Fred Firo v. State

• Court: Court of Appeals of Texas
• Decided: August 30, 2004
• Docket: 13-03-00311-CR
• Status: Published

Opinion

NUMBER 13-03-311-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FRED FIRO,                                                                                 Appellant,

v.

THE STATE OF TEXAS,                                                     Appellee.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Garza

          Appellant, Fred Firo, was found guilty of burglary of a habitation. Appellant was sentenced to a term of forty years’ confinement in the Texas Department of Criminal Justice, Institutional Division and fined $10,000. Appellant challenges his sentence by three issues: the trial judge erred by proceeding to trial following an allegedly ambiguous psychiatric report by an appointed expert witness, by failing to conduct a competency inquiry during trial, and by imposing a fine upon appellant not authorized by statute. We modify the judgment of the trial court and affirm the judgment as modified.

I. Background

          Defense counsel filed a motion for psychiatric examination prior to trial, which the trial court granted. Included in the order granting the motion was a three-page form on which the examiner was supposed to record his findings. Dr. Raul Capitaine, appellant’s appointed psychiatric examiner, submitted a written report of his findings. During the trial, appellant revealed that he had been civilly committed for mental illness following a suicide attempt approximately eleven days after the date of the offense. Appellant alleges he had not revealed this during his examination by Dr. Capitaine. Defense counsel also presented evidence during the punishment phase indicating that appellant suffers from auditory hallucinations.  

II. Standard of Review

          The standard of review for evaluating a decision of whether to conduct a competency inquiry or hearing pursuant to article 46.02 of the criminal procedure code is whether the trial court abused its discretion. Garcia v. State, 595 S.W.2d 538, 542 (Tex. Crim. App. 1980). A trial court in Texas is subject to reversal for abuse of discretion only if the decision was “arbitrary or unreasonable.” Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). As long as a “trial court follows the appropriate analysis and balancing factors,” an appellate court should not impose its own judgment, regardless of how the appellate court may have preferred the case adjudicated on the merits. Id.

III. Analysis

A. Expert Report

          By his first issue, appellant asserts that the trial judge committed error by proceeding to trial following the submission of an incomplete and inconclusive report by the appointed expert. Appellant, however, has failed to properly preserve this alleged error for appellate review. Preserving an objection for appellate review requires that an objection first be made at the trial level. See Tex. R. App. P. 33.1(a); Burton v. State, 471 S.W.2d 817, 820 (Tex. Crim. App. 1971) (holding that defendant may not seek and receive psychiatric evaluation and then complain for first time on appeal that it was inadequate). Accordingly, appellant’s first issue is overruled.

B. Competency Inquiry

          By his second issue, appellant contends that the trial court’s refusal to conduct a competency inquiry during trial constitutes an abuse of discretion. The relevant statute in force at the time of appellant’s trial provides that:

If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

Tex. Code Crim. Proc. Ann. art. 46.02, § 2(b) (Vernon Supp. 2004). In a section 2(b) competency inquiry, the judge determines whether there is sufficient evidence to hold a full competency hearing; the inquiry is preliminary to the hearing and has a separate level of proof. See id.; see also Marbut v. State, 76 S.W.3d 742, 747 (Tex. App.–Waco 2002, pet. ref’d).Repealed by Acts 2003, 78th Leg., ch. 35 § 15 (effective January 1, 2004) (current version at Tex. Code Crim. Proc. art. 46B (Vernon Supp. 2004).

          A section 2(b) competency inquiry is necessary “only if the evidence brought to the judge’s attention is such as to raise a bona fide doubt in the judge’s mind as to the defendant’s competency to stand trial.” Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001); Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997). A bona fide doubt is “a real doubt in the judge’s mind as to the defendant’s competency.” Mata v. State, 632 S.W.2d 355, 358 (Tex. Crim. App. 1982). The phrase may be used interchangeably with “reasonable doubt.” Alcott, 52 S.W.2d at 599 n.10. A bona fide doubt is “qualitatively different” from “evidence sufficient to support a finding of incompetence.” Mata, 632 S.W.2d at 358.

          A bona fide doubt may exist “only if the evidence indicates recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant.” Collier, 959 S.W.2d at 625; Mata, 632 S.W.2d at 359. A defendant’s history of mental illness, however, need not necessarily create a bona fide doubt concerning his competency in the mind of a trial judge where other factors indicate that the defendant is competent. See McDaniel v. State, 98 S.W.3d 704, 712 (Tex. Crim. App. 2003); Ex Parte McWilliams, 634 S.W.2d 815, 820 (Tex. Crim. App. 1982).

          The question on appeal is whether the trial judge was acting within her discretion in deciding not to conduct a section 2(b) competency inquiry. Shortly before trial, Dr. Capitaine submitted a report in which he found appellant competent to stand trial. After a finding of competency by Dr. Capitaine, the trial judge was free to disregard appellant’s history of mental illness. See McDaniel, 98 S.W.3d at 712; Ex Parte McWilliams, 634 S.W.2d at 820.

          A defendant’s clear understanding of the charges against him militates against the trial judge forming a bona fide doubt of a defendant’s competency. McDaniel, 98 S.W.3d at 712. While there was evidence of past mental illness, appellant appeared rational at trial and able to understand the charges against him. When brought to the stand, he testified responsively and concisely.

          Appellant now asserts that his inability to keep up with the pace of questioning at a single point during the trial constitutes evidence of incompetence. At the time, defense counsel requested that the prosecutor question appellant more slowly. The judge also urged the prosecutor to slow down her examination. The prosecutor complied with the request, and appellant ultimately responded to her question. Throughout the remainder of the proceedings, appellant had minimal difficulty answering responsively to questions presented to him. We conclude that this single instance was not sufficient to raise a bona fide doubt of his competency at trial.

          Appellant further claims that “evidence of severe memory issues” emerged during the trial, which constituted evidence of incompetency. Appellant testified that he had been civilly committed for mental illness as a result of a suicide attempt approximately eleven days after the offense occurred. He claims that this information had not been previously disclosed during the examination by Dr. Capitaine. Appellant argues that this sudden recollection suggests severe memory problems that should have raised a bona fide doubt in the mind of the trial judge regarding appellant’s competency.

          Appellant’s contention is without merit. Dr. Capitaine was aware that appellant had made numerous attempts to commit suicide and had been repeatedly hospitalized for mental illness. His report noted that Firo had attempted suicide seven to ten times and that “Mr. Firo admitted that he is having suicidal thoughts (and said) ‘I want to end it all. . . . I still get the thoughts,’” indicating that appellant reported his suicide attempts and present suicidal impulses. Dr. Capitaine’s report also noted that appellant’s memory was impaired and that he refused to complete various memory assessments. This evidence regarding appellant’s suicide attempts and recent suicidal impulses and memory problems was therefore already before the judge when this decision was rendered.

          Through careful examination of appellant and consideration of his psychiatric history, Dr. Capitaine determined that appellant was competent to stand trial, able to consult with his attorney and understand the proceedings against him. Evidence of past mental illness does not necessarily suggest incompetence. See Levya v. State, 552 S.W.2d 158, 161 (Tex. Crim. App. 1977). Accordingly, the mere fact that a memory lapse may have occurred in the past does not suggest that appellant was incompetent at the time of trial. See McDaniel, 98 S.W.3d at 712 (“Appellant’s history of mental illness was insufficient to create a bona fide doubt about his present mental condition, in light of the more recent psychological evaluation attesting to his mental competency.”).

          Finally, appellant argues that a post-sentence investigation report prepared by the Texas Department of Criminal Justice and introduced during the punishment phase of trial should have prompted a bona fide doubt in the mind of the trial judge that appellant was incompetent to stand trial. The report notes that appellant claims to hear voices and is taking medication to prevent this.

          However, evidence introduced at the punishment phase regarding appellant’s auditory hallucinations would have provided no new information to the trial judge so as to raise a bona fide doubt of appellant’s competency. Dr. Capitaine specifically mentioned appellant’s auditory hallucinations in his report. He reported that “Medications are having moderate success in controlling auditory hallucinations. [Appellant] recognizes the voices as hallucinations and is able to ignore them.” This evidence had been explicitly raised and considered in determining appellant’s competency prior to trial, and its repetition during trial did not alter the conclusion already reached. Accordingly, we find that the trial judge did not abuse her discretion in deciding not to conduct a section 2(b) competency hearing, as no bona fide doubt as to competency was raised by evidence at trial. We overrule appellant’s second issue.

C. Fine

          By his third issue, appellant argues that the $10,000 fine imposed by the trial court was improper. The State concedes that the trial judge improperly administered the fine. Such a fine is unauthorized by the applicable penal statute. See Tex. Pen. Code § 12.42(d) (Vernon Supp. 2004). Accordingly, the judgment must be modified so as to exclude the fine. Tex. R. App. P. 43.2(b).

IV. Disposition

           The trial court’s judgment is hereby modified to exclude the $10,000 fine. The trial court’s decision is affirmed as modified.

                                                                                      _____________________

                                                                                      DORI CONTRERAS GARZA,

                                                                                      Justice

Do not publish.

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered

and filed this the 30^th day of August, 2004.