TOMMY RAY PHILLIPS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed; Opinion Filed November 9, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00498-CR
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TOMMY RAY PHILLIPS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-62936-XM
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MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Francis
        Tommy Ray Phillips appeals his conviction for burglary of a motor vehicle. After appellant entered an open plea of guilty and pleaded true to the felony enhancement paragraphs, the trial court deferred adjudicating guilt and placed appellant on community supervision for ten years. In two points of error, appellant claims the trial court erred by failing to conduct a competency inquiry and he received ineffective assistance of counsel. We affirm.
        Appellant is a military veteran who was honorably discharged from the service. The State introduced appellant's judicial confession in which appellant stipulated he committed burglary of a vehicle and had been previously convicted of other offenses, meaning the present offense carried the punishment range of a second-degree felony. The State then introduced pen packets, evidencing appellant's eleven prior convictions for burglary of a vehicle, burglary of a building, burglary of a habitation, assault, possession of cocaine, and theft of property. Appellant admitted he stole a garden hose and blue tarp from the back of a truck. According to appellant, he has hepatitis C and liver cancer, has been diagnosed with bipolar disorder, and was using crack cocaine at the time of the burglary. When asked if it was true he refused to participate in any treatment not offered through the veteran's hospital, he stated he would cooperate in any kind of treatment, including SAFP. Although the State argued appellant was an “impact offender,” a nuisance to society, and not a good candidate for probation, the trial court deferred finding him guilty and placed appellant on community supervision for ten years. The trial court also assessed a $1500 fine and ordered appellant to participate in and successfully complete the SAFP program.
        In his first issue, appellant claims the trial court should have conducted an adequate inquiry into appellant's mental competency and the failure to do so violated his rights to due process as well as articles 26.13(b) and 46B.004 of the code of criminal procedure.
        We review a trial court's decision whether or not to conduct an informal competency inquiry for an abuse of discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A defendant is incompetent to stand trial if he does not have “sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding” or “a rational as well as factual understanding of the proceedings against” him. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1),(2) (West 2006). See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). If evidence suggesting the defendant may be incompetent comes to the attention of the trial court, the court on its own motion shall suggest the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004(b). The court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial. Id. at 46B.004(c). However, according to the Texas Court of Criminal Appeals, the evidence must raise a bona fide doubt about the defendant's competency before an informal inquiry is required. See Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 904 (2009). Evidence is 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.” Id. Evidence of previous psychiatric treatment or drug addiction, standing alone, does not raise the issue of competency. See Ex parte McWilliams, 634 S.W.2d 815, 821 (Tex. Crim. App. 1980); cf. Leyva v. State, 552 S.W.2d 158, 161 (Tex. Crim. App. 1977) (mere fact that appellant received psychiatric treatment does not support finding of incompetency).
        On appeal, appellant argues the trial court should have conducted an inquiry into his mental competency when appellant testified he had been diagnosed as bipolar and used drugs. We disagree. Although appellant told the court he had used crack cocaine just prior to the burglary and had been diagnosed as having a bipolar disorder, appellant also testified he understood the nature of the charge against him as well as the full range of punishment available to the court and was pleading guilty because he was guilty. The court admonished appellant, and his trial counsel questioned him about his open plea, his military service, and his physical and mental ailments. Appellant answered the questions appropriately.
        The record before us does not show appellant displayed present severe mental illness or moderate retardation or committed any bizarre acts that would raise a bona fide doubt as to his mental competency. He did not indicate he was unsure of his surroundings nor did he appear confused by the proceedings. Trial counsel did not complain appellant's mental limitations impacted his ability to consult with counsel or understand the proceedings. In fact, when asked by the trial court, counsel testified appellant was competent to enter a guilty plea. Although appellant admitted drug use and having a bipolar disorder, these issues alone were not sufficient to raise a bona fide doubt as to his competency. See Moore, 999 S.W.2d at 395 (defendant's propensity toward depression did not necessarily correlate with ability to communicate with counsel or to understand proceedings against him; history of prior hospitalization and treatment for depression did not warrant competency hearing without evidence of severe mental illness or recent impairment); Reeves v. State, 46 S.W.3d 397, 400 (Tex. App.-Texarkana 2001, pet. dism'd) (evidence of appellant's drug addiction and suicide attempt did not reflect on ability to understand or participate in proceedings on day of trial); Townsend v. State, 949 S.W.2d 24, 27 (Tex. App.-San Antonio 1997, no pet.) (suicidal tendencies and depression did not raise bona fide doubt about defendant's competency); Ward v. State, 906 S.W.2d 182, 185 (Tex. App.-Austin 1995, pet. ref'd) (evidence regarding nature and causes of appellant's drug addiction raised no issue regarding appellant's ability to understand the proceedings against him or to consult with his attorney with a reasonable degree of rational understanding). Because the record fails to contain evidence raising a bona fide doubt as to appellant's mental competency, we cannot conclude the trial court was required to sua sponte conduct an inquiry into appellant's competency to stand trial. We overrule appellant's first point of error.
        In his second point of error, appellant contends he was denied the effective assistance of counsel at trial. Appellant specifically claims counsel failed to investigate appellant's mental competency, incorrectly advised him as to the range of punishment, exceeded his authority when he accepted a plea agreement with the State, and failed to object to the admission of prior convictions.
        Claims of ineffective assistance of counsel are evaluated under the two-part test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) and require a showing of both deficient performance and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). A Strickland claim must be “firmly founded in the record” and “the record must affirmatively demonstrate” the meritorious nature of the claim. Id. For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance claims. Id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as 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.
        Here, appellant did not file a motion for new trial, although he filed a “Motion for Notice of Appeal” in which he raised ineffective assistance of counsel. Nevertheless, there was no hearing on his motion and, therefore, there is no record explaining counsel's actions or purported failures. The record does show appellant appeared competent, did not enter into a plea agreement, and received ten years deferred adjudication probation when the State argued for a sentence of fifteen years in prison. In light of this, we cannot conclude appellant has met his burden of showing his attorney provided ineffective assistance. We overrule appellant's second point of error.
 
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090498F.U05