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Dominguez v. State

Court of Appeals of Texas, Eighth District, El Paso

November 8, 2017


         Appeal from the 205th District Court of El Paso County, Texas (TC# 20120D04010)

          Before McClure, C.J., Rodriguez, and Hughes, JJ. Hughes, J., not participating



         Appellant Cynthia Dominguez appeals her conviction for intoxication manslaughter. In five issues, Appellant challenges the voluntariness of her guilty plea, contends the trial court abused its discretion by failing to informally inquire about Appellant's competency, to order a competency evaluation, and to hold a competency hearing, and additionally asserts the trial court erred when it submitted a punishment charge instruction to the jury regarding "good time." We affirm the trial court's judgment.


         After imbibing alcoholic drinks at a bar in El Paso, Texas on January 26, 2012, Appellant left in her vehicle and drove north in the southbound lanes on Airway Boulevard. This behavior was observed by two persons.

         Kathleen Coleman, who was driving south in the southbound lanes of Airway Boulevard, saw a vehicle traveling head-on in her lane and moved to avoid a collision. Coleman observed the northbound driver veer right, across a raised median into the northbound lanes of traffic, creating sparks. Coleman looked in her mirror believing that the errant vehicle might flip or catch fire as it crossed the median back into the northbound lanes of travel.

         Carlos Andrade was also traveling south in the southbound lanes of Airway Boulevard, accompanied by his six- and nine-year-old children. Andrade was driving his vehicle in the center southbound lane, and Army Sergeant Michael Paauwe was driving his motorcycle in the left southbound lane. Seeing northbound headlights approaching them directly and hearing a loud engine revving "higher than normal, " Andrade took evasive action to the right to avoid being struck, but Appellant's car collided with Sgt. Paauwe's motorcycle.

         Appellant's vehicle continued moving forward, catching fire. A bystander assisted in removing Appellant from her burning vehicle. As Appellant attempted to leave the scene, she stated, "They're going to take me away, " and "I think I hit somebody."

         Andrade pulled over, saw Sgt. Paauwe on the ground, and called 9-1-1. The impact of the collision split Sgt. Paauwe's motorcycle in two, lodging one half under Appellant's vehicle, and the other half approximately 25-30 feet away, near the area where Sgt. Paauwe was later found. Sgt. Paauwe died as a result of his multiple blunt force injuries.

         Emergency personnel described Appellant as combative and belligerent, appearing as if she had been drinking or was drunk, and as struggling to get away. When an emergency medical technician asked Appellant about possible injuries she may have sustained, she responded, "Get the fuck away from me." When the emergency responder again attempted to check Appellant's medical condition, he informed her that she had just killed someone, to which Appellant replied, "I don't give a fuck."

         Appellant's blood tested positive for a tranquilizer, clonazepam, which is used for anxiety and may include side effects such as sleepiness, irritability, and if enough is consumed, loss of sense of reality. When clonazepam is combined with alcohol, side effects may include agitation as well as aggressive and bizarre behavior. A hospital test of Appellant's blood alcohol returned a result of .26, and a test performed at the Texas Department of Public Safety laboratory returned a result of .34.


         Appellant was indicted for the offense of intoxication manslaughter. The indictment also alleged that Appellant used and exhibited a deadly weapon, a motor vehicle, during the commission of and immediate flight from the offense.

         Appellant's initial retained counsel sought a continuance on the basis that, after previously indicating a desire to accept the State's plea bargain offer of eight years, Appellant wished to proceed to trial for which counsel needed additional time to prepare. At the hearing on the motion to continue, the State revoked its plea offer, and the trial court directly advised Appellant that it wanted her to understand the consequences of her actions, explaining that witnesses would be subpoenaed and a failure to cooperate with counsel could jeopardize her freedom. Appellant acknowledged the trial court's warnings by nodding and answering affirmatively when she was asked whether she understood that the trial court wanted the State and defense to have an opportunity to present their cases. As the hearing proceeded, Appellant informed the trial court that she had been unable to take Antabuse previously due to her pregnancy, and explained additional matters to the trial court. The trial court granted the continuance, and when it directly advised Appellant that she would be proceeding to trial and that no other continuances would be granted, Appellant nodded in acknowledgement. No suggestion of incompetency was raised during or before this hearing.

         On a subsequent date, the trial court heard defense counsel's motion to withdraw, and asked Appellant to explain her plans for securing new counsel if the motion was granted. Appellant informed the trial court that she intended to hire another attorney the following day, and when the trial court informed Appellant that her new counsel would be required to appear the following week and stated that it would not move the trial date nor permit additional delays, Appellant verbally acknowledged the court's comments. No suggestion of incompetency was made at or before this proceeding.

         Appellant's new counsel, Victor Parra, appeared and on hearing new defense counsel's motion to continue the case, the trial court directly advised Appellant that no more changes, including change of counsel, would occur. Appellant verbally acknowledged this information as well as the trial court's statement regarding modification of some of the terms of bond. Appellant then answered the trial court's inquiries regarding the location of her residence, phone number, household occupants, and curfew, and acknowledged the trial court's driving-restriction admonishments. After the trial court informed Appellant of the new conditions of the amended bond, Appellant answered, "Yes, ma'am." No suggestion of incompetency was made to the trial court at or before this hearing. The trial court granted the motion and commented that trial would likely occur in July before another judge.

         In April 2014, Appellant filed a motion for psychiatric examination by qualified personnel to determine the extent of any mental disorder or disease and whether Appellant may be properly tried after a determination regarding her competency. During a status hearing before the judge who would be presiding over Appellant's trial, Appellant presented a motion for discovery, and additionally addressed the motion for psychiatric examination. Regarding Appellant's motion for psychiatric examination, the trial court asked whether counsel was retained. Counsel answered that he was retained, began to explain that Appellant had been making "very small" payments to him on a monthly basis, and noted that in his experience, psychiatrists charge between $2, 000 to $3, 500 for evaluations. When the trial court commented, "[T]his is not even requesting something dealing with her mental competency. This is a defensive matter[, ]" defense counsel verbally agreed with the court. The trial court then instructed, "You'll have to bring me some authority . . . that the county should be paying for your defensive stuff on a privately retained case in a criminal matter[, ]" and defense counsel said he would comply.

         Appellant did not present any evidence or basis in support of the motion nor did she seek an opportunity to testify or present evidence in support of the motion. During the hearing on Appellant's motion to retest her blood, the trial court again indicated, "It's the same deal. You're paying for it. You've got to arrange the whole thing."

         At a subsequent hearing later that month, Appellant again raised the issue of having an expert perform a psychological exam. The trial court swiftly denied the motion on the basis that the offense of intoxication manslaughter carries no mens rea element and commented that such testimony would not be admissible during the guilt-innocence phase of trial, but added that Appellant "[m]ight be able to bring it up maybe at punishment[.]" Defense counsel did not object to the trial court's ruling, did not present for the trial court's consideration any evidence, testimony of Appellant or other witnesses, authority or argument in support of the motion, nor raised a contention that Appellant was not competent to stand trial. Rather, defense counsel responded, "That's fine, Your Honor." After considering and hearing testimony on other motions, the trial court reiterated that it had denied Appellant's motion for appointment of a psychiatrist in the absence of a mens rea requirement. In response, defense counsel stated that he understood the trial court's reasoning, and advised the trial court that he would revisit the issue with the trial court if he found a psychiatric expert to provide testimony.

         Appellant did not raise any issue or present any evidence suggesting Appellant's competency to stand trial at a May 2014 hearing on expert fees or at a June 2014 pretrial hearing when both parties announced ready to proceed to trial on July 7, 2014. Four days prior to trial, the trial court was prepared to hear Appellant's motion to suppress, and both Appellant and defense counsel expressly waived the hearing on that motion. After the trial court addressed other pretrial matters, including jury selection proceedings and voir dire, defense counsel advised the trial court that Appellant would be contesting "the whole case, " rather than pleading "guilty" to the jury. Defense counsel informed the trial court of several pretrial matters Appellant would possibly raise before trial, but none of them raised an issue regarding Appellant's competency to stand trial.

         At trial, after completion of voir dire and in the jury's absence, defense counsel informed the trial court that a day earlier the State had offered Appellant a 12-year sentence and was now offering her a 10-year sentence at the commencement of trial. Noting that he had discussed with Appellant the State's offer, which Appellant had declined, defense counsel desired to make a record of her decision regarding the offer.

         Appellant testified that she understood the State's offer of a 10-year sentence, and acknowledged that defense counsel had explained to her at length the State's offer along with the benefits of the offer and the risks of potentially receiving a longer sentence. Appellant agreed that she had indicated repeatedly to defense counsel that she wanted the State to re-instate its initial offer of an 8-year sentence, which she would be willing to accept, but declared she was unwilling to accept the State's offer of a 10-year sentence. When the trial court inquired of the State whether a 9-year sentence was a possibility, the State declared the 10-year sentence was the only plea offer available.

         Thereafter, the trial court instructed the jury, and the State read the indictment. When the trial court asked Appellant for her plea, she announced, "Guilty." The trial court removed the jury, noting "Well, it would have been helpful to the Court if we would have known this was going to happen a little sooner." Defense counsel explained that Appellant previously had changed her mind on occasion, before he had been retained, and he had not wanted to make representations to the trial court. The trial court then explained to Appellant that because she had pleaded guilty, different procedures would be implemented. This colloquy followed:

THE COURT: And so, Ms. Dominguez, you understand that if you plead "guilty" and you persist in pleading "guilty, " that I'm going to have to instruct the jury to find you guilty? Do you understand that?
THE DEFENDANT: Yes, I do understand.
THE COURT: And you understand that the range of punishment in this offense is confinement in prison for not less than two years or more than 20 years ...

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