Michael Vincent Dally v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 2, 2023
• Docket: 07-22-00272-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00272-CR

MICHAEL VINCENT DALLY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 84th District Court Hutchinson County, Texas Trial Court No. 12644, Honorable Curt W. Brancheau, Presiding

August 2, 2023 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Michael Vincent Dally, was convicted by a jury of unlawful possession

of a firearm by a felon,1 double enhanced, and sentenced to confinement for thirty-five

years. By three issues, he contends (1) the trial court abused its discretion when it

admitted State’s Exhibit 12 (body camera footage of a police interview) in violation of his

right against self-incrimination; (2) his competency trial was invalid; and (3) his trial

1 TEX. PENAL CODE ANN. § 46.04(a)(1). counsel was ineffective in not pursuing a motion for a mental health evaluation before a

determination of guilt. We affirm.

BACKGROUND

Late in the evening hours of October 24, 2020, law enforcement responded to a

call of shots fired near an apartment complex. The first officer on the scene, Sergeant

Stanford, interviewed a few witnesses who implicated Appellant as the shooter. The

officer located Appellant at his girlfriend’s house and interviewed him. Appellant denied

being the shooter and claimed he was popping fireworks.

Sergeant Stanford then responded to another call but later returned to interview

Appellant a second time. During this interview, which was admitted at trial as State’s

Exhibit 12, the sergeant conducted a pat down search for weapons given the nature of

the call and asked Appellant to empty his pockets. Appellant eventually admitted he fired

the shots and directed the sergeant to where he had buried the gun but claimed he had

fired the shots because his home was being burglarized.

Because Appellant had a prior final felony conviction for forgery from 2016, he was

charged with possession of a firearm by a felon and convicted. The punishment phase

commenced and, after the State presented its evidence, the trial court recessed until the

following day. When the proceedings reconvened, defense counsel bench-filed a motion

raising the issue of Appellant’s incompetency to stand trial pursuant to article 46B.004 of

the Texas Code of Criminal Procedure.

Outside the jury’s presence, the trial court held an informal inquiry into Appellant’s

mental state and heard testimony from Appellant and one other witness familiar with 2 Appellant. The court found “some evidence” to justify a competency evaluation. The trial

court informed the jury continuation of the punishment phase would be delayed. The

mental evaluation was conducted that evening. The next morning the trial court

announced Appellant was “deemed incompetent due to substance abuse disorder,

methamphetamine, as well as an unspecified psychotic disorder.” The doctor’s report

reflected that an opportunity for Appellant to detox would alleviate his communication

issues and he would be deemed competent. The court recessed until Appellant could be

re-evaluated.

Appellant was re-evaluated and when proceedings reconvened approximately

three weeks later, the trial court found him competent to continue the trial and that he had

the ability to consult with defense counsel. The court ruled there was no evidence he was

not competent during the first day of trial. The proceedings continued with Appellant

presenting his punishment evidence. The jury returned a verdict of thirty-five years’

confinement.

ISSUE ONE—ADMISSIBILITY OF STATE’S EXHIBIT 12

Appellant asserts the trial court violated article 38.23 of the Texas Code of Criminal

Procedure by admitting State’s Exhibit 12, body camera footage of Sergeant Stanford’s

second interview with him. We disagree.

At the pretrial hearing a week before trial in which Appellant expressed

dissatisfaction with trial counsel’s representation, counsel addressed Appellant’s

admissions and explained, “Judge, there was no arrest. There was no Miranda required.

That’s why there’s no Motion to Suppress filed.” However, just prior to commencement

3 of trial, the court held a “last-minute” suppression hearing to determine the admissibility

of State’s Exhibit 12. Appellant objected under article 38.23 and failure to receive

warnings under Miranda v. Arizona.2 He alleged he was the subject of a custodial

interrogation when interviewed a second time by Sergeant Stanford and asked to empty

his pockets which he asserts resulted in an illegal search.

APPLICABLE LAW

A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion

and should be reversed only if it is outside the zone of reasonable disagreement. Wexler

v. State, 625 S.W.3d 162, 167 (Tex. Crim. App. 2021) (citations omitted). Custody is a

mixed question of law and fact that does not turn on credibility and demeanor unless the

testimony, if believed, would always decide the custody question. Id. (citing State v.

Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013)). We apply a bifurcated standard

of review, giving almost total deference to the trial court’s factual assessment of the

circumstances surrounding the questioning and reviewing de novo the ultimate legal

determination of whether the person was in custody under those circumstances. Saenz,

411 S.W.3d at 494.

When a trial court denies a motion to suppress and does not enter findings of fact,

we view the evidence in the light most favorable to the ruling and assume the trial court

made implicit findings of fact that support its ruling as long as those findings are supported

by the record. Herrera v. State, 241 S.W.3d 520, 527 (Tex. Crim. App. 2007). The

prevailing party is afforded the strongest legitimate view of the evidence and all

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 reasonable inferences which may be drawn from that evidence. State v. Garcia-Cantu,

253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

Miranda and article 38.22 of the Texas Code of Criminal Procedure can render

statements produced by custodial interrogation inadmissible without the appropriate

warnings. Wexler, 625 S.W.3d at 167. A person is in custody if, under the circumstances,

a reasonable person would believe his freedom of movement was restrained to the

degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.

Crim. App. 1996). Four general situations may constitute custody: (1) the suspect is

physically deprived of his freedom of action in any significant way; (2) a law enforcement

officer tells the suspect he cannot leave; (3) officers create a situation which would lead

a reasonable person to believe his freedom of movement has been significantly restricted;

or there is probable cause to arrest and officers do not tell the suspect he is free to leave.

Id. at 255. The first three scenarios must reflect the restriction of freedom of movement

amounted to the degree associated with an arrest as opposed to an investigative

detention. Id. The fourth situation requires the officer’s knowledge of probable cause be

manifested to the suspect and custody is established only if that manifestation, combined

with other circumstances, would lead a reasonable person to believe he is under restraint

to a degree associated with an arrest. Id. Finally, a defendant has the burden to establish

his statement was the product of custodial interrogation. Herrera, 241 S.W.3d at 526.

ANALYSIS

The second interview lasted approximately twenty minutes. Appellant was

questioned on his front porch in the presence of several officers and other individuals.

5 His girlfriend arrived during the interview and sat near him. He initially denied discharging

a firearm and told the officers he was popping fireworks. Appellant was aware of the

consequences of a felon possessing a gun and at one point speculated he might “get 30

years.” At Sergeant Stanford’s direction, early in the interview, Appellant emptied his

pockets producing what the officers believed was part of a pipe for smoking

methamphetamine. The sergeant testified he asked Appellant to empty his pockets as a

pat down search for safety reasons given the report of shots fired. He further testified he

had probable cause to search because he was looking for a gun.

Appellant was informed he could be taken to jail for possession of the pipe, but the

sergeant indicated to him regardless of any statements regarding a gun, he would not be

taken to jail that day. Although Sergeant Stanford testified “he wasn’t exactly free to

leave” while the investigation continued, “he wasn’t going to go to jail.” During the

interview, the officers did not use angry, threatening, or condescending words. They

spoke in a calm tone and agreed it was not unreasonable for a person to possess a gun

to protect his property. During the interview, officers maintained their distance from

Appellant and at no time was he restrained, in custody, or under arrest. After Appellant

led the officers to the gun’s location, the interview was terminated, and he was free to

leave.

Appellant did not satisfy his burden to establish his statement was the product of

a custodial interrogation. He was questioned on his front porch and was assured he

would not be going to jail. He was not physically restrained nor were his movements

restricted in any significant way. He was free to go after questioning. We conclude a

reasonable person would not have believed he was in custody or that his freedom of 6 movement was restricted to the degree associated with a formal arrest. The facts do not

present a custodial interrogation which would have required Miranda warnings to be

administered. We cannot say the trial court abused its discretion in admitting State’s

Exhibit 12 into evidence. Issue one is overruled.

ISSUE TWO—COMPETENCY INQUIRY

Appellant questions the validity of the competency inquiry because the evidence

concerned only his current mental state and not his competency when the trial began.

We conclude the inquiry was not invalid.

By the Motion for Mental Health Evaluation filed during trial, defense counsel

asserted Appellant was completely uncooperative, specifically as follows:

• Defendant has failed to return phone calls and text messages;

• Defendant has failed to meet for any meaningful length of time with counsel to prepare for trial;

• Defendant has walked out during the very few and very brief meetings with defense counsel;

• Most of defense counsel’s phone calls (which have been few in number) with Defendant have ended due to the remote end of the connection (phone call) being terminated; and

• Defendant has been confused and has even confused “Todd,” a different attorney, with Q. Todd Hatter, simply because of having a similar name. Due to that confusion, defense counsel believes denfendant’s [sic] confusion has added to the complications of defense counsel’s attempts to conference with the Defendant due to what Defendant mistaking [sic] believes he has experienced in the past.

Defense counsel also included the following:

7 • Defendant has demonstrated what appears to be anxiety, frustration, outbursts of anger, uncontrollable excitement or anger, confusion and lack of understanding of the proceedings and terminology;

• Defendant appears to have a very minimal ability to read and comprehend what he is reading; and

• Defendant frequently appears confused.

Finally, in praying for the trial court to order an evaluation, defense counsel expressed

concern Appellant was “possibly unable to effectively participate in his own defense in

trial preparation, trial, and mitigation of punishment.”

APPLICABLE LAW—INCOMPETENCY

A criminal defendant who is incompetent may not be put to trial without violating

due process. Turner v. State, 422 S.W.3d 676, 688–89 (Tex. Crim. App. 2013). The

constitutional standard for competency to stand trial is set forth in article 46B.003(a) of

the Texas Code of Criminal Procedure. Id. at 689. “A defendant is presumed competent

to stand trial and shall be found competent to stand trial unless proved incompetent by a

preponderance of the evidence.” TEX. CODE CRIM. PROC. ANN. art. 46.003(b).

As noted earlier, the trial court recessed proceedings during the punishment phase

to hold an inquiry on Appellant’s competence. Defense counsel advised the court he

observed conduct and demeanor from Appellant during the punishment phase which

caused him deep concern in effectively representing Appellant without cooperation.

Counsel expressed the possibility Appellant was suffering from a mental illness but was

unwilling to say it rose to the level of incompetency.

8 The trial court indicated Appellant “seemed competent and normal” but provided

the opportunity for evidence on the motion to be presented. Appellant took the stand and

engaged in questioning until he was asked if he knew his mother’s whereabouts. He left

the stand, broke down in tears, threw down his jacket, and “stomped back into the gallery.”

Questioning resumed and Appellant expressed thoughts on his mother’s murder and

believed his counsel was involved with her death.

Another witness who has known Appellant for more than a decade testified

Appellant is a heavy drug user and his demeanor and mental state change when he is

using. He claimed Appellant’s courtroom outburst was out of character. After hearing

testimony, the trial court ordered a competency evaluation. The examination revealed

Appellant was incompetent. He was, however, deemed competent three weeks later

following a period of detox from methamphetamine.

Appellant contends his competency inquiry was invalid for failing to include

evidence of his mental state before the guilty verdict. He claims he was unable to

understand the charges against him and was unable to engage in reasoned choices of

legal strategies and options. He attributes inappropriate courtroom behavior to confusion

which he claims began as early as pretrial proceedings.

During pretrial hearings, defense counsel advised the court Appellant was not

accepting his advice to consider an offer from the State to resolve all his legal issues

because he was unhappy with the offer. The court informed Appellant he could accept

the offer or go to trial but could not obtain new counsel merely because he disagreed with

counsel’s advice.

9 The motion for a mental health evaluation focused primarily on counsel’s inability

to contact and communicate with Appellant prior to trial and a possible mental illness.

“Neither mental illness nor a defendant’s obstinate refusal to cooperate with counsel

demands a finding that the defendant is incompetent.” Turner, 422 S.W.3d at 691. The

trial court had noted earlier that Appellant was not incompetent on the first day of trial.

There was no evidence to rebut the presumption of Appellant’s competency prior to the

punishment phase. We conclude the competency inquiry was not invalid. Issue two is

overruled.

ISSUE THREE—INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant contends trial counsel was ineffective in failing to move for a mental

health evaluation prior to the guilty verdict. We disagree.

APPLICABLE LAW—INEFFECTIVE ASSISTANCE OF COUNSEL

To prevail on a claim of ineffective assistance of counsel, the defendant must prove

by a preponderance of the evidence counsel’s performance was deficient, and a

reasonable probability exists that but for counsel’s deficient performance, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Allegations of ineffectiveness must be firmly

founded and affirmatively demonstrated by the record. Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). The record on direct appeal rarely provides a reviewing

court an opportunity to conduct a fair evaluation on the merits. Mata v. State, 226 S.W.3d

425, 430 (Tex. Crim. App. 2007). When the record is silent on trial counsel’s strategy, we

will not conclude a defendant received ineffective assistance unless the challenged

10 conduct is “so outrageous no competent attorney would have engaged in it.” Goodspeed

v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

The record shows counsel did not become concerned with Appellant’s mental state

until the punishment phase. Even the trial court observed Appellant “seemed competent

and normal” until his outburst. There is nothing to suggest counsel’s decision to move for

a mental health evaluation in the middle of the punishment phase was so outrageous no

attorney would have done so. An appellate court should not denounce counsel’s

performance without counsel having had an opportunity to explain his trial strategy.

Goodspeed, 187 S.W.3d at 392. We cannot say counsel’s performance was ineffective.

Issue three is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Alex Yarbrough Justice

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