Clark v. State

          Submitted: November 13, 2019

          On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 18F0805-102

          Before Morriss, C.J., Burgess and Stevens, JJ.

          OPINION

          Ralph K. Burgess Justice

         The State's evidence during a bench trial showed that Clifford Clark spat on a jailhouse nurse and a jailer while being held on pending charges for arson. As a result, the trial court convicted Clark of two counts of harassment while in a correctional or detention facility and sentenced him to ten years' imprisonment on each count. The trial court ordered the sentences for the harassment convictions to run concurrently with each other, but consecutively with the sentences for the arson convictions. Clark appeals in companion causes 06-19-00033-CR, 06-19-00034-CR, and 06-19-00051-CR. See Tex. Penal Code Ann. § 22.11(a). The trial court also ordered Clark to pay court costs for all five convictions even though the charges were consolidated for trial.

         On appeal, Clark argues that (1) the record does not contain sufficient evidence showing that his competence to stand trial was evaluated by a qualified psychologist, (2) the trial court erred in finding him competent to stand trial, (3) his counsel rendered ineffective assistance in failing to request an evaluation of his sanity at the time of the offense, (4) his oral waiver of a jury trial was invalid and unintelligently made on the trial court's representation that all sentences would run concurrently, (5) each judgment mistakenly references the existence of a plea bargain, and (6) the trial court erred in assessing duplicative court costs.

         We find Clark's first complaint meritless and unpreserved, conclude that the trial court did not abuse its discretion in finding Clark competent to stand trial, and determine that Clark failed to meet his burden to show counsel rendered ineffective assistance. We also find Clark's jury trial waiver valid because he was not harmed by the lack of a written waiver and the record fails to show Clark's waiver was based on misinformation that his sentences would not be stacked. However, because we sustain Clark's last two points of error, we modify the judgments for each count of harassment while in a correctional or detention facility to delete references to a nonexistent plea bargain and delete the assessment of duplicative court costs. As modified, we affirm the trial court's judgments.

         I. The Complaint that the Psychologist Was Unqualified is Meritless and Unpreserved

         Clark's competence to stand trial was evaluated by Bryan E. Smith, Psy.D. On appeal, Clark argues that the record does not show Smith was statutorily qualified to render an opinion on his competence. Article 46B.022 of the Texas Code of Criminal Procedure specifies certain qualifying criteria for a psychiatrist or psychologist appointed by a trial court to conduct a competency examination.^[1] Smith's evaluation recited, "As a Texas licensed psychologist … having met and maintained the provisions required by Article 46B.022 of the Texas Code of Criminal Procedure, Smith is qualified to conduct this evaluation." Because the record contains evidence showing Smith was statutorily qualified, Clark's complaint is meritless.

         Moreover, to preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. Tex.R.App.P. 33.1(a)(1); see Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.-Texarkana 2002, pet. ref'd) (a complaint about the qualifications of an expert must be preserved by a specific objection). Also, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex.R.App.P. 33.1(a)(2). Clark made no complaint about Smith's qualifications to the trial court. As a result, he cannot challenge those qualifications on appeal.

         We overrule Clark's first point of error as both meritless and unpreserved.

         II. The Trial Court Did Not Abuse Its Discretion in Finding Clark Competent A. Introduction

         In his brief, Clark argues that by ordering an evaluation, the trial court "implicitly found some evidence to support a finding of incompetency." He further argues that when the trial court received Smith's first inconclusive report, "at that point, there was certainly evidence to support a finding of incompetency." In support of this argument, he notes that the first "report contained additional and much more specific evidence of Clark's potential incompetence." Thus, he concludes that "[t]here was insufficient evidence for the trial court to conclude that Clark was competent to stand trial, as it did." Clark's argument reflects a misunderstanding of the procedure for establishing incompetency to stand trial.

         B. Procedure For Resolving Competency Questions Under Article 46B of the Texas Code of Criminal Procedure

         "As a matter of constitutional due process, a criminal defendant who is incompetent may not stand trial." Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018) (citing Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013)). "A defendant is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence." Stine v. State, 300 S.W.3d 52, 60 (Tex. App.-Texarkana 2009, pet. dism'd) (citing Tex. Code Crim. Proc. Ann. art. 46B.003(b)); Gray v. State, 257 S.W.3d 825, 827 (Tex. App.-Texarkana 2008, pet. ref'd). Incompetency to stand trial is shown if a person does not have "(1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. Ann. art. 46B.003(a). "We review the totality of the facts surrounding the trial court's decision on the issue of competency for abuse of discretion." Stine, 300 S.W.3d at 60 (citing Gray, 257 S.W.3d at 827; Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999)).

         Although a defendant is presumed competent and bears the ultimate burden of proving incompetence to stand trial, Article 46B does not allow a trial court to stand by and wait for a defendant to raise the issue. Rather, in order to ensure that no incompetent defendant is put to trial, Article 46B places certain responsibilities on the trial court to inquire into the matter independently and force the parties to litigate the issue, if necessary. See Tex. Code Crim. Proc. Ann. arts. 46B.003(b), 46B.004(a), 46B.005(a). "Procedurally, a trial court employs two steps for making competency determinations before it may ultimately conclude that a defendant is incompetent to stand trial." Boyett, 545 S.W.3d at 563. "The first step is an informal inquiry; the second step is a formal competency trial." Id.

         1. When an Informal Inquiry Is Required

         The trial court's duty to inquire into the issue of a defendant's competency to stand trial begins whenever it receives information "suggesting that the defendant may be incompetent to stand trial." Tex. Code Crim. Proc. Ann. art. 46B.004(a), (c). Upon receipt of such information, "the court on its own motion shall suggest that the defendant may be incompetent to stand trial," and it "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." Tex. Code Crim. Proc. Ann. art. 46B.004(b)-(c). The trial court may also "appoint one or more disinterested experts to . . . examine the defendant and report to the court on the competency or incompetency of the defendant" prior to holding the informal inquiry. Tex. Code Crim. Proc. Ann. art. 46B.021(a)(1).

         The amount of information necessary to trigger an "informal inquiry" is low. It "may consist solely of a representation from any credible source that the defendant may be incompetent." Tex. Code Crim. Proc. Ann. art. 46B.004(c-1). It "may be based on observations made in relation to one or more of the factors described in Article 46B.024. . . ." Id. Or, it may be based "on any other indication that the defendant is incompetent within the meaning of Article 46B.003." Id. Moreover, "a further evidentiary showing is not required to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency of the defendant." Id.

         2. The Informal Inquiry Stage

         During the informal inquiry stage, the evidentiary standard requires the trial court to consider three matters. "First, . . . whether there is 'some evidence' of incompetency to stand trial." Boyette, 545 S.W.3d at 563. This "some evidence" standard requires only that there be "more than none or a scintilla' of evidence that 'rationally may lead to the conclusion of incompetency.'" Id. at 564 (citing Turner, 422 S.W.3d at 692). "Second, a trial court must consider only evidence of incompetency, and it must not weigh evidence of competency against the evidence of incompetency." Id. And third, the evidence must be such that "it may rationally be inferred not only 1) that the defendant suffers some degree of debilitating mental illness, and that 2) he obstinately refuses to cooperate with his counsel to his own apparent detriment, but also that 3) his mental illness is what fuels his obstinacy." Id. The Texas Court of Criminal Appeals noted that this standard "is not a particularly onerous one-under this standard, the court asks "whether putting aside the evidence of competency, there is more than a scintilla of evidence that would support a rational finding of fact that the accused is incompetent to stand trial." Id. In short, while the evidence must be specific-meaning that it demonstrates more than mere mental illness and more than a mere failure to cooperate with defense counsel-there does not need to be much of it to require the trial court to take further action.

         3. Trial Court's Duties Upon Finding Some Evidence that Would Support a Finding that the Defendant May Be Incompetent To Stand Trial

         If, during the informal inquiry stage, the trial court finds "there is more than a scintilla of evidence that would support a rational finding of fact that the accused is incompetent to stand trial," id., then the trial court is required to do three things: (1) "stay all other proceedings in the case," Tex. Code Crim. Proc. Ann. art. 46B.004(d); (2) appoint an expert to conduct a competency examination (if it has not already done so), Tex. Code Crim. Proc. Ann. art. 46B.021(b);^[2] and (3) move forward with a formal competency trial, Tex. Code Crim. Proc. Ann. art. 46B.005(a)-(b). The trial court's requirement to "hold a formal competency trial" is mandatory, unless "(1) neither party's counsel requests a trial on the issue of incompetency, (2) neither party's counsel opposes a finding of incompetency, and (3) the court does not, on its own motion, determine that a trial is necessary to determine incompetency." Tex. Code Crim. Proc. Ann. art. 46B.005(c) (emphasis added).

         4. When May A Trial Court Forego A Competency Trial Under Article 46B.005(c)?

         Notably, the statute's plain language indicates that the exception in Article 46B.005(c) only applies when the parties and the trial court agree that the defendant is incompetent, not when they agree that he is competent. In other words, the statutory language allows the trial court to forego a competency trial only when all parties and the court agree the defendant is incompetent. Absent this narrow exception, the trial court must conduct a competency trial when there is some evidence that the defendant may be incompetent to stand trial. Accordingly, the parties and the trial court may agree that the defendant is incompetent without a formal competency trial; but where "there is more than a scintilla of evidence that would support a rational finding of fact that the accused is incompetent to stand trial," Boyette, 545 S.W.3d at 563 (quoting Turner, 422 S.W.3d at 696), the trial court may not find that he is competent without holding a formal competency trial.^[3] Once that evidentiary threshold has been passed, the defendant must be given an opportunity to prove that he is incompetent to stand trial, even if the expert evaluation concludes that he is competent.^[4]

         Nevertheless, we emphasize that this does not mean that a formal competency trial is required every time an expert evaluation determines that the defendant is competent. Far from it. As the Texas Court of Criminal Appeals noted in Boyette, "[I]t is not enough to present evidence of either a defendant's mental illness alone or his refusal to cooperate with counsel." Boyette, 545 S.W.3d at 563 (citing Turner, 422 S.W.3d at 696). Rather, "there must be some evidence [at the informal inquiry] indicating that the defendant's refusal to rationally engage with counsel is caused by his mental illness" before the trial court is required to hold a competency trial. Id. Accordingly, competency trials will only occur in those instances where the trial court finds "some evidence to support a finding" that the defendant's "mental illness is what fuels his obstina[te]" "refusal to cooperate with his counsel to his own apparent detriment." Id. at 564.

         One of the factors considered in an expert evaluation is "the degree of impairment resulting from the mental illness or intellectual disability, if existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner." Tex. Code Crim. Proc. Ann. art. 46B.024(4). Where the only evidence before the trial court at the informal inquiry is the expert evaluation and the expert determines that the defendant's impairment does not "impact the defendant's capacity to engage with counsel" then the exception in Article 46B.005(c) does not come into play because the standard for holding a formal competency trial will not have been met in the first place. Consequently, in many cases, a competency trial will not be required where the expert evaluation determines that the defendant is competent, notwithstanding Article 46B.005(c)'s one-way application.^[5]

         C. Analysis

         Here, Clark fell short of meeting the third requirement of the "some evidence" standard in Boyette, namely, there was no "evidence to support a finding" that the defendant's "mental illness is what fuels his obstina[te]" "refusal to cooperate with his counsel to his own apparent detriment." Boyette, 545 S.W.3d at 563 (citing Turner, 422 S.W.3d at 696). The record demonstrates that the trial court ordered Smith to evaluate Clark's competence to stand trial based on Clark's unopposed motion requesting a competency evaluation on the suggestion of incompetence. Smith's first report to the court, agreeing that Clark had a "longstanding history of mental disorder including paranoid schizophrenia, depression, and bipolar disorder," was inconclusive due to Clark's lack of cooperation ...