Guy Eric Seiver v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00020-CR

Guy Eric SEIVER,

Appellant

v.

The STATE of Texas ,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-1701W

Honorable Philip A. Kazen, Jr. , 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: July 12, 2006

AFFIRMED

Guy Eric Seiver appeals the trial court's judgment revoking his community supervision and sentencing him to five years imprisonment. The sole issue presented on appeal is that Seiver received ineffective assistance of counsel when his trial attorney failed to raise the issue of his competence "because there were ample indications that Mr. Seiver might not have been competent." We overrule Seiver's issue and affirm the trial court's judgment.

Background

In April of 2002, Seiver pled nolo contendere to the offense of indecency with a child pursuant to a plea bargain agreement and was placed on four years of deferred adjudication community supervision. In April of 2003, the State filed a motion to adjudicate listing three violations, including being in the presence of a minor without an adult chaperon. Seiver pled true to the violations, and the trial court adjudicated his guilt and placed him on five years community supervision.

In August of 2003, the State filed a motion to revoke Seiver's probation because he removed his electronic monitoring bracelet. The trial court amended Seiver's terms and conditions and required him to serve 180 days in jail. Seiver was released from jail in April of 2004, and the State filed a supplemental report recommending electronic monitoring until Seiver's family found a residential mental health facility for him. The report noted that Seiver had been awarded social security disability. In May of 2004, the trial court amended Seiver's terms and conditions to require electronic monitoring.

In early 2005, the State filed another supplemental report stating that Seiver had admitted to paying for an additional phone line to use "Nightline Singles" phone service and engaging in relations with a twenty-year-old female. In May of 2005, the trial court again amended Seiver's terms and conditions.

In September of 2005, the State filed a motion to revoke community supervision alleging that Seiver violated his terms and conditions by having direct contact with a minor. Seiver was arrested on September 20, 2005, and counsel was appointed to represent him. Beginning in October of 2005, Seiver filed a series of pro se motions, including a petition for writ of habeas corpus that referred to a traumatic head injury and other ailments. The petition stated that Seiver's conditions prevented him from making correct decisions. Seiver's appointed attorney signed several of these motions but did not sign Seiver's petition for writ of habeas corpus.

A hearing on the State's motion to revoke probation was held in December of 2005. Seiver pled true to the violation. Seiver's attorney stated that when he was first appointed, "there were some issues with regard to Seiver's prior head injury;" however, Seiver's attorney stated that Seiver had been able to confer with his mother, and Seiver "is competent." Seiver's attorney stated that Seiver's mother "feels [Seiver] knows what he's doing and has encouraged him to enter into the plea of true." The trial court revoked Seiver's community supervision and sentenced him to five years imprisonment.

Discussion

Seiver claims his trial attorney was ineffective in failing to raise the issue of his competence. To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Id. Any allegations of ineffectiveness must be firmly founded in the record. Id. at 814. The defendant's burden is even more difficult when, as in this case, the defendant does not file a motion for new trial asserting ineffective assistance of counsel. See id. at 813-14.

The Texas Court of Criminal Appeals has emphatically instructed us that an appellate court may not reverse a conviction on ineffective assistance of counsel grounds "when counsel's actions or omissions may have been based upon tactical decisions, but the record contains no specific explanation for counsel's decisions." Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). "[R]arely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: '[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.'" Bone, 77 S.W.3d at 833 (quoting Thompson, 9 S.W.3d 813-14). "Ineffective assistance of counsel claims are not built on retrospective speculation; they must 'be firmly founded in the record.'" Id. at 835 (quoting Thompson, 9 S.W.3d at 813-14).

The record in this case demonstrates that trial counsel was aware of Seiver's prior head injury and the possible question regarding Seiver's competency. The record, however, contains no specific explanation for trial counsel's decision not to further pursue the competency issue. See Bone, 77 S.W.3d at 830. As a result, we must overrule Seiver's issue in this direct appeal; however, this opinion does not preclude Seiver from pursuing his ineffective assistance claim via an application for writ of habeas corpus which must be filed in the trial court. See Thompson, 9 S.W.3d at 814-15 (noting recourse available via an application for writ of habeas corpus); Tex. Code Crim. Proc. Ann. art. 11.07, 3(b) (Vernon 2005) (providing that an application for writ of habeas corpus after final conviction in a felony case must be filed with the clerk of the court in which the conviction being challenged was obtained).

Alma L. L pez, Chief Justice

DO NOT PUBLISH