Carlos Suarez v. State

• Court: Court of Appeals of Texas
• Decided: May 3, 2011
• Docket: 14-10-00100-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 3, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00100-CR

Carlos suarez, Appellant

v.

the state of texas, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1193795

MEMORANDUM OPINION

Appellant Carlos Suarez pleaded guilty to aggravated robbery and was sentenced by the trial court to fifteen years’ imprisonment.  On appeal, appellant argues that the trial court failed to (1) conduct a statutory competency inquiry and (2) hold a hearing on his motion for new trial.  We affirm.

I.                   Background

            Appellant pleaded guilty to aggravated robbery without an agreed recommendation as to punishment.  In a document entitled “Statements and Waivers of Defendant,” appellant attested by his initials and signature that he was mentally competent and understood the nature of the charge against him.  He further acknowledged that his statement was executed “freely, knowingly, and voluntarily” and that he fully understood the consequences of his plea.  In addition, the trial court and appellant’s trial counsel signed the document entitled “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,” affirming their belief that appellant was mentally competent and was entering his plea knowingly and voluntarily. 

On December 8, 2009, the trial court held a sentencing hearing.  At the hearing, the trial court acknowledged that it had reviewed the presentence investigation report and the letters of recommendation submitted on appellant’s behalf.  The trial court heard testimony from three of appellant’s family members and from appellant.  After hearing all of the evidence, the trial court found appellant guilty and sentenced him to fifteen years’ imprisonment. 

On January 7, 2010, appellant’s trial counsel filed a motion for new trial.  The motion reads, in relevant part:

Defendant was denied the effective assistance of counsel . . . .

Defendant did not freely, voluntarily, knowingly and intelligently waive his rights including pleading to a Presentence Investigation [at] the time of his plea, and was not aware of the consequences of his plea.

Newly discovered evidence exist[s] in that the attorney for Defendant has been informed by family members that Defendant may not have been competent/sane at the time of his plea, and that the undersigned attorney should have filed motions for Competency/Sanity prior to pleading the Defendant to a Presentence Investigation.

The affidavit attached to the motion is from appellant’s trial counsel and states that he has read the motion and swears that all of the allegations of fact in it are true and correct to the best of his belief.  The trial court denied the motion by written order without a hearing.  This appeal followed.

II.        Analysis

A.    Statutory Competency Inquiry

In his second issue, appellant contends that the trial court erred by not conducting an inquiry into his competency when appellant asserted in the motion for new trial that he may not have been competent at the time of his guilty plea.  Appellant argues that the trial court had a statutory duty to conduct an inquiry under article 46B.004 of the Texas Code of Criminal Procedure.      

Upon suggestion that the defendant may be incompetent to stand trial, the trial court must conduct an informal inquiry to determine whether there is evidence that would support a finding of incompetence.  Tex. Code Crim. Proc. Ann. art. 46B.004(c) (West 2006).  A competency hearing is required if evidence is sufficient to raise a bona fide doubt in the trial court’s mind as to the defendant’s competency.  Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009).  A bona fide doubt may exist if the defendant exhibits “truly bizarre behavior or has a recent history of severe mental illness or at least moderate mental retardation.”  Id.  We review a trial court’s decision to not hold an informal inquiry for abuse of discretion.  Id. at 426.

Appellant does not contend that there was evidence before the trial court prior to sentencing to trigger a bona fide doubt and, consequently, an inquiry.  Rather, appellant argues that there is “newly discovered evidence” from his family as alluded to in the motion for new trial that should now trigger an inquiry by the trial court.  Our court has recently held, though, that the Texas competency statute on which appellant relies does not apply after sentencing.  Rodriguez v. State, 329 S.W.3d 74, 78–79 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (refusing to consider evidence brought to the trial court’s attention in a motion for new trial in evaluating whether the trial court erred by not conducting a statutory competency inquiry).  Accordingly, the trial court did not abuse its discretion by failing to hold a statutory competency inquiry based on “newly discovered evidence” brought to its attention after sentencing.     

We overrule appellant’s second issue.

B.     Hearing on Motion for New Trial

In his first issue, appellant contends that the trial court erred in failing to conduct a hearing on his motion for new trial when he raised the issues of incompetency and ineffective assistance of counsel.  We review a trial court’s denial of a hearing on a motion for new trial for an abuse of discretion.  Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009).  The trial court’s decision will not be reversed unless it is so clearly wrong as to lie outside the zone of reasonable disagreement.  Id.   

The right to a hearing on a motion for new trial is not absolute.  Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).  A trial court is required to hold a hearing when the motion and accompanying affidavits (1) raise a matter which is not determinable from the record and (2) establish reasonable grounds showing that the defendant could potentially be entitled to relief.  Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009).  As a prerequisite to a hearing when the grounds are based on matters not already in the record, the motion must be supported by an affidavit specifically setting out the factual basis for the claim.  Id.  If the affidavit is conclusory, unsupported by facts, or fails to provide requisite notice of the basis for the relief claimed, no hearing is required.  Id.  To obtain a hearing on his ineffective-assistance-of-counsel claim, a defendant must allege sufficient facts from which a trial court could reasonably conclude both that counsel failed to act as a reasonably competent attorney and that, but for counsel’s failure, there is a reasonable likelihood that the outcome of his trial would have been different.  Smith, 286 S.W.3d at 340–41.

Here, the motion, sworn to be true to the best of the affiant’s belief, is unsupported by facts.[1]  The motion simply states that “newly discovered evidence” exists on appellant’s incompetence, appellant may not have been competent/sane at the time of his plea, and appellant’s trial counsel should have filed motions for competency prior to the plea.  The motion does not contain any information about what the “newly discovered evidence” is, how this “newly discovered evidence” rendered his plea involuntary, or what an investigation at the time would have revealed that reasonably could have changed the result of the case.  See King v. State, 29 S.W.3d 556, 568–69 (Tex. Crim. App. 2000) (motion supported by verification affidavit insufficient for trial court to hold hearing because none of bare assertions established facts entitling defendant to new trial).  Therefore, the “verified” motion in this case is insufficient to require a hearing.  See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (appellant’s affidavit insufficient when allegations of ineffective assistance not supported by facts demonstrating why counsel’s investigation was deficient, what further investigation would have revealed, and what additional witnesses would have said to exculpate him); Stokes v. State, 298 S.W.3d 428, 432–34 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding trial court did not abuse discretion by failing to hold hearing on motion for new trial when appellant did not provide trial court with sufficient facts to support claims of ineffective assistance for failure to investigate).

Accordingly, the trial court did not err in failing to conduct a hearing on appellant’s motion for new trial.  Appellant’s first issue is overruled.[2]

III.  CONCLUSION

Having overruled all of appellant’s issues, we affirm the trial court’s judgment.

                                                            /s/                    Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Appellant makes much of the fact that the motion was verified by his trial counsel and contends that the verification is an admission that he provided ineffective assistance of counsel, thereby entitling appellant to a hearing on his motion for new trial.  Trial counsel merely states that the allegations of fact in the motion are true and correct to the best of his belief.  The affidavit is conclusory and unsupported by facts.

[2] Under a separate heading, appellant contends that trial counsel was ineffective for failing to investigate appellant’s competency and bring it to the trial court’s attention.  Appellant then refers the court back to his argument about the trial court’s failure to hold a hearing, which we have addressed.  To the extent that appellant intended to raise an argument about ineffective assistance of counsel separate from the trial court’s failure to hold a hearing, appellant has waived that argument.  See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”).