision and the State subsequently alleges she violated the terms of her release, a hearing on whether her supervision should be revoked will be in front of a judge, rather than a jury; (7) that if community supervision is granted and subsequently revoked, any time she spent in jail as a condition of community supervision does not have to be credited against any term of imprisonment ordered during the revocation proceeding; (8) that she was waiving her right to have a presentence investigation conducted; (9) that, if the trial court elected not to follow the parties' recommendations regarding sentence, Kersey could not, because there had been no negotiated plea agreement, withdraw her guilty plea; (10) that she would have to register as a sex offender as a consequence of her plea; (11) that she could face an enhanced sentencing range if she commits a third felony in Texas, see Tex. Penal Code Ann. 12.42 (Vernon Supp. 2006); (12) that she was formally waiving her right to a jury trial as part of her guilty plea; (13) that she was waiving her right to confront the witnesses against her and permitting the State to present its evidence in written form; and (14) that, by signing a written judicial confession, she was giving up her Fifth Amendment protection against self-incrimination.

Under the Texas Code of Criminal Procedure, a defendant is presumed 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). "A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. Ann. art. 46B.003(a) (Vernon Supp. 2006) (emphasis added). Article 46B.004(b) of the Texas Code of Criminal Procedure requires the trial court to conduct an inquiry into the defendant's competence "[i]f evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court" from any source. Tex. Code Crim. Proc. Ann. art. 46B.004(b). But this inquiry is required only if the evidence raises a "bona fide" doubt in the trial court's mind as to the accused's competency. Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997); Eddie v. State, 100 S.W.3d 437, 444 (Tex. App.--Texarkana 2003, pet. ref'd). "In general, a bona fide doubt is raised, so as to require [an inquiry], only if the evidence indicates a recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant." Collier, 959 S.W.2d at 625 (citing Mata v. State, 632 S.W.2d 355, 359 (Tex. Crim. App. 1982)); Eddie, 100 S.W.3d at 444; see also Alcott v. State, 51 S.W.3d 596, 602 (Tex. Crim. App. 2001) (Price, J., concurring) ("[E]vidence available must raise a bona fide doubt.").

In this case, the exchange between the trial court and Kersey did not suggest moderate retardation or truly bizarre acts by Kersey. To the extent that Kersey informed the trial court she had been hospitalized "to get started back on [her] medication," Kersey said such hospitalization occurred more than a year before her presence at the guilty plea proceedings now at issue on appeal, and there is no suggestion in the evidence that her year-old hospitalization was for a "severe" mental illness. The fact that an accused has been taking prescribed psychiatric medication or has had a history of mental illness does not, by itself, require the trial court to conduct a competency inquiry, unless there is also evidence the accused lacks the present ability to communicate with counsel or the ability to understand the legal proceedings. Moore v. State, 999 S.W.2d 385, 395-96 (Tex. Crim. App. 1999); LaHood v. State, 171 S.W.3d 613, 619 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd). In this case, Kersey's affirmative responses during the trial court's inquiry demonstrated she had both a sufficient present ability to consult with her attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against her. Cf. LaHood, 171 S.W.3d at 619 (record revealed nothing that accused had trouble understanding proceedings or communicating with counsel); Lawrence, 169 S.W.3d at 322-23 (accused's testimony showed not that he lacked rational or factual understanding of proceedings or ability to communicate with counsel); Eddie, 100 S.W.3d at 444 (record revealed "lucid and rational, though troubled, person able to carry on a dialogue").

Kersey suggests to this Court in her brief that the trial court erred by propounding questions to Kersey that were designed to solicit answers only supporting an affirmative finding of competency, instead of asking questions designed to solicit answers that would support a finding of incompetency. We do not read the trial court's question, as presented above, in such a narrow fashion. For example, when the trial court specifically asked Kersey's counsel whether he knew of anything suggesting Kersey was mentally ill, the court's question did not, in any way, suggest the answer ultimately provided by counsel. Instead, we read the trial court's question as an open invitation to counsel to provide any evidence that might suggest Kersey was currently incompetent to stand trial. The trial court then went a step further and asked trial counsel the very specific question of whether counsel believed Kersey to be presently competent. If Kersey or her counsel had any evidence to suggest Kersey lacked competency, certainly such a question should have prompted Kersey or her counsel to provide such evidence to the trial court at that time. Instead, Kersey's counsel affirmatively stated he believed Kersey to be competent.

Based on the state of the evidence available to the trial court, we conclude the evidence was insufficient to create a bona fide doubt about Kersey's competency, as that term has been defined by our law. Accordingly, we conclude the trial court did not abuse its discretion, we overrule Kersey's sole point of error, and we affirm the trial court's judgment.

 

Jack Carter

Justice

 

Date Submitted: September 19, 2006

Date Decided: October 19, 2006

 

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