JAMES PHILLIP MARTHILJOHNI II v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

   NUMBER 13-03-687-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

JAMES PHILLIP MARTHILJOHNI, II, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 24th District Court

of Victoria County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, James Phillip Martheljohni, II, a minor, was convicted of murder and now appeals from this conviction claiming ineffective assistance of counsel and violations of his rights under the Fifth Amendment, Sixth Amendment, and former article 46.02, section 3(g) of the Texas Code of Criminal Procedure. We affirm the judgment of the trial court.

I. Facts and Procedural History

Appellant was arrested for the September 23, 2002 murder of his stepmother. During a detention hearing, appellant=s counsel raised the issue of mental illness. Both the State and defense counsel moved the juvenile court to order a Fitness to Proceed examination pursuant to section 55.11 of the Texas Family Code. The examining psychiatrist found appellant fit to proceed. Appellant was certified as an adult and tried for murder. During the trial, the examining psychiatrist testified that appellant had the capacity to commit murder and knew the wrongfulness of his action. A jury found appellant guilty and sentenced him to forty years= imprisonment.

II. Article 46.02 Section 3(g)

By appellant=s first issue on appeal, he alleges that the State (1) violated Texas Code of Criminal Procedure article 46.02, section 3(g) by asking the examining psychiatrist questions relating to appellant=s guilt or innocence, and (2) violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel under Estelle v. Smith, 451 U.S. 454 (1981).

Former Texas Code of Criminal Procedure article 46.02, section 3(g), read, "No statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding." Act of June 15, 1977, 65th Leg., R.S., ch. 596, ' 1, art. 46.02, ' 3(g), 1977 Tex. Gen. Laws 1458, 1460, repealed by Act of May 14, 2003, 78th Leg., R.S., ch. 35, ' 15, 2003 Tex. Gen. Laws 57, 72.

A. Application of Article 46.02 ' 3(g)

We first address the State=s claim that article 46.02, section 3(g) does not apply because counsel for appellant and the State jointly requested a psychiatric examination of appellant under Texas Family Code section 55.11 (mental illness test for juveniles), rather than pursuant to article 46.02. See Tex. Fam. Code Ann. ' 55.11 (Vernon 2002). The psychiatrist examined appellant on October 20, 2002 for approximately one and one-half hours and made two reports. The psychiatrist=s report entitled ACompetency to Stand Trial Evaluation@ concludes appellant Ais competent to stand trial pursuant to Article 46.02.@ The psychiatrist=s report entitled ACriminal Responsibility Evaluation@ concludes that appellant was able to fully appreciate the wrongfulness of his conduct but cites no statute.

We note only one exception to the applicability of article 46.02, section 3(g). When the defendant raises an insanity defense, the hearing that follows is not subject to article 46.02, section 3(g). See,e.g., Riles v. State, 595 S.W.2d 858, 861 (Tex. Crim. App. 1980); DeRusse v. State, 579 S.W.2d 224, 230 (Tex. Crim. App. 1979). However, appellant did not raise an insanity defense, so this exception does not apply. Moreover, the psychiatrist=s assessment cited article 46.02 showing that he was mindful of that statute and its provisions, and applied its provisions during the assessment. We see no reason to deny application of article 46.02, section 3(g).

The State further claims that because the defense counsel did not object to the admission of the psychiatrist=s testimony, appellant has not preserved error for appeal. The record does not show an objection to admission of the testimony. However, the erroneous admission of statements made by a defendant during his or her section 3(g) competency examination is not waived for a failure to object. See Perry v. State, 703 S.W.2d 668, 671 (Tex. Crim. App. 1986).

B. Statements at Trial

We now turn to the substance of the testimony. Appellant argues both prosecution and defense counsel violated section 3(g) when they asked the examining psychiatrist questions relating to the ultimate issue of appellant=s guilt or innocence. Appellant complains of the psychiatrist=s statements that appellant could appreciate right from wrong and had the mental capacity to commit murder. The State asserts that no statement made to the psychiatrist by appellant is reiterated in the psychiatrist=s testimony. Rather, the State claims the testimony was limited to the issues of capacity and competency.

We see nothing here that implicates section 3(g). The purpose of these statements is to establish competency and shows only that this expert concluded that appellant could be held liable for his own actions.

Appellant next cites defense counsel=s question regarding evidence in the psychiatrist=s collateral sources that showed appellant had spoken with others about committing the murder. Other juveniles, through their statements, claimed that appellant had spoken with them about committing the murder. Testimony based on collateral source evidence, and not statements made by the appellant during his competency hearing, does not implicate section 3(g). Even if it did, this evidence was already a part of the record. If the revealed statements are already in the record, the error is harmless. Perry v. State, 703 S.W.2d 668, 671 (Tex. Crim. App. 1986); Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979).

Finally, the examining psychiatrist testified that although appellant claimed his father had committed the crime, the psychiatrist doubted the truth of this claim based on information that became available after the competency examination: Amuch information has come out since I saw him in October of 2002 that, perhaps, what he said was not truthful.@ Appellant claims this testimony is inadmissible under section 3(g). The psychiatrist=s comment that subsequent information shed doubt on appellant=s statement does not implicate section 3(g) because it is merely an opinion based on evidence already in the record. Id. We note that expert witness testimony in the form of an opinion that is otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the jury. See Tex. Evid. R. 704. Even if this testimony were inadmissible, appellant=s defense argument that his father committed the murder is a part of the record; thus error, if any, is harmless. Perry, 703 S.W.2d at 671

C. Constitutional Rights

Citing Estelle v. Smith, 451 U.S. 454 (1981), appellant argues that the State violated his Fifth Amendment right against self-incrimination by using his competency evaluation statements against him and his Sixth Amendment right to counsel by failing to give notice that the mental examination could result in adverse statements being used against him at trial. ANo person . . . shall be compelled in any criminal case to be a witness against himself.@ U.S. Const. amend. V. In Estelle, the State examined the defendant without the knowledge of his counsel and failed to put the examiner=s name on the witness list until the eve of trial. Estelle, 451 U.S. at 459. The defendant was not informed that his statements could be used against him at trial. Id. at 461. The State used his statements as affirmative evidence of future dangerousness in order to persuade the jury to award the death penalty. Id. at 466. The Supreme Court concluded these Adistinct circumstances@implicated the Fifth Amendment. Id.

Here, those distinct circumstances do not appear. Appellant=s own counsel joined with the State in requesting a competency examination. The psychiatrist stated in his report that appellant was notified that the assessment would not be confidential and that the psychiatrist might testify in court. The psychiatrist did not reveal any statements made by appellant that were not otherwise already a part of the record. Based on these facts, we find nothing to implicate a violation of appellant=s Fifth Amendment right to protection from self-incrimination under Estelle.

The defendant is entitled to effective assistance of counsel in all criminal prosecutions. U.S. Const. amend. VI. In Estelle, the State denied the defendant the benefit of consulting with counsel before his competency examination. Estelle, 451 U.S. at 471. The Court noted the defendant=s decision to participate in such an examination should have been made with the benefit of counsel, and because that option was denied him, his Sixth Amendment right to counsel was violated. Id. Here, defense counsel joined in the request for the competency examination; therefore, the evidence does not show appellant was denied the benefit of counsel before deciding to participate. Accordingly, appellant=s first issue is overruled.

III. Ineffective Assistance of Counsel

In his second issue, appellant claims ineffective assistance of counsel for failure to object to the examining psychiatrist=s testimony relating to appellant=s guilt or innocence. Appellant further complains of trial counsel=s failure to attend the competency hearing or meet with the examining psychiatrist before the trial.

The Sixth Amendment guarantees the right to reasonably effective assistance by counsel. U.S. Const. amend. VI. The Sixth Amendment applies to state criminal prosecutions. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prevail on a claim of ineffective assistance of counsel, appellant must establish that (1) counsel's performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness under the prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Allegations of ineffective assistance of counsel must be firmly founded in the record. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004). Where the record is silent, we assume strategic motivation and sound trial strategy unless counsel's conduct is so outrageous that no competent attorney would have so acted. Garcia, 57 S.W.3d at 440. Appellant offers four incidents that he claims demonstrate ineffective assistance.

First, appellant contends that defense counsel provided ineffective assistance when he failed to object to the State=s questions to the examining psychiatrist that related to appellant=s innocence or guilt. When an appellant alleges that counsel was deficient in failing to object to the admission of evidence, the appellant must show, as part of his claim, that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). As discussed above, however, we find that appellant has not shown that the evidence was inadmissible.

Second, appellant claims the record implies that he did not have his counsel with him when he met with the psychiatrist. The courts have not held there is a constitutional right to have counsel present during a competency hearing. See Estelle, 451 U.S. at 471 n.14. To the contrary, the courts have noted that having an attorney present could prove disruptive to the examination process. Id.

Third, appellant claims defense counsel was ineffective because that he had not previously communicated with the examining psychiatrist about the case. Appellant, however, fails to state why this shows ineffective assistance. The record shows that defense counsel=s office received a copy of the psychological evaluation on November 14, 2002, eleven months before the trial. The record also shows that defense counsel was aware of collateral sources used by the examining psychiatrist, including a psychological evaluation requested by the Juvenile Probation Department. Counsel possessed the information he needed, and appellant does not claim that counsel withheld any collateral sources from the psychiatrist that might have helped him during the evaluation.

Fourth, appellant claims the record implies trial counsel failed to direct appellant on how to handle himself during the competency hearing. As evidence, appellant cites the trial record where defense counsel asked the psychiatrist whether appellant had ever indicated during his interview that he had been advised or been counseled by an attorney on how to deal with the competency examination. The psychiatrist answered, ANo, he didn=t say that.@ The Supreme Court has noted the extreme strategic importance of a competency hearing and the need for effective counsel. Estelle, 451 U.S. at 471. Few would argue that for an attorney to send a client accused of murder into a mental examination without any guidance of counsel falls below an objective standard of reasonableness under the prevailing professional norms. See Tex. Disciplinary R. Prof=l Conduct 1.03 (b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."). In this case, however, there is no evidence in the record that the attorney failed to advise appellant. The record only states that appellant did not say during the examination whether he had received guidance.

Therefore, there is no evidence counsel's performance failed to constitute reasonably effective assistance under Strickland. See Ex parte Nailor, 149 S.W.3d at 130. Appellant=s second issue is overruled.

IV. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 4th day of August, 2005.