Armando Romo Lopez v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00033-CR

Armando Romo LOPEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 187th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CR-4929

Honorable Raymond Angelini, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: February 2, 2005

AFFIRMED

Armando Romo Lopez pled guilty to a murder charge after a jury found him competent to stand trial. Lopez was sentenced to forty-five years imprisonment in accordance with a plea bargain agreement. Lopez s court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which she concludes that the appeal has no merit. Counsel provided Lopez with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App. San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App. San Antonio 1996, no pet.). Lopez filed a pro se brief raising five issues: (1) he received ineffective assistance of counsel; (2) the trial court erred in failing to conduct a second competency hearing; (3) the trial court erred in admitting the testimony of two experts; (4) his plea was involuntary because he was not competent to stand trial; and (5) the trial court erred in failing to declare a mistrial after members of the victim s family conversed with jurors.

Lopez initially complains of several actions that he contends trial counsel failed to take during trial. // To prevail on a claim of ineffective assistance of counsel, Lopez must first show by a preponderance of the evidence that counsel s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). In addition, Lopez must show a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id.

There is a strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance. Id. at 813. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. In cases where the alleged derelictions primarily are errors of omission de hors the record // rather than commission revealed in the trial record, collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record. Id. With regard to the issues raised in Lopez s pro se brief, the record is silent as to the reason trial counsel failed to take the actions about which Lopez complains. Since the record is silent, Lopez cannot overcome the presumption that trial counsel s decisions during trial fell within the wide range of reasonable professional assistance; therefore, a complaint that trial counsel was ineffective is not an arguable issue requiring further briefing on direct appeal. See Nichols, 954 S.W.2d at 86 (requiring further action by appellate court only if independent examination reveals nonfrivolous grounds for appeal exist). This opinion does not preclude Lopez from resubmitting his ineffective assistance claim via an application for writ of habeas corpus. See id.

In his second issue, Lopez contends the trial court erred in failing to impanel a second competency jury. Where there has already been one determination of competency by a jury and there is no error in that finding, to complain of the denial of a second hearing, the defendant must put forth some evidence of a subsequent change in competency or some new evidence in a manner analogous to the newly discovered evidence basis for a new trial. Miles v. State, 688 S.W.2d 219, 224 (Tex. App. El Paso 1985, pet. ref d). Any other procedural and evidentiary framework would effectively block trial on the merits. Id. Whether the trial court erred in failing to empanel a jury depends upon whether it abused its discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). During the plea hearing and sentencing hearing, Lopez was responsive to the trial court s questions. Lopez only became unresponsive during a hearing on a motion to revoke probation in another case. The trial judge could have determined Lopez s conduct was goal-oriented toward avoiding a trial. Clark v. State, 47 S.W.3d 211, 218 (Tex. App. Beaumont 2001, no pet.).

Although his mother briefly testified during a bill of exceptions about an incident that allegedly occurred at the hospital between the plea hearing and sentencing hearing, the trial court could have determined that no new evidence existed to indicate recent severe mental illness or any change in Lopez s mental condition. See id. Accordingly, the trial judge did not abuse his discretion in failing to hold a separate hearing on the compentency issue or to empanel a jury for a second competency trial.

In his third issue Lopez complains that the trial court erred in allowing two experts called by the State to testify regarding his competency to stand trial. With regard to Dr. Sellers, Lopez contends that his testimony was inconsistent. Lopez also contends that Dr. Kern was not qualified to testify because he had not conducted an independent examination of Lopez.

The trial judge as gatekeeper is to determine the reliability, relevancy, and admissibility of scientific evidence. Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997). However, the trial judge does not pass on the credibility of the witness or her ultimate opinion. The credibility of a witness affects the weight to be given the testimony by a jury, not its admissibility. Muhammad v. State, 46 S.W.3d 493, 510 (Tex. App. El Paso 2001, no pet.). Dr. Sellers is board certified in general psychiatry, and Dr. Kern has a doctoral degree in psychology and had been practicing psychology for approximately twelve years. Dr. Kern s primary responsibility involved performing psychological evaluations of juveniles and assisting with evaluations of adults. Having considered the education and experience of Dr. Kern, the trial court did not abuse its discretion in determining him to be qualified to testify as an expert. Lopez s other complaints relate to the weight to be given to the testimony of the experts, not the admissibility of their testimony. The trial court did not abuse its discretion in admitting the experts testimony.

Lopez next contends that his plea was involuntary because he was not competent to stand trial. Approximately one month before the plea hearing, a jury determined that Lopez was competent. We previously rejected Lopez s contention that a second competency hearing was required. Based on the jury s competency finding, we reject Lopez s contention that his plea was involuntary.

In his final issue, Lopez contends that the trial court erred in failing to declare a mistrial after members of the victim s family conversed with jurors outside the courtroom. No person is allowed to converse with a juror about the case on trial except in the presence and by the permission of the court. Tex. Code Crim. Proc. Ann art. 36.22 (Vernon 1981). When a juror converses with an unauthorized person about the case, injury to the accused is presumed and a new trial may be warranted. Robinson v. State, 851 S.W.2d 216, 230 (Tex. Crim. App. 1991). However, the State may rebut this presumption of harm. Id. In determining whether the State rebutted the presumption of harm, appellate courts should defer to the trial court s resolution of the historical facts and its determinations concerning credibility and demeanor. Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997). Before a new trial is warranted, there must be injury to the accused. McMahon v. State, 582 S.W.2d 786, 793 (Tex. Crim. App. 1978). Thus, if it is shown that nothing prejudicial to the accused was said, the verdict will be upheld. Id.

In this case, defense counsel stated that Lopez s mother had informed him that the victim s family was mingling with the jury in the hallway. In response, the prosecutor informed the court that the victim s family were sitting to the left of the courtroom, they had been instructed not to talk with anyone, and a person with the prosecutor s office, who was well aware that the family members could not speak with the jury, was with the family members. In response to the trial court s inquiry regarding whether defense counsel had any evidence of the family members communicating with the jury, defense counsel responded, I just found this out. I just wanted to bring it to your attention. The trial court instructed defense counsel to inform the court if defense counsel discovered any evidence of any communications. Absent evidence that any communication occurred, the trial court was not required to declare a mistrial.

We have reviewed the record, Lopez s pro se brief, and counsel s brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Appellate counsel s motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

Alma L. L pez, Chief Justice

DO NOT PUBLISH