DEISSAC LAVAR HILLIARD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued December 7, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01243-CR
No. 05-06-01244-CR
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DEISSAC LAVAR HILLIARD, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F03-32061-TM & F03-032062-TM
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OPINION
Before Justices Morris, Bridges, and O'Neill
Opinion By Justice Morris
        After Deissac Lavar Hilliard entered guilty pleas to two charges of aggravated sexual assault of a child, a jury found him guilty and sentenced him to sixty years' confinement for each offense. He now complains on appeal that he received ineffective assistance of counsel, his pleas were not entered freely and voluntarily, and the trial court erred in failing to find him incompetent to enter his pleas. Concluding appellant's arguments are meritless, we modify the trial court's judgments to reflect appellant's guilty pleas and affirm the judgments as modified.
        In his first issue, appellant complains that his trial attorney provided ineffective assistance of counsel because he failed to raise the issue of diminished capacity or mental retardation during jury selection. We evaluate claims of ineffective assistance of counsel under the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both deficient performance and prejudice. An ineffective assistance claim must be “firmly founded in the record,” and the record must affirmatively demonstrate the claim's merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance. See id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before an appellate court may deem counsel ineffective. Id. Absent such an opportunity, we will not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001)).
        Here, the record does not indicate why appellant's attorney chose to conduct jury selection as he did. The prosecutor had already discussed mental disabilities before appellant's attorney addressed the jury, so this may have played some part in counsel's decision. Moreover, appellant's attorney did choose to limit the time he spent on questioning the potential jurors because it had been “a long day for all of us.” His questioning of the jury panel was limited to giving the potential jurors a chance to bring up anything that had not been addressed in the questionnaires they had completed. The record does not contain the questionnaires, so we cannot determine whether mental disabilities were also addressed in them. Based on the record before us, we conclude appellant has failed to meet his burden of showing his attorney provided deficient performance. We resolve appellant's first issue against him.
        Appellant next complains his guilty pleas were not entered freely or voluntarily because he received ineffective assistance of counsel. Appellant does not specify how his attorney was ineffective with regard to his pleas, but he points to testimony by his biological mother that he had the mind of a seven-year-old child and record references showing he had previously been found incompetent to stand trial by “two separate jury verdicts and ongoing orders entered by the magistrate and approved by the trial court.” He notes that the record does not contain a separate written order showing he was competent to stand trial at the time he entered his pleas.
        The record makes clear that appellant's competency had been an issue for some time before the trial in these cases. On November 21, 2003, the trial court first ordered that appellant be evaluated to determine his competency to stand trial. On December 14, 2003 a psychiatrist submitted the first evaluation showing appellant was incompetent to stand trial. He was evaluated incompetent to stand trial by mental health professionals three more times before a jury found him incompetent to stand trial on August 26, 2004. On that date, the trial court ordered appellant committed to a state mental hospital for a period of in-patient care not to exceed ninety days. On November 22, 2004, the trial court renewed the order for in-patient mental health care, committing appellant to a state hospital for a period not to exceed twelve months. In May of 2005, two psychiatrists evaluated appellant and each concluded he was no longer incompetent to stand trial.
        The record does not contain a separate written order from the trial court regarding appellant's competency. But before jury selection and the entry of appellant's pleas in these cases, on August 7, 2006, the trial judge stated, “I note that for the record, according to court files, [appellant] had been found incompetent previously. I have restored the finding of competency based upon the evaluations by the doctors that are in the court's jackets.” Appellant's attorney also commented about appellant's competency before trial. He indicated he had no reason to believe that appellant was incompetent to enter his pleas. He specifically stated, “With regard to competency, when he was brought back from the hospital, there were one or two reports given to the Court about his restoration to competency. I read those and both my co-counsel and I have interviewed [appellant] and we have no present evidence that he is not competent, but we've been on the lookout for that type of evidence.”
        The trial court thoroughly admonished appellant before accepting his guilty pleas. Appellant told the court he was pleading freely and voluntarily and stated that he understood the admonishments. Appellant's proper admonitions created a prima facie showing that his guilty pleas were entered knowingly and voluntarily. The burden then shifted to appellant to show that, despite the admonishments, he entered the pleas without knowing their consequences and was thereby harmed. See McGill v. State, 200 S.W.3d 325, 333 (Tex. App.-Dallas 2006, no pet.). Nothing in the record affirmatively shows that appellant was unaware of the consequence of his plea and thereby harmed. Appellant has failed to meet his burden in this case. We resolve his second issue against him.
        In his third issue, appellant complains the trial court erred in failing to find him incompetent when testimony at punishment showed the severity of his mental impairment. Testimony at trial showed appellant's biological mother may have abused cocaine during her pregnancy with him. The biological mother claimed she had not used any illegal drugs when she was pregnant with appellant, but she also testified that doctors told her he would “never outgrow a seven-year-old mind.” The biological mother was a drug addict when appellant was a child and was not regularly involved in his life from the time he was seven. Appellant's schooling through high school was all in special education classes, but he later attended a chef magnet school and worked and lived on his own. When appellant gave police a written statement about the sexual assaults, he did not appear to know the meanings of the words “waive” and “penetrate,” and had to have the meaning of the words explained to him.
        We review a trial judge's failure to conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999); Brown v. State, 129 S.W.3d 762, 765 (Tex. App.-Houston [1st Dist.] 2004, no pet.). We do not substitute our judgment for that of the trial judge, but rather we decide whether the trial judge's decision was arbitrary or unreasonable. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
        A person is legally incompetent to stand trial if he does not have (1) a rational as well as factual understanding of the nature and object of the proceedings against him and (2) sufficient present ability to consult with counsel with a reasonable degree of rational understanding. Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon 2006); see McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). The conviction of a defendant who is legally incompetent violates due process; therefore, to protect a criminal defendant's constitutional rights, a trial judge must inquire into his mental competence once the issue is sufficiently raised. McDaniel, 98 S.W.3d at 709. Evidence which shows recent severe mental illness, moderate or greater retardation, or truly bizarre acts by the defendant is sufficient to create a question of competency. McDaniel, 98 S.W.3d at 710. In determining whether a defendant's competency is an issue, the trial judge must consider only that evidence tending to show incompetency, putting aside all competing indications of competency. Barber v. State, 737 S.W.2d 824, 828 (Tex. Crim. App. 1987).
        The record in this case contains two evaluations showing appellant was competent to stand trial fifteen months before he entered his pleas. The trial judge orally found him competent, and his attorney indicated that although he had been “on the lookout” for signs of incompetency in appellant when he interviewed him, he had not seen any. The strongest evidence of possible incompetence came from appellant's biological mother, who had “struggled with addiction” throughout her life and had not cared for him since he was seven years old. Based on the record before us, we conclude the trial court did not abuse its discretion in failing to find appellant incompetent to enter his pleas. We resolve appellant's third issue against him.
        In a cross-point, the State requests that we modify the trial court's judgments to correct a clerical error. Appellant entered a guilty plea in each case, but the judgments state that he entered pleas of not guilty. We sustain the State's cross-point. We modify the trial court's judgments to reflect that appellant entered pleas of guilty. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        We affirm the trial court's judgments as modified.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47 061243F.U05