TOMMY RAY PHILLIPS, APPELLANT THE STATE OF TEXAS, APPELLEE

Transcription

1 The State waives oral argument. No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS TOMMY RAY PHILLIPS, APPELLANT v. THE STATE OF TEXAS, APPELLEE On appeal from the 194 TH Judicial District Court of Dallas County in Cause Number F XM STATE S BRIEF Counsel of Record: CRAIG WATKINS MARTIN L. PETERSON CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BLDG. 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS (214) (214) fax ATTORNEYS FOR THE STATE OF TEXAS

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... ii-iv STATEMENT OF THE CASE ISSUES PRESENTED... 2 STATEMENT OF FACTS... 2 SUMMARY OF ARGUMENT... 2 ARGUMENT IN REPLY TO FIRST ISSUE: THE TRIAL COURT WAS NOT REQUIRED TO CONDUCT ANY ADDITIONAL INQUIRY ABOUT PHILLIPS' COMPETENCE TO ENTER A PLEA OF GUILTY IN REPLY TO SECOND ISSUE: THE RECORD FAILS TO SHOW WHETHER PHILLIPS' COUNSEL RENDERED CONSTITUTIONALLY EFFECTIVE ASSISTANCE OR SHOWS THE ASSISTANCE WAS WITHIN THE WIDE RANGE OF PROFESSIONAL ASSISTANCE COUNTENANCED BY THE SIXTH AMENDMENT PRAYER CERTIFICATE OF SERVICE i

3 INDEX OF AUTHORITIES CASES Baldwin v. State, 227 S.W.3d 251 (Tex. App. San Antonio 2007, no pet.)... 7, 8 Biggs v. State, 281 Ga. 627, 642 S.E.2d 74 (2007) Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) Brown v. State, 960 S.W.2d 772 (Tex. App. Dallas 1997, pet. ref d)... 8 Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973), overruled on another ground, Zapata v. Estelle, 585 F.2d 750 (5th Cir. 1978)... 5 Chavez v. United States, 656 F.2d. 512 (9th Cir. 1981)... 6, 9 Collins v. Housewright, 664 F.2d 181 (8th Cir. 1981)... 6 Cooper v. Oklahoma, 571 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996)... 3 Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).... 3, 4 Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)... 4, 6 Enriquez v. Procunier, 752 F.2d 111 (5th Cir. 1984)... 6 Evans v. State, 2008 Tex. App. LEXIS 1176 (Tex. App. San Antonio 2008, pet. ref d) (not yet reported)... 3, 7 Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)... 8 Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) Gray v. State, 257 S.W.3d 825 (Tex. App. Texarkana 2008, pet. ref d)... 7 Hartfield v. State, 2008 Tex. App. LEXIS 9645 (Tex. App. Fort Worth December 23, 2008, pet. ref d) (mem. op., not designated for publication)... 8 Indiana v. Edwards, 554 U.S., 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008)... 9 Johnson v. State, 564 S.W.2d 707 (Tex. Crim. App. 1977) (op. on reh'g), overruled on other grounds by Williams v. State, 663 S.W.2d 832 (Tex. Crim. App. 1984)... 5 Kuyava v. State, 538 S.W.2d 627 (Tex. Crim. App. 1976)... 9 ii

4 Lawrence v. State, 169 S.W.3d 319 (Tex. App. Fort Worth 2005, pet. ref d)... 3 Learning v. State, 227 S.W.3d 245 (Tex. App. San Antonio 2007, no pet.)... 8 Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. 2008)... 6 Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005) Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)... 5 Miracle v. State, 604 S.W.2d 120 (Tex. Crim. App. 1980) Montoya v. State, 291 S.W.3d 420 (Tex. Crim. App. 2009)... 6, 7, 11 Orsag v. State, S.W.3d, 2010 Tex. App. LEXIS 2073 (Tex. App. Houston [14th Dist.] 2010, no pet. h.) (not yet reported) Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) , 4, 5 People v. Deere, 41 Cal.3d 353, 222 Cal.Rptr. 13, 710 P.2d 925 (1985)... 7 Porter v. McKaskle, 466 U.S. 984, 104 S.Ct. 2367, 80 L.Ed.2d 838 (1984)... 4 Reed v. State, 112 S.W.3d 706 (Tex. App. Houston [14th Dist.] 2003, pet. ref d) Roach v. Martin, 757 F.2d 1463 (4th Cir. 1985)... 9 Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) Sparks v. State, 2008 Tex. App. LEXIS 6818 (Tex. App. Fort Worth September 11, 2008, no pet.) (mem. op., not designated for publication)... 7 State v. Ledger, 444 A.2d 404 (Me. 1982)... 8 State v. Lucas, 110 N.M. 272, 794 P.2d 1201 (N.M. App. 1990)... 8 Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999)... 12, 13 United States v. Metcalf, 698 F.2d 877 (7th Cir 1983)... 8 Vargas v. State, 838 S.W.2d 552 (Tex. Crim. App. 1992) Vigil v. State, 2008 Tex. App. LEXIS 8006 (Tex. App. Houston [14th Dist.] October 23, 2008, pet. ref d)(mem. op., not designated for publication)... 7 iii

5 STATUTES AND RULES TEX. CODE CRIM. PROC. art (a)... 1 TEX. CODE CRIM. PROC. art (a)... 2 TEX. CODE CRIM. PROC. art. 46B.003 (b)... 6 TEX. CODE CRIM. PROC. art. 46B.004 (b)... 6 TEX. CODE CRIM. PROC. art. 46B.004 (c)... 5, 6 TEX. PEN. CODE (a)(2)... 1 TEX. PEN. CODE (a)... 1 TEX. PEN. CODE (d)(2)(a)... 1 TEX. R. APP. P (c) iv

6 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in reply to the brief of Appellant, Tommy Ray Phillips. STATEMENT OF THE CASE Appellant (hereinafter Phillips ) pleaded that he was guilty of burglary of a vehicle (by entering a part of a vehicle without the consent of the owner with intent to commit theft). TEX. PEN. CODE (a). (RR: 5). The plea was supported by a judicial confession of guilt (stipulation of evidence). (RR: 7; CR: 7). Phillips further stipulated that he had been previously convicted two times of other offenses under Section 30.04, making the offense a state jail felony. TEX. PEN. CODE (d)(2)(a). (CR: 7). He also pled true to allegations that he had previously been finally convicted of two felonies, and that the second previous conviction was for an offense that occurred subsequent to the first previous conviction having become final, meaning he should be punished for a second-degree felony. TEX. PEN. CODE (a)(2). (RR: 7). There was no pleabargain agreement. Impliedly finding the best interest of society and Phillips would be served, the court determined that despite the previous felony convictions, adjudication of Phillips guilt should be deferred and Phillips was placed on community supervision. TEX. CODE CRIM. PROC. art (a). The court did, however, order that Phillips remain in custody until he could be transferred to be confined and treated in a substance abuse 1

7 treatment facility (SAFPF) for an indeterminate term of not more than one year nor less than 90 days. TEX. CODE CRIM. PROC. art (a). (CR: 10, 13). A notice of appeal was timely filed on April 17, (CR: 16, 20). ISSUES PRESENTED 1. Whether the trial court was required to inquire more fully into Phillips competency in order to afford due process. 2. Whether Phillips proved that his trial attorney failed to provide reasonably effective assistance as required by the Sixth Amendment. STATEMENT OF FACTS Phillips stipulated that on November 12, 2008 he broke into and entered a vehicle without the effective consent of Christopher Cordsen, the owner, with intent to commit theft. (CR: 7). He testified that he took a hose and a blue tarp from the truck. (RR: 9). He said he generally burglarized vehicles due to his addiction to crack (cocaine). (RR: 10). Summary of the Argument The court conducted an informal inquiry into Phillips competence as necessary to afford due process in accord with the evidence. Claims arising from Phillips Notice of Appeal need not be addressed. Phillips trial counsel appears to have performed in a professional manner. The explanation for any deficiency in his counsel s assistance is not shown by the record and thus cannot be evaluated on direct appeal. 2

8 Argument and Authorities In Reply to First Issue The trial court was not required to conduct any additional inquiry about Phillips competence to enter a plea of guilty. A. Nature and Quantum of Evidence Necessary to Trigger a Competence Inquiry Phillips complains that the evidence fails to show the trial court adequately explored whether he was competent to stand trial. Such a claim is reviewed for an abuse of discretion by the trial court. Evans v. State, S.W.3d, No CR, 2008 Tex. App. LEXIS 1176, at *6 (Tex. App. San Antonio 2008, pet. ref d) (not yet reported); Lawrence v. State, 169 S.W.3d 319, 325 (Tex. App. Fort Worth 2005, pet. ref d). He adds that: [i]t would have been reasonable for the trial court to have real doubt as to Mr. Phillips mental competency considering his history of substance abuse, behavioral problems, and military history and the close relationship of related illnesses with bipolar disorder. Appellant s Br. at 10. He thus concludes: [t]he trial courts (sic) failure to connect the related facts and come to a conclusion that there was doubt as to Mr. Phillips mental competency [at the time he pled guilty] was an abuse of discretion and constituted constitutional error. Appellant s Br. at 13. The prohibition against the trial of incompetent defendants dates back at least to the time of Blackstone. Cooper v. Oklahoma, 571 U.S. 348, , 116 S.Ct. 1373, , 134 L.Ed.2d 498, (1996). But, the Supreme Court established the modern concept of competence to stand trial in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). In Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 3

9 842, 15 L.Ed.2d 815, 822 (1966), the Supreme Court recognized that a defendant s incompetence may become sufficiently manifest at any point in trial proceedings that it will deny the defendant due process if the court does not conduct a hearing on that question on its own initiative. Unfortunately, both in the split decision in Pate and ever since, a great many controversies have arisen about whether or when the facts known to the trial judge suggest strongly enough that incompetence exists to require a special investigation of the issue. Application of Pate has not been uniform in either the trial or appellate courts. The only guidance given by the Supreme Court was its reference to an Illinois statute, which provided time should be spent on the issue once evidence raised a bona fide doubt about the state of affairs. The Supreme Court has never specified the precise nature or extent of the procedure or inquiry necessary to satisfy due process. In fact, it later said it has purposefully avoided prescribing a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure. Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103, 113 (1975). This situation has been criticized. Porter v. McKaskle, 466 U.S. 984, 988, 104 S.Ct. 2367, 2369, 80 L.Ed.2d 838, 841 (1984) (Marshall and Brennan, JJ., dissenting from denial of certiorari). The high court did say some of the primary factors in a competence evaluation are: evidence of a defendant s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial. Drope, 420 U.S. at 180, 95 S.Ct. at 908, 43 L.Ed.2d at 118. One court poignantly observed that the legal principle set forth in Dusky may be explicated with an ease not present when procedures are attempted to 4

10 effectuate the right thus recognized. Bruce v. Estelle, 483 F.2d 1031, 1037 (5th Cir. 1973), overruled on another ground, Zapata v. Estelle, 585 F.2d 750 (5th Cir. 1978). A defendant may argue either that he was denied procedural due process based on the trial court s failure to resolve the issue of competency before or during trial or he may argue his substantive due process rights were violated because he was tried while incompetent. Biggs v. State, 281 Ga. 627, 630, 642 S.E.2d 74, 78 (2007). Lack of procedural due process is alleged here. B. Matching Scope of Inquiry to the Evidence Presumably, in enacting Chapter 46B, the Legislature did not intend to enlarge upon Pate v. Robinson as held by the Court of Criminal Appeals with respect to the predecessor statute in Johnson v. State, 564 S.W.2d 707, 710 (Tex. Crim. App. 1977) (op. on rehearing), overruled on other grounds by Williams v. State, 663 S.W.2d 832, 834 (Tex. Crim. App. 1984). Thus, the informal inquiry as to competency spoken of in TEX. CODE CRIM. PROC. art. 46B.004 (c) is not constitutionally required. Certainly state procedures must be conducted so as to fairly adduce the facts surrounding a claim. Bruce v. Estelle, 483 F.2d at But, as long as it is reasonably assured that the accused was not convicted while incompetent, any particular state procedure is subject to waiver. See Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 2581, 120 L.Ed.2d 353, 368 (1992) (Pate requires only that the most basic procedural safeguards be observed ). As a matter of constitutional law, whether a court should engage in a Pate inquiry (explicitly explore the issue of competence in greater depth) is a question separate from 5

11 the core issue of the defendant s actual competence to stand trial. Enriquez v. Procunier, 752 F.2d 111, 114 (5 th Cir. 1984). The right to a full-blown competency hearing depends on whether the facts or evidence presented raise a bona fide doubt as to the defendant s competence. Drope, 420 U.S. at 180, 95 S.Ct. at 908, 43 L.Ed.2d at 118; Collins v. Housewright, 664 F.2d 181, 183 n.6 (8th Cir. 1981). Various equivalent adjectives (such as: sufficient, good faith, and reasonable ) have been used to describe this type of doubt. Chavez v. United States, 656 F.2d. 512, 516 n.1 (9th Cir. 1981). TEX. CODE CRIM. PROC. art. 46B.003 (b) initially provides that [a] defendant is presumed competent to stand trial.... But, the presumption seems to disappear [i]f evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court.... TEX. CODE CRIM. PROC. art. 46B.004 (b). In that event, the curiosity of the court is piqued by law, and the judge must pause to contemplate 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. art. 46B.004 (c). The statute does not describe the parameters or method of such inquiry. It is less than clear whether the judge must or should gather additional evidence before deciding the issue. The Court of Criminal Appeals has said that while useful, inquiry of jailers or others familiar with the defendant is not necessarily required. Luna v. State, 268 S.W.3d 594, 600 (Tex. Crim. App. 2008). TEX. CODE CRIM. PROC. art. 46B.004(b), (c) does not even require the informal inquiry unless a bona fide doubt about competency is raised. Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009). Clearly, mere suspicion of incompetence does 6

12 not require much of an inquiry. People v. Deere, 41 Cal.3d 353, 358, 222 Cal.Rptr. 13, 16, 710 P.2d 925, 927 (1985). And, even though the evidence shows something that might lead to incompetence, other evidence may show that is untrue in the particular case (so that the inquiry may be truncated). See Baldwin v. State, 227 S.W.3d 251, (Tex. App. San Antonio 2007, no pet.) (rambling, non-responsive answers and use of damaging testimony offset by other evidence of rational understanding of case). This also proved true in Gray v. State, 257 S.W.3d 825, (Tex. App. Texarkana 2008, pet. ref d) and Evans, S.W.3d at, 2009 Tex. App. LEXIS 1176, at *9. The Gray court specifically observed that no Texas court has held that evidence suggesting that a defendant has below-average intelligence and, arguably, may be mentally retarded is, alone, sufficient to suggest that the defendant is incompetent. 257 S.W.3d at 830 (first emphasis in original, second emphasis added). [P]ast mental-health issues raise the issue of incompetency only if there is evidence of recent severe mental illness, at least moderate retardation, or bizarre acts by the defendant. Montoya, 291 S.W.3d at 425. Therefore, not every manifestation of mental illness or defect translates into incompetence to complete the legal proceeding. See e.g. Sparks v. State, No CR, 2008 Tex. App. LEXIS 6818, at *5-6 (Tex. App. Fort Worth September 11, 2008, no pet.) (mem. op., not designated for publication) (evidence of long-standing paranoia and punching of hole in courthouse wall was not any evidence of incompetence); Vigil v. State, No CR, 2008 Tex. App. LEXIS 8006, at *6 (Tex. App. Houston [14th Dist.] October 23, 2008, pet. ref d)(mem. op., not designated for publication) (evidence of mental impairment alone does not require informal inquiry). Rather, the 7

13 evidence of the defendant s unfitness must indicate a present inability to assist counsel or understand the charges. United States v. Metcalf, 698 F.2d 877, 882 (7th Cir 1983); Hartfield v. State, CR, 2008 Tex. App. LEXIS 9645, at * 5-6 (Tex. App. Fort Worth December 23, 2008, pet. ref d) (mem. op., not designated for publication). The fundamental concern in a competency inquiry... is with the mental capacity of the accused as it relates to the criminal adjudication process. State v. Ledger, 444 A.2d 404, 419 (Me. 1982) (emphasis in original). That was the underlying theme in this Court s decision in Brown v. State, 960 S.W.2d 772, (Tex. App. Dallas 1997, pet. ref d). [T]o present some evidence of his incompetency, the defendant must show that his past mental illnesses somehow interfered with his present ability to communicate with his attorney or with his understanding of the proceedings against him. Baldwin, 227 S.W.2d at 253. C. Reduced Level of Competence Required where Guilty Plea is Appropriate The relationship between incompetence and the decision to plead guilty was examined in Godinez v. Moran, 509 U.S. 389, , 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321, 333 (1993). Guilty pleas introduce the somewhat separate concept of voluntariness. See Learning v. State, 227 S.W.3d 245, 250 (Tex. App. San Antonio 2007, no pet.) (counsel argued plea was involuntary despite agreement as to competence); State v. Lucas, 110 N.M. 272, 275, 794 P.2d 1201, 1204 (N.M. App. 1990). But, the difficulty of the decision to plead guilty was determined to be no more arduous than the choices otherwise faced during a trial on guilt. Godinez, 509 U.S. at , 113 S.Ct. at 2686, 125 L.Ed.2d at

14 The overall need to assist one s attorney is lessened where the person, competent or not, would still rationally make the decision to plead guilty. This is because the level of competence is assessed with specific reference to the gravity of the decisions the defendant faces at the time. See Chavez v. United States, 656 F.2d. at 518. This means the kind or degree of incompetence to which the trial court must be alert changes. Id. Since the test is whether the defendant is able to understand the nature of the proceedings and to participate intelligently to the extent such participation is called for, proceedings not involving waiver of constitutional rights e.g., sentencing or probation revocation proceedings may be permitted to go forward even though a trial on guilt might not be appropriate. Id. (emphasis added); see also Indiana v. Edwards, 554 U.S.,, 128 S.Ct. 2379, 2386, 171 L.Ed.2d 345, 356 (2008) (recognizing a fluid concept of competency with respect to legal proceedings since: Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual s functioning at different times in different ways. ). Thus, to show incompetence to plead guilty, a defendant must demonstrate that his mental faculties were so impaired when he pleaded that he was incapable of full understanding and appreciation of the charge or of comprehending his constitutional rights or of realizing the consequences of his choice. Roach v. Martin, 757 F.2d 1463, 1480 (4th Cir. 1985). Under Texas law, unless an issue of competence is made at the time of a guilty plea, the court need not make any particular inquiry. Kuyava v. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976). 9

15 E. Application of Law to Evidence in this Case Phillips implicitly asserts that an informal inquiry about his competence was required by state law because the evidence painted a picture of incompetence sufficient to suggest he might not have a rational understanding of the nature and object of the proceedings against him. There is, however, also nothing to suggest that the court did not conduct an informal inquiry. In that regard, the trial judge did ask Phillips attorney (the person most familiar with Phillips competency) whether he had found Phillips to be competent to enter a plea of guilty. (RR: 13). Both the judge and Phillips attorney also engaged in meaningful conversations with Phillips about the proceedings at the time his plea was heard. (RR: 5-7, 8-10). Notably, no question was raised about Phillips competence at any time until he filed a notice of appeal, and in his pro se notice of appeal he seemed to have considerable command of what had happened to him and why. (CR: 16). Phillips presented no evidence of previous treatment for, or diagnosis of, mental disease or defect. There is no evidence he had any special difficulty in working through his numerous previous criminal court proceedings. There was no evidence of recent bizarre behavior. He merely reiterated that he had reported, for purposes of the CATS evaluation, that he had been diagnosed with bipolar disorder. (RR: 9). To the extent Phillips relies on allegations in his Notice of Appeal for evidence of his incompetence, they are not properly considered in determining whether there was any error by Judge White at trial. If the decision was correct in light of what was before the 10

16 court at the time thereof, the judgment must be upheld. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); see also Orsag v. State, S.W.3d, No CR, 2010 Tex. App. LEXIS 2073, at *5 (Tex. App. Houston [14th Dist.] 2010, no pet. h.) (not yet reported) ( Generally, the appellate court reviews the trial court s ruling in light of what was before it at the time the ruling was made. ). In Vargas v. State, 838 S.W.2d 552, (Tex. Crim. App. 1992), the court noted that It would be incongruous to give great deference to a trial court s ruling if it is supported by the record, yet reverse that ruling on the basis of comparison information that was not in evidence nor presented to the trial court at the time of the hearing and was not part of the record upon which the trial court based its ruling. Moreover, such unsworn statements have no probative value. Mere self-serving allegations in a motion or pleading do not prove themselves. See Miracle v. State, 604 S.W.2d 120, 123 (Tex. Crim. App. 1980). The procedure followed in Phillips case was not unlike that in the vast majority of cases disposed of by a plea of guilty in Dallas County. Phillips mere mention of a diagnosis, at some time in the past, of bipolar disorder and that he had previously taken medication does not raise any doubt about his competence on March 20, Due deference is owed to the trial judge s determination of this issue. Montoya, 291 S.W.3d at 426. There is no need for a further (retrospective) inquiry about Phillips competence at the time of trial. Reed v. State, 112 S.W.3d 706, (Tex. App. Houston [14th Dist.] 2003, pet. ref d) ( Evidence of mental impairment alone does not require a competency hearing where no evidence indicates that a defendant is incapable of consulting with counsel or understanding the proceedings against him. ). 11

17 In Reply to Second Issue The record fails to show whether Phillips counsel rendered constitutionally effective assistance or shows the assistance was within the wide range of professional assistance countenanced by the Sixth Amendment. As Phillips concedes in a footnote, there is no evidence in the record about (1) the alleged failure of Phillips counsel to investigate Phillips mental competency, (2) what advice his counsel provided concerning the range of punishment, or (3) how his counsel supposedly exceeded his authority when he accepted a plea agreement without Mr. Phillips consent. Indeed, no plea agreement appears to have been accepted and, without regard to the advice provided by counsel, it appears Phillips fully understood the range of punishment before entering his plea. (RR: 5-6). Phillips also acknowledged he understood his terms of community supervision could include serving a term of confinement and treatment in a SAFPF (presumably because his attorney had forewarned him and explained this to him). (RR: 9). Phillips does not point out any reason why his prior convictions for burglary of a habitation or possession of a controlled substance could not properly be taken into account in determining his punishment. Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent regarding the motivations underlying counsel s tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Trial counsel should ordinarily be afforded the opportunity to explain their actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 12

18 111 (Tex. Crim. App. 2003). Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). In sum, this issue has absolutely no merit. Even if it were assumed the allegations in Phillips Notice of Appeal could properly be incorporated therein under TEX. R. APP. P (c) to begin with, they do not satisfy the proof requirements of Thompson, 9 S.W.3d at 814 or Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Phillips wholly fails to support his claim that, but for the performance of his counsel, he would not have pleaded guilty. He does not overcome the strong presumption that his counsel acted reasonably. Conclusion The evidence did not raise a bona fide doubt, or perhaps any doubt, about whether Phillips had a rational understanding of the nature and object of the proceedings against him. He was clearly competent or there was no abuse of discretion in the judge so finding. The record does not support a finding that Phillips counsel was unprofessional or failed to provide adequate assistance. None of the alleged deficiencies would have changed the outcome of the case nor have affected the knowing and voluntary character of Phillips decision to acknowledge his guilt. 13

19 PRAYER WHEREFORE, the State prays that the court will deny the relief requested by Phillips and affirm the judgment of the trial court. Respectfully submitted, CRAIG WATKINS MARTIN L. PETERSON CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BLDG. 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS (214) (214) fax CERTIFICATE OF SERVICE I certify that a true copy of the foregoing State s brief has been served by mail upon Mr. Vishal Chander, Attorney for Appellant, at 3102 Maple Ave., Ste. 450, Dallas, Texas on April 22, Martin L. Peterson 14