CORNELIUS RICARDO BURTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed December 18, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01609-CR
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CORNELIUS RICARDO BURTON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F08-51487-SL
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OPINION
Before Chief Justice Wright and Justices Lagarde   See Footnote 1  and Thomas   See Footnote 2 
Opinion By Justice Lagarde
        Appellant Cornelius Ricardo Burton appeals his fifteen-year sentence for aggravated robbery committed on February 7, 2008 when he was twenty-four years old. Appellant pleaded guilty before the trial court, with no plea agreement, to the primary offense of aggravated robbery with a deadly weapon and true to an enhancement paragraph alleging a prior burglary conviction.   See Footnote 3  See Tex. Penal Code Ann. § 12.42(c)(1) (Vernon Supp. 2009) (prior felony elevates first-degree punishment to minimum of fifteen years).
        On appeal, appellant raises a sole issue: whether the trial court erred in failing to order a re- evaluation of appellant's competency. For reasons that follow, we affirm.
        The State agrees “a satisfactory statement of the factual background” is set out in appellant's brief. According to appellant's brief, appellant's mother abused heroin while she was pregnant with him, and after he was born, she inflicted severe physical abuse on him. She would also deprive appellant of food and lock him in a closet. Appellant moved in with his grandmother when he was three years old, but he never forgot his mother's abuse. While growing up, appellant suffered various troubles. He dropped out of school after the eighth grade. He abused alcohol, crack cocaine, and marijuana dipped in embalming fluid. Appellant's drug-related criminal behavior resulted in one term in a juvenile detention facility and five years in the penitentiary for a burglary conviction. Appellant's brother was killed by police officers.
        Before appellant was arrested, he began having psychotic symptoms, including hearing voices from his deceased brother and others. After appellant went to jail on February 7, 2008, he heard voices, became disoriented, and behaved oddly, including making claims he was “the Black God.”
        On March 28, 2008, appellant underwent a psychiatric evaluation conducted by Dr. Michael Pittman. The psychiatrist concluded that, despite his psychotic symptoms, appellant had the ability to rationally understand the charges against him and to participate in his defense. Dr. Pittman did not dispute appellant had “a potentially severe mental illness, most probably a psychotic disorder” caused by smoking marijuana dipped in embalming fluid; however, he concluded appellant could maintain competency if he continued to take antipsychotic medication.
        On October 16, 2008, approximately six months after his psychiatric evaluation, appellant pleaded guilty before the court and was sentenced to the minimum sentence of fifteen years. At the plea hearing, appellant testified he had sufficient time to talk about his case with his attorney; he understood the proceedings; he understood the range of punishment was 15 to 99 years of confinement in the penitentiary, and his plea was free and voluntary. Even though, at the time, appellant was on parole for his prior burglary conviction, he wanted to proceed with his guilty plea. The trial judge found appellant was mentally competent to participate in the plea proceedings and that his pleas of guilty and true were knowing and voluntary.
        Appellant sought community supervision with drug treatment and said his conduct was drug- related. Appellant admitted that upon getting out of parole he began to get high even though his drug use had sent him to the penitentiary. Appellant apologized for the car-jacking robbery, claiming he was not in his normal state of mind and that he was carrying the gun used in the car- jacking for his own protection. Appellant had ten different juvenile and adult cases over a period of nine years. He had previously received probation in some of those cases and had previously had counseling, drug treatment, and been to boot camp.
        The trial judge recognized the only time appellant was not committing offenses was when he was in custody. The judge sentenced appellant to confinement in the penitentiary for 15 years.
        On appeal, appellant claims that, due to a six-month lapse between the psychiatric evaluation and the plea hearing, he should have been re-evaluated and that “it was evidence that a new competency evaluation was necessary.” He further complains there was no evidence that he had taken his medication during the intervening six months, and that his unrealistic expectation he was a candidate for probation indicated he lacked competency to stand trial. He contends the trial judge was obligated to order him to undergo a re-evaluation of his competency at the time of his plea.
        To be constitutionally valid, a plea must be made with “sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970); Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). An involuntary plea or waiver violates a defendant's Fifth Amendment right to due process. U. S. Const. amends. V, XIV; Burke v. State, 80 S.W.3d 82, 93 (Tex. App.-Fort Worth 2002, no pet.). The conviction of an accused while he is legally incompetent violates due process. McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). A defendant cannot be sentenced if he is incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon 2006); Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996).
        A defendant is presumed to be competent unless proven incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006). A defendant is not competent to stand trial unless he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and he has a rational as well as factual understanding of the nature and object of the proceedings against him. Id. at art. 46B.003(a) (Vernon 2006). If evidence suggesting a defendant may be incompetent to stand trial comes to the attention of the trial court, the court, on its own motion, shall suggest that the defendant may be incompetent to stand trial. Id. at art. 46B.004(b). The court must then conduct an informal competency inquiry to determine whether there is some evidence from any source that would support a finding the defendant may be incompetent to stand trial. Id. art. 46B.004(c). A competency inquiry is required only if the evidence brought to the judge's attention raises a bona fide doubt in the judge's mind about the defendant's competence to stand trial. Fuller v. State, 253 S.W.3d 220, 228-29 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 904 (2009). Such evidence may come from the judge's own observations, known facts, evidence presented, motions, affidavits, or any other credible source. LaHood v. State, 171 S.W.3d 613, 618 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). Evidence is usually sufficient to create a bona fide doubt if it shows recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. McDaniel, 98 S.W.3d at 710.
        We review a trial judge's decision not to conduct a competency inquiry under an abuse of discretion standard. Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.-Fort Worth 2005, pet. ref'd). A trial court abuses its discretion if its decision is arbitrary or unreasonable. Id.
        Appellant was examined by a psychiatrist on March 28, 2008. The psychiatrist determined appellant was mentally competent. At the October 16, 2008 plea hearing, appellant made no claim of mental incompetence. The trial court found appellant to be competent before sentencing him. No motion for new trial was filed. Appellant did write two letters to the trial court expressing his remorsefulness and asking the judge to reconsider his sentence.
        At the hearing, there was no evidence of incompetence. The facts earlier set out in this opinion show appellant had a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. See Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1). He responded appropriately to the judge's questions. The State's original plea offer was twenty-five years' imprisonment. By pleading guilty before the trial court, without the benefit of a plea bargain, appellant was able to secure the minimum fifteen-year sentence and no fine. The record shows no evidence the trial court abused its discretion by failing to conduct a second competency hearing.
        We resolve appellant's issue of whether the trial court reversibly erred in failing to order a reevaluation of his competency against appellant.
        We affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
081609F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The Honorable Linda Thomas, Chief Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 3 The State had abandoned a second enhancement paragraph.