                          NUMBER 13-14-00227-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


DARRELL DEWAYNE DUDLEY,                                                     Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 329th District Court
                         of Wharton County, Texas.


                          MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Rodriguez
       Appellant Darrell Dewayne Dudley challenges his convictions for aggravated

robbery. See TEX. PENAL CODE ANN. § 29.03 (West, Westlaw through 2013 3d C.S.).

After entering a plea of guilty to both counts of the indictment, the trial court sentenced

Dudley to twenty years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice for each offense, the sentences to run concurrently. By one issue,

Dudley complains that his trial counsel provided ineffective assistance.1 We affirm.

                                        I. STANDARD OF REVIEW

      A claim that trial counsel was ineffective is analyzed under the familiar standard

set forth in Strickland v. Washington. 466 U.S. 668, 687 (1984). To obtain a reversal

of a conviction for ineffective assistance of counsel, a defendant must show that: (1)

counsel's performance fell below an objective standard of reasonableness; and (2)

counsel's deficient performance prejudiced the defense, resulting in an unreliable or

fundamentally unfair outcome of the proceeding. Id.

      The court of criminal appeals has explained this standard as follows:

      For a claim of ineffective assistance of counsel to succeed, the record must
      demonstrate both deficient performance by counsel and prejudice suffered
      by the defendant. An ineffective-assistance claim must be firmly founded
      in the record and the record must affirmatively demonstrate the meritorious
      nature of the claim. Direct appeal is usually an inadequate vehicle for
      raising such a claim because the record is generally undeveloped. This
      statement is true with regard to the deficient performance prong of the
      inquiry, when counsel’s reasons for failing to do something do not appear
      in the record. Trial counsel should ordinarily be afforded an opportunity to
      explain his actions before being denounced as ineffective. If trial counsel
      is not given that opportunity, then the appellate court should not find
      deficient performance unless the challenged conduct was so outrageous
      that no competent attorney would have engaged in it.

Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012) (citations omitted).

This standard of proof applies to the punishment phase as well as to the trial stage of

criminal proceedings. Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)

(en banc).


      1   The State did not file a brief in this appeal.

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                                        II.     DISCUSSION2

        By his sole issue, Dudley contends that his “[d]efense counsel was ineffective in

failing to request an additional psychiatric examination prior to his plea and in permitting

[Dudley] to enter a plea of guilty even though he had concerns about [Dudley’s]

competency.” As to the first prong of Strickland, Dudley argues that trial “counsel’s

performance was substandard because, as he admitted in court and based on the witness

testimony at the sentencing hearing, [Defense] counsel should have pursued further

psychiatric examination much earlier on, and should not have agreed that [Dudley] was

competent at the plea hearing.” And regarding the second prong of the test, Dudley

asserts that, but for his trial counsel’s errors, “there is a reasonable probability the result

of the proceeding would have been different. . . .”

        As Dudley set out in his appellate brief,

                After the plea, but before sentencing, [Defense] counsel filed a
        “motion to withdraw guilty plea” in which he requested that [Dudley] be
        reevaluated due to newly discovered potential mental disabilities by
        [Defense] counsel. [Defense] counsel asserted his opinion that, based on
        his interactions with [Dudley] and based on newly discovered information,
        that [Dudley] was not mentally competent and needed to be reevaluated.
        At the sentencing hearing, [Defense] counsel urged this motion, announced
        ready, asked for a continuance, and asked [Dudley] to be re-evaluated,
        arguing his belief that [Dudley] was mentally ill. [Defense] counsel stated
        that he was in error for not pursuing the issue about [Dudley’s] competency
        like he should have, stating “I admit that was my fault.” [Defense] counsel
        called three witnesses, the first two of which explaining that [Dudley] did
        indeed have something mentally wrong with him.




         2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.

                                                   3
       Consistent with Dudley’s statement of facts set out above, our review of the record

reveals that after Dudley’s plea hearing but before the sentencing hearing, defense

counsel argued to the trial court that he had filed a motion requesting additional

psychiatric examinations “because of [his] belief now that there is something wrong with

him. He’s just not normal. . . . Psychological[ly] he’s not normal.” The trial court heard

the testimony regarding Dudley’s competency challenge from the following defense

witnesses:    (1) Dudley’s uncle; (2) his mother; and (3) his sister.     After testimony

concluded, the following exchange occurred between counsel for the defense, counsel

for the State, and the trial court:

       The Court:     One of the things I did back on February 28th [at the plea
                      hearing] was I ordered a PSI to be prepared, and a
                      presentence investigation report has been prepared. I
                      got several copies yesterday, and I have provided copies
                      to the State and to the [Defense] counsel. I'm going to
                      rather than mark it as an exhibit.

                             (Off-the-record discussion)

       The Court:     This document—I'm going to take judicial notice of this
                      document, and it will become part of the clerk's file.

                      Does either side have any objections to any of the
                      contents of the presentence investigation report or any
                      additional material that they think should be added to the
                      presentence investigation report?

       [The State]: Not from the State, Judge.

       The Court:     [Defense]?

       [Defense]:     I think, your Honor, you've heard testimony here in your
                      wisdom.

       The Court:     I do intend to consider the testimony that I've heard here
                      in addition to this.

                                             4
        [Defense]:       Other than that, although I would object and I don't have no
                         other way to say it except that the—I object to the reference
                         of malingering on the part of the psychologist when he didn't
                         talk to anybody besides Dudley. He probably talked to him
                         for an hour at the most, and I would say that it was—it's
                         suspect. That's all I can say.

        The Court:       That objection is overruled.

        [Defense]:       Right.

        The Court:       Any other evidence regarding Mr. Dudley's competency
                         today?

        [Defense]:       No, your Honor.

        The Court:       [The State]? Nothing further?

        The State:       No, your Honor.

        The Court:       All right. Okay. I want the record to be clear I have taken
                         judicial notice of the reports from Dr. Fuller that are also part
                         of the clerk's record. These are the initial examinations that
                         were done regarding his competency at the time the alleged
                         defenses were committed, and then also at the time of his trial
                         or competency to stand trial.[ 3 ] And I'll say, [Defense],
                         although the word "malingering" was used, I think it's used in
                         the medical sense which is slightly different than the military
                         sense.

        [Defense]:       Okay.

        The Court:       I think the medical sense of malingering is simply that a
                         person is giving a false impression for faking some sort
                         of mental illness. But I don't think it has any criminal
                         connotation to it whatsoever.

        3 Michael Fuller, M.D., with the Psychiatric Forensic and Consultative Services, Department of
Psychiatry and Behavioral Sciences at The University of Texas Medical Branch, Galveston, Texas,
prepared the referenced report. After examining Dudley, Dr. Fuller concluded that “Mr. Dudley with
reasonable medical probability, at the time of the alleged offense, did not meet the statutory requirements
to pursue a credible insanity defense.” Dr. Fuller also explained that he based his opinion “on the
impression that Mr. Dudley does not suffer from symptoms of a psychiatric illness that are sufficiently severe
as to diminish his reality testing or perception of reality. He appears to be malingering his apparent defects
and confusion.”
                                                      5
       [Defense]:    Okay. Thank you, your Honor.

       The Court:    Anyway, based upon all of the evidence that I have before me
                     and including the letters, the support letters that are included
                     in this presentence investigation report, I have letters—there
                     are letters from mom and from sister and from other family
                     members and also from a friend who was apparently a
                     girlfriend, I think it's significant that none of these—none of
                     this correspondence mentions that Mr. Dudley has any kind
                     of mental illness that would interfere with his ability to
                     understand the nature and consequences of, you know, his
                     actions or his compliance with the law or criminal charges that
                     have been levelled against him. And in fact, one of the letters
                     from [a friend] says that he's not stupid or dumb. He's just
                     easily influenced and makes mistakes like all of us. He's a
                     really good drawer and with his G.E.D. could get a job as a
                     tattoo artist. I think considering the totality of all of this
                     evidence that I will continue to conclude that Mr. Dudley's plea
                     was knowing and voluntary and that he was competent to
                     stand trial on February 28th and also today. So we're going
                     to continue with the sentencing hearing at this time. And your
                     motion, [Defense], is denied.

       [Defense]:    Thank you, your Honor.

       Based on the above, we conclude that the present record is sufficiently developed

to show that counsel had the opportunity and did, in fact, request by written motion and

in open court at the sentencing hearing that the trial court consider additional psychiatric

examination. We cannot conclude that the challenged conduct was so outrageous that

no competent attorney would have engaged in it. See Menefield, 363 S.W.3d at 593.

Dudley has not demonstrated deficient performance by counsel.            See id.; see also

Strickland, 466 U.S. at 687. And Dudley has not established that any of this complained-

of conduct prejudiced him. See Menefield, 363 S.W.3d at 592; Strickland, 466 U.S. at

687. Based on the record before us, we cannot conclude that Dudley’s trial counsel


                                             6
performance was ineffective. We overrule his sole issue on appeal.

                                     III. CONCLUSION

       We affirm the judgment of the trial court.



                                                          NELDA V. RODRIGUEZ
                                                          Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 20th
day of November, 2014.




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