
NO. 07-02-0382-CR
 NO. 07-02-0383-CR 
NO. 07-02-0384-CR
NO. 07-02-0385-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MARCH 10, 2004
______________________________

TOMMY WAYNE ROE, 

									Appellant

v.

THE STATE OF TEXAS, 

									Appellee
_________________________________

FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

NOS. 43,628-B,43,629-B, 44,852-B, 45,396-B; HON. JOHN B. BOARD, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J. (1)
	In these four companion cases, appellant Tommy Wayne Roe appeals from his
convictions based upon his guilty pleas to criminal mischief, aggravated assault against a
public servant, and two charges of assault against a public servant.  The two issues
asserted by him are common to each appeal.  So, we consider them together, and through
them, he contends 1) the evidence was factually insufficient to support the trial court's
finding that he was competent to stand trial, and 2) the trial court erred in failing to empanel
a jury to determine his competency.  We affirm the judgments.  
Background
	Appellant was originally indicted for the offenses of criminal mischief and aggravated
assault on a public servant.  His indictment for the additional two assaults arose from
incidents occurring while he was in jail pending trial for the original charges.
	Questions as to appellant's competency arose prior to trial.  A jury was convened
to determine them and, on November 19, 2001, it found him competent to stand trial. 
Thereafter, he was tried for aggravated assault and found guilty.  However, the trial court
delayed sentencing due to appellant's behavior at trial as well as his counsel's statements
regarding her inability to communicate with appellant.  This resulted in the trial court
empaneling another jury to assess his competency on March 28, 2002.  The jury, however,
was unable to reach a verdict, and a mistrial was declared.  
	A third competency hearing was held on July 9, 2002.  There, both appellant and
the State requested the jury to find him incompetent to stand trial.  The jury did so but also
found that there existed a substantial probability that appellant would regain his
competency in the foreseeable future.  Thus, he was committed to Vernon State Hospital
(Vernon).  
	On July 26, 2002, the staff at Vernon certified appellant as competent to stand trial. 
Within 19 days of the certification, that is, on August 14, 2002, appellant appeared in the
trial court and pled guilty to all four offenses without a recommended punishment. During
that proceeding, the report from Vernon certifying appellant as competent was received
into evidence.  So too did the trial court question appellant about his knowledge and
understanding of the charges levied against him, his understanding of his rights, his pleas
to the various charges, the waiver of his rights attendant to a trial by jury, the effect of his
guilty pleas,  the voluntariness of his pleas, his admission into Vernon, and Vernon's
finding of competency, among other things.  
	Though many of the questions asked by the trial court at the plea hearing required
a simple "yes" or "no" answer and appellant's initial replies were not always responsive to
the questions, appellant did ultimately answer each question in a way indicating that he
understood the question.  So too did he respond in a manner illustrating that he understood
the charges against him,  wished to plead guilty to them, was aware of the effect of his
pleas and waivers, and was aware of the nature of the proceeding in which he was then
involved.  Given this, the trial court found appellant competent to stand trial, accepted the
guilty pleas, found him guilty for the offenses charged and, once a punishment hearing was
concluded, levied sentence.  
Issue One - Factual Sufficiency of the Evidence
 In his first issue, appellant contends that the evidence presented to the court during
the plea hearing was factually insufficient to find him competent to stand trial.  We overrule
the issue.
	The standard by which we review the factual sufficiency of the evidence is well
established and fully discussed in Zuliani v. State, 97 S.W.3d 589, 593-95 (Tex. Crim. App.
2003) and King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).  We refer the
litigants to them for their discussion. (2) 
	Next, a person is incompetent to stand trial if he lacks 1) sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding or 2) a rational
and factual understanding of the proceedings against him.  Tex. Code Crim. Proc. Ann.
art. 46.02 §1A(a) (Vernon Supp. 2004) (Emphasis added).  Furthermore, one is presumed
competent unless proved incompetent by a preponderance of the evidence.  Id. §1A(b). 
	Additionally, when an accused is found incompetent and sent to a mental health
facility, as appellant was here, the head of the facility must notify the trial court when "he
is of the opinion that the defendant has attained competency . . . ."  Id. §5(f)(1).  And, when
the accused is discharged, "a final report shall be filed with the court documenting the
applicable reason for the discharge . . . ."  Id. §5(i).  Moreover, the trial court 
	is authorized to make a determination based solely on the report with regard
to the defendant's competency to stand trial, unless the prosecuting attorney
or the defense counsel objects in writing or in open court to the findings of
the report within 15 days from the time the report is served on the parties.

Id.  Finally, if the accused is found competent to stand trial, criminal proceedings against
him may be resumed.  Id. §5(k).  With this said, we turn to the record before us.
	As previously mentioned, appellant was found incompetent and sent to a mental
health facility, i.e. Vernon.  Thereafter, he was discharged and, in the ensuing report,
categorized as "competent to stand trial" by the chief psychiatrist at Vernon.  So too was
he described, in the report, as 1) demonstrating "a factual and rational understanding of
the court personnel and proceedings," 2) having "an appreciation of the charges and legal
strategy" and "an awareness of the consequences and penalties if convicted," 3) having
"the capacity to disclose facts and testify relevantly," 4) having the ability "to assist his
attorney in preparing his defense" and to "conform his behavior to the acceptable decorum
of the court," 5) having "adequate memory, attention, intellectual functioning," 6) having the
"ability to engage in a logical and coherent discussion," 7) "functioning in the average range
of intelligence," and 8) demonstrating "adequate decision-making ability to select a
reasonable strategy on his case."  The chief psychiatrist also stated in the report that
appellant "has been diagnosed with malingering and has a strong potential for
exaggerating symptoms which might include bizarre acting out behaviors . . . ."  The
possibility that appellant "will become extremely desperate while in jail and exaggerate
symptoms in a desperate bid to appear mentally ill . . . to try and avoid the consequences
of the current charges," was further noted.  Nothing of record indicates that either party
objected to this report.  This is of import given that statute authorizes the trial court to
determine his competency solely from it.  Tex. Code Crim. Proc. Ann.  art. 46.02 §5(i)
(Vernon Supp. 2004).  So, at the very least, it provides more than ample evidence to
support the trial court's finding of competency.
	That the trial court may have voiced some disagreement with the allusion to
appellant "malingering" does not render the report bereft of weight or the finding of
competency factually insufficient.  That aspect of the report was one of many observations
uttered therein.  And, at no time did the trial court state that it disagreed with any other
observation in it, including those involving the accused's ability to engage in legal strategy,
demonstrate adequate decision-making ability, function within an average range of
intelligence, factually and rationally understand the criminal proceedings in which he was
involved, appreciate the charges and consequences if convicted, disclose facts and testify
relevantly, or conform his conduct and assist his attorney in preparing his defense.  To this,
we also add the trial court's observations of appellant, his demeanor, and his answers to
the court's questions during the plea hearing.  Indeed, the trial court expressly stated that
those observations influenced its decision.  Consequently, we are unable to say that the
evidence of appellant's competency to stand trial at the time of the plea hearing was too
weak to support the trial court's finding or that the proof of his competency was against the
great weight and preponderance of the evidence.          
Issue Two - Sua Sponte Hearing

 In his second issue, appellant faults the trial court for failing to empanel another  jury
to consider his competency as a result of his responses at the plea hearing.  We overrule
the issue. 
	Whether the trial court erred in failing to empanel a jury depends upon whether it
abused its discretion.  Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999), cert.
denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000).  And, whether it abused
its discretion depends upon whether its decision fell outside the zone of reasonable
disagreement.  Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).  
	Next, a trial court need not sua sponte empanel a jury to determine competency 
unless evidence brought to the trial court's attention is sufficient to raise a bona fide doubt
in the mind of the judge as to the defendant's competency to stand trial.  Alcott v. State,
51 S.W.3d 596, 601 (Tex. Crim. App. 2001); Moore v. State, 999 S.W.2d at 393. 
Generally, such a doubt exists only if the evidence indicates recent severe mental illness,
moderate mental retardation, or truly bizarre acts by the defendant.  McDaniel v. State, 98
S.W.3d 704, 710 (Tex. Crim. App. 2003); Alcott v. State, 51 S.W.3d at 599 n.10; Reeves
v. State, 46 S.W.3d 397, 399 (Tex. App.--Texarkana 2001, pet. dism'd).  And, again,  it
must support the inference that the accused lacked the present ability to consult with his
attorney or a rational and factual understanding of the proceedings against him.  Tex. Code
Crim. Proc. Ann. art. 46.02 §1A(a) (Vernon Supp. 2004); see Rodriguez v. State, 899
S.W.2d 658, 665 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 946, 116 S.Ct. 385, 133
L.Ed.2d  307 (1995) (stating that competency considerations involve an individual's present
ability to consult with his attorney or understand the proceedings against him).  
 Here, the trial court had a report from Vernon wherein appellant was found to be
competent.  That report was issued within three weeks before the plea hearing, and statute
authorized the trial court to rely exclusively on it when considering appellant's competency. 
	As to appellant's answers at the plea hearing, some of the initial ones were indeed
unresponsive to various questions propounded.  Yet, his ultimate replies proved highly
responsive.  Those answers also evinced appellant's understanding of the proceedings
against him and the voluntariness of his actions, or the trial court could have so reasonably
held.  
	Furthermore, the plea hearing was bereft of outbursts or bizarre actions on the part
of appellant.  So too did defense counsel refrain from suggesting that her client was unable
to communicate with her or was unaware of either the nature of the proceedings against
him or his situation.  This is telling for that same counsel was not only aware of appellant's
prior condition but also instrumental in having him previously declared incompetent by a
jury.  Yet, at the plea hearing, she said nothing about appellant being incompetent at the
time.
	Given the record before us, we cannot say that the evidence created a bona fide 
doubt of appellant's competency.  Thus, we cannot say that the failure to empanel another
jury to address appellant's competency at the time of the plea hearing fell outside the zone
of reasonable disagreement or that the trial court abused its discretion.
	Accordingly, the judgments of the trial court are affirmed.
 
							Brian Quinn 
							   Justice
 
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2004). 
2. Appellant asks that we either modify or deviate from the standard of review discussed in the cases
we cite due to recent writings of the Texas Supreme Court.  However, the Texas Court of Criminal Appeals
has final say in things criminal, not the Texas Supreme Court.  And, since it has prescribed a particular
standard of review, we must follow it as prescribed.


P="BR1">
______________________________



DANA JANENE McCARTY, APPELLANT


V.


THE STATE OF TEXAS, APPELLEE



_________________________________


FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;


NO. 2946; HONORABLE FELIX KLEIN, JUDGE


_______________________________


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

DISSENTING OPINION



	I respectfully dissent.  Notwithstanding the law of parties and that it need not be
pled in the indictment, defense counsel's trial strategy focused on appellant's anatomy and
argued she could not have sexually assaulted the victim.  See Sorto v. State, 173 S.W.2d
469, 476 (Tex.Cr.App. 2005); Cordova v. State, 698 S.W.2d 107, 111 (Tex.Cr.App. 1985), 
During his opening statement, defense counsel told the jury they were to consider the
elements of the offense as set out in the indictment and explained they would have to find
that appellant penetrated the female sexual organ of the victim with her sexual organ
because no one else was named in the indictment as sexually assaulting the victim. 
Although the State objected to defense counsel's contention anticipating the court would
instruct the jury on the law of parties, trial counsel persisted in presenting a defense on the
State's inability to prove sexual assault and ignored application of the law of parties.  
	A criminal defense lawyer must have a firm command of the facts of a case and the
law governing the case before he can render reasonably effective assistance of counsel. 
Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Cr.App. 1990).  Additionally, counsel has a
duty to bring to bear such skill and knowledge as will render the trial a "reliable adversarial
testing process."  Id. (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)).  Appellate counsel argues that defense counsel did not know the
state of the law regarding application of the law of parties.  The record on direct appeal
demonstrates that counsel repeatedly focused appellant's defense on the State's failure to
establish that appellant had engaged in sex with the victim.  I would hold that pursuing a
defense under an incorrect theory of law cannot be considered sound trial strategy and that
defense counsel's performance fell below an objective standard of reasonableness. 
	To prevail on her claim of ineffectiveness, appellant must also demonstrate by a
preponderance of the evidence that counsel's deficient performance prejudiced her
defense.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002).  Eight witnesses
testified for the State.  Five of the eight, excluding the investigating officer, the medical
expert, and a witness of whom no questions were asked during cross-examination, were
all cross-examined on whether appellant had engaged in sex with the victim and whether
appellant had touched the victim.  When appellant testified in her defense, she was also
asked whether she had engaged in sex with the victim.  
	Although defense counsel questioned the witnesses on whether appellant had
invited the victim to spend the night, held the victim for Vick, or asked the victim to have sex
with Vick, the record demonstrates that defense counsel's intent during cross-examination
was to establish a lack of evidence to show appellant sexually assaulted the victim.  This
is supported by counsel's argument in support of the motion for directed verdict based on
the State's failure to prove the elements of sexual assault, as well as the motion for new
trial and brief in support thereof.  Counsel's performance throughout trial demonstrated a
lack of knowledge on application of the law of parties which affected his cross-examination
of the State's witnesses to that extent.  It is conceivable that a defense mounted under a
correct theory of law might have produced a different result.  I conclude the record
demonstrates that counsel's deficient performance was sufficient to undermine confidence
in the outcome and compel a holding that appellant was denied her Sixth Amendment right
to effective assistance of counsel.  I would reverse and remand the cause for a new trial. 

							Don H. Reavis
						    	     Justice
 

Do not publish.
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