                   no;.
                                    56CW5
                               IN THE

                    COURT OF CRIMINAL                                ORIGINAL
                               APPEALS

                    ...'•'!    OF TEXAS



                              ROBERT WAYNE LEISHER,
                              Petitioner                     A
                              v.



                              THE STATE OF TEXAS
                              Respondent



                  Petition in Cause No. 07-14^00441-CR
         from the Criminal District Court No^2 of Dallas County
Texas and the Court of Appeals for the Seventhipistriet of Texas



               PETITION FOR DISCRETIONARY REVIEW                 J;^;i„ lkl
                                                                              IN
                                                           COURT OF CRIMINAL APPEALS

                                                                          11 ft, J

                                                       |         Abel Acosta, Clerk

                                                Robert W.! Leisher
 .%':   '•'•
        wi                                      TDCJ#1.969543
                                                Michaels Unit
                                           '.   2664 FM 2054
                                                Tennessee Colony, Texas
                                                Petitioner




                                                    •••'^•^tCEIVED     IN
                                                    COURT OF CRIMINAL APPEALS
                                                             MAY 08 2015

                                                             e»Acosia,<
TABLE OF CONTENTS

Index of Authorities..........
Statement Regarding Oral Argument......'.....
Statement of the Case
Statement of Procedural History...........
Ground for Review.

THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT PROPERLY
ASSESSED THE PETITIONER'S MENTAL COMPETENCY WITHOUT A MENTAL COMPETENCY
EVALUATION BY PSYCHIATRIST (Rec. page 10-11).               ;
Reason fpp Review. ^. .;>:.,.             ' "/_•'../,.„',       .|,; •   \••*•.-. #*•••':.?        •*•
Prayer fot; Relief.".v.'iV,'.:.'•".""."     <•-•••.
Appendix.                    •-   ..';




                                                                                              ,. 2 '•; •-1
INDEX OF AUTHORITIES



CASE LAW


Ex parte De Leon,; 400 S,W. 3d 83,89 (Tex. Crim. App. 2013)
Minefield v. State, 363 S.W. 3d 591, 592 (Tex. Crim. App, 11012)
Jacksonv. State, 680 S.W. 2d 809, 814 (Tex. Crim. App. 1984)
                         NO; ••
                                  IN THE

                          COURT OF CRIMINAL
                            .     APPEALS

                                  OF TEXAS.    .




                                  ROBERT WAYNE LEISHER
                                  Petitioner

                                  v..'''.' .


                                  THE STATE OF TEXAS
                                  Respondent




                        Petition in Cause No.      07-14-00441^CR
             from the Crimiflial District Court No. 2 of Dallas County
          Texas and the Court of Appeals for the Seventh District of Texas




                 PETITION FOR DISCRETIONARY REVIEW




TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS:   '



ROBERT WAYNE LEISHER, petitions the Court to review the judgement
affirming his conviction for fraudulent possession of the identifying
information of fifty or more persons in Cause No. 07-14-00441-CR.

STATEMENT REGARDING ORAL ARGUMENT                      i

Petitioner does not request oral argument.

STATEMENT OF THE CASE

The petitioner was convicted by an "open" plea of the offense of
Fraud Use/ Possession of ID (Fl); the punishment was assessed by
                                      4
the Court at (30) years confinement in the Texas Department of
Criminal Justice, Institutional Division, and a fine of $10,000.00.
This conviction was affirmed by the Court of Appeals for the Seventh
District,April 16, 2015.

STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals rendered its decision affirming petitioner's
conviction on April 16, 2015. This petition was then filed with the               ,
clerk of the Court of Appeals within thirty(30) days after such final
{ruling, to wit April 16, '2015.                                       "•'••*"••••:

GROUND FOR REVIEW

THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT PROPERLY
"ASSESSED THE PETITIONER'S MENTAL COMPETENCY WITHOUT A MENTAL COMPETENCY
EVALUATION BY PSYCHIATRIST (Rec. page,10-11).    ;

^REASON FOR REVIEW                                                                1*
The petitioner informed his attorney and Court that he had been using
methamphetamines and was having withdraws and had a pre-diagnosis
mental illness (bipolar disorder) that he was not on his medication   f,
 at the, time of the hearing.

This information should have alerted the Court that a mental competency:
evaluation was needed to be sure that petitioner was aware and fully ;^
 understood the proceedings of the hearing, however, the Court failed
 to heed this.inlormation. and chose to do an evaluation of the petitioner
•for it's self.   i

 When a question of a defendant's mental competency is in question
 a Court should be fair and order.'% evaluation by a psychiatrist ;
 to determine if the defendant iscompetent. It -is a slippery'..slop
 when the Court takes it; upon it's self to determine the mental competency
 of a defendant that has a history of a mental Illness and is off;
,;of his medication.


 BIPOLAR DISORDER

 A serious psychiatric disorder characterized by extremes of moods,
 including mania and depression. Bipolar disorder is also known as^
 manic depressive disorder or manic depression. Individuals with bipolar
 disorder may be more likely to exhibit addictive behaviors because
 of their lack of impulse rcontrol when they are in a manic (overly
 excited) state or because,of their extremely low mood state when
 they are depressed. Some^experts believe that some undiagnosed patients
 with bipolar disorder may use drugs or alcohol in an attempt to
 self-medicate their psychiatric symptoms. About 1-2 percent of the
 population in;the United; States is affected by bipolar disorder.

 FORMS OF BIPOLAR DISORDER

 There are two primary forms of bipolar disorder with several subsets
 of interest to psychiatrists and other mental health professionals.
Bipolar 1 disorder is the more classic form of the illness. It is
characterized by manic episodes that may last for at least a week
and are followed by depressive periods that may last for two weeks
or more. Some patients are so manic that they require hospitalization
in order to avoid causing harm to themselves or others. Patients
may also have both a mania and a depression simultaneously, which
is called a mixed mania. These patients are at greater risk for
suicide.   '

Bipolar 2 disorder is a less well-defined form of the illness and
is typified by hypomania, which is a less severe form of mania than
seen with bipolar 1 disorder. There is a predominance of depression
and depressive symptoms. This disorder is less easy to diagnose
and to treat than bipolar type 1 but causes substantial disability
in the general population.

fSUBSTANCE ABUSE; PREVALENCE WITH..,BIPOLAR, DISORDER ,.       ;.- ,.
iLarge studies of patients with,bipolar 1 disorder, have Ishown that
about 61 percent developed a substance abuse disorder durnirig their
lifetimes,{abusing either alcohol or another drug. Another 41 percent
»had a drug abuse or dependence diagnosis.
Studies of patients with bipolar 2 disorder revealed that 48 percent
developed a substance abuse disorder. Another 21 percent had a drug
tor alcohol dependency.
Mood disorders ttfat occur earlier in life, such as during adolescence,
[may have a different outcome than those that occur at yjounger ages.
sAccordihg to a report, from the National Center iOh Addiction and
^Substance Abuse at Columbia University on pathways to substance abuse
i'among girls arid'young women ages 8-22 years old, "Children who develop
[mood, disorders, such as bipolar disorder, during their iteeh years
!afe ;alinost nine t;imes like-lier to develop' a substance luse disorder
compared to those whose mood disorder emerges earlier in childhood".
Some studies have shown that alcoholism and other forms of substance
abuse in patients with bipolar disorder.predictLa more severe clinical
course.(Whether there is a*cause and effect relationship is not felear.
The subitance abuse may trigger bipolar 'episode's. The,substance abuse
may cause other, brain changes that are harmful to the person with
bipolar ^disorder.

PRAYER FOR RELIEF

For the reason herein alleged, the petitioner was denied a fair hearing
in Cause No. F-1457156-I; Therefore, petitionerprays this Court
grant this petition, and upon reviewing the ijujdgejnent; entered below
reverse this cause and remand it for a hew.trial.


                                  Respectfully Submitted,
                                  Robert W.   Leisher


Appendix: Judgement of the Seventh Court of Appeals (attached)
                       CERTIFICATE OF SERVICE
This is to certify that a copy of the above-entitled and numbered
petition for review have been served to the clejrk of Court of Criminal
Appeals of Texas by placing said copy in mail on the 4th day of May 2015.
                                                           Respectfully,

                                                     v- t*S?fcj2Ai? u^Ajul^^
                                         3fo W$t
                                      Court of appeals
                      &etoettfh Btarrict of tKexa* at HJmartllo

                                       No. 07-14-00441-CR



                         ROBERT WAYNE LEISHER, APPELLANT

                                                 V.


                            THE STATE OF TEXAS, APPELLEE


                      On Appeal from the Criminal District Court No. 2
                                    Dallas County, Texas
             Trial Court No. F-1457156-1, Honorable Donald C. Adams, Presiding


                                         April 16, 2015

                               MEMORANDUM OPINION

                   Before QUINN, CJ., and CAMPBELL and PIRTLE,U.

       Robert Wayne Leisher entered an open plea of guilty to fraudulent possession of

the identifying information of fifty or more persons. He was sentenced by the trial court

to thirty years confinement.

       Appellant's appointed counsel filed a motion to withdraw, together with an

Anders1 brief, wherein he certified that, after diligently searching the record, he

concluded that the appeal was without merit. Along with his brief, appellate counsel


        See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)f
filed a copy of a letter sent to appellant informing him of counsel's belief that there was

no reversible error and of appellant's right to file a brief or response pro se. Counsel

also represented that he furnished a complete copy of the record to appellant. By letter

dated February 19, 2015, this court notified appellant of'his right to file a brief or

response by March 23, 2015, if he wished to do so, and we subsequently gave him

additional time to file his response, which he did.

        In compliance with the principles enunciated in Anders, appellate counsel

discussed potential areas for appeal including a possible defect in the indictment,2 the
adequacy of the admonishments, and the sufficiency of the evidence.                         However, he

then explained why the issues lack merit.

       Appellant also raised several issues for our consideration including 1) his

contention that his "open" plea included a promise by the State that there would be an

upper cap in his prison term of not more than fifteen years, 2) alleged promises by the

State that it would recommend a ten-year prison term and drop the enhancement

paragraph, 3) the involuntariness of his plea because he was not taking medication for

his bipolar disorder, and 4) the ineffective assistance of his counsel in not objecting to

the State's failure to abide by the "pre-hearing negotiations."                  Evidence of the plea

agreement claimed by appellant does not appear in the record, and we must look to the

written agreement and the formal record to determine the terms of such an agreement.

Ex parte De Leon, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013). Moreover, appellant was

informed orally and in writing that the range of punishment was up to life in prison. We

also note that the State did drop the enhancement paragraph and recommend a term of


        2Appellant waived his right to complain of"any and all defects, errors, or irregularities, whether of
form or substance in the charging instrument."
imprisonment of ten years, but nothing in the record indicates that the trial court was

bound by that recommendation or by any upper limit other than the statutory range. A

plea agreement is not binding until the trial court approves it. Bland v. State, 417

S.W.3d 465, 471-72 (Tex. Crim. App. 2013).

      As to appellant's competency, appellant's attorney signed a written statement to

the effect that she believed her client was competent, and the judge also stated that

appellant appeared mentally competent. Although there was testimony from appellant

that he was not taking medication for his bipolar disorder, his testimony was lucid and

gave no indication of impairment. To the extent that appellant claims his counsel was

ineffective for failing to object to the punishment assessed, we have already noted that

the record does not support his contention of an agreed cap. Menefield v. State, 363

S.W.3d 591, 592 (Tex. Crim. App. 2012) (stating that claims of ineffective assistance

must be firmly founded in the record). When counsel has not been given a chance to

explain why he or she failed to do something, we should not generally find deficient

performance. Id. at 593.

      In addition, we conducted our own review of the record to assess the accuracy of

appellate counsel's conclusions and to uncover any arguable error pursuant to In re

Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) and Stafford v. State, 813 S.W.2d

508 (Tex. Crim. App. 1991). Although the State requested a punishment often years,

the court sentenced appellant to thirty years. Yet, the punishment is within the statutory

range for a first degree felony, see Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.

App. 1984) (stating that a punishment assessed within the statutory range will generally

not be reversed), and appellant had four prior felony convictions and one misdemeanor.
He had also failed in the past to successfully complete probation. We fail to find any

error.



         Accordingly, the motion to withdraw is granted, and the judgment is affirmed.3



                                                                Brian Quinn
                                                                Chief Justice
Do not publish.




         3 Appellant has the right to file a petition for discretionary review with the Court of Criminal
Appeals.
