                                    NO. 07-05-0182-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                     JULY 5, 2006
                           ______________________________

                               BARRY DWAYNE MINNFEE,
                                                                          Appellant

                                               v.

                                  THE STATE OF TEXAS,
                                                                          Appellee
                         _________________________________

             FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 49,678-D; HON. DON EMERSON, PRESIDING
                         _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Barry Dwayne Minnfee appeals his conviction for robbery via two issues. The first

concerns whether the trial court should have inquired into whether he was competent to

stand trial. The second involves whether his trial attorney rendered effective assistance.

We affirm the judgment of the trial court.

       Competency

       In his first issue, appellant complains that the trial court should have inquired into his

competency once his counsel filed a motion for the appointment of a psychologist and

given his supposed bizarre acts. We overrule the issue.
       A person is incompetent to stand trial if he lacks a 1) sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding or 2) rational as

well as factual understanding of the proceedings against him. TEX . CODE CRIM . PROC . ANN .

art. 46B.003(a) (Vernon Supp. 2005). And, while a defendant’s potential incompetency

may be raised by motion, id. art. 46B.004(a), conclusory allegations in the motion are not

enough to trigger the need for investigation by the trial court. McDaniel v. State, 98 S.W.3d

704, 711 (Tex. Crim. App. 2003). Rather, “evidence” must be brought to the trial court’s

attention, id., and that evidence must be of the ilk to raise a bona fide doubt in the judge’s

mind about the defendant’s competency. Id.; Alcott v. State, 51 S.W.3d 596, 601 (Tex.

Crim. App. 2001). Finally, evidence is usually sufficient to create such a doubt if it shows

recent severe mental illness, moderate mental retardation, or truly bizarre acts by the

defendant. McDaniel v. State, 98 S.W.3d at 710; Alcott v. State, 51 S.W.3d at 599 n.10.

       The “evidence” alluded to by appellant allegedly satisfying the McDaniel standard

consisted of the following: 1) trial counsel’s statement that he had “some questions

personally about . . . [appellant’s] ability to think clearly and . . . to help any counsel in the

preparation of his case . . .,” 2) the numerous pleadings filed by appellant, some of which

refer to his death or injury at the hands of the judge, his attorney, and the district attorney,

3) appellant’s statement that he believed his counsel was working with the district attorney,

4) appellant’s belief that the attorney general had some authority over the cause, 5)

appellant’s belief that he was being tried on a different matter, and 6) the rapidity of

appellant’s mood swings. As to the contents of the motion, none allude to acts indicative

of incompetency. Rather, defense counsel simply explained that appellant’s competency

had yet to be assessed, that he was too poor to hire his own psychologist, a psychologist

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was needed to determine appellant’s competency and sanity, and the appointment of same

would assist in appellant’s defense.       So given the absence of anything other than

conclusory statements, its contents were not evidence suggestive of incompetency.

McDaniel v. State, supra.

       Nor did the pretrial conversation between defense counsel, appellant, and the trial

court provide the missing evidence. The exchange can best be described as dialogue

evincing appellant’s dislike for his trial counsel and desire for another attorney, i.e. one of

his own choosing. See Reed v. State, 112 S.W.3d 706, 711 (Tex. App.–Houston [14th Dist.]

2003, pet. ref’d) (stating that conflicts with counsel do not necessarily illustrate

incompetency). And, while appellant’s dislike for his counsel lead to his refusal to respond

to the questions asked him by the trial court, appellant’s belligerence evinced an

understanding of the proceedings, attempts at manipulation of those proceedings, and a

desire to delay his prosecution. At the very least, the trial court could so have reasonably

interpreted them.

       Nor did appellant’s act of filing numerous pretrial motions, when viewed separately

or in conjunction with his conduct in general, depict evidence indicative of incompetency.

Rather, his motions to suppress evidence, for a speedy trial, to subpoena particular

witnesses, for bond, and the like evinced an understanding of his circumstances and the

legal process as well as his desire to protect what he perceived to be his rights. See Reed

v. State, supra, (noting that appellant’s filing of motions demonstrated an understanding of

the legal process and his ability to function within it).

       In sum, the record before the trial court did not give rise to a bona fide doubt

regarding appellant’s present ability to consult with his attorney with a reasonable degree

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of rational understanding or his rational and factual understanding of the legal proceedings

to which he was subjected. So, the trial court did not abuse its discretion in overruling the

motion at issue. See Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999) (holding

that the decision to hold a competency hearing lies within the trial court’s discretion).

       Effectiveness of Counsel

       Next, appellant contends that his trial attorney was ineffective because he failed to

1) investigate and prepare for trial, 2) bring forth evidence of appellant’s tattoos, and 3)

investigate appellant’s mental health. We overrule this issue as well.

       To prevail on a claim of ineffective assistance, an appellant must show not only

deficient performance but prejudice arising from that deficiency. Andrews v. State, 159

S.W.3d 98, 101 (Tex. Crim. App. 2005). Moreover, his claim must be firmly founded in the

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

       Regarding the allegation about investigating appellant’s mental competency, we

immediately note that counsel did move to have his client examined and did so at the time

he did to determine whether there actually was basis for the motion; this smacks of trial

strategy as opposed to neglect. Moreover, the record before us lacks indication of

incompetence. Thus, we can hardly criticize counsel for omitting to do that which appellant

failed to show was warranted.

       As to the purported failure to investigate, appellant fails to explain what could have

been discovered and how it would have benefitted him or affected the trial’s outcome.

Given this, we cannot say that any supposed neglect on the part of his trial attorney

resulted in prejudice.



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       Finally, while appellant’s identity as the robber was at issue in trial, we cannot say

that trial counsel’s failure to have appellant show his tattoos to the jury was ineffective.

First, implicit in his argument is the assumption that appellant had tattoos when he robbed

the store; appellant cites us to no evidence establishing that. And, unless established, it

does not matter whether he had tattoos at trial. Second, tattoos may be indicative of gang

involvement or prior imprisonment and either possibility is something which a lawyer may

not care to share with a jury. In other words, what appellant deems neglect may have

actually been reasonable trial strategy, which we cannot impugn.

       Accordingly, the judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




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