                               Fourth Court of Appeals
                                     San Antonio, Texas

                                 MEMORANDUM OPINION
                                         No. 04-13-00078-CR

                                            Luis GOVEA,
                                              Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                      From the 22nd Judicial District Court, Hays County, Texas
                                    Trial Court No. CR-12-0451
                              Honorable Don Burgess, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: December 18, 2013

AFFIRMED

           Luis Govea appeals his conviction for felony driving while intoxicated–subsequent offense

and sentence of life imprisonment. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b) (West Supp.

2013). On appeal, Govea asserts that there was evidence suggesting he was incompetent to stand

trial and that his counsel rendered ineffective assistance. We affirm the trial court’s judgment.
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                                              ANALYSIS

       Competency

       In his first issue, Govea argues the trial court was required to hold an informal inquiry into

his competence to stand trial after he stated that he could not concentrate because he had been

taking medication. Govea’s comment occurred during the punishment phase of trial, after the jury

rendered its verdict recommending life imprisonment and immediately before the court formally

pronounced his sentence. Specifically, when the trial court asked Govea whether there was any

legal reason why sentence should not be pronounced at that time, Govea responded, “I don’t really

know. I can’t concentrate right because I’ve been on drugs . . . a while so I don’t know what’s

going on.” Govea argues this statement alone provided sufficient evidence suggesting he may

have been incompetent to stand trial. See TEX. CODE CRIM. PROC. ANN. art. 46B.004 (West Supp.

2013). Govea also points to evidence in the record that he had serious health issues, suffering from

cirrhosis of the liver, liver cancer, hepatitis C, and unexplained fainting spells.

       A defendant is presumed competent to stand trial and shall be found competent unless

proven incompetent by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art.

46B.003(b) (West 2006). A person is incompetent to stand trial if the person does not have “(1)

sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational

understanding; or (2) a rational as well as factual understanding of the proceedings against the

person.” Id. art. 46B.003(a) (West 2006); see Turner v. State, No. AP-76580, - - - S.W.3d - - -,

2013 WL 5808250, at *6 n.11 (Tex. Crim. App. Oct. 30, 2013) (noting that a competent defendant

possesses both criteria). This standard focuses on the defendant’s present ability at the time of

trial. Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009).

       The issue of a defendant’s competence may be raised by either party’s motion or by the

trial court on its own motion. TEX. CODE CRIM. PROC. ANN. art. 46B.004(a) (West Supp. 2013).
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“If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of

the court, the court on its own motion shall suggest that the defendant may be incompetent to stand

trial.” Id. art. 46B.004(b) (West Supp. 2013). Upon a suggestion that the defendant may be

incompetent, the trial court has a duty to conduct an informal inquiry to determine whether there

is “some evidence from any source that would support a finding that the defendant may be

incompetent to stand trial.” Id. art. 46B.004(c) (West Supp. 2013). Subsection (c–1), added

effective September 1, 2011, states, “A suggestion of incompetency is the threshold requirement

for an informal inquiry under Subsection (c) and may consist solely of a representation from any

credible source that the defendant may be incompetent. A further evidentiary showing is not

required to initiate the inquiry, and the court is not required to have a bona fide doubt about the

competency of the defendant.” Id. art. 46B.004(c–1) (West Supp. 2013); see Turner, 2013 WL

5808250, at *11 n.32. 1

        Here, other than the single statement made by Govea at the end of the punishment phase,

there is nothing in the record to suggest that Govea was incompetent to stand trial — either that he

was unable to consult with his lawyer with a reasonable degree of rational understanding, or that

he lacked a rational and factual understanding of the proceedings. See TEX. CODE CRIM. PROC.

ANN. art. 46B.003(a). During the entire trial, there was no evidence suggesting that Govea was

having trouble understanding the proceedings or communicating with his attorney and assisting in

his defense. When asked by the trial court, Govea lucidly entered his plea of “not guilty” to the

instant charge, and later entered two pleas of “true” to the habitual felon enhancements and

confirmed that he had not been coerced or offered anything in exchange for his pleas of true.

Govea did not make rambling, nonresponsive answers or inappropriate outbursts, and did not


1
  The charged DWI offense occurred on February 24, 2012, and Govea’s trial was held in November 2012; therefore
the current version of article 46B.004 applies in this case.

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engage in bizarre conduct or otherwise disrupt the court proceedings. There was no evidence that

Govea was taking any psychoactive medication or that he had any history of mental illness or

mental retardation. There was evidence that Govea was suffering from several medical conditions

and was in need of a liver transplant, but until his comment at the end of trial there was nothing in

the record to suggest that he was taking any medication during the trial. When Govea was arrested

for DWI on February 24, 2012, nine months before trial, he had been prescribed hydrocodone but

it is not clear from the record whether he was taking that pain medication at the time of trial.

       Moreover, defense counsel raised no concerns regarding Govea’s competency. The record

shows that Govea consulted with his attorney before deciding not to testify during the punishment

phase. Immediately after Govea’s statement that he was having trouble concentrating, the record

shows his attorney asked for a moment to confer with Govea and engaged in a sotto voce

discussion with him before stating, “Okay.” The trial court then proceeded to impose sentence on

Govea and informed him that he had the right to appeal. When the court asked Govea whether he

understood he had the right to appeal, Govea answered, “Yeah, I understand.” The court asked

again and Govea again confirmed that he understood he had the right to appeal.

       Viewed in the context of the entire record, Govea’s statement right before sentencing that

he was having trouble concentrating due to taking medication did not raise a suggestion that he

was incompetent to stand trial. See Thomas v. State, 312 S.W.3d 732, 737 (Tex. App.—Houston

[1st Dist.] 2009, pet. ref’d) (defendant was not entitled to continuance on ground that he was not

competent to assist his attorney due to prescribed pain medication where defendant stated the

medication affected his ability to think “a little bit” and made him “kind of dizzy,” but record

showed he was able to communicate with his attorney and his answers during testimony indicated

he understood the questions presented to him). There was no evidence that Govea lacked either

part of the competency requirements under article 46B.003(a). Therefore, the trial court did not
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abuse its discretion in failing to conduct an informal competency inquiry. See Moore v. State, 999

S.W.2d 385, 393 (Tex. Crim. App. 1999) (abuse of discretion standard). Govea’s first issue is

overruled.

       Ineffective Assistance of Counsel

       In his second issue, Govea asserts his counsel rendered ineffective assistance by failing to

take certain actions during trial. To establish ineffective assistance, Govea has the burden to prove

that his trial counsel’s performance was deficient and that it prejudiced his defense, in that there is

a reasonable probability that, absent counsel’s errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Perez v. State, 310 S.W.3d

890, 892-93 (Tex. Crim. App. 2010). Govea must provide a sufficient record that affirmatively

demonstrates ineffective assistance by a preponderance of the evidence, and overcomes the strong

presumption that counsel’s conduct fell within the wide range of reasonable professional

assistance. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). To establish deficient performance, Govea must show

that counsel’s performance fell below an objective standard of reasonableness and must rebut the

presumption that counsel’s decisions were based on sound trial strategy. Thompson, 9 S.W.3d at

812-13. In evaluating counsel’s performance, we do not focus on isolated acts or omissions, but

review the totality of counsel’s representation. Id. at 813. Failure to prove either prong of the

Strickland test will defeat an ineffective assistance claim. Id.; Perez, 310 S.W.3d at 893.

       Here, Govea did not file a motion for new trial raising ineffective assistance; therefore,

there is no evidence in the record about the reasons, or lack of reasons, underlying counsel’s

conduct. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (stating that in the

absence of evidence of counsel’s reasons for the challenged conduct, the court will “commonly

assume a strategic motivation if any can possibly be imagined,” and will not find deficient
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performance unless the challenged conduct was “so outrageous that no competent attorney would

have engaged in it.”).

        Govea raises four particular omissions by his trial counsel and asserts that, as a whole,

counsel’s performance constituted ineffective assistance. Govea’s first complaint is that his

attorney failed to establish his competence to stand trial. We have already addressed the issue of

Govea’s competence and have concluded there was no evidence suggesting he was incompetent

to stand trial.

        Govea next complains that his attorney failed to object to the mandatory blood draw, which

showed a blood alcohol content of 0.182, on constitutional grounds because several venire

members expressed their concern about its constitutionality. As noted, there is no evidence in the

record about counsel’s trial strategy. In addition, section 724.012(b)(3) makes a blood draw

mandatory when a person like Govea has been previously convicted of DWI on two or more

occasions. See TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011). Therefore, counsel’s

failure to object to the blood draw, which was statutorily mandated in this situation, was not

deficient performance. In addition, as noted by the State, Govea has failed to show he was

prejudiced by the lack of an objection because there was other overwhelming evidence that he

operated a motor vehicle in public while intoxicated—the officer observed Govea crossing over

the lane divider, drifting within the lane, making wide turns, driving over a curb, and speeding;

after he stopped Govea, the officer observed two half-full open containers of alcohol inside the

vehicle in close proximity to Govea, a strong odor of alcohol in the vehicle and on his person,

Govea had slurred speech, slow movements and glassy eyes; and Govea exhibited all six clues of

intoxication on the horizontal gaze nystagmus test and either failed or was unable to perform the

other field sobriety tests.



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       Govea also complains that counsel did not object to “the multitude of extraneous conduct”

discussed on the videotape of his arrest. Govea does not specify the extraneous conduct other than

to complain there was a discussion of outstanding warrants on the videotape. Again, defense

counsel could have had a reasonable strategy not to object in order to avoid drawing undue

attention to such “extraneous conduct” or to show the jury that Govea was accepting responsibility

for such conduct. Govea has not rebutted the presumption that counsel’s conduct was based on a

sound trial strategy. Moreover, Govea has not shown how the failure to object prejudiced him.

       Finally, Govea asserts that his counsel failed to present “a case in chief” during the

punishment phase. This assertion is rebutted by the record, which shows that defense counsel

presented multiple family witnesses who testified to Govea’s good character within the family,

including his 86-year old mother who testified that he takes care of her, and his serious health

issues and their fear that he would not survive another prison sentence. Thus, Govea’s counsel

presented evidence detailing his medical condition to the jury for its consideration in assessing

punishment.      Govea particularly complains that counsel failed to call a licensed chemical

dependency counselor, a probation officer, or other medical personnel to more fully explain his

medical condition. However, Govea has not met his burden to show any of these potential

witnesses were available to testify at trial, and has not shown the substance of their testimony or

that it would have benefited Govea. See Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim.

App. 2005). Govea has not established that his counsel’s performance during the punishment

phase was deficient.

       Based on the foregoing reasons, we overrule Govea’s issues on appeal and affirm the trial

court’s judgment.

                                                 Rebeca C. Martinez, Justice
Do not publish


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