Opinion filed August 31, 2011




                                           In The


   Eleventh Court of Appeals
                                         __________

                       Nos. 11-10-00117-CR & 11-10-00118-CR
                                     __________

                    DENISE CAROLYN WILLIAMS, Appellant

                                               V.

                                STATE OF TEXAS, Appellee


                           On Appeal from the 32nd District Court

                                     Nolan County, Texas

                           Trial Court Cause Nos. 10758 & 10843



                           MEMORANDUM OPINION
       Denise Carolyn Williams appeals her convictions for possession of cocaine with intent to
deliver, in one case, an amount more than four grams but less than 200 grams and, in the other
case, an amount more than one gram but less than four grams. Following her open plea of guilty
to the court in both cases, the trial court assessed her punishment at forty years confinement in
the Texas Department of Criminal Justice, Institutional Division, in the case involving the
greater amount of cocaine and at fifteen years confinement in the other case, with the sentences
to be served concurrently. In a single issue applying to both cases individually, Williams
contends that the trial court abused its discretion in overruling her motion for new trial. We
affirm.
          A claim of ineffective assistance of counsel may be raised in a motion for new trial.
Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). A denial of a motion for new trial
is reviewed under an “abuse of discretion” standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim.
App. 1995). A trial court abuses its discretion in denying a motion for new trial only when no
reasonable view of the record could support the trial court’s ruling. Charles v. State, 146 S.W.3d
204, 208 (Tex. Crim. App. 2004).
          To prevail on a claim of ineffective assistance of counsel, the defendant must prove that
(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). In order
to establish the first prong of Strickland, the defendant must prove by a preponderance of the
evidence that trial counsel’s representation fell below professional standards. Willliams v. State,
313 S.W.3d 393, 400 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
          Either party may suggest by motion, or the trial court may suggest on its own motion, that
the defendant may be incompetent to stand trial. TEX. CODE CRIM. PROC. ANN. art. 46B.004
(Vernon 2006). On suggestion that the defendant may be incompetent to stand trial, the court
shall determine by informal inquiry whether there is some evidence from any source that would
support a finding that the defendant may be incompetent to stand trial. Id. If a trial court has a
bona fide doubt about the competency of the defendant, he or she shall conduct an informal
inquiry to determine if there is evidence that would support a finding of incompetence. A bona
fide doubt may exist if the defendant exhibits truly bizarre behavior or has a recent history of
severe mental illness or at least moderate mental retardation. Montoya v. State, 291 S.W.3d 420,
425 (Tex. Crim. App. 2009).
          At a bond hearing on August 4, 2009, after Williams’s arrest but before she entered her
plea, a hearing was had with respect to whether her bond should be raised.              Nothing in
Williams’s testimony at that hearing would have been such as to give any notice to her counsel
that she required a competency hearing. She appeared to fully understand what the hearing was
about and answered questions coherently as posed by the State and by her counsel.



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       Williams entered her plea on January 22, 2010. Throughout the admonishments and her
own testimony, she was coherent and appeared to understand the proceedings. There is nothing
she said or did during that proceeding that would have given rise to a question about her
competence to stand trial.
       Williams was sentenced at a hearing held on February 8, 2010. During her testimony at
that hearing, Williams was coherent and said or did nothing that would have given rise to a
question about her competence to stand trial.
       At the hearing on her motion for new trial, Williams testified that her highest grade of
education was third grade because she had been hit by a truck. She indicated she could not read
or write. She said her lawyer never asked her about any mental issue or handicap and that she
did not tell him about any for that reason. She indicated that he never had her seen by any
mental health professional. She asserted that she entered an open plea because her lawyer
thought it was a good thing to do. She stated that she did not know what a presentence
investigation report was. She testified that she told the probation officer she had been to an
MHMR facility.
       Williams testified that she did not know if she had received an offer for twenty years.
She said she had not understood the plea admonishments and had answered that she did because
her attorney had told her to say, “Yes.”        She acknowledged that she had not raised any
competency issue with the court, such as having been treated by MHMR, but indicated that she
did not know that she could. She indicated that she could not remember several past court
appearances.
       Samuel Dellus Darnall, Williams’s trial attorney, testified that he had an undergraduate
degree in psychology and that, between undergraduate school and law school, he had worked as
a drug and alcohol counselor at the Abilene Regional Council on Alcohol and Drug Abuse. He
related that he was subsequently employed by MHMR as a counselor in its substance abuse
facility. He said that his employment with MHMR entailed screening and diagnosis of clients,
including some who had both substance abuse and mental health issues. He indicated that he had
the education, training, and experience to make assessments of people as to whether they had
mental deficiencies, as well as drug and alcohol dependency.
       Darnall testified that Williams was able to articulate to him her arrest in 2007, the events
that transpired, her interaction with the officers, and her understanding of the case. He said her

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understanding of what happened was very similar to the police report. He said that her memory
of a 2008 undercover buy was less specific but that she remembered such facts as coming back
from Houston, having the drugs, and making them available.
       Darnall insisted that Williams understood the range of punishment and the charges
against her. He said she remembered the facts of the cases, including some older cases. He
stated she had told him she had an eighth grade education, which none of her family members
ever disputed. He indicated that, when making payments to him, she showed she understood her
family finances and said things that indicated that she was the matriarch of her family.
       Darnall indicated that Williams asked appropriate questions during their discussions,
asking what the facts were and what the police had. He said she remembered talking to the
police and, with respect to arrests in 2007 and 2009, remembered facts that happened in order.
He said she could work a complicated cell phone. He noted that she seemed to have an
understanding of her life and business. He insisted that he believed she knew the difference
between a 35-year offer and a 20-year offer and that she was never offered probation.
       On cross-examination, Darnall acknowledged that he had never discussed his client’s
experience with MHMR with the trial court. He also acknowledged that he was not licensed to
diagnose anyone with MHMR issues other than those involving alcohol and drug abuse. He also
acknowledged that he did not have a doctorate in psychology.
       Darnall said that he knew Williams had difficulty with reading and writing. He testified
that she told him that she had gone to MHMR for depression following her mother’s death.
Darnall acknowledged that he had never contacted the probation department to find out if the
department had referred Williams to a professional. He acknowledged that he was aware that the
box in the presentence investigation report showing that Williams had a physical, mental, or
medical impairment was checked and that the report also showed that a psychological evaluation
of the defendant had not been prepared. Darnall also insisted that Williams told him she had not
been diagnosed as retarded.
       Darnall testified that he did not believe he had ever instructed Williams to follow his lead
with respect to answering the trial court’s questions. He said that, while he told her she would be
asked to answer questions, he did not prepare her answers. Darnall again acknowledged that he
had not, during sentencing, brought any potential MHMR issue to the trial court’s attention. He



                                                 4
indicated that a potential mental health issue did not always mean a competency hearing was
necessary but that it was a matter to be decided on a case-by-case basis.
       Darnall clarified that Williams’s mental health issue was depression, grief, and anxiety
over the death of her mother. He indicated that he had brought that matter before the court at the
sentencing hearing. He said he was aware that the disability payment she was receiving was
because of her difficulty walking. Darnall denied that he had seen any mental impairment. He
noted that, in all of her numerous court appearances over the years, her competency had never
been questioned.
       Darnall testified that he believed Williams knew the charges against her in both cases and
that she was able to assist with the defense. He said she understood the range of punishment,
understood that probation was not the same as twenty years in prison, understood that twenty
years was less than thirty-five or thirty years in prison, and understood the difference between
sentences running concurrently versus those running consecutively.
       The trial court noted at the hearing that it had the opportunity to observe Williams in
court on numerous occasions and that she functioned at a high rate of capacity and was very
much competent.
       We hold that Williams failed to show that Darnall’s performance fell below an objective
standard of reasonableness. Williams referred to Darnall’s knowledge of her difficulty reading
and writing and his knowledge that her IQ was not normal. Despite any deficiency Williams
might have had with reading and writing, the evidence established that such deficiency did not
appear to interfere with her ability to know what the facts and issues were in her case or prevent
her from working with her attorney in her defense. While Darnall testified that he was not there
to testify that Williams had the IQ of a normal person, he did not state whether he thought her IQ
was higher or lower than a normal person. In any event, whatever her IQ was, there was nothing
to indicate that the level of her intellectual capacity in any way interfered with her understanding
of the issues in this case or interfered with her being able to work with her attorney on her
defense. We conclude that Darnall did not have facts that would lead the trial court to have a
bona fide doubt as to Williams’s competency.
       Williams also questions Darnall’s failure to call a witness or witnesses at the sentencing
hearing regarding Williams’s psychological issues or her past treatment by MHMR. Darnall
testified that he did not do that because of trial strategy involved in trying to get probation.

                                                 5
When he began to speak about the strategy, Williams’s counsel interrupted him and went on to a
different line of questioning. Williams did testify at the hearing that her mother had died in 2008
and that she was lost and depressed after that. Inasmuch as Williams’s only psychological issues
and treatment by MHMR had to do with depression and anxiety resulting from her mother’s
death, Darnall might have reasonably thought that it had no relevance to the issue of probation or
that it might have had a detrimental effect in his effort to obtain probation. In any event, we are
unable to conclude that Darnall’s failure to call such witnesses caused his representation to fall
below an objective standard of reasonableness. Consequently, we hold that a reasonable view of
the record could support the trial court’s ruling. Therefore, we hold that the trial court did not
abuse its discretion in denying Williams’s motion for new trial. We overrule her sole issue in
each appeal.
       The judgments of the trial court are affirmed.


                                                                      PER CURIAM


August 31, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1




       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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