Denise Rodriguez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 30, 2023
• Docket: 01-22-00295-CR
• Status: Published

Opinion

Opinion issued November 30, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00295-CR ——————————— DENISE RODRIGUEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1662580

MEMORANDUM OPINION

Appellant Denise Rodriguez pleaded guilty to the offense of evading arrest

or detention with a motor vehicle. The trial court deferred a finding of guilt and

placed Appellant on deferred-adjudication community supervision for two years.

The State later moved to adjudicate guilt alleging several violations of Appellants’ community supervision. Following a contested hearing, the trial court found two

of the State’s allegations true and sentenced Appellant to eight years of

confinement in the Texas Department of Criminal Justice—Institutional Division.

Appellant filed a motion for new trial, which the trial court denied without a

hearing. This appeal followed.

Appellant raises four issues on appeal. In her second issue, she requests we

abate the appeal so that she may file an out of time motion for new trial based on

her allegations “she was denied the assistance of counsel during the period in

which she could [have] file[d] a motion for new trial in violation of the Sixth and

Fourteenth Amendment[s] to the United States Constitution” and because her

“[a]djudication counsel abandoned [her] appeal during the motion for new trial

time period.” In her remaining issues, she argues (1) the trial court abused its

discretion by denying her a hearing on her motion for new trial, (2) her attorney

rendered ineffective assistance of counsel at the adjudication hearing, and (3) the

trial court erred in failing to conduct an informal inquiry on Appellant’s

competency.

We deny Appellant’s request to abate the appeal, and affirm the trial court’s

judgment.

2 Background

Appellant Denise Rodriguez pleaded guilty to the third-degree felony

offense of evading arrest or detention with a motor vehicle without an agreed

recommendation as to punishment.1 The trial court deferred a finding of guilt and

placed Appellant on deferred-adjudication community supervision for two years.

As part of her guilty plea and her acceptance of deferred adjudication, Appellant

signed a document called “Conditions of Community Supervision.” Relevant to

this appeal, Appellant agreed, under the Conditions of Community Supervision,

that she would:

1. Commit no offense against the laws of this or any other State or of the United States. You are to report any arrests within 24 hours.

...

21. You must place a court-approved deep-lung breath analysis mechanism (ignition interlock) with photographic capabilities on any

1 See TEX. PENAL CODE § 38.04(b)(2)(A). Although not addressed by Appellant, the State points out that while the indictment only alleged that Appellant committed the misdemeanor offense of evading detention, it did not include the element of use of a motor vehicle while in flight. Because the indictment was returned to a felony court and Appellant did not object to any defect in the indictment prior to pleading guilty, the indictment satisfied the constitutional requirements for subject-matter jurisdiction. See Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009) (“[A]lthough the indictment properly charged a misdemeanor and lacked an element necessary to charge a felony, the felony offense exists, and the indictment’s return in a felony court put appellant on notice that the charging of the felony offense was intended. . . . Appellant had adequate notice that she was charged with a felony. If she had confusion about whether the State did, or intended to, charge her with a felony, she could have, and should have, objected to the defective indictment before the date of trial.”). 3 vehicle you drive, to make impractical the operation of the motor vehicle if ethyl alcohol is detected in your breath beginning 09/08/21 until released by further order of the Court. You may not operate a motor vehicle unless it is equipped with an above said device. If you do not have a vehicle or access to a vehicle upon which you can install the above said device, you are ordered to have a court-approved At- Home Alcohol Monitor or a Secure Continuous Remote Alcohol Monitoring (SCRAM) device within 7 days of this order. You must comply with all vendors rules pertaining to the use and maintenance of the device.

24. Attend Intensive Outpatient Program and/or Supportive Outpatient Program and Aftercare until successfully completed or as designated by the court.

Three months after entering her guilty plea, Appellant was again arrested for

evading arrest or detention with a motor vehicle. The State moved to adjudicate

Appellant’s guilt, asserting five violations of Appellant’s Conditions of

Community Supervision. Appellant was remanded into custody, and on March 15,

2022, the trial court conducted a hearing on the State’s motion to adjudicate guilt.

A. Adjudication Hearing

During the adjudication hearing, the State abandoned two of the five

allegations asserted in its motion to adjudicate, proceeding only on the allegations

that Appellant (1) committed a new offense of evading arrest or detention with a

motor vehicle, (2) failed to install an ignition interlock device on her car, and (3)

failed to attend an intensive outpatient treatment program. Appellant appeared at

4 the adjudication hearing with counsel2 and pleaded “not true” to the allegations.

Three witnesses testified at the adjudication hearing.

1. Priscilla Leos

Officer Priscilla Leos, a deputy with the Harris County Sheriff’s

Department, testified that on December 21, 2021, she was on patrol around

midnight when she observed a maroon Mitsubishi Montero SUV (“SUV”). She

conducted a traffic stop because the tags were expired and the SUV did not signal

when making a lane change. Officer Leos activated her lights and sirens and

attempted to make a traffic stop, but the SUV did not stop.

As Officer Leos pursued the SUV with lights and sirens activated, the SUV

failed to maintain a single lane traveling at a high rate of speed, at one point

traveling up to 93 miles per hour in a zone with a posted speed limit of 40 miles

per hour. Ultimately, the SUV ran through a red light and crashed into a concrete

wall. Officer Leos identified Appellant as the driver of the SUV.

After the SUV crashed, Officer Leos “clearly [saw] that [Appellant] was

changing seats.” Officer Leos testified, “[s]he was claiming someone else was in

2 Appellant was appointed two separate attorneys during the trial court proceedings. Appellant’s first appointed counsel represented her through her plea of guilty and placement on deferred adjudication community supervision. Appellant’s second appointed counsel represented her during the adjudication hearing. In her motion for new trial and on appeal, Appellant complains about her adjudication counsel. Our reference in the opinion to Appellant’s “trial counsel” refers to the adjudication hearing attorney.

5 the vehicle when we could clearly see that she was changing seats. We could see

her jumping from the driver’s seat to the passenger seat to the backseat. She was

noncompliant. . . . [S]he refused to get out of the vehicle.”

Officer Leos testified his pursuit of Appellant lasted about one or two

minutes and spanned 1.6 miles. Appellant was detained for evading arrest. Officer

Leos and her colleagues conducted a probable-cause search of the SUV. Another

deputy found what appeared to be methamphetamine on the driver floorboard and

brought it to the attention of Officer Leos. Officer Leos testified she believed 0.63

grams of methamphetamine was recovered.

On cross-examination, Officer Leos testified that Appellant exited the SUV

on the back passenger’s side. According to Officer Leos, Appellant was the only

person in the SUV, having jumped from the driver’s seat to the passenger seat to

the backseat.

2. Dennis Davis

Dennis Davis is the Harris County Community Supervision and Corrections’

Court Liaison (probation) Officer for the 182nd District Court of Harris County.

He testified Appellant was placed on probation on September 8, 2021 in Cause No.

1662580 for the third-degree felony of evading arrest with a vehicle. The trial

court gave her a two-year probated sentence.

6 Davis testified he explained the terms and conditions of probation to

Appellant on September 8, 2021. Relevant to this appeal, Condition 1 of

Appellant’s community supervision required that Appellant not commit any

“offense against the laws of this or any other State or of the United States.”

Condition 21 required Appellant to install a “court-approved deep-lung breath

analysis mechanism (ignition interlock) with photographic capabilities” on any

vehicle she drove beginning September 8, 2021. And it further stated Appellant

could “not operate a motor vehicle unless it [was] equipped with [the ignition

interlock] device.” Davis testified that Appellant disregarded this condition.

Condition 24 also required Appellant to “[a]ttend Intensive Outpatient Program

and/or Supportive Outpatient Program and aftercare until successfully completed

or as designated by the court.” According to Davis, Appellant did not complete

that program.

On cross-examination, Davis conceded that Appellant was never given a

date to begin the intensive outpatient program, although Davis “told [Appellant]

that she needed to start the program.” Given the absence of a required start date,

Davis conceded that Appellant had not violated Condition 24.

3. Denise Rodriguez

Appellant testified she was never told to meet with Davis, the court’s

probation officer, and that her “regular” probation officer was in Baytown, Texas.

7 She stated she was not told or did not know she had a time limit for placing the

ignition interlock on her car. And even had she known about the time limit, she

would not have placed the device in her car within seven days because she was told

to meet with her probation officer first. Appellant testified she did not have money

to place the ignition interlock in her car because she was not working, as she had

been on house arrest. She testified she had found a job shortly before her arrest on

December 21, 2021, but after her arrest, she could not work.

When her trial counsel asked whether she had a valid registration sticker on

her car and whether anyone was in the car with her on December 21, 2021, she

stated she had “no comment on the case.” Asked whether she was driving the car

that night, she said, “No comment on everything.”

On cross-examination, Appellant testified that after evading arrest on

January 29, 2020, she was placed on deferred adjudication community supervision.

At that time, she signed a document identifying the conditions of her community

supervision. She conceded that her signature appeared on the copy of the order of

deferred adjudication dated September 8, 2021, which included Appellant’s

conditions of community supervision. When asked whether her signature

conveyed that she understood that her failure to abide by the conditions of

community supervision could result in revocation of her community supervision or

an adjudication of guilt, Appellant stated, “No comment.” Appellant then invoked

8 the Fifth Amendment in response to questions concerning her violations of the

conditions of her community supervision. The trial court admonished Appellant

explaining to her that she did not have a Fifth Amendment right against self-

incrimination because she had taken the stand voluntarily:

STATE: Judge, the defendant in this case has no Fifth Amendment Right after taking the stand. And we’d ask that you instruct her to answer the questions.

COURT: Ma’am, I don’t -- you chose to take the stand in this case. You can’t pick and choose what questions you want to answer now. So, if you want to continue with being -- I’m not going to -- what you’ve testified to, I will disregard if you decide to pick and choose what questions you want to answer. Let me put it to you that way. And I don’t believe you do have the Fifth Amendment Right to self-incrimination when you are on the stand and being asked questions that you wanted to -- that you availed yourself to be on the stand for.

Appellant responded she did not know she was having a hearing that day. The

State continued its cross-examination and Appellant again invoked the Fifth

Amendment. At the State’s request, the trial court announced it would disregard

Appellant’s testimony.

At the end of the hearing, Appellant’s trial counsel argued that when

Appellant was placed on community supervision, she did not understand what was

expected of her. He believed that “at the time she was placed on [community

supervision, Appellant] actually didn’t understand what was going on or what was

expected of her as far as the probation was concerned[.]” He argued Appellant

9 “probably did not understand she had to get a deep lung device or an interlock

device on her car.” Appellant’s counsel asked the trial court to be lenient in

sentencing her.

The State argued Appellant was “not accountable” and had no respect for the

court, the proceedings, or her probation terms. Even if Appellant had questions

about her community supervision, the State argued she had two probation officers,

one in the court and one in Baytown, to whom she could have directed her

questions, yet she never reached out to either one to discuss the terms of her

community supervision. The State argued Appellant refused to take any

accountability for her actions and argued that such a person is “a dangerous person,

a person who is unwilling to change.” The State requested that the full range of

punishment be imposed against Appellant.3

The trial court found “true” the State’s allegations that Appellant violated

Condition 1 of her community supervision by committing a new offense of

evading arrest or detention on December 21, 2021, and Condition 21 by failing to

install an ignition interlock device in her car. The trial court found “not true” the

allegation that Appellant failed to attend an intensive outpatient treatment program

in violation of Condition 24.

3 “An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.” See TEX. PENAL CODE § 12.34(a). In addition, a fine up to $10,000 can be assessed. Id. § 12.34(b).

10 The trial court adjudicated Appellant guilty on her original offense of

evading arrest in a motor vehicle. The court asked whether the parties had

evidence for punishment. Both parties declined, and neither side offered testimony

regarding punishment.

B. Motion for New Trial

On March 15, 2022, the trial court assessed Appellant’s punishment at eight

years’ incarceration in the Institutional Division of the Texas Department of

Criminal Justice. On April 8, 2022, Appellant filed three pro se notices of appeal,

one on a pre-printed form and two handwritten.

Three days later, on April 11, 2022, Appellant’s trial counsel moved to

withdraw, stating in his motion that he represented Appellant “in a motion to

adjudicate hearing,” that Appellant “now wishes to appeal the [c]ourt’s decision,”

and “he does not do appeals.” The following day, Appellant filed a “Pauper’s Oath

on Appeal” requesting the appointment of appellate counsel. That same day, on

April 12, 2022, the trial court granted trial counsel’s motion to withdraw and

appointed appellate counsel for Appellant, two days before the deadline for

Appellant to file a motion for new trial. See TEX. R. APP. P 21.4(a).

Appellant timely moved for a new trial on April 14, 2022. She accompanied

her motion with a proposed order setting the motion for hearing and a proposed

certificate of presentment. In the motion, Appellant’s counsel stated, erroneously,

11 that Appellant “pleaded true to the allegations [] she violated the terms of her

deferred adjudication community supervision and proceeded to a hearing in front

of the trial court without an agreed recommendation.” Based on this

misunderstanding, Appellant requested a new trial claiming she had “entered her

plea of true involuntarily.” Appellant argued that she received ineffective assistant

of counsel “before her plea of ‘true’ due to [trial] counsel’s failure to investigate

[her] mental health and the possibility that she was incompetent to enter her plea.”

She argued that “[a]ssuming [Appellant] was competent to enter her plea of ‘true,’”

she received ineffective assistance “when [trial] counsel failed to investigate or

present evidence regarding [Appellant’s] mental health history as mitigation

evidence,” which according to Appellant, “may have led to a different sentence.”

Appellant attached five exhibits to her motion for new trial: (1) an undated

handwritten letter from Appellant,4 (2) a Harris County Special Needs Response

Form, (3) documents pertaining to a psychiatric evaluation of Appellant in a

separate case, (4) a signed declaration from Appellant, and (5) literature from the

Mayo Clinic about the prescription medication risperidone.

4 Appellant filed two handwritten letters with the trial court, one without a date (filed stamped March 25, 2022) and the other dated March 19, 2022 (file stamped March 30, 2022). Both letters are substantially the same. In her brief, Appellant acknowledges she signed both letters but states she “did not write [the letters] herself.” The first letter, the one undated and filed stamped March 25, 2022, is the letter attached to Appellant’s motion for new trial.

12 In Appellant’s handwritten letter to the trial court, file stamped March 25,

2022, Appellant states that her trial counsel advised her that she had a court

hearing on March 15, 2022, of which he was “unaware” and for which he was

“unprepared.”5 Appellant stated in the letter that she “did not understand how

[she] would have 8 years for [a] probation violation on evading arrest when

probation length was only 2 years” and that “originally,” she felt her attorney “did

not fully explain to [her] the terms/conditions that [she] was signing for and [she]

signed under duress.”6 She asked for the case to be reopened “due to unfair

sentencing.”

5 In her motion for new trial, Appellant did not argue that her trial counsel was unprepared for the adjudication hearing held on March 15, 2022. She argued primarily that she had involuntarily entered a voluntary plea and that her counsel did not present evidence that could have mitigated the sentence she received. 6 It appears that in this portion of her letter, Appellant is complaining about her initial plea of guilty entered in September 2021. But Appellant’s adjudication counsel, who is the only counsel Appellant complains about in her motion for new trial, is not the same counsel who represented Appellant in September 2021, when she pleaded guilty to the original offense of evading arrest, resulting in deferred adjudication community supervision and the “terms/conditions” she presumably claims in her letter she did not understand and signed “under duress.” We note that in September 2021, Appellant (and her then trial counsel) signed an “Admonishment” document where Appellant acknowledged, among other things, that she “fully underst[ood] the consequences of [her] plea []and after having fully consulted with [her] attorney, [she] hereby request the trial court accept said plea,” that her “plea [was] freely, knowingly, and voluntarily made,” and that she was “totally satisfied with the representation provided by my counsel and I received effective and competent representation.”

13 The Harris County Special Needs Response Form, attached to Appellant’s

motion as Exhibit B, identified Appellant’s current psychotropic medications and

her state mental hospital history. The form indicates that Appellant was diagnosed

with bipolar disorder on December 22, 2021, and that risperidone was prescribed

to Appellant. The exhibit reflects Appellant’s mental health diagnoses beginning

in 2005.

In Exhibit C to her motion, Appellant attached a motion filed by the State

and Appellant on July 12, 2011 requesting a psychiatric evaluation of Appellant in

a separate case involving the burglary of a habitation, a signed order dated July 13,

2011 granting the motion and ordering a psychiatric examination of Appellant to

determine her competency under Article 46B of the Texas Code of Criminal

Procedure, and a June 7, 2012 order for Restoration of Competency providing, “It

is therefore ORDERED by the Court that the above named defendant is at this time

mentally competent, as found by the Court, and that [s]he stand trial another day.”7

Appellant’s declaration dated April 14, 2022, attached as Exhibit D to her

Motion, stated Appellant never spoke with her trial counsel8 about her case and she

7 The motion for psychiatric examination and corresponding order granting the motion were filed in Cause No. 1294211, styled State of Texas v. Denise Rodriguez, in the 180th District Court of Harris County, Texas. But the June 7, 2012 Order for Restoration of Competency was entered in Cause No. 129421101010, State of Texas v. Denise Rodriguez, in the 351st District Court of Harris County, Texas. 8 In her declaration, Appellant specifically refers to her adjudication counsel.

14 did not “understand or know” what she was accused of doing. She claimed her

trial counsel told her he was unprepared for the adjudication hearing, but that she

had no choice, and “we had to do the hearing.” Appellant states she “didn’t want

to plead ‘true’” and she “tried to take the 5th” and she “didn’t want to get more

time.” She claimed her trial counsel called no witnesses to testify on her behalf

and never asked her if there “was anyone who would come to testify.” Appellant

explained she has two sisters in Houston, Texas, and that she has been taking

medication for bipolar disorder since she was 13 or 14 years old. She stated that

“[n]one of her lawyers asked [her] to sign a release for [her] mental health records

or [her] juvenile records.” Appellant claimed she had no understanding of what

she was signing when she accepted the deferred adjudication and that she did not

“talk with her other lawyer about [her] mental health before I did my plea.”9 She

further stated that before she “did [her] plea for deferred adjudication,” she “was in

the free world” and not taking her medication. Appellant explained she was

presently taking risperidone in jail for her bipolar disorder.

The final exhibit attached to the motion, Exhibit E, is literature from the

Mayo Clinic concerning the prescription medication risperidone. It states

risperidone is “used to treat schizophrenia, bipolar disorder, or irritability

associated with autistic disorder.”

9 It appears that here, Appellant is referring to her first trial counsel.

15 Appellant filed her motion for new trial on April 14, 2022. Pursuant to

Texas Rule of Appellate Procedure 21.6, she presented her motion to the trial court

that same day.10 The trial court signed a certificate of presentment on April 21,

2022. At that time, Appellant explains, it was discovered that the judgment and

sentence contained the erroneous indication that Appellant had pleaded “true” to

the State’s allegations she violated the conditions of her community supervision.11

The trial court corrected the judgment and sentence sua sponte to reflect that

Appellant pleaded “not true.”12

On May 5, 2022, the trial court denied Appellant’s request for a hearing on

her motion for new trial and denied the motion by written order.

10 Texas Rule of Appellate Procedure 21.6 provides that in a criminal case, the “defendant must present the motion for new trial to the trial court within 10 days of filing it, unless the trial court in its discretion permits it to be presented and heard within 75 days from the date when the court imposes or suspends sentence in open court.” TEX. R. APP. P. 21.6. Pursuant to Rule 26.1, Appellant filed a “Certificate of Presentment” on April 14, 2022, presenting the motion for new trial “to the trial court within 10 days of filing.” The trial court signed the Certificate of Presentment on April 21, 2022. 11 This presumably explains why counsel argued in Appellant’s motion for new trial that Appellant “pleaded true to the allegations that she violated the terms of her deferred adjudication community supervision,” that Appellant entered her “plea of true involuntarily,” and that trial counsel had been ineffective in failing to investigate Appellant’s “mental health and the possibility that she was incompetent to enter her plea.” 12 The judgment adjudicating guilt inaccurately reflected that Appellant had pleaded “true” to the State’s motion to adjudicate. According to the docket sheet in the appellate record, the trial court corrected the error on March 15, 2022, the same day as the adjudication hearing, and before Appellant filed her motion for new trial.

16 This appeal ensued.

Motion for New Trial and Ineffective Assistance of Counsel

In her first issue, Appellant argues the trial court abused its discretion by

denying Appellant a hearing on her motion for new trial. In her third issue, she

argues her trial attorney rendered ineffective assistance of counsel by failing to

investigate or present mitigating evidence at the adjudication hearing. Because

Appellant’s motion for new trial is based mainly on her claim of ineffective

assistance of counsel, we address both issues together.

A. Standard of Review and Applicable Law

1. Ineffective Assistance of Counsel

The Sixth Amendment of the United States Constitution guarantees an

accused the right to reasonably effective assistance of counsel in criminal

prosecutions. U.S. CONST. amend. VI; Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011); Caballero v. State, ___ S.W.3d ___, No. 01-19-00878-CR,

2023 WL 2718466, at *10 (Tex. App.—Houston [1st Dist.] Mar. 31, 2023, pet.

filed). To determine whether an appellant has established a claim for ineffective

assistance of counsel, we utilize the two-pronged test established in Strickland v.

Washington, 466 U.S. 668 (1984). See Lopez, 343 S.W.3d at 142.13

13 Texas adopted the Strickland test in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

17 To prevail under the Strickland analysis, the appellant must establish by a

preponderance of the evidence that (1) counsel’s representation fell below an

objective standard of reasonableness, and (2) but for the deficient performance,

there is a reasonable probability the result of the proceeding would have been

different. Id. (citing Strickland, 466 U.S. at 689). “‘Reasonable probability’ is a

‘probability sufficient to undermine confidence in the outcome,’ meaning

‘counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App.

2009) (quoting Strickland, 466 U.S. at 687, 694).

The Strickland factors are “judged by the ‘totality of the representation,’ not

by counsel’s isolated acts or omissions, and the test is applied from the viewpoint

of an attorney at the time he acted, not through 20/20 hindsight.” Ex parte

Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) (citing Ex parte Welborn,

785 S.W.2d 391, 393 (Tex. Crim. App. 1990)); see also Strickland, 466 U.S. at 689

(“A fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.”). There is a strong presumption that a trial counsel’s

conduct falls “within the wide range of reasonable assistance,” and that counsel’s

decisions were motivated by sound trial strategy. Id. (citing Ex parte White, 160

18 S.W.3d 46, 51 (Tex. Crim. App. 2004) (quoting Strickland, 466 U.S. at 689));

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (holding that in our

highly deferential review of counsel’s performance, appellate courts indulge

“strong presumption that counsel’s conduct fell within a wide range of reasonable

representation”). “The mere fact that another attorney might have pursued a

different tactic at trial does not suffice to prove a claim of ineffective assistance of

counsel.” Ex parte Jimenez, 364 S.W.3d at 883 (citing Ex parte Miller, 330

S.W.3d 610, 616 (Tex. Crim. App. 2009)).

An appellant bears the burden to establish both prongs of the Strickland

analysis. Failure to satisfy one prong of the Strickland test negates an appellate

court’s need to consider the other prong. Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009); see Lopez, 343 S.W.3d at 142 (“Unless appellant can

prove both prongs, an appellate court must not find counsel’s representation to be

ineffective.”).

2. Motion for New Trial

A defendant in a criminal case “may file a motion for new trial before, but

not later than 30 days after, the date when the trial court imposes or suspends

sentence in open court.” TEX. R. APP. P. 21.4(a). A defendant does not have an

absolute right to a hearing on the motion. Washington v. State, 394 S.W.3d 39, 42

(Tex. App.—Houston [1st Dist.] 2012, no pet.). The purpose of a hearing on a

19 motion for new trial is (1) to determine whether the case should be retried or (2) to

complete the record for presenting issues on appeal. Id.

“Before [a defendant] will be entitled to a hearing on [her] motion for new

trial alleging ineffective assistance of counsel, [she] must allege sufficient facts

from which the 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 (emphasis in original). We review a trial court’s

denial of a hearing on a motion for new trial for abuse of discretion. Gonzales v.

State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010) (quoting Smith, 286 S.W.3d at

339–40). We will reverse “only when the trial judge’s decision was so clearly

wrong as to lie outside that zone within which reasonable persons might disagree.”

Id.

A court abuses its discretion in not holding a hearing if the motion for new

trial and accompanying affidavits (1) raise matters that are not determinable from

the record and (2) establish reasonable grounds showing the defendant could

potentially be entitled to relief. Id. at 842; see also Washington, 394 S.W.3d at 42.

The State does not dispute that the issues presented in Appellant’s motion are “not

determinable from the record.” We thus consider only whether Appellant

20 established “reasonable grounds showing [she] could potentially be entitled to

relief.”

A motion for new trial must be supported by an affidavit that sets forth the

factual basis for the relief sought. “If the affidavit is conclusory, is unsupported by

facts, or fails to provide requisite notice of the basis for the relief claimed, no

hearing is required.” Washington, 394 S.W.3d at 42 (citing Hobbs v. State, 298

S.W.3d 193, 199 (Tex. Crim. App. 2009)). The motion and affidavits need not

establish a prima facie case or even reflect every component legally required to

establish relief. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003);

Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993)); Washington, 394

S.W.3d at 42. They must “merely reflect that reasonable grounds exist for holding

that such relief could be granted.” Wallace, 106 S.W.3d at 108 (citing Martinez v.

State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002)).

We review a trial court’s denial of a motion for new trial on the issue of

ineffective assistance of counsel for abuse of discretion. Charles v. State, 146

S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded by statute on other grounds

by TEX. R. APP. P. 21.8(b). We review the evidence in the light most favorable to

the trial court’s ruling. Id. We “presume that all reasonable factual findings that

could have been made against the losing party were made against that losing party.

Thus, a trial court abuses its discretion in denying a motion for new trial only when

21 no reasonable view of the record could support the trial court’s ruling.” Id. See

also Caballero, 2023 WL 2718466 at *9 (“Because Caballero raised his

ineffective-assistance claim in a denied motion for new trial . . . we analyze the

claim on appeal as a challenge to the trial court’s ruling on that motion, and we

review the ruling under an abuse-of-discretion standard. We will reverse the trial

court’s ruling only if the decision to deny the new-trial motion was arbitrary or

unreasonable, viewing the evidence in the light most favorable to the ruling.”)

(internal citations omitted). When, as here, the trial court does not make findings

of fact on the denial of a motion for new trial, we “impute implicit factual findings

that support the trial judge’s ultimate ruling when such implicit factual findings are

both reasonable and supported in the record.” Johnson v. State, 169 S.W.3d 223,

239 (Tex. Crim. App. 2005).

B. Analysis

In addressing Appellant’s third issue concerning her claim of ineffective

assistance of counsel, we first address the State’s argument that because there was

no hearing on Appellant’s motion for new trial, the evidence presented in support

of Appellant’s motion is not before this Court. Citing Rouse v. State, the State

argues that “post-trial motions . . . are not self-proving and any allegations made in

support of them by way of affidavit or otherwise must be offered into evidence at a

22 hearing.” 300 S.W.3d 754, 762 (Tex. Crim. App. 2009). In Rouse, the Court of

Criminal Appeals held it was erroneous for the intermediate court of appeals to

rely on allegations in a post-trial pleading titled “Motion for Appeal” to determine

whether the appellant’s guilty plea was involuntary, because the pleading was not

self-proving and was not introduced into evidence at any hearing where the trial

court, as factfinder, could evaluate it. Id. at 762.

At least two of our sister courts have distinguished Rouse in situations

factually aligned with those in the present case, where unlike in Rouse, the

defendants requested a hearing on the motion for new trial and the motion was

denied by written order.14 See Davis v. State, 413 S.W.3d 816, 829 (Tex. App.—

Austin 2013, pet. ref’d) (considering evidence put forth by defense counsel in

motion for new trial even though there had been no hearing on motion, observing

that the “motion for new trial—which was considered, ruled on, and the subject of

findings by the trial court—differ[ed] from the motion at issue in Rouse, which

was overruled by operation of law with no hearing requested and ‘no fact finder’

having evaluated the statement.”); Baukus v. State, No. 09-13-00397-CR, 2016 WL

908281, at *4 (Tex. App.—Beaumont Mar. 9, 2016, pet. ref’d) (mem. op., not

14 In Rouse v. State, the post-trial motion was overruled by operation of law and there was no indication in the record that a hearing was requested. 300 S.W.3d 754, 760 (Tex. Crim. App. 2009).

23 designated for publication) (distinguishing Rouse and holding it could consider

motion for new trial and attachments because, among other things, Baukus

“requested a hearing on her motion for new trial, and the trial court considered and

ruled on the motion without holding a hearing”).

We need not decide whether Rouse precludes our review of the evidence

attached to Appellant’s motion for new trial because, with or without the

attachments, we hold the trial court did not abuse its discretion in denying

Appellant’s motion or her request for a hearing.

a. Objective Standard of Reasonableness

To satisfy the first Strickland element, Appellant must establish counsel’s

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). She must

establish that her counsel made errors “so serious” that he was not functioning as

the “counsel” guaranteed by the Sixth Amendment. Gutierrez v. State, 602 S.W.3d

17, 22 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) (citing Strickland, 466

U.S. at 687).

In her appellate brief, Appellant argues her counsel “failed to prepare for the

[adjudication] hearing,” failed “to investigate possible mitigating evidence, and

fail[ed] to present any mitigating evidence at the punishment phase of the

proceedings.” She argues that her counsel did not bring “mitigating facts”

24 regarding Appellant’s mental health history to the court’s attention “even after the

State’s attorney characterized Appellant’s obvious confusion at the adjudication

hearing as a refusal to be accountable for her actions.” Appellant contends trial

counsel “failed to communicate with her about possible mitigation evidence

because he never asked her for names of potential witnesses, never asked about her

background, or her mental health status.”

Appellants’ arguments on appeal do not appear to align with her arguments

before the trial court. As the State notes, Appellant’s motion for new trial is based

primarily on her counsel’s erroneous assertions that Appellant pleaded “true” to the

allegations she violated the conditions of her community supervision and her plea

was not entered voluntarily. Appellant argued in her motion for new trial that she

“pleaded true to the allegations [] she violated the terms of her deferred

adjudication community supervision and proceeded to a hearing in front of the trial

court without an agreed recommendation.” Based on this understanding, she

requested a new trial because she had “entered her plea involuntarily.” She argued

that for a plea to be voluntary, a defendant “must be competent to understand what

she may agree to and be competent to make a rational decision regarding her legal

options,” and Appellant “has a long history of mental illness documented since her

teenage years” that “impacts her ability to understand legal proceedings and

allegations against her.” She argued she “received ineffective assistance of counsel

25 before her plea of ‘true’ due to defense counsel’s failure to investigate [her] mental

health and the possibility that she was incompetent to enter her plea.”

Appellant did not argue in her motion, as she does now, that her counsel was

unprepared for the adjudication hearing. Nor does her motion contain any

argument about potential witnesses. As it concerns her claim of ineffective

assistance, Appellant argued she received ineffective assistance before her plea due

to her counsel’s failure to investigate her mental health and the possibility she was

incompetent to enter her plea. But Appellant did not plead “true” to the State’s

allegations. She pleaded “not true” to each of them.15 The mistake apparently

stemmed from an error in the written judgment and sentence, which the trial court

corrected sua sponte on the same day of the adjudication hearing, and before

denying Appellant’s motion for new trial.

The only portion of Appellant’s motion for new trial that is not premised on

her alleged plea of “true,” appears to be Appellant’s allegation in her motion that

even “[a]ssuming [Appellant] was competent to enter her plea of ‘true,’” she

received ineffective assistance “when defense counsel failed to investigate or

present evidence regarding [Appellant’s] mental health history as mitigation

evidence” at the “short” punishment hearing, which “may have led to a different

15 Appellant acknowledged in her brief that her trial counsel “entered pleas of ‘not true’ to the allegations that she violated the terms of her community supervision[.]”

26 sentence.” Appellant argues in the summary portion of her appellate brief that

although given the opportunity, her counsel “presented no evidence at the

punishment portion of the adjudication proceeding” and “any mitigation evidence

presented” could “have had an impact on the trial court’s decision” to sentence

Appellant to eight years of incarceration.

The Court of Criminal Appeals has cautioned that a criminal defense

attorney “must have a firm command of the facts of the case as well as governing

law before he can render reasonably effective assistance of counsel.” Caballero,

2023 WL 2718466 at *11 (quoting Ex parte Welborn, 785 S.W.2d 391, 394 (Tex.

Crim. App. 1990)). Defense counsel has “a duty to make reasonable investigations

or to make a reasonable decision that a particular investigation was unnecessary.”

Id. (citing Strickland, 466 U.S. at 691).

The State argues that Appellant does not state in her unsworn declaration (or

elsewhere) whether she brought any of the potential mitigation information she

mentions in her motion for new trial to the attention of her trial counsel.16 The

16 Appellant stated in her declaration that she “didn’t talk to [her] other lawyer about [her] mental health before [she] did [her] plea.” This presumably refers to her first trial counsel. As it concerns her adjudication counsel, Appellant does not state whether she discussed any of her mental health history or diagnoses with him. See Gutierrez v. State, 602 S.W.3d 17, 22–23 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) (concluding appellant not entitled to relief for ineffective assistance claim based on counsel’s failure to investigate case, because although there were “numerous affidavits [attached to the motion for new trial] from persons known or related to appellant who stated that they were not contacted by appellant’s trial counsel and they would have testified if asked, there is no affidavit from appellant 27 State further argues Appellant’s trial counsel may have had a strategy for not

presenting the alleged mitigation evidence, including evidence that Appellant was

not taking her prescribed psychotropic medicine before she entered her plea of

guilty resulting in her deferred adjudication. The State asserts, “While it is

anyone’s guess whether hearing counsel was aware of Appellant’s conditions and

her mismanagement of them, the record before this Court (and before the trial

court) suggests that Appellant’s mitigation evidence cuts both ways and that her

counsel, if aware of this information, rationally could have decided not to present

it.”

A “failure to uncover and present mitigating evidence cannot be justified as

a tactical decision when defense counsel has not conducted a thorough

investigation of the defendant’s background.” Shanklin v. State, 190 S.W.3d 154,

164 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d) (citing Wiggins v. Smith,

539 U.S. 510, 521 (2003)). A decision by counsel to not conduct a particular

investigation is assessed for “reasonableness in all the circumstances.” Caballero,

2023 WL 2718466 at *11. “Absent affirmative evidence of misconduct, we will

not infer ineffective assistance where the record is silent on facts, circumstances, or

counsel’s rationale unless the challenged conduct was ‘so outrageous that no

competent attorney would have engaged in it.’” Brown v. State, No. 08-12-00026-

or any other witness, such as appellant’s wife, stating that they notified appellant’s trial counsel of these potential witnesses.”).

28 CR, 2014 WL 172521, at *4 (Tex. App.—El Paso Jan. 15, 2014, pet. ref’d) (not

designated for publication) (citing Goodspeed, 187 S.W.3d at 392). We presume

trial counsel’s decision not to present mitigating evidence was “rational and

strategic” absent evidence establishing counsel failed to conduct due diligence

before deciding not to present such evidence. Id

Assuming trial counsel was aware of the alleged mitigating evidence,

Appellant presented no evidence or explanation as to why her trial counsel failed to

present such evidence. See Beard v. State, 243 S.W.3d 783, 785 (Tex. App.—

Amarillo 2007, pet. ref’d) (holding murder defendant failed to establish that trial

counsel rendered ineffective assistance by failing to present defendant’s relatives

as mitigation witnesses at sentencing hearing in the absence of evidence as to why

counsel failed to call witnesses or that mitigating evidence actually existed);

Brown, 2014 WL 172521, at *4 (holding defendant did not provide evidence to

overcome presumption that trial counsel’s decision not to present mitigating

evidence was “rational and strategic” where defendant did not present evidence

from where court could “veer into counsel’s decision-making process and provide

insight into his rationale”); cf. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003) (“[T]rial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective.”).

29 The record is silent as to trial counsel’s pre-hearing investigation and it is

unclear whether Appellant’s trial counsel knew about her mental-health history or

her previous adjudication of incompetency to stand trial. “A silent record that

provides no explanation for counsel’s actions will not overcome the strong

presumption of reasonable assistance. Thus, if the record does not contain

affirmative evidence of trial counsel’s reasoning or strategy, we presume counsel’s

performance was not deficient.” Johnson v. State, 624 S.W.3d 579, 586 (Tex.

Crim. App. 2021) (internal citations omitted); see also St. Amand v. State, No. 01-

11-00648-CR, 2013 WL 175705, at *5 (Tex. App.—Houston [1st Dist.] Jan. 17,

2013, pet. ref’d) (mem. op., not designated for publication) (“We indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance, and, therefore, the appellant must overcome the

presumption that the challenged action constituted ‘sound trial strategy.’”) (citing

Strickland, 466 U.S. at 689); Jaime v. State, No. 01-11-00307-CR, 2012 WL

6754993, at *5 (Tex. App.—Houston [1st Dist.] Dec. 28, 2012, pet. struck) (mem.

op., not designated for publication) (observing that when counsel neither testified

nor provided affidavit, “[w]ithout more than the arguments made [on appeal] by

appellant, we cannot determine whether trial counsel acted in accordance with a

reasonable strategy”).

30 Assuming without deciding that Appellant’s trial counsel was deficient

based on his alleged failure to investigate and present evidence of her mental

health history, Appellant is not entitled to relief because she cannot satisfy the

prejudice prong of the Strickland test.

b. Prejudice

The Strickland prejudice prong “requires that we look to the totality of the

circumstances and evidence presented to determine if there is a reasonable

probability that, but for Counsel’s deficient performance, the result of the

proceeding would have been different.” Ex parte Martinez, 330 S.W.3d 891, 903

(Tex. Crim. App. 2011). Prejudice is established if the probability that the

outcome would have been different is “sufficient to undermine confidence in the

outcome” of the proceeding. Strickland, 466 U.S. at 694.

Appellant argues about trial counsel’s failure to present mitigating evidence

during the punishment portion of the adjudication proceeding. She states, “Any

mitigation evidence presented by the defense could have had an impact on the trial

court’s decision. There is a reasonable probability that the outcome of Appellant’s

proceedings would have been different if adjudication counsel’s performance had

not been deficient.” (Emphasis in original.) Appellant argues with respect to

prejudice that her trial counsel

[m]ade no effort to locate mitigation witnesses or investigate possible mitigating circumstances. As a result, the trial court had no mitigating 31 factors to weigh in Appellant’s favor. . . . If adjudication counsel had presented at least some mitigating evidence, there is reasonable probability that the result of the proceeding would have been different.

The State responds that what ultimately matters, and what Appellant failed to

establish, is how the proceedings would have been different but for her counsel’s

alleged deficient performance. We agree.

Appellant does not explain or establish how the result of the adjudication

hearing would have been different had the “possible mitigation evidence” been

admitted. In asserting she was prejudiced by her counsel’s conduct, Appellant

relies on Lopez v. State, where the appellate court held the defendant was

prejudiced by his trial counsel’s failure to investigate his background or present

mitigating evidence during the punishment phase of his trial. 462 S.W.3d 180, 182

(Tex. App.—Houston [1st Dist.] 2015, no pet.). But unlike the case here, the

record in Lopez included many examples of trial counsel’s failure to perform due

diligence and assist with his client’s defense. For example, during a hearing on a

motion for new trial, Lopez’s counsel proffered affidavits from Lopez’s girlfriend,

who stated trial counsel refused to help prepare Lopez for the sentencing hearing or

to meet with Lopez, and from Lopez’s mother, who stated trial counsel did not

return her calls. Id. at 184, 187. Lopez also submitted a letter from his counsel

advising him to gather mitigating evidence, such as “good guy” letters, and to

32 provide it directly to the probation department.17 Id. at 183. Lopez gave the trial

court a “synopsis of [a] psychosocial interview” conducted by a Harris County

Public Defender’s Office psychosocial worker and a psychological screening

signed by a county psychologist. Id. at 184. He attached to his motion for new

trial a report reflecting a history of mental health issues. Id. at 186. Unlike the

case here, Lopez’s trial counsel submitted an affidavit during the sentencing

hearing indicating he was unaware of Lopez having “any mental health issues or

history.” 18 Id.

17 Lopez’s attorney sent him a letter instructing him to gather supportive letters for the presentence investigation report and to forward them to the probation department directly; to bring people with him to the sentencing hearing to testify on his behalf; and to plan to meet with counsel fifteen minutes before the hearing. Lopez v. State, 462 S.W.3d 180, 183 (Tex. App.—Houston [1st Dist.] 2015, no pet.). We observed, “[Trial counsel] gave no indication that he was willing to assist with interviewing potential witnesses or reviewing their statements before they were submitted.” Id. at 187. We noted that “[t]he reasonable inferences from counsel’s letter are that counsel had assigned to Lopez the task of identifying and contacting potential character witnesses and determining what should, and should not, be included in their character-reference letters—without any assistance from counsel—and that counsel’s next involvement in the case would not be until the hearing.” Id. We held, “The delegation of the important task of developing mitigation evidence was inconsistent with trial counsel’s professional obligation to conduct a reasonable investigation into his client’s background and to evaluate whether the information discovered would be helpful in mitigating against the State’s evidence on punishment.” Id. (citations omitted). 18 But Lopez’s counsel received the presentence investigation report at least ten days before trial, and it “contained information indicating that Lopez had a troubled background, including intellectual deficiencies that impacted his general intelligence, school performance, and decision-making.” 462 S.W.3d at 187, 189. Counsel failed to bring even one piece of this information to the trial court’s attention. Id.

33 There is no such record here. Nor is there any indication of what any

“family member affidavits” or “affidavit from trial counsel” would have shown

had Appellant proffered them. See Haley v. State, No. 01-17-00576-CR, 2018 WL

3233601, at *2 (Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.) (mem. op.,

not designated for publication) (“There is nothing in the record showing that

appellant’s trial counsel failed to perform due diligence investigations of potential

defense witnesses, or that that there were witnesses available to testify on his

behalf at the punishment hearing.”) (distinguishing Lopez).

Appellant did not identify any mitigation witnesses in her motion for new

trial nor did she discuss how the “possible mitigation circumstances” would have

led to a different result.19 Rather, she simply relies on Lopez, which states, “When

defense counsel presents ‘no evidence of mitigating factors . . . to balance against

the aggravating factors presented by the State’ and fails to do so because he did not 19 Although not discussed in her brief, Appellant attached to her motion a handwritten letter where she states she has two sisters in Houston. Appellant does not say whether they were available to testify, that if asked they would have testified, or what the substance of their testimony would have been. See Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004) (“To obtain relief on an ineffective assistance of counsel claim based on an uncalled witness, the applicant must show that [the uncalled witness] had been available to testify and that his testimony would have been of some benefit to the defense.”); Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (holding it could not conclude attorney was ineffective for failing to call witness when appellant did not show witness was available to testify or that testimony would have been favorable). Proposed witnesses, to meet the availability requirement, “must testify or swear in an affidavit that they were available to testify at the defendant’s trial.” Ex parte Sanchez, 667 S.W.3d 324, 329 (Tex. App.—Houston [1st Dist.] 2022, pet. ref’d) (citing Ex parte Ramirez, 280 S.W.3d at 853).

34 investigate mitigating factors or contact potential mitigation witnesses, there is

prejudice.” Lopez, 462 S.W.3d at 189. But as we recently observed, “in

evaluating whether Lopez was prejudiced by his counsel’s deficient performance,

we relied not only on the fact trial counsel had presented no mitigating evidence

for the jury to consider, but also on the nature and degree of the aggravating

evidence the State presented at punishment and the nature and strength of the

omitted mitigating evidence.” Goodin v. State, No. 01-20-00733-CR, 2022 WL

3650124, at *18 (Tex. App.—Houston [1st Dist.] Aug. 25, 2022, no pet.) (mem.

op., not designated for publication). We explained that Lopez does not “stand for

the proposition that prejudice is established merely by trial counsel’s failure to

investigate mitigating factors, contact potential mitigation witnesses, or present any

mitigating evidence during the punishment phase.”20 Id.

And as it concerns Appellant’s mental health history and diagnoses, other

than arguing her counsel failed to conduct a diligent investigation into these

20 In considering whether Lopez was prejudiced by his trial counsel’s deficient performance, “we relied not only on the fact trial counsel had presented no mitigating evidence for the jury to consider, but also on the nature and degree of the aggravating evidence the State presented at punishment and the nature and strength of the omitted mitigating evidence.” Goodin v. State, No. 01-20-00733- CR, 2022 WL 3650124, at *18 (Tex. App.—Houston [1st Dist.] Aug. 25, 2022, no pet.) (mem. op., not designated for publication). The aggravating evidence proffered by the State in Lopez included testimony about the violence used to commit the robbery of which Lopez was accused, indications that he had been involved in other recent robberies, and his criminal history. Lopez, 462 S.W.3d at 189. Appellant does not discuss any of these factors in her brief.

35 matters, Appellant does not explain how, if presented, this evidence would have

changed the outcome of the proceedings.21 See Stokes v. State, 298 S.W.3d 428,

432 (Tex. App.—Houston [14th Dist.] 2009, pet ref’d) (“A claim for ineffective

assistance based on trial counsel’s general failure to investigate the facts of the

case fails absent a showing of what the investigation would have revealed that

reasonably could have changed the result of the case.”) (citing Cooks v. State, 240

S.W.3d 906, 912 (Tex. Crim. App. 2007)).

We thus hold that even if trial counsel was deficient in failing adequately to

investigate and put forth evidence of Appellant’s mental health history, Appellant

has not met her burden to establish she was prejudiced by the alleged deficient

performance.

We overrule Appellant’s third issue.

2. Lack of Hearing

In her first issue, Appellant complains the trial court abused its discretion in

failing to grant her a hearing on her motion for new trial. A claim of “ineffective

21 We note that Appellant’s trial counsel did present a defense during closing arguments in the adjudication hearing. He argued that Appellant “didn’t understand what was going on or what was expected of her as far as the probation was concerned” and that “she probably did not understand that she had to get a deep lung device or an interlock device on her car.” He further stated Appellant did not have “anybody to guide her. She had nobody to help her be a success on this probation.” See Gutierrez, 602 S.W.3d at 23 (holding counsel “would only be found to have rendered ineffective assistance if that failure precluded him from advancing a viable defense”).

36 assistance of counsel may be raised in a motion for new trial.” Smith, 286 S.W.3d

at 340 (quoting Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993)). But

a defendant does not have an absolute right to a hearing on a motion for new trial.

Hobbs, 298 S.W.3d at 199. To be entitled to a hearing on a motion for new trial

that alleges ineffective assistance of counsel, a defendant “must allege sufficient

facts from which a trial court could reasonably conclude that both Strickland

prongs have been met.” Gutierrez, 602 S.W.3d at 22; see also Smith, 286 S.W.3d

at 340–41 (“Before he will be entitled to a hearing on his motion for new trial

alleging ineffective assistance of counsel, 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.”)

(emphasis in original); Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d) (holding trial court did not abuse discretion in failing

to hold hearing on defendant’s motion for new trial based on ineffective assistance

of counsel because “he failed to explain or demonstrate how [his attorney’s]

actions, if true, were deficient or how they harmed him”).

Even assuming Appellant established the first prong of the Strickland test,

we have concluded she did not establish prejudice. Thus, she did not establish

reasonable grounds showing she could potentially be entitled to relief entitling her

37 to a hearing on her motion for new trial. We further note that Appellant was

sentenced by the trial judge. As such, it is reasonable to assume the judge did not

need to hold a hearing on the motion for new trial, during which he presumably

would have received the same evidence proffered in the motion:

When a judge who sentences a defendant also denies the defendant’s hearing on a motion for new trial, we presume that the judge knew whether additional testimony produced in affidavits would have influenced his normative sentencing judgment. Only the trial judge could have known what factors he took into consideration when he assessed the punishment, and only he would know how additional testimony might have affected his assessment. The trial judge may conclude, without conducting a hearing, that the appellant suffered no prejudice from any deficiency of the trial counsel with respect to the punishment phase.

Castaneda v. State, No. 01-14-00389-CR, 2015 WL 6930466, at *9 (Tex. App.—

Houston [1st Dist.] Nov. 10, 2015, pet. ref’d) (mem. op., not designated for

publication) (citing Smith, 286 S.W.3d at 344–45).

Smith is instructive. In Smith, the defendant pled guilty pursuant to a plea

agreement in connection with a charge of sexual assault. 286 S.W.3d at 336. He

was placed on ten years’ deferred adjudication community supervision, but eight

years later, the State filed a motion to adjudicate. Id. After the adjudication

hearing, the defendant was sentenced to twenty years in prison. Id. The defendant

moved for a new trial and requested a hearing based on his counsel’s failure to

inform him of his right to testify at the adjudication hearing and counsel’s failure

to submit medical records into evidence. Id. The trial court denied the motion for 38 new trial without a hearing. Id. at 337. The court of appeals held the trial court

abused its discretion in failing to hold a hearing on the claim of ineffective

assistance of counsel. Id. The State sought review from the Court of Criminal

Appeals, arguing the defendant was not entitled to a hearing on his motion for new

trial because he had not established there was a reasonable probability the outcome

would have been different had a hearing been conducted. Id. at 337–38. The

defendant argued that he was entitled to a hearing on his motion for new trial

because the revocation hearing was essentially a second sentencing hearing and the

trial judge should have been allowed to consider any evidence that could have

justified a reduced sentence. Id. at 344. He argued that the omitted testimony and

medical records were material to the trial judge’s sentencing for the original

offense. Id.

The Court of Criminal Appeals held that because the defendant’s motion and

affidavit did not raise facts to establish he could prevail under the Strickland

prejudice prong, the court of appeals erred when it held the trial court abused its

discretion in failing to hold a hearing on the defendant’s motion for new trial. Id.

at 338. The Court of Criminal Appeals observed that “the decision of what

punishment to assess after adjudicating the defendant guilty is a purely normative

process, not intrinsically factbound, and is left to the unfettered discretion of the

trial judge.” Id. at 344. The court continued:

39 Only the trial judge in this case could have known what factors he took into consideration in assessing the original punishment, and only he would know how the defendant’s testimony, if allowed, might have affected that assessment. When the trial judge declined to hold a hearing on the appellant’s motion for new trial, we presume that he knew from the affidavits what the appellant’s testimony at a hearing would be, and that, even assuming any such testimony to be accurate and reliable, knew that it would not have influenced his ultimate normative judgment. In that event, the trial court could have concluded, without the necessity of a hearing, that the appellant suffered no prejudice from any deficiency on his trial counsel’s part with respect to the assessment of punishment for the original offense.

Id. at 344–45.

Similarly, in Castaneda, the defendant complained of the trial court’s denial

of a hearing on his motion for new trial, in which he claimed ineffective assistance

of counsel for failure to provide mitigating evidence during sentencing. 2015 WL

6930466 at *8. The judge who sentenced the defendant was the same judge who

signed the presentment of the motion for new trial. Id. at *9. Consistent with

Smith, we held that the “the judge could have determined without a hearing that the

alleged deficiencies of trial counsel by failing to provide this evidence at the

punishment phase would not have affected his sentencing decision.” Id. (citing

Smith, 286 S.W.3d at 344–45).

The State argues that because the trial court sentenced Appellant, it was not

necessary for the court “to hold a hearing on the motion for new trial, the only

purpose of which would be to receive in a different setting Appellant’s claimed

mitigation evidence.” We agree. As in Smith and Castaneda, we hold that the trial 40 court judge, who sentenced Appellant, could have determined from the motion and

attached evidence what Appellant’s testimony at a hearing would have been, and

that it would not have influenced his ultimate normative judgment to revisit the

evidence submitted in support of her motion for new trial at a hearing. See Smith,

286 S.W.3d at 338 (holding that to obtain hearing on motion for new trial,

defendant “must at least allege facts that show reasonable grounds to believe that

he could prevail under both prongs” of Strickland test) (emphasis in original).

We overrule Appellant’s first issue.

Abandonment of Counsel

In her second issue, Appellant argues she was denied effective assistance of

counsel during the thirty-day period for filing a motion for new trial, in violation of

her Sixth and Fourteenth Amendment rights. Appellant requests we abate her

appeal so that she may file a second, out-of-time motion for new trial. The State

responds that Appellant failed to rebut the presumption she was adequately

represented by trial counsel following the adjudication of her guilt and further that

she has not established harm.

The Court of Criminal Appeals has held, “as a matter of federal

constitutional law, that the time for filing a motion for new trial is a critical stage

of the proceedings, and that a defendant has a constitutional right to counsel during

41 that period.” Cooks, 240 S.W.3d at 911. When as here, a defendant is represented

by counsel during trial, there is a rebuttable presumption that trial counsel

“continued to adequately represent the defendant during this critical [motion-for-

new-trial] stage.” Monakino v. State, 535 S.W.3d 559, 563 (Tex. App.—Houston

[1st Dist.] 2016, no pet.) (quoting Cooks, 240 S.W.3d at 911).

We thus begin our analysis with the presumption that trial counsel

effectively represented Appellant for twenty-eight days following the trial court’s

adjudication of her guilt until the day he withdrew on April 12, 2021. See Oldham

v. State, 977 S.W.2d 354, 361 (Tex. Crim. App. 1998) (noting presumption “that

counsel was acting effectively at all times”). Appellant may overcome this

presumption by producing evidence she was not adequately represented during the

relevant time period. Green v. State, 264 S.W.3d 63, 69 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d). To defeat the presumption, Appellant must show more

than the fact

(1) appellant filed a pro se notice of appeal; (2) the appellate attorney was “to be determined”; (3) the trial court appointed appellate counsel after the expiration of the time for filing a motion for new trial; (4) on appeal, appellant would have raised further complaints had a motion for new trial been filed; (5) appellant appeared without counsel when signing a pauper’s oath and requesting appellate counsel; and (6) the record shows no activity by trial counsel or any motion to withdraw from the case.

Id. (citing Oldham, 977 S.W.2d at 362–63). The record must “compel the

conclusion that [the defendant] was abandoned by trial counsel.” Id. at 71. In 42 addition, the defendant must prove that the deprivation of counsel was not

“harmless beyond a reasonable doubt.” Cooks, 240 S.W.3d at 911–12; see also

Monakino, 535 S.W.3d at 565 (“To establish harm, [the defendant] must present a

‘facially plausible claim’ that he could have developed in a motion for new trial.”)

(citing Cooks, 240 S.W.3d at 911–12). If a defendant successfully rebuts the

presumption and proves harm, the remedy is to abate the proceedings and restart

the appellate timetable. Green, 264 S.W.3d at 69 (citing Ward v. State, 740

S.W.2d 794, 800 (Tex. Crim. App. 1987)).

Appellant argues that her trial counsel failed to advise her of her right to

appeal.22 She argues there is no record of the trial court advising Appellant of her

right of appeal and that Appellant did not receive the trial court’s certification of

her right to appeal until April 13, 2022, one day after her appellate counsel was

appointed. Yet, before the trial court appointed her appellate counsel, Appellant

timely filed three pro se notices of appeal on April 8, 2022, one on a pre-printed

form and two handwritten, manifesting Appellant had some knowledge of the

appellate process. See Bearman v. State, 425 S.W.3d 328, 330 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (“Appellant’s filing of a notice of appeal shows

22 Neither in her motion for new trial nor in her letter and declaration attached to her motion does Appellant claim her counsel failed to advise her of her appellate rights.

43 that he had knowledge of the appellate process and deadlines.”) (citing Oldham,

977 S.W.2d at 363); see also Benson v. State, 224 S.W.3d 485, 492 (Tex. App.—

Houston [1st Dist.] 2007, no pet.) (“[T]he filing of the notice of appeal is evidence

that the appellant was informed of at least some of his appellate rights.”).23

Appellant also argues that when her appellate counsel was appointed, a mere

two days before her motion for new trial was due, she had limited time to

investigate the proceedings and determine whether grounds existed to move for a

new trial, and to prepare and file the motion. She argues the limited time “impeded

[her] ability to investigate possible grounds for a motion for new trial.”

Appellant likens her case to Monakino v. State, 535 S.W.3d 559 (Tex.

App.—Houston [1st Dist.] 2016, no pet.). In Monakino, the defendant pleaded

guilty to aggravated assault without an agreed recommendation on punishment

from the State. Id. at 560. The record contained a certification of Monakino’s

right to appeal indicating the case was “not a plea bargain case, and [Monakino]

has the right to appeal.” Id. But the written judgment after sentencing included

special findings that stated, “Appeal waived. No permission to appeal granted.” Id.

at 561. Monakino filed a handwritten pro se notice of appeal. Id. Monakino’s

trial counsel did not file a motion to withdraw, and the trial court did not appoint

23 See Burnett v. State, 959 S.W.2d 652, 659 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (“The filing of pro se matters does not establish deprivation of counsel, because the practice is commonplace when defendants are represented by counsel.”).

44 appellate counsel. Id. at 562. During the next few months, Monakino filed

handwritten pro se notices of appeal, requesting that he receive an appeal bond and

that appellate counsel be appointed. Id.

Monakino filed a pro se appellate brief in this Court and the State filed a

responsive brief. Id. We later issued an order noting the certificate of right to

appeal in the clerk’s record, which indicated Monakino had the right to appeal, was

inconsistent with the written judgment of conviction indicating he lacked the right

to appeal. Id. We abated the case and ordered the trial court to conduct a hearing

during which it was to execute an amended certification of the right to appeal that

stated whether Monakino had the right to appeal, to determine whether Monakino

wanted to pursue his appeal, to determine whether Monakino’s trial counsel

wanted to continue to represent Monakino on appeal, and to determine whether he

was indigent. Id. Nearly seven months after the trial court signed the judgment of

conviction, Monakino’s trial attorney moved to withdraw and the court granted the

motion. Id. During the hearing ordered by this Court, Monakino insisted he did

not waive his right to appeal and that he told his counsel that he would appeal if

sentenced to confinement in prison. Id. Monakino’s trial counsel, the state, and

the trial court agreed Monakino did not have the right to appeal, but trial counsel

stated that given the verbiage in the certificate of right to appeal, “it might be

prudent to allow [Monakino] to appeal whatever issues his appellate counsel might

45 feel are present.” Id. During a second hearing, the State told the trial court that

Monakino had the right to appeal, and Monakino stated he wanted to pursue his

appeal and that he was indigent. Id. The trial court appointed appellate counsel,

who then filed a new appellate brief on Monakino’s behalf. Id. at 563.

Monakino argued on appeal the trial court erred by failing to appoint

appellate counsel within the thirty-day window for filing a motion for new trial.

Id. He asked this Court to abate the appeal and remand the case to allow him to

file an out of time motion for new trial. Id. We did so, noting the case did not

involve a “conclusory” allegation that counsel was ineffective for failing to

investigate and present mitigating evidence. Id. at 568. Rather, the presentence

investigation report referred to Monakino’s substance abuse history and mental

health-related hospitalizations, clearly putting counsel on notice of potential

mitigating evidence. Id.

Monakino is distinguishable in several key aspects. Most notably, the

appellate counsel in Monakino did not move for a new trial, whereas Appellant’s

appointed counsel filed a timely motion for new trial. Indeed, none of the cases

upon which Appellant relies involved a situation like the one present here, where

Appellant seeks an abatement to file an amended motion for new trial.24 See

24 The Court of Criminal Appeals has held that a defendant may not file an amended motion for new trial after the thirty-day time limit, even with leave of court. See Moore v. State, 225 S.W.3d 556, 558 (Tex. Crim. App. 2007). However, this 46 Cooks, 240 S.W.3d at 908 (“When the time period for filing a motion for new trial

expired on November 25, 2004, no motion for new trial had been filed.”);

Bearman, 425 S.W.3d at 330 (“While trial counsel may have made appellant aware

of his right to file a motion for new trial, appellant did not have the assistance of

counsel in doing so.”).

Appellant also relies on Cooks in arguing she is entitled to file an out of time

amended motion for new trial. She argues appellate courts have granted

abatements to allow the filing of an out of time motion for new trial when appellate

counsel is appointed after the period for filing a motion for new trial begins “and

the shortened time frame harmed appellate counsel’s ability to investigate possible

grounds for a motion for new trial.” Appellant is correct that the appellate court in

Cooks concluded that the defendant successfully rebutted the presumption that she

had been adequately represented by counsel during the motion for new trial period

when the defendant brought forth evidence that (1) she was not represented by

counsel during the first twenty days following judgment, and (2) the defendant’s

appellate counsel contended there was insufficient time after she was appointed to

assist the defendant adequately in deciding whether to move for a new trial. 240

S.W.3d at 911. What Appellant ignores is that in Cooks, the court also held that

prohibition does not “deprive the trial court of the authority to rule on a tardy amendment to a timely motion for new trial, at least absent an objection from the State,” within the seventy-five-day limit for ruling on a motion for new trial. Id. TEX. R. APP. P. 21.8.

47 the deprivation of counsel was “harmless beyond a reasonable doubt” because

Cooks’ appellate counsel did not present any “facially plausible claims” that could

have been presented in a motion for new trial. Id. at 911–12. The same is true

here.

While Appellant argues the limited time her appointed appellate counsel had

to move for a new trial “impeded [her] ability to investigate possible grounds for a

motion for new trial” she does not explain what those possible grounds may have

been. Cooks is also distinguishable because, as in Monakino, no motion for new

trial was timely filed.

We believe that Mashburn v. State, 272 S.W.3d 1 (Tex. App.—Fort Worth

2008, pet. ref’d) is more analogous to the present situation. In Mashburn, a jury

found the defendant guilty of murder. Id. at 4. Appellant’s trial counsel timely

filed a notice of appeal and motion for new trial. Id. Mashburn claimed he was

entitled to abatement of the case so that he could file another motion for new trial,

arguing he was without counsel for at least eighteen of the thirty days in which to

file a motion for new trial. Id. Mashburn argued that the motion for new trial his

counsel filed was “inadequate because it was not sworn, contain[ed] no affidavits,

and set[ ] forth only general arguments in support of a new trial, such as that a new

trial should be granted in the interest of justice.” Id. He asserted the motion

presented nothing for appellate review and was only filed to extend appellate

48 deadlines. Id. While the court of appeals observed that Mashburn had received the

benefit of appellate counsel only three days before the thirty-day deadline to move

for a new trial expired, it concluded Mashburn was not harmed by the “gaps in

representation.” Id. at 5. In holding Mashburn was not entitled to an abatement of

his appeal, the court stated, “[Mashburn] does not say what issues he would have

raised on appeal that were not preserved by the motion for new trial filed and

presented by trial counsel, nor are any of the issues in his brief barred from

consideration by this court for lack of them being properly raised in a motion for

new trial.” Id.

Here too, Appellant does not identify what issues not already raised in her

original motion she would raise in an amended motion for new trial. Appellant

argues that her ability to gather “information in the form of mental health treatment

records, family member affidavits, or even an affidavit from trial counsel” was

hindered. But there is no indication of who those family members were or what

such “family member affidavits” would have shown. We further note that the

motion for new trial Appellant filed does address her ineffective assistance of

counsel claim and Appellant’s competency and mental health history. Appellant

has thus not shown she was harmed by any gaps in representation, and there is no

basis for abating the appeal to allow the filing of a second motion for new trial.

See Mashburn, 272 S.W.3d at 5; see also Mitchell v. State, No. 01-07-00889-CR,

49 2010 WL 4910227, at *13 (Tex. App.—Houston [1st Dist.] Nov. 30, 2010, pet.

ref’d) (mem. op., not designated for publication) (“Conclusory allegations as to

trial counsel’s ineffectiveness in general ways (such as failing to call a material

witness or failing to conduct a proper investigation) are insufficient to establish the

necessary evidence or information that counsel would have presented at the motion

for new trial that reasonably could have changed the results of the case.”) (citing

Cooks, 240 S.W.3d at 911–12).

To the extent Appellant argues abatement is warranted to allow her more

time to develop a record in support of her claims, we previously have declined to

grant abatements intended to provide time to “develop the record” for an out of

time motion for new trial based on an ineffective assistance of counsel claim,

noting such claims can be raised in post-conviction habeas corpus proceedings.

See Porter v. State, No. 01-17-00534-CR, 2018 WL 4169482, at *9 (Tex. App.—

Houston [1st Dist.] Aug. 30, 2018, pet. ref’d) (mem. op., not designated for

publication) (holding issues defendant sought to develop for motion for new trial

“can be properly raised in a post-conviction writ of habeas corpus”) (citing

Pettway v. State, 4 S.W.3d 390, 391 (Tex. App.—Houston [1st Dist.] 1999, order)

(holding defendant did not show good cause to suspend appellate rules to allow

him to file out-of-time motion for new trial because ineffectiveness claim could be

raised in post-conviction habeas corpus proceeding); see also Rylander, 101

50 S.W.3d at 110 (explaining that “an application for a writ of habeas corpus is the

more appropriate vehicle to raise ineffective assistance of counsel claims”).

We overrule Appellant’s second issue.

Competency

In her fourth issue, Appellant argues the trial court abused its discretion in

failing to conduct an informal competency hearing “upon the suggestion of

incompetence in Appellant’s motion for new trial.”

A defendant has the right to be competent throughout the entire trial,

including sentencing. Rodriguez v. State, 329 S.W.3d 74, 78 (Tex. App.—Houston

[14th Dist.] 2010, no pet.) (citing Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim.

App. 1996)); Garay v. State, No. 01-11-00595-CR, 2012 WL 2159296, at *2 (Tex.

App.—Houston [1st Dist.] June 14, 2012, no pet.) (mem. op., not designated for

publication). There are two steps to a trial court’s competency determination.

“The first step is an informal inquiry; the second step is a formal competency

trial.” Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). Generally,

an inquiry into the defendant’s competency “must be conducted when there is

evidence ‘sufficient to raise a bona fide doubt in the mind of the judge whether the

defendant is legally competent.’” Gonzales v. State, 313 S.W.3d 840, 841 (Tex.

51 Crim. App. 2010) (emphasis in original) (quoting Montoya v. State, 291 S.W.3d

420, 424 (Tex. Crim. App. 2009)).

A trial court’s failure to conduct a competency inquiry is reviewed for abuse

of discretion. Hobbs v. State, 359 S.W.3d 919, 924 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (citing Montoya, 291 S.W.3d at 425); Lewis v. State, 532

S.W.3d 423, 432 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). The

reviewing court gives “great deference” to the trial court’s assessment of the

defendant’s “ability to assist counsel and his understanding of the proceedings.”

Lewis, 532 S.W.3d at 432 (citing McDaniel v. State, 98 S.W.3d 704, 713 (Tex.

Crim. App. 2003)).

Evidence that suggests the need for an informal competency inquiry may be

based on observations made with respect to one or more of the factors set forth in

Code of Criminal Procedure Article 46B.024, or on any other indication that the

defendant is incompetent under Article 46B.003. See TEX. CODE CRIM. PROC. arts.

46B.004(c–1), 46B.024; see also Laflash v. State, 614 S.W.3d 427, 432 (Tex.

App.—Houston [1st Dist.] 2020, no pet.). The Article 46B.024 factors include the

capacity of the defendant during criminal proceedings to (1) rationally understand

the charges against him and the potential consequences of the pending criminal

proceedings, (2) disclose to defense counsel pertinent facts, events, and states of

mind, (3) engage in a reasoned choice of legal strategies and options, (4)

52 understand the adversarial nature of criminal proceedings, (5) exhibit appropriate

courtroom behavior, and (6) testify. TEX. CODE CRIM. PROC. art. 46B.024(1)(A)–

(F); see also Laflash, 614 S.W.3d at 432.

“Texas’ competency statutes25 allow competency to be raised, by either

party or the judge, at any time before sentence is pronounced.” Morris v. State,

301 S.W.3d 281, 290 (Tex. Crim. App. 2009) (citing TEX. CODE CRIM. PROC. arts.

46B.004(a) and 46B.005(d)) (footnote added). “Sentencing closes the door on the

trial because it is the final action at the trial stage[.]” Casey, 924 S.W.2d at 949.

“[W]hen determining if the trial court should have had a bona fide doubt as to

competency, we do not typically consider evidence brought to the trial court’s

attention for the first time after sentencing.” Garay, 2012 WL 2159296, at *2

(citing Rodriguez, 329 S.W.3d at 78). “Simply put, the Texas competency statute

does not apply after sentencing.” Rodriguez, 329 S.W.3d at 79 (citing Morris, 301

S.W.3d at 290).

Competency may be raised for the first time in a motion for new trial.

Edwards v. State, 993 S.W.2d 171, 175–76 (Tex. App.—El Paso 1999, pet. ref’d).

25 Texas Code of Criminal Procedure article 46B.004(a) states in part: “Either party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial.” TEX. CODE CRIM. PROC. art. 46B.004(a). Texas Code of Criminal Procedure article 46B.005(d) states: “If the issue of the defendant’s incompetency to stand trial is raised after the trial on the merits begins, the court may determine the issue at any time before the sentence is pronounced.” TEX. CODE CRIM PROC. art. 46B.005(d).

53 But the “bona fide doubt” standard does not apply when competency evidence is

first presented in a defendant’s motion for new trial. See Purchase v. State, 84

S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding court

should not apply bona fide doubt standard when all evidence of incompetency was

first presented at hearing on motion for new trial). When competency is first raised

in a motion for new trial, the court “applies the normal standard used in deciding a

motion for new trial under which the trial court considers all the evidence

presented, judges the credibility of witnesses, and resolves conflicts in the

evidence.” Id. (citing Edwards, 993 S.W.2d at 175–76; see also Godoy v. State,

122 S.W.3d 315, 320 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (“[A]

defendant may challenge his competency to stand trial in a motion for new trial on

a plea of true to a motion to revoke community supervision. When the competency

issue is raised in this manner, the trial court applies the traditional standard to

determine whether to grant a motion for new trial.”) (citations omitted). The trial

court has “broad discretion” to judge the witnesses’ credibility and to weigh the

evidence “to determine whether a different result would occur upon retrial.”

Godoy, 122 S.W.3d at 320 (citing Dusenberry v. State, 915 S.W.2d 947, 949–50

(Tex. App.—Houston [1st Dist.] 1996, pet. ref’d)); cf. Brown, 960 S.W.2d at 778

(“[T]o evaluate an appellant’s claim that the trial court erroneously denied his

54 motion for new trial, we consider all of the competency evidence presented at the

motion for new trial hearing.”).

We note that Appellant relies on cases in which competency was raised

before sentencing. They are thus inapposite. See Boyett, 545 S.W.3d at 558

(motion raising issue of defendant’s competency was filed on third day of

guilt/innocence phase of trial); Kapperman v. State, No. 01-20-00127-CR, 2022

WL 3970081, at *31 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022, no pet.)

(mem. op., not designated for publication) (incompetency first suggested by

counsel’s statements during voir dire); Moore v. State, 999 S.W.2d 385, 393 (Tex.

Crim. App. 1999) (competency first raised in pretrial hearing on motion to

suppress evidence); Laflash, 614 S.W.3d at 433 (competency raised during motion

to adjudicate guilt); Fluellen v. State, 443 S.W.3d 365, 369 (Tex. App.—

Texarkana 2014, no pet.) (noting defendant’s assertion that competency was raised

by his actions during “course of the proceedings,” beginning with pretrial hearing).

Appellant relies primarily on Laflash, in which we held the trial court abused

its discretion by failing to conduct an informal inquiry into Laflash’s competency

to stand trial during a hearing on a motion to adjudicate guilt. 614 S.W.3d at 428.

Laflash’s counsel moved for a competency evaluation to determine whether

Laflash was competent to stand trial for indecency with a child by sexual contact

55 and the trial court granted the motion, appointing Dr. Barry Norman to perform the

evaluation. Id. at 428-29. Dr. Norman’s report stated, among other things, that

Laflash had the capacity to “disclose facts, events and state of mind associated

with the alleged offense,” appeared to have an “adequate understanding” of the

charges against him and could provide “details about history,” and “appear[ed]

competent to assist defense counsel.” Id. at 429. Dr. Norman also stated that

although Laflash did not understand the various pleas or the implication of

accepting a plea bargain, his responses “were not suggestive of mental illness.” Id.

Laflash pleaded guilty and signed a “declaration of understanding regarding

his competency to stand trial and waiver of rights.” Id. at 430. He affirmed during

the plea proceedings that he understood the guilty plea memorandum, which his

counsel read to him, and that by pleading guilty, he was “voluntarily giving up a

lot of valuable rights” including the right to a jury trial and to testify in his own

defense. Id. The trial court entered an order of deferred adjudication, placing

Laflash on community supervision for eight years. Id. About four months later,

the State moved to proceed with an adjudication of guilt. Id. The trial court held a

hearing on the State’s motion and took judicial notice of all contents of the court’s

file and the case’s prior proceedings. Id. Laflash pleaded “not true” to one

allegation and “true” to the remaining allegations regarding his violation of the

terms of his community supervision. Id. Laflash’s probation officer and father

56 testified about his mental status at the hearing. Id. The probation officer testified

that Laflash was “mentally challenged” and struggled with some of the rules he

had to comply with because of his low IQ. Id. at 430–31. Laflash’s father testified

that his son “get[s] confused very often” and needs to have some things explained

repeatedly. Id. at 431. The trial court adjudicated Laflash guilty of the charge of

indecency with a child and sentenced him to eighteen years’ imprisonment. Id.

This Court concluded that based on the evidence presented at the hearing on

the motion to adjudicate, the trial court should have conducted an informal inquiry

to evaluate Laflash’s competency to stand trial. Id. at 433. We stated that the

testimony of Laflash’s father and probation officer during the adjudication hearing

“provided the court with recent and specific testimony . . . regarding the degree of

[Laflash’s] impairment resulting from his intellectual disability.” Id. We held that

because the amount of information necessary to trigger an informal inquiry is “low

and can be satisfied with a suggestion from any credible source that a defendant

may be incompetent,” the trial court abused its discretion in failing to conduct an

informal inquiry “to determine whether there was some evidence from any source

that would support a finding that [Laflash] was incompetent to stand trial.” Id.

Appellant’s reliance on Laflash is misplaced. Evidence of Laflash’s

incompetency was introduced before sentencing was complete and there was

testimony during the adjudication hearing regarding the “degree of [Laflash’s]

57 impairment resulting from his intellectual disability.” In contrast, evidence of

Appellant’s alleged incompetency was first raised in Appellant’s motion for new

trial, and there was no live or affidavit testimony by any witness during the

adjudication hearing concerning Appellant’s purported incompetency or mental

health history or diagnoses.

We find our sister court’s opinion in Rodriguez v. State, 329 S.W.3d 74

(Tex. App.—Houston [14th Dist.] 2010, no pet.) to be illustrative. The defendant

in Rodriguez was convicted of murder and after sentencing, his appellate counsel

moved to appoint an expert to evaluate the defendant’s competency and a motion

for new trial alleging the defendant had been incompetent to stand trial and

received ineffective assistance of counsel. Id. at 76–77. The court of appeals

explained it did not “typically consider evidence brought to the trial court’s

attention for the first time after sentencing” and would, rather, “consider only the

facts known to the trial court prior to the imposition of appellant’s sentence.” Id. at

78–79. The defendant argued that four facts should have created a bona fide doubt

as to his competency before sentencing: (1) the defendant received a head injury

from a beating the night of the crime; (2) the defendant was confined in the part of

the jail where people were housed for “disciplinary, protective, or medical

reasons”; (3) the defendant had epilepsy; and (4) the defendant drank alcohol

regularly before his arrest. Id. at 79. The court disagreed, stating, “These facts do

58 not show recent severe mental illness, moderate retardation, or truly bizarre acts.

Nor do these facts suggest that [the defendant] might have been unable to consult

with his attorney or understand the proceedings. [The defendant] offered no

explanation for why the court might think otherwise.” Id. The court of appeals

held the trial court did not abuse its discretion by failing to hold an informal

inquiry into the defendant’s competency. Id. at 80.

The court then turned to the defendant’s motion for new trial, which raised

the issue of his competency, and applied the abuse of discretion standard used to

review a denial of a motion for new trial. Id. (citing Criswell v. State, 278 S.W.3d

455, 457 (Tex. App.—Houston [14th Dist.] 2009, no pet.)). During the hearing on

the motion for new trial, the defendant raised several additional facts, including his

memory problems, and the fact that the defendant’s trial counsel “initially had

concerns about [his] competency.” Id. The appellate court held the “minor

memory problems, without supporting evidence that these problems caused him to

be denied a fair trial,” and “an unsupported allegation of incompetence, such as

trial counsel’s initial comment,” did not show lack of competency and, thus, the

trial court did not abuse its discretion by denying the motion for new trial. Id. The

court also noted it had “found no support for the argument that a defendant may

have an expert appointed after sentencing.” Id. at 81 (citing Bronson v. State, No.

59 12–09–00129–CR, 2010 WL 702259, at *4 (Tex. App.—Tyler Feb. 26, 2010, no

pet.) (mem. op., not designated for publication)).26

Appellant concedes that her appellate counsel first “raised the suggestion

that Appellant was not competent during her adjudication proceedings in a motion

for new trial.” The competency statutes do not provide a mechanism for

appointing an expert to determine competency after sentencing. Further, there is

no requirement that a trial court conduct a competency hearing after sentencing.

See Freeman v. State, No. 13–98–587–CR, 2001 WL 34401233, at *2 (Tex.

App.—Corpus Christi-Edinburg Aug. 16, 2001) (mem. op., not designated for

publication) (holding court did not err in failing to hold competency inquiry when

only evidence of incompetency was brought to court’s attention in defendant’s

motion for new trial and bill of exception), rev’d on other grounds, 125 S.W.3d

505 (Tex. Crim. App. 2003).

Appellant argues that her declaration in support of her motion for new trial

“call[ed] into question her ability to ‘rationally understand the charges against

[her]’ and to ‘disclose to counsel pertinent facts, events, and states of mind.’” She

26 In Bronson v. State, the Tyler Court of Appeals stated, “Article 46B.005 is prospective in nature, allowing the trial court to order an examination to determine whether the ‘defendant is incompetent to stand trial.’ The statute does not specifically provide for an examination to determine if a convicted person had been incompetent to stand trial[.]” No. 12–09–00129–CR, 2010 WL 702259, at *4 (Tex. App.—Tyler Feb. 26, 2010, no pet.) (mem. op., not designated for publication) (citing TEX. CODE CRIM. PROC. art. 46B.005(d)).

60 states that the exhibits supporting her motion for new trial demonstrate she suffers

from mental illness and previously was found incompetent to stand trial by the

judge of the 180th Judicial District Court of Harris County. 27 Appellant also states

that her conduct at the hearing on the motion to adjudicate “further calls into

question her competency to proceed.” For example, she responded to her

counsel’s questions during the hearing with “no comment” and attempted to invoke

the Fifth Amendment in an attempt to avoid the State’s questions, even though the

trial court advised her that she waived her right to plead the Fifth Amendment

when she voluntarily took the stand.

We are not persuaded that Appellant’s attempt to plead the Fifth

Amendment or her refusal to answer her counsel’s questions reflect incompetency.

As the State notes, Appellant’s attempt to plead the Fifth and her refusal to answer

her counsel’s questions both occurred after she had already started testifying and 27 The evidence attached to the motion for new trial included (1) a declaration from Appellant in which she stated that her court-appointed attorney was “unaware of and unprepared for” the motion on her hearing to adjudicate guilt; that she “signed under duress” and “was rushed into signing a document when [she] still had questions/concerns. . . .”; (2) records reflecting her mental hospital history, current medications, and diagnoses; (3) a July 13, 2011 order granting both parties’ Motion for Psychiatric Examination in Cause No. 1294211, State of Texas v. Denise Rodriguez, in the 180th District Court of Harris County, Texas; (4) the State’s July 12, 2011 Motion for Psychiatric Examination in that same case; (5) a June 7, 2012 Order for Restoration of Competency in Cause No. 129421101010, State of Texas v. Denise Rodriguez, in the 351st District Court of Harris County, Texas; (6) Appellant’s declaration in which she states that she “didn’t want to plead ‘true’” and that she “tried to take the 5th [Amendment], but [she] didn’t want to get more time”; and (7) information about risperidone, the drug Appellant claims she was taking.

61 answered questions during the adjudication hearing. A defendant’s refusal to

communicate with counsel or the trial court does not overcome the presumption of

competence. George v. State, 446 S.W.3d 490, 501 (Tex. App.—Houston [1st

Dist.] 2014, pet. ref’d); see generally Lewis, 532 S.W.3d at 433 (“The trial court

could reasonably have concluded that appellant’s refusal to cooperate at trial was

not fueled by a lack of rational understanding, but rather a desire to obstruct the

trial proceeding. The record indicates that appellant understood the nature of the

proceeding and was capable of consulting with his appointed attorney to a rational

degree of understanding. He simply chose not to do so.”); George, 446 S.W.3d at

501 (“[D]isruptive courtroom conduct and a general failure to cooperate are not

probative of incompetence to stand trial.”); Freeman, 2001 WL 34401233 at *2

(“What was before the trial court were examples of a defendant who wanted to

speak and argue during the trial. The conduct of the appellant before the trial court

was not so bizarre as to suggest that she lacked the necessary competency to stand

trial.”); Kapperman, 2022 WL 3970081, at *31 (“Inappropriate outbursts and

comments during trial are not necessarily evidence of one’s incompetency to stand

trial.”).28

28 See also Hill v. State, No. 2-06-094-CR, 2007 WL 866476, at *8 (Tex. App.—Fort Worth Mar. 22, 2007, pet. ref’d) (mem. op., not designated for publication) (holding trial court did not abuse discretion by denying motion for new trial based on competency). In Hill, the appellate court observed that the defendant

62 The trial court’s observation of Appellant during the motion to adjudicate

hearing is given “great deference” on appeal insofar as competency is concerned.

George, 446 S.W.3d at 500 (citing Ross v. State, 133 S.W.3d 618, 627 (Tex. Crim.

App. 2004)). And there is no evidence in the record, beyond Appellant pleading

the Fifth, that would have suggested to the court that Appellant did not understand

the proceedings.

Nor does Appellant’s diagnosis of bipolar disorder or prior mental health

history show in and of itself that she was incompetent. As we recently held in

Kapperman, a “defendant’s mental illness does not amount to a suggestion of

incompetency unless there is also evidence he cannot rationally understand the

proceedings against him or engage rationally with counsel in the pursuit of his own

best interest.”29 2022 WL 3970081, at *32; see also McDaniel, 98 S.W.3d at 712

presented nothing more at the new trial hearing than his own testimony that he was incompetent at the time of trial because of some drugs that he took. [The defendant] essentially testified that he was unable to assist his attorney and lacked a rational and factual understanding of the proceedings against him, stating that he did not recall changing his plea to guilty, that he “couldn't have been aware of nothing that was going on with [him],” and that he basically had no recollection of anything after taking the drugs. Id. 29 While Appellant states in her brief that she was found incompetent to stand trial by the judge of the 180th Judicial District Court of Harris County, there is nothing attached to her motion that evidences this fact. Among the exhibits attached to her motion for new trial is a July 13, 2011 order granting a Motion for Psychiatric Examination in Cause No. 1294211, State of Texas v. Denise Rodriguez, in the 180th District Court of Harris County, Texas, but no other document is attached 63 (holding that evidence that defendant’s “history of mental illness” including

bipolar disorder did not obligate trial court to make informal inquiry into

defendant’s competency); Lindsey v. State, 544 S.W.3d 14, 25–26 (Tex. App.—

Houston [14th Dist.] 2018, pet. ref’d) (“Evidence that appellant had been

diagnosed with bipolar disorder, that appellant was not taking medication, and that

appellant was not ‘the same’ as he was while taking his medication did not suggest

appellant was incompetent because there was no evidence of a present impairment

and the record did not contain any evidence that any mental illness prevented

appellant from rationally understanding the proceedings or pursuing his best

interests.”); Ceasar v. State, No. 01-07-00769-CR, 2008 WL 2611927, at *3 (Tex.

App.—Houston [1st Dist.] July 3, 2008, no pet.) (mem. op., not designated for

publication) (holding trial court did not abuse discretion in denying new trial on

competency grounds although defendant’s medical records and affidavit from

defendant’s psychiatrist stated that several months before defendant’s arrest, he

was diagnosed with bipolar disorder and post-traumatic stress disorder and

indicating the results of such examination. We are not persuaded that this action taken by a trial court ten years prior to the adjudication hearing in an unrelated matter indicated to the trial court that Appellant may have been incompetent. We note that also attached to Appellant’s motion for new trial is a June 7, 2012 Order for Restoration of Competency in Cause No. 129421101010, State of Texas v. Denise Rodriguez, in the 351st District Court of Harris County, Texas, stating “It is therefore ORDERED by the Court that the above named defendant is at this time mentally competent, as found by the Court, and that he stand trial another day.”

64 prescribed medication, and defendant’s affidavit stated he was not on the proper

medication during his plea and thought he would receive probation); Martinez v.

State, No. 05-01-01770-CR, 2003 WL 21509039, at *2 (Tex. App.—Dallas June

30, 2003, no pet.) (mem. op., not designated for publication) (“[E]ven assuming

they were ‘recent,’ prior hospitalizations, treatment for depression, or a

determination that a person is mentally ill do not per se constitute a finding that the

person is incompetent to stand trial.”).

We hold the trial court’s decision not to conduct an informal inquiry into

appellant’s competency was not an abuse of discretion. We overrule Appellant’s

fourth issue.

Conclusion

We affirm the trial court’s judgment.

Veronica Rivas-Molloy Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).