The State Waives Oral Argument NO. 05-10-00681-CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS JOSHUA LEE GUYTON, APPELLANT v. THE STATE OF TEXAS, APPELLEE On appeal from Criminal District Court No. 7 of Dallas County in Cause Number F07-51594-LY STATE S BRIEF Counsel of Record: CRAIG WATKINS MARTIN L. PETERSON CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO. 15838600 FRANK CROWLEY COURTS BLDG. 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS 75207-4399 (214) 653-3632 (214) 653-3643 fax
TABLE OF CONTENTS INDEX OF AUTHORITIES... ii-iv STATEMENT OF THE CASE... 1-2 STATEMENT OF FACTS... 2 SUMMARY OF ARGUMENT... 2 ARGUMENT... 2-9 RESPONSE TO SOLE ISSUE: GUYTON FAILS TO SHOW THAT THE TRIAL COURT ABUSED ITS DISCRETION IN DEALING WITH GUYTON'S POSSIBLE LACK OF COMPETENCY.... 2-9 PRAYER... 10 CERTIFICATE OF SERVICE... 10 i
INDEX OF AUTHORITIES Cases Becker v. State, 33 S.W.2d 64 (Tex. App. El Paso 2000, no pet.)... 4 Bradley v. State, 564 S.W.2d 727 (Tex. Crim. App. 1978)... 8 Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985)... 4 Casey v. State, 924 S.W.2d 946 (Tex. Crim. App. 1996)... 5, 6 Chavez v. United States, 656 F.2d 512 (9th Cir. 1981)... 9 Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996)... 4 Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993)... 4 Dilla v. State, 2010 Tex. App. LEXIS 3494 (Tex. App. Dallas Apr. 27, 2010, no pet.)... 8-9 Donald v. State, 930 N.E.2d 76 (Ind. App. 2010)... 5 Durgan v. State, 240 S.W.3d 875 (Tex. Crim. App. 2007)... 4 Durgan v. State, 259 S.W.3d 219 (Tex. App. Beaumont 2008, no pet.)... 10 Durgan v. State, 2008 Tex. App. LEXIS 2417 (Tex. App. Beaumont Apr. 1, 2009, no pet.)... 10 Ex parte Hagans, 558 S.W.2d 457 (Tex. Crim. App. 1977)... 4 Garcia v. State, 595 S.W.2d 538 (Tex. Crim. App. 1980)... 5 Hall v. State, 829 S.W.2d 407 (Tex. App. Waco 1992, no pet.)... 8 LaHood v. State, 171 S.W.3d 613 (Tex. App. Houston [14th Dist.] 2005, pet. ref d)... 3 Maggio v. Fulford, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983)... 8 ii
Marbut v. State, 76 S.W.3d 742 (Tex. App. Waco 2002, pet. ref d)... 6 Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005)... 7 McDaniel v. State, 98 S.W.3d 704 (Tex. Crim. App. 2003)... 5 Montoya v. State, 291 S.W.3d 420 (Tex. Crim. App. 2008)... 3 Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999)... 3 Owens v. State, 108 Tex. Crim. 555, 1 S.W.2d 890 (1927)... 8 Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)... 4 Pevehouse v. State, 2007 Tex. App. LEXIS 383 (Tex. App. Amarillo Jan. 22, 2007, pet. ref d)... 6 Phillips v. State, 2010 Tex. App. LEXIS 8911 (Tex. App. Dallas Nov. 9, 2010, no pet. h.)... 7 Roach v. Martin, 757 F.2d 1463 (5th Cir. 1985)... 9 Rouse v. State, 300 S.W.3d 754 (Tex. Crim. App. 2009)... 6 Sosa v. State, 201 S.W.3d 831 (Tex. App. Fort Worth 2006, pet. ref d)... 5, 6 State v. Hartford, 130 Ariz. 422, 636 P.2d 1204 (1981)... 9 Stovall v. State, 1997 Tex. App. LEXIS 4227 (Tex. App. Dallas Aug. 13, 1997, no pet.)... 8 Thompson v. State, 654 S.W.2d 26 (Tex. App. Tyler, no pet.)... 5 Vargas v. State, 838 S.W.2d 552 (Tex. Crim. App. 1992)... 7 Vincent v. Louisiana, 469 U.S. 1166, 105 S.Ct. 928, 83 L.Ed.2d 939 (1985)... 8 Vincent v. Maggio, 725 F.2d 679 (5th Cir. 1984)... 8 Webber v. State, 21 S.W.3d 726 (Tex. App. Austin 2000, pet. ref d)... 6 Whatley v. State, 946 S.W.2d 73 (Tex. Crim. App. 1997)... 3 iii
Whitehead v. State, 130 S.W.3d 866 (Tex. Crim. App. 2004)... 6 Statutes and Rules TEX. CODE CRIM. PROC. art. 42.07 (2)... 5 TEX. CODE CRIM. PROC. art. 42.12 5(b)... 1, 3, 4 TEX. CODE CRIM. PROC. art. 46B.004... 3 TEX. R. APP. P. 13.1(a)... 5 iv
TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in response to the brief of appellant, Joshua Lee Guyton. STATEMENT OF THE CASE Appellant (hereinafter Guyton ) pled guilty to a charge of robbery. He further pled true to an allegation that he had previously been finally convicted of burglary of a habitation. (CR: 29). Under that circumstance, his crime was punishable as a first-degree felony. Adjudication of Guyton s guilt was deferred by the court and he was released upon conditions of community supervision. (CR: 30). Based on his non-compliance with the supervision order(s), the State thereafter twice sought to have Guyton s guilt adjudicated. Each time, that relief was refused, but the court modified the conditions of supervision to make them more stringent. (CR: 48, 58). Finally, upon consideration of the State s third motion to adjudicate Guyton guilty (i.e., revoke his community supervision), the court determined based on Guyton s pleas of true that he had failed to report to his supervising officer and had not faithfully participated with the drug treatment plan devised for him. Upon adjudicating Guyton s guilt, and presumably after providing Guyton an opportunity to present mitigating evidence, the court assessed his punishment at confinement in prison for fifteen years. (CR: 64). In accord with article 42.12, 5(b) of the Code of Criminal Procedure, Guyton 1
perfected this appeal, seeking review of the court s determination that it should proceed with an adjudication of guilt or, perhaps, of the assessment of his punishment. STATEMENT OF FACTS Upon his pleas of true to the allegations in the State s motion, the court found that Guyton had violated certain conditions of his community supervision orders and decided to proceed with adjudication of his guilt (something which was already substantiated ). The court then further determined Guyton s punishment within the statutory range of confinement for five to ninety-nine years or life. The allegations apparently did not involve the commission of any new criminal offense. SUMMARY OF THE ARGUMENT Guyton presents no sufficient evidence from the record to show that the trial court needed to conduct a more thorough inquiry into his competency before accepting his pleas of true and considering whether to proceed: to adjudication of guilt, and assessment of punishment, and sentencing. ARGUMENT RESPONSE TO SOLE ISSUE: THE TRIAL COURT COULD PROPERLY HEAR THE STATE S MOTION TO ADJUDICATE WITHOUT FURTHER INQUIRY INTO GUYTON S POSSIBLE INCOMPETENCE In his sole issue, Guyton claims the trial court erred in supposedly failing to adequately protect his constitutional right not to be required to defend against the State s 2
motion to adjudicate while he was incompetent. Guyton thus asks this Court to review the procedure whereby his guilt was adjudicated and he was sentenced. He specifically asserts that, due to mental illness, he might have been unable on April 22, 2010: (1) to entertain a rational as well as factual understanding of the proceedings conducted by the court under article 42.12 5(b) of the Code of Criminal Procedure or (2) to consult with his counsel about the State s motion to adjudicate with a reasonable degree of rational understanding. Based on this assumption, Guyton asserts his rights to procedural due process and to an informal inquiry under article 46B.004 of the Code of Criminal Procedure were violated. Guyton must show an abuse of discretion by the trial judge. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2008); Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999); LaHood v. State, 171 S.W.3d 613, 617-18 (Tex. App. Houston [14th Dist.] 2005, pet. ref d). In the long run, Guyton apparently seeks to have the trial court once again determine whether he violated a condition of his community supervision (something that he voluntarily acknowledged had occurred) and to be re-sentenced, if necessary. Guyton acknowledges that he raised no complaint about being incompetent until May 27, 2010 (thirty-five days after he was sentenced in open court). The general rule is that allegations of due process violations can be waived by a failure to present the argument to the trial court. Whatley v. State, 946 S.W.2d 73, 75 (Tex. Crim. App. 1997); 3
Cockrell v. State, 933 S.W.2d 73, 94-95 (Tex. Crim. App. 1996) (Maloney, J., concurring) (citing many examples of issues that can be waived). But, this principle may not be applied here because an incompetent defendant (although represented by counsel) supposedly cannot be held to know of the need to question his competence. Pate v. Robinson, 383 U.S. 375, 384-85, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Ex parte Hagans, 558 S.W.2d 457, 462 (Tex. Crim. App. 1977). It is unclear, however, whether this means Guyton need not have moved for a new trial (change of plea) on this basis before appealing. See e.g. Durgan v. State, 240 S.W.3d 875, 876 (Tex. Crim. App. 2007) (record developed after hearing of State s motion to adjudicate). Regardless, surely Guyton s delay means that he must come forward with some type of evidence suggesting the trial judge was asleep at the wheel during the revocation hearing before any retrospective investigation into the extent and effect of his mental illness is mandated by an appellate court. Chapter 46B of the Code of Criminal Procedure concerns competence to stand trial. A proceeding under article 42.12 5(b) is not a trial, but rather is akin to an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Becker v. State, 33 S.W.2d 64, 65 (Tex. App. El Paso 2000, no pet.). A probationviolation charge is not considered a criminal offense that results in a trial. Carchman v. Nash, 473 U.S. 716, 725, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985). Thus, by its own terms, article 46B.004(b) was not directly applicable and compliance with it would appear to be 4
immaterial. But see McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003) (stating due process is violated whenever someone is convicted while incompetent, and finding former chapter 46 of the Code of Criminal Procedure applied to revocation proceedings); Garcia v. State, 595 S.W.2d 538, 540 (Tex. Crim. App. 1980); Thompson v. State, 654 S.W.2d 26, 28 (Tex. App. Tyler, no pet.); see also Sosa v. State, 201 S.W.3d 831, 832 (Tex. App. Fort Worth 2006, pet. ref d) (finding record failed to present any evidence of incompetence). The Supreme Court of the United States has never determined what effect a defendant s limited or skewed mental capacity might have on the conduct of probation revocation proceedings. Nevertheless, our highest criminal court has determined that article 42.07(2) of the Code of Criminal Procedure requires that a person must be competent at the time of sentencing because important decisions concerning appeal must then be made, meaning that the defendant must have a rational and factual understanding that the trial is concluded, that he is being sentenced, and that appeal considerations must be undertaken. Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996). The court added that a defendant should comprehend the reason[s] for the sentence, namely its intended deterrent influence and rehabilitative effect. Id. See also Donald v. State, 930 N.E.2d 76, 80 (Ind. App. 2010) (interpreting due process clause). As the parties had agreed, no record of the proceedings at issue was produced by a court reporter. TEX. R. APP. P. 13.1(a); Appellant s Br. at 1 n.1. Hence, it cannot be 5
determined whether signs of competence, or incompetence, may have surfaced during the hearing, nor what inquiry Judge Francis made to assure the competence requirements of Casey were present. Cf. e.g. Pevehouse v. State, No. 07-06-00341-CR, 2007 Tex. App. LEXIS 383, at *3-4 (Tex. App. Amarillo Jan. 22, 2007, pet. ref d) (not designated for publication); Sosa, 201 S.W.3d at 832; Marbut v. State, 76 S.W.3d 742, 748 (Tex. App. Waco 2002, pet. ref d). Of course, it seems likely the hearing was short, very straightforward, and simple to understand, given the nature of the allegations in the State s motion and the fact that Guyton and his counsel knew that every effort had already been made by the court on Guyton s behalf to avoid imposition of a prison sentence. Notably, Guyton does not challenge either the truth or voluntariness of his plea to the State s motion. With no record from the proceeding available to show error, Guyton instead seeks to rely on statements contained in a letter he mailed to the court (Judge Snipes) in November of 2008 and statements contained in one of his notices of appeal as showing error. None of those statements, however, can properly be considered by this court as part of the record. Webber v. State, 21 S.W.3d 726, 731 (Tex. App. Austin 2000, pet. ref d) (documents appearing in the clerk s record that have not been introduced in evidence cannot be considered as part of the record); see also Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009) (a mere allegation in a pleading or motion has no probative value); Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) (appellate court 6
may not consider factual assertions that are outside the record). Moreover, there is no reason to believe Judge Francis (who, sitting by assignment, heard and determined the motion to adjudicate) had any knowledge of the November, 2008 letter. The duty of the court to sua sponte engage in any inquiry about competence is triggered only by what becomes known during the hearing, and not afterward. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); Vargas v. State, 838 S.W.2d 552, 556-57 (Tex. Crim. App. 1992). As evidence that he was not sufficiently competent to proceed to hearing upon the State s motion, Guyton curiously also asserts that the court should have considered the facts that he had engaged in the bizarre behavior of choosing to treat his mental illness by illicitly obtaining and using drugs lacking therapeutic value and by otherwise repeatedly refusing to comply with his community supervision order. There is nothing bizarre about a drug addict s being unable to make sensible choices about the use of drugs. But, once again the record fails to reflect anything about Guyton s behavior in this regard was brought to the attention of the court. Of course, knowledge of previous psychiatric treatment or drug addiction, standing alone, does not raise the issue of incompetency. E.g. Phillips v. State, No. 05-09-00498-CR, 2010 Tex. App. LEXIS 8911, at *4 (Tex. App. Dallas Nov. 9, 2010, no pet. h.) (not designated for publication). Hence, we have a record that is silent on the issue. An appellant, however, has the obligation to bring forward a record which demonstrates the error of which he complains. 7
When he fails to do this, as here, nothing is presented for review. Stovall v. State, No. 05-95-01862-CR, 1997 Tex. App. LEXIS 4227, at *7-8 (Tex. App. Dallas Aug. 13, 1997, no pet.) (not designated for publication); Hall v. State, 829 S.W.2d 407, 410 (Tex. App. Waco 1992, no pet.). It is proper that the appealing party be required to present as complete a record of the trial proceedings as is necessary to consider and dispose of the issues urged on appeal. Bradley v. State, 564 S.W.2d 727, 730 (Tex. Crim. App. 1978). Moreover, [i]t is the presumption of law, unless the contrary is shown, that the procedure followed by the trial court [was] correct. E.g. Owens v. State, 108 Tex. Crim. 555, 1 S.W.2d 890, 890 (1927) (op. on reh g). Guyton s claim is quite similar to that summarily rejected by the Federal District Court for Western Louisiana and the Fifth Circuit Court of Appeals in Vincent v. Maggio, 725 F.2d 679 (5th Cir. 1984), as described in Vincent v. Louisiana, 469 U.S. 1166, 105 S.Ct. 928, 83 L.Ed.2d 939 (1985) (Brennan, J., dissenting from denial of certiorari); see also Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (finding insufficient evidence of incompetence to require formal inquiry in spite of a recent psychiatric exam of the defendant that revealed paranoid delusions). Even if one were to assume that Guyton needed Thorazine in order to avoid hearing voices on April 22, there is no proof his alleged abnormal mental condition so interfered with his ability to comprehend the nature of the proceeding or the reasons for his sentence or his options about appeal that he was deprived of due process. Cf. Dilla v. 8
State, No. 05-09-01076-CR, 2010 Tex. App. LEXIS 3494, at *9 (Tex. App. Dallas Apr. 27, 2010, no pet.) (not designated for publication) (even after notice that defendant had discontinued his medication, court could have reasonably concluded appellant was capable of functioning competently without the medication ). Hence, if anything, the record supports a finding that Guyton did appreciate: the charge laid in the State s motion, his rights, and the consequences of his choice. Roach v. Martin, 757 F.2d 1463, 1480 (5th Cir. 1985). There is simply no reason to believe that he was not able to participate intelligently in the hearing, at least to the extent his participation was called for. Chavez v. United States, 656 F.2d 512, 518 (9th Cir. 1981); State v. Hartford, 130 Ariz. 422, 636 P.2d 1204, 1207 (1981) ( The level of competency required before a defendant may be sentenced is not as high.... ). Guyton fails to show why any bona fide doubt about his necessary mental abilities should have sprung into Judge Francis mind at the time of the hearing. The error he asserts is entirely speculative and thus without merit. Conclusion The Court cannot consider Guyton s claim without a complete record of the proceedings. It is not possible to say Guyton was harmed or that the court abused its discretion in impliedly finding there was no bona fide doubt about Guyton s competence. The appeal has no merit. 9
PRAYER WHEREFORE, the State prays that the court will deny the relief requested by Guyton and affirm the judgment of the trial court. Alternatively, the Court should abate this appeal and remand this case to the trial court for further proceedings in accord with Durgan v. State, 259 S.W.3d 219, 228 (Tex. App. Beaumont 2008, no pet.); see also Durgan v. State, No. 09-04-00501-CR, 2009 Tex. App. LEXIS 2417, at *5 (Tex. App. Beaumont Apr. 1, 2009, no pet.) (not designated for publication). Respectfully submitted, CRAIG WATKINS MARTIN L. PETERSON CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO. 15838600 FRANK CROWLEY COURTS BLDG. 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS 75207-4399 (214) 653-3632 (214) 653-3643 fax CERTIFICATE OF SERVICE I certify that a true copy of the foregoing State s brief has been served by delivering it to Ms. Riann C. Moore, Attorney for Appellant, at the Frank Crowley Courts Bldg., Dallas County Public Defender s Office, in Dallas, Texas on November 11, 2010. Martin L. Peterson 10