COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-498-CR
NO. 2-02-499-CR
BARTON
RAY GAINES APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 213TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
INTRODUCTION
Appellant
Barton Ray Gaines was indicted in two cases. The first indictment charged
the offenses of aggravated robbery with a deadly weapon, to-wit: a firearm, and
attempted capital murder, in Cause No. 0836985A. The second indictment
alleged the same charges, with a different victim, in Cause No. 0836979A.
Both cases were tried together. Appellant pleaded guilty on the charges of
aggravated robbery and the State waived the charges of attempted capital
murder. The jury was instructed to find Appellant guilty and to set
punishment within the statutory range. After hearing evidence regarding
punishment, the jury assessed Appellant’s punishment at thirty-five years’
confinement and assessed a $10,000 fine. Appellant’s court-appointed
counsel has filed an Anders brief asserting that there are no grounds
that could be argued successfully on appeal. Anders v. California,
386 U.S. 738, 87 S. Ct. 1396 (1967). Appellant has filed a pro se brief
raising three points on appeal. We grant counsel’s motion to withdraw,
overrule Appellant’s points, and affirm the trial court’s judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Testimony
showed that on February 21, 2002 Appellant and two friends, Jason Tucker and
Daniel Aranda, went to a location known as the Rice Paddy, which is a housing
development where young people hang out. At this location Appellant began
talking to Michael Williams and Andrew Horvath, who were together, about buying
a pound of marijuana. Williams agreed to lead Appellant to a friend who possibly
had marijuana. Appellant and his friends followed Williams and Horvath to
an apartment complex to buy the marijuana. On the way, Appellant stopped
at Wal-Mart to buy some beer, but actually purchased shotgun shells.
Once
at the apartment complex, Williams attempted to negotiate the marijuana
transaction. At one point, Appellant checked Williams for weapons and then
Appellant began to demand Williams’s wallet. Williams testified that
Appellant produced a shotgun and struck him in the head with the barrel.
Williams and Horvath emptied their pockets and both were physically
assaulted. Williams began to run, at which point he heard a “boom” and
felt his left shoulder go numb. Williams made it to a convenience store
and realized he was bleeding. Once at the convenience store, the police
were called. Horvath testified that one of Appellant’s friends punched him and
knocked him down. Appellant then pointed the shotgun at Horvath and
demanded his wallet. Horvath testified that as Appellant and his friends
were driving off, he was shot from the driver’s side of Appellant’s vehicle.
At
trial, Appellant introduced evidence that he began taking Paxil beginning in
February 2002. Appellant called Dr. Edwin Johnstone to testify regarding
the possible role Paxil played in Appellant’s behavior on the day of the
offense. Dr. Johnstone testified that someone with attention deficit
hyperactivity disorder, with which Appellant had been diagnosed, who also takes
Paxil, may develop hypomania. Dr. Johnstone described hypomania as “sort
of the opposite of depression. It is where the person’s mood is high
instead of low. The person is in an overenergized state. The
elevated mood might be very happy and cheery and euphoric, but most of the time
actually the mood is sort of a driven, irritable state.” Evidence was
also introduced showing Appellant’s prior use of alcohol, marijuana, Xanax,
cocaine, and methamphetamine.
Additionally,
it was shown that Appellant continued taking Paxil while in jail with no adverse
effects. Dr. Johnstone believed that the isolation and lack of
stimulation, as well as Appellant’s lack of access to marijuana, contributed
to the effects Paxil had on Appellant’s behavior while in jail. While
Appellant introduced evidence of his use of Paxil in an attempt to explain his
behavior, he did not use this as a basis for an insanity claim. Dr.
Johnstone specifically testified that he was not offering an opinion as to
Appellant’s sanity, but rather Appellant’s “disinhibition of social
judgment.”
STANDARD OF REVIEW
Appellant’s
court-appointed appellate counsel has filed a motion to withdraw as counsel and
a brief in support of that motion. In the brief, counsel avers that, in his
professional opinion, this appeal is frivolous. Counsel’s brief and
motion meet the requirements of Anders, 386 U.S. 738, 87 S. Ct. 1396, by
presenting a professional evaluation of the record demonstrating why there are
no arguable grounds for relief. Appellant has also filed a pro se brief.
Once
Appellant’s court-appointed counsel files a motion to withdraw on the ground
that the appeal is frivolous and fulfills the requirements of Anders,
this court is obligated to undertake an independent examination of the record
and to essentially rebrief the case for Appellant to see if there is any
arguable ground that may be raised on Appellant’s behalf. Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
Appellant
entered an open plea of guilty, so he waived the right to appeal any
non-jurisdictional defects, other than the voluntariness of his plea, that
occurred before entry of the plea so long as the judgment of guilt was rendered
independent of, and is not supported by, the alleged error. See Young
v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000); Lewis v. State,
911 S.W.2d 1, 4-5 (Tex. Crim. App. 1995). Therefore, our independent review of
the record is limited to potential jurisdictional defects, the voluntariness of
Appellant’s plea, potential error occurring before Appellant’s plea that
resulted in or supports the judgment of guilt, and potential error occurring
after the guilty plea. See Young, 8 S.W.3d at 666-67.
Jurisdiction
Our
review of the record reveals no jurisdictional defects. The trial court
had jurisdiction over the case. See Tex. Code Crim. Proc. Ann. art. 4.05
(Vernon Supp. 2004-05). Further, the indictment conferred jurisdiction on
the trial court and provided Appellant with sufficient notice. See Tex. Const. art. V, § 12; Duron v.
State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997).
Voluntariness of Plea
Appellant’s
pro se brief alleges the trial court erred in not holding a competency hearing
at the time Appellant entered his plea of guilty and thus his plea was not
voluntary. A court must conduct a competency inquiry only if there is a
bona fide doubt in the judge’s mind as to the defendant’s competence to
stand trial. Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App.
2001). Additionally, “unless an issue is made of an accused’s present
insanity or mental competency at the time of the plea the court need not make
inquiry or hear evidence on such issue.” Kuyava v. State, 538
S.W.2d 627, 628 (Tex. Crim. App. 1976). The Appellant was orally
admonished by the trial judge regarding the consequences of his plea, and the
record indicates that the Appellant understood the nature of the charges and
that his plea was free and voluntary. Further, Appellant’s trial counsel
answered affirmatively that his client was competent to stand trial. Once
the jury was sworn in, Appellant again pleaded guilty in open court in front of
the jury. There is no evidence in the record supporting Appellant’s
claim that he was incompetent to stand trial. Thus, Appellant’s first
point is overruled.
Having
found that the trial court did not err in finding Appellant competent to stand
trial, we will address appellate counsel’s potential issues.
Potential Errors After Plea
Appellate
counsel presents five potential issues on appeal: (1) the trial court committed
error in striking two prospective jurors at the request of the State; (2) the
trial court committed error in failing to strike a juror at the request of
Appellant; (3) the trial court committed error in various evidentiary rulings;
(4) the trial court committed error in overruling Appellant’s objection to the
State’s jury argument; and (5) the evidence was both legally and factually
insufficient to sustain a finding that Appellant committed the offenses charged.
In
his first potential issue, appellate counsel states that the trial court erred
in striking two prospective jurors for cause at the request of the State.
The State challenged the two members of the venire panel based on bias against
the State, and the challenges were granted. However, Appellant did not
object to the court’s striking of these potential jurors; thus, the error is
waived. See Boulware v. State, 542 S.W.2d 677, 683 (Tex. Crim. App.
1976), cert. denied, 430 U.S. 959 (1977) (holding that “failure to
object to the improper exclusion of a venire member waives that right and it
cannot be considered on appeal”).
In
his second potential issue, appellate counsel argues that the trial court erred
in failing to strike a juror for cause at the request of Appellant. To
preserve error for a trial court's denial of a valid challenge for cause, it
must be demonstrated on the record that Appellant asserted a clear and specific
challenge for cause, that he used a peremptory challenge on that juror, that all
his peremptory challenges were exhausted, that his request for additional
strikes was denied, and that an objectionable juror sat on the jury. Green
v. State, 934 S.W.2d 92, 105 (Tex. Crim App. 1996), cert. denied, 520
U.S. 1200 (1997). There is no indication in the record that Appellant
exhausted all of his peremptory challenges and requested additional
strikes. Thus, error has not been preserved regarding this potential
issue.
In
his third potential issue, appellate counsel complains that the trial court
committed error in various evidentiary rulings. Specifically, appellate
counsel refers to forty-two instances of rulings on the admissibility of certain
evidence by the trial court. An appellate court reviews a trial court’s
decision to admit or exclude evidence under an abuse of discretion standard of
review. Green, 934 S.W.2d at 101-02. The trial court does not abuse
its discretion if its “ruling was at least within the zone of reasonable
disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op. on reh’g).
Appellate
counsel refers us to a sustained objection on the part of the State to the
relevancy of testimony from Appellant’s mother. Appellant attempted to
admit into evidence testimony that his grandfather was arrested for “molesting
neighborhood children” when Appellant was thirteen years’ old. The
State objected on relevancy grounds. When questioned why this information
was relevant, Appellant’s trial counsel responded that it showed “family
dynamics” but specifically refused to attempt to allege that Appellant had
been abused by his grandfather. The trial court sustained the State’s
relevancy objection.
The
State and defendant may offer evidence of any matter the court deems relevant to
sentencing. Tex. Code Crim. Proc.
Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2004-05). As there is no
indication in the record that his grandfather’s arrest had any emotional
impact on Appellant and due to the fact that Appellant’s trial counsel
specifically disavowed any intention of claiming that Appellant had been abused
when he was thirteen years’ old, this evidence had no relevance to the offense
for which Appellant pleaded guilty. See Tow v. State, 953 S.W.2d
546, 547-48 (Tex. App.—Fort Worth 1997, no pet.) (finding that the
admissibility threshold under article 37.07(a) is relevance). Therefore,
it was not error to exclude this testimony. Likewise, our independent
review of the other rulings on objections by the State and Appellant reveals no
reversible error. Thus, appellate counsel’s third potential issue is
overruled.
In
his fourth potential issue, appellate counsel argues that the trial court
committed error in overruling Appellant’s objection to the State’s jury
argument. There are four possible areas of jury argument: (1) summation of
the evidence; (2) reasonable deductions from the evidence; (3) answer to the
argument of opposing counsel; and (4) plea for law enforcement. Felder
v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992), cert. denied,
510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim.
App. 1973). During closing argument, the State argued that there had been
no testimony nor evidence that Appellant was suffering from any type of mania on
the date of the offense. Appellant objected that this mischaracterized the
evidence, and the court overruled Appellant. Dr. Johnstone testified on
behalf of Appellant regarding the effects of Paxil on someone who has been
diagnosed with attention deficit hyperactivity disorder, with which Appellant
had been diagnosed. However, Dr. Johnstone also testified that he could
not state for certain that Appellant had used Paxil on the day of the
offense. Additionally, two friends of Appellant, who had contact with him
shortly after the shooting, both described Appellant as acting normal.
Based on this testimony, the State’s closing argument constituted proper
reasonable deductions from the evidence. It was not error to overrule
Appellant’s objection. Thus, appellate counsel’s fourth potential
issue is overruled.
In
his fifth potential issue, appellate counsel argues the evidence was both
legally and factually insufficient to sustain a finding that Appellant committed
the offenses charged.
In felony cases a plea of guilty before the jury admits the existence of all
necessary elements to establish guilt, and in such cases, the introduction of
testimony by the State is to enable the jury to intelligently exercise the
discretion which the law vests in them touching the penalty to be
assessed. In such cases there is no question of the sufficiency of the
evidence on appeal or on collateral attack.
Ex
parte Martin, 747 S.W.2d 789, 792 (Tex. Crim. App. 1988) (op. on reh’g)
(citations omitted). Since Appellant pleaded guilty to a jury, he may not
now challenge the sufficiency of the evidence. Accordingly, appellate
counsel’s fifth potential issue is overruled.
Having
overruled appellate counsel’s potential issues, we will address the remaining
points raised in Appellant’s pro se brief.
Competency at Time of Sentencing
Appellant
complains that the trial court erred in not holding a competency hearing at the
time of his sentencing. Appellant points to evidence produced at the punishment
hearing that he suffers from a learning disability and attention deficit
hyperactivity disorder. Appellant also points to the testimony of Dr.
Johnstone, who testified on behalf of Appellant concerning the effects of Paxil
on Appellant’s behavior. However, Dr. Johnstone conceded that he did not
know when Appellant started taking Paxil or whether he had taken it on the day
of the offense. Dr. Johnstone also agreed with the State’s assertion that
Appellant’s conduct on the day in question could be just as consistent with
“wanting to rob someone of their drugs and then kill the witnesses.”
In
pointing out Dr. Johnstone’s testimony, Appellant seems to confuse competency
with sanity on the night of the offense. See Valdes-Fuerte v. State,
892 S.W.2d 103, 108 (Tex. App.—San Antonio 1994, no pet.) (finding that
evidence of person’s mental status at time of offense was not evidence of
incompetency to stand trial); Lang v. State, 747 S.W.2d 428, 430-31 (Tex.
App.—Corpus Christi 1988, no pet.) (stating competency and sanity are not
synonymous). The issue of Appellant’s sanity was not raised during his
plea or punishment hearing, nor was the issue raised at any point. Dr. Johnstone,
Appellant’s own expert witness, specifically stated that he was not offering
an opinion as to Appellant’s sanity. Moreover, the record contains a
psychiatric evaluation from Dr. Florence Ouseph, which was conducted on January
10, 2002, approximately five weeks before the date of the offense, and nothing
within this report calls into question Appellant’s sanity or competence to
stand trial. Additionally, a learning disability or attention deficit
hyperactivity disorder is an insufficient basis to claim incompetence to stand
trial. See Culley v. State, 505 S.W.2d 567, 569 (Tex. Crim. App.
1974) (holding that testimony that defendant had learning disabilities and was
in special education classes did not raise issue of competency); Ortiz v.
State, 866 S.W.2d 312, 316 (Tex. App.—Houston [14th Dist.] 1993, pet.
ref’d) (finding evidence of learning disabilities alone is not sufficient to
show defendant incompetent to stand trial). As we have already found that
there is no evidence supporting Appellant’s claim that he was incompetent to
enter a voluntary plea, the trial court was not required to conduct a subsequent
competency hearing at the time of sentencing. We overrule Appellant’s
second point.
Ineffective Assistance of Counsel
Appellant
also argues that he received ineffective assistance of counsel in that his trial
counsel was ineffective in investigating Appellant’s competency, failing to
obtain a ruling regarding the admissibility of prior bad acts, and failing to
object to introductions of hearsay. We apply a two-pronged test to
ineffective assistance of counsel claims. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d
808, 812 (Tex. Crim. App. 1999). First, appellant must show that his
counsel's performance was deficient; second, appellant must show the deficient
performance prejudiced the defense. Strickland, 466 U.S. at 687,
104 S. Ct. at 2064; Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim.
App. 1999).
In
evaluating the effectiveness of counsel under the first prong, we look to the
totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether
counsel's assistance was reasonable under all the circumstances and prevailing
professional norms at the time of the alleged error. Strickland,
466 U.S. at 688-89, 104 S. Ct. at 2065. “[C]ounsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690, 104 S.
Ct. at 2066. An allegation of ineffective assistance must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson, 9 S.W.3d at 814. Our scrutiny of
counsel's performance must be highly deferential, and every effort must be made
to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at
689, 104 S. Ct. at 2065. When the record is silent as to possible trial
strategies employed by defense counsel, we will not speculate on the reasons for
those strategies. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).
The
second prong of Strickland requires a showing that counsel's errors were
so serious that they deprived the defendant of a fair trial, i.e., a trial whose
result is reliable. Id. at 687, 104 S. Ct. at 2064. In other
words, appellant must show there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome. Id. The ultimate focus of our inquiry must be on the
fundamental fairness of the proceeding whose result is being challenged. Id.
at 697, 104 S. Ct. at 2070.
Appellant
claims that his trial counsel failed to investigate his mental history, and in
support he provides several affidavits attached to his pro se brief.
However, there is no support for Appellant’s allegations in the record.
The attached affidavits were not admitted into evidence and are not properly
before this court for consideration. See Brown v. State, 866 S.W.2d
675, 678 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (noting that
material outside the record that is improperly included in or attached to a
party's appellate brief may be stricken). Furthermore, as we have already
held, there is no evidence within the record that Appellant was incompetent to
stand trial.
Appellant
also complains that his trial counsel was ineffective for failing to obtain a
ruling on the admission of prior bad acts. The record indicates that the
State provided notice of its intent to introduce evidence of other crimes,
wrongs, or acts. The record further indicates that the State and
Appellant’s trial counsel agreed to discuss how they wanted to address the
issue of Appellant’s other crimes, wrongs, or acts.
Evidence
of an accused’s prior crimes and bad acts is admissible during the punishment
phase of the trial. Tex. Code Crim. Proc. Ann. art. 37.07 §
3(a); Rodriguez v. State, 955 S.W.2d 171, 175 (Tex. App.—Amarillo 1997,
no pet.). As there is no indication in the record of the agreement reached
between the State and Appellant’s trial counsel regarding the introduction of
other crimes, wrongs, or acts evidence, and based on our finding that the
evidence was admissible during the punishment phase, there is no support for
Appellant’s claim that he was denied effective assistance of counsel based on
the admission of this evidence. Absent such a showing, it is presumed
Appellant’s counsel’s actions “fell within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065.
Finally,
Appellant complains generally that his trial counsel was ineffective for failing
to object on “several occasions” to inadmissible hearsay. We take note
that Appellant’s complaint of ineffective assistance of counsel is largely
based on such alleged failures on the part of his trial counsel. Appellant did
not file a motion for new trial on the basis of ineffective assistance of
counsel, which would have afforded the trial court the opportunity to conduct a
hearing as to these alleged failures. As such, the record is not
sufficiently developed to allow us to do more than speculate as to the
strategies of Appellant’s trial counsel. See Jackson, 877 S.W.2d
at 771. Thus, we cannot say that Appellant was denied effective assistance
of counsel. Appellant has a more appropriate remedy in seeking a writ of
habeas corpus to allow him the opportunity to develop evidence to support his
complaints. Thus, Appellant’s final point is overruled.
CONCLUSION
Our
independent review of the record compels us to agree with appellate counsel’s
determination that any appeal in these cases would be frivolous.
Accordingly, we grant counsel’s motion to withdraw on appeal, overrule
Appellant’s points, and affirm the trial court’s judgments.
ANNE
GARDNER
JUSTICE
PANEL
B: HOLMAN, GARDNER, and WALKER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
October 14, 2004
NOTES
1.
See Tex. R. App. P. 47.4.