Joseph Michael Barker v. The State of Texas--Appeal from 402nd Judicial District Court of Wood County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00118-CR

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JOSEPH MICHAEL BARKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 294th Judicial District Court

Wood County, Texas

Trial Court No. 13,841-94

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

Joseph Michael Barker has appealed two cases to this Court, both of which are from final convictions in 1994. Initially, his counsel did not timely appeal from either conviction, and in 2003, the Texas Court of Criminal Appeals granted an out-of-time appeal. These appeals are each from pleas of guilty.

The appeal in this case is from the conviction in cause number 13,841-94. // Barker pled guilty to aggravated sexual assault, with a deadly weapon finding, without a plea agreement. The court sentenced him to forty years' imprisonment and to pay $1,576.30 in restitution.

Barker raises three contentions of error. He contends that the trial court erred by failing to grant his pretrial motion to dismiss the indictment after discovering that a member of the grand jury which had indicted him was a convicted felon; that his plea of guilty was not voluntary, and thus the court erred by denying his motion for new trial; and that the court erred by accepting his plea, in the face of evidence that he was mentally ill, without ordering a mental competency hearing.

We first address Barker's complaint regarding the grand jury. We addressed this same issue in our 1995 opinion concerning this same grand juror in Caraway v. State, 911 S.W.2d 400 (Tex. App. Texarkana 1995, no pet.). We acknowledged that a person who has been convicted of a felony may not serve as a grand juror. Tex. Code Crim. Proc. Ann. art. 19.08 (Vernon Supp. 2004 2005). However, a challenge to the array of jurors or to any person presented for grand jury service must be made before the grand jury is empaneled. In no other way may objections to the qualifications and legality of the grand jury be heard. Tex. Code Crim. Proc. Ann. art. 19.27 (Vernon 1977).

If the defendant does not object to a defect of form // or substance in an indictment before trial on the merits commences, he or she waives the defect and may not complain of it on appeal or in any other postconviction proceeding. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2004 2005). As in Caraway, in this case Barker waived any defect because he did not timely object. Caraway, 911 S.W.2d at 401. The contention of error is overruled.

Barker next contends the trial court erred in denying his September 27, 1994, motion for new trial because his pleas of guilty were not knowingly or intelligently entered.

The granting or denying of a motion for new trial lies within the discretion of the trial court. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).

In reviewing a guilty plea, we recognize that a guilty plea must be freely, knowingly, and voluntarily made. Brady v. United States, 397 U.S. 742, 748 (1970); Mitschke v. State, 129 S.W.3d 130, 132 (Tex. Crim. App. 2004).

In this case, Barker contends his plea was involuntary because he was in an alcohol-induced blackout at the time of the act and therefore had no knowledge of whether he had actually committed the crime at all. He so informed the judge in open court. Barker also stated that, after talking to his counsel and reviewing the evidence, he believed himself to be guilty and was thus pleading guilty to the charge.

As pointed out by appellate counsel, if evidence reasonably and fairly raises an issue about the innocence of a defendant who has pled guilty, it is the duty of the trial court to withdraw the plea and enter a not guilty plea if the defendant fails to do so himself or herself. Holland v. State, 761 S.W.2d 307, 322 (Tex. Crim. App. 1988); Griffin v. State, 703 S.W.2d 193, 195 (Tex. Crim. App. 1986); Williams v. State, 10 S.W.3d 788, 789 (Tex. App. Waco 2000, pet. ref'd). The Texas Court of Criminal Appeals has, however, recently reiterated that due process of law is not denied by a conviction based on a plea of guilty that is accompanied by "a strong factual basis for the plea demonstrated by the State and [a defendant]'s clearly expressed desire to enter it despite his professed belief in his innocence." Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004).

In this case, the State provided proof Barker had committed the offense, and there is no reference to any evidence that would have shown the trial court that Barker was innocent of the charges. Even if Barker did not remember committing the offense, the combination of the State's proof and Barker's insistence that he be allowed to plead guilty is sufficient to provide the trial court with a legitimate reason to overrule Barker's motion for new trial. The court thus did not abuse its discretion by overruling the motion. The point of error is overruled.

Barker next contends the trial court erred in accepting his plea of guilty despite being aware of mental illness and without sua sponte ordering a mental competency hearing. The controlling statutory law has been rewritten recently, and the new subdivisions are effective for defendants against whom incompetency proceedings are initiated on or after January 1, 2004. Obviously, the former law applies to this 1994 conviction.

A person is presumed to be competent to stand trial unless proven incompetent. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon Supp. 2004 2005) (formerly Article 46.02, 1A(b)). A person is incompetent to stand trial if that person lacks "sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or . . . a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. Ann. art. 46B.003B(a)(1),(2) (Vernon Supp. 2004 2005).

Former Article 46.02, 2(b) provided:

If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

Tex. Code Crim. Proc. Ann. art. 46.02, 2(b) (Vernon 1979), repealed by Act of Apr. 30, 2003, 78th Leg., R.S., ch. 35, 15, 2003 Tex. Gen. Laws 57, 72.

Under this provision, when evidence of incompetency of the defendant is offered during the trial that raises a bona fide doubt in the trial court's mind concerning competency, the trial court must conduct an inquiry referred to as a "Section 2(b) inquiry" to determine whether there is evidence to support a finding of incompetency to stand trial. Generally, a "bona fide" doubt is raised only when the evidence indicates recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant. Alcott v. State, 51 S.W.3d 596, 599 (Tex. Crim. App. 2001); Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997).

The Texas Court of Criminal Appeals delineated the steps in this situation as follows:

1)if a competency issue is raised by the defendant, any party, or the court; and

2)evidence of incompetency is brought to the attention of the trial court by the defendant, any party, or the court;

3)of the type to raise a bona fide doubt in the judge's mind regarding the defendant's competency to stand trial; then

4)the judge must conduct a Section 2 "competency inquiry" to determine if there is some evidence sufficient to support a finding of incompetence, and if there is,

5)the judge must impanel a jury for a Section 4 "competency hearing."

McDaniel v. State, 98 S.W.3d 704, 710 11 (Tex. Crim. App. 2003). The requirements of each step must be fulfilled before moving on to the next. Id.

In this case, Barker contends his lack of competence was shown by information provided in forms presented to the court and by his discussions with the court. The information to which he directs us reflects his history of alcoholic blackouts and his treatment by a psychiatrist (which he testified had ended before the date of the offense or his being placed in jail). He also testified, in response to specific questioning, that he believed himself to be "dry, clean, sober and thinking clear," and his attorney stated he had been able to communicate with his client.

A trial court's decision whether to conduct a competency hearing is reviewed for abuse of discretion. Reed v. State, 112 S.W.3d 706, 710 (Tex. App. Houston [14th Dist.] 2003, pet. ref'd); Grider v. State, 69 S.W.3d 681 (Tex. App. Texarkana 2002, no pet.). Although the record contains some indication of a problem at a time in the past, we cannot say that evidence was "of the type to raise a bona fide doubt in the judge's mind regarding the defendant's competency to stand trial" at the time Barker entered his plea or while he was in the process of communicating with his attorney about his defense. Accordingly, the trial court did not err by failing to conduct a competency hearing on its own motion. The point of error is overruled.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: September 14, 2004

Date Decided: October 15, 2004

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