                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00404-CR


RICARDO JAVID LUGO                                              APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1396288D

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     Appellant Ricardo Javid Lugo entered an open plea of guilty to indecency

with a child by contact, and the trial court sentenced him to twenty years’




     1
      See Tex. R. App. P. 47.4.
imprisonment.2 See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). In three

issues,3 Lugo argues that the trial court erred by failing to conduct a sua sponte

informal competency inquiry and that his guilty plea was involuntary as a result of

his trial counsel’s deficient performance. Because there was no suggestion of

incompetency to trigger a sua sponte informal competency inquiry and because

Lugo has failed to overcome the strong presumption that his trial counsel

provided adequate assistance and that his plea was voluntarily entered, we will

affirm.4

  II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY FAILING TO CONDUCT A
                  SUA SPONTE INFORMAL COMPETENCY INQUIRY

       In his first issue, Lugo argues that the trial court should have conducted a

sua sponte informal competency inquiry before imposing sentence.             Lugo


       2
       At the plea hearing, Lugo also pleaded guilty in a separate cause (cause
number 1393427D) to three counts of possession with intent to promote child
pornography and seven counts of possession of child pornography, and the trial
court placed Lugo on ten years’ deferred adjudication for each offense. Lugo did
not appeal the orders of deferred adjudication in cause number 1393427D.

       Lugo’s appointed appellate counsel filed an Anders brief and a motion to
       3

withdraw. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Lugo
thereafter filed a motion to substitute retained appellate counsel. This court
granted the motion to substitute counsel—implying that Lugo’s appointed
appellate counsel’s motion to withdraw was moot—and ordered that a “Reply to
Anders Brief” filed by Lugo’s retained appellate counsel be treated as Lugo’s
brief on the merits. For the sake of clarity and completeness, we now explicitly
deny as moot the motion to withdraw filed by Lugo’s appointed appellate counsel.
       4
       Because the sufficiency of the evidence is not at issue, we omit a
background section and summarize pertinent portions of the record from the plea
hearing and the punishment hearing as relevant to each of Lugo’s issues.


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contends that during the two months between the time that he entered his guilty

plea and the time that he was sentenced, “multiple instances and irregularities”

came to light “that should have put the trial court on notice of [Lugo’s] mental

illness issues.”

                            A. Standard of Review

      We review a trial court’s decision not to inquire into a defendant’s

competence for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426

(Tex. Crim. App. 2009), superseded by statute on other grounds as recognized

by Turner v. State, 422 S.W.3d 676, 692 n.30 (Tex. Crim. App. 2013). We may

not substitute our judgment for that of the trial court; instead, we determine

whether the trial court’s decision was arbitrary or unreasonable. Montoya, 291

S.W.3d at 426.     A trial court’s firsthand factual assessment of a defendant’s

competency is entitled to great deference on appeal. See Ross v. State, 133

S.W.3d 618, 627 (Tex. Crim. App. 2004).

                           B. Law on Incompetency

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

competent to stand trial unless proved incompetent by a preponderance of the

evidence. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (West 2006). A defendant

must also be mentally competent to be sentenced. See id. art. 42.07(2) (West

2006); Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996).            A

defendant is incompetent when he does not have sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding or a


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rational as well as factual understanding of the proceedings. Tex. Code Crim.

Proc. Ann. art. 46B.003(a); Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct.

788, 789 (1960); Turner, 422 S.W.3d at 689.

         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. Tex. Code Crim. Proc. Ann. art.

46B.004(b) (West Supp. 2016). Once the trial court (or either party) suggests

that a 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.” Id. art. 46B.004(c). A

suggestion of incompetency is the threshold requirement for such an informal

inquiry, and such a suggestion “may consist solely of a representation from any

credible source that the defendant may be incompetent.” Id. art. 46B.004(c–1).

                       C. No Suggestion of Incompetency

                     1. Motions Filed after the Plea Hearing

         Lugo argues that the trial court was twice asked to order a mental

examination. Lugo states in his brief that the first motion suggesting he had

competency issues was filed by his trial counsel after the plea hearing and that,

in response, the trial court signed an “Order for Psychological Testing Away from

Jail.”    The record contains no motion triggering the order for psychological

testing, and the order does not reference a motion; instead, the order appears to

be on the court’s own motion and requests “a psychological, psychiatric, or


                                        4
psychosexual evaluation as part of a Presentence Investigation Report.”5 At the

punishment hearing, the trial court took judicial notice of the contents of the PSI

report, but the report was not admitted into evidence. Lugo does not argue on

appeal that the PSI report contained evidence suggesting that he was

incompetent.6

      The second motion suggesting competency issues that Lugo relies on is

his handwritten pro se motion for psychiatric testing, which was filed after the trial

court signed the order for psychological testing away from the jail. Lugo argues

that “[a]llegations contained within [his] motion include prior conversations with

counsel’s attorney by Appellant’s family and friends specifying specific symptoms


      5
        The order does not state whether it was issued pursuant to Texas Code of
Criminal Procedure article 42.12, section 9(i). See Tex. Code Crim. Proc. Ann.
art. 42.12, § 9(i) (West Supp. 2016) (stating that “[a] presentence investigation
conducted on any defendant convicted of a felony offense who appears to the
judge through [his] own observation or on suggestion of a party to have a mental
impairment shall include a psychological evaluation which determines, at a
minimum, the defendant’s IQ and adaptive behavior score” and requiring that the
results of the evaluation be included in the PSI report). Because the record is
silent on this matter, we cannot discern whether it is the trial court’s standard
practice to request a psychological evaluation in every case in which a PSI report
is ordered or whether the trial court observed or a party suggested that Lugo had
a mental impairment. A “mental impairment,” however, does not automatically
equate with incompetency to be sentenced. See Moore v. State, 999 S.W.2d
385, 395 (Tex. Crim. App. 1999) (“Evidence of mental impairment alone does not
require [a competency hearing] where no evidence indicates that a defendant is
incapable of consulting with counsel or understanding the proceedings against
him.”), cert. denied, 530 U.S. 1216 (2000).
      6
      We nonetheless ordered the trial court clerk to supplement the record with
the PSI report. Our review of the PSI report demonstrates that it contains no
evidence suggesting that Lugo is incompetent.


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of mental illness as well as instances of mental illness going as far back as

1998.” Lugo’s motion concludes with a blank for Lugo’s trial attorney’s signature;

however, neither the trial attorney’s signature nor Lugo’s signature appears on

the motion. Lugo’s self-serving statements in his unsigned motion constitute no

evidence of incompetency. See Richardson v. State, 663 S.W.2d 111, 113 (Tex.

App.—Houston [1st Dist.] 1983, no pet.) (holding appellant’s answers to his

counsel’s questions were self-serving and did not suggest that appellant was

unable to assist counsel with his defense).

      The trial court’s order for psychological testing for the PSI report and

Lugo’s unsigned pro se motion for psychiatric testing fail to overcome by a

preponderance of the evidence the presumption that Lugo was competent to be

sentenced. See Tex. Code Crim. Proc. Ann. art. 46B.003(b); Moore, 999 S.W.2d

at 395; Richardson, 663 S.W.2d at 113.

                   2. Testimony at the Punishment Hearing

      Lugo also contends that competency concerns were raised at the

punishment hearing because his psychologist—who saw Lugo for a total of six

hours in February, March, June, and September 2015—“repeatedly stated that

Mr. Lugo belonged in a mental institution” and testified that Lugo believed himself

to be twelve years old and acted consistently with that belief. The record reveals

that Lugo’s psychologist, Dr. Emily Fallis, testified that Lugo would benefit from

an environment “where he’s in residence. And I think mental health venue rather

than a penal situation, but certainly someplace that’s structured and not an


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outpatient sort of treatment program.” When Dr. Fallis was asked to clarify what

she meant by a mental health venue, she explained that Lugo needed a

therapeutic environment where he could receive sex-offender treatment.

Although Dr. Fallis did testify that Lugo thinks of himself as a twelve-year-old boy

and that he operates emotionally and socially like a twelve-year-old boy even

though he is eighteen years old, Dr. Fallis never testified that Lugo was

incompetent to be sentenced.

      The record also demonstrates that at the outset of the punishment hearing,

Lugo’s trial counsel thoroughly questioned Lugo on whether he understood the

State’s offer on punishment and the ramifications if he declined the State’s offer,

and Lugo answered each of his trial counsel’s questions in a lucid manner. Even

assuming Lugo had suffered from mental illness in the past, at the time he was

sentenced, there was no evidence in the form of a representation from any

credible source suggesting that he may have been incompetent in the legal

sense, that is, there was no suggestion at the time sentence was imposed that

Lugo failed to possess sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding or that he did not have a rational, as

well as factual, understanding of the proceedings against him. See Tex. Code

Crim. Proc. Ann. art. 46B.003(a)–(b); Turner, 422 S.W.3d at 691 (“The fact that a

defendant is mentally ill does not by itself mean he is incompetent.”); Jackson v.

State, 391 S.W.3d 139, 143 (Tex. App.—Texarkana 2012, no pet.) (holding past

emotional issues did not suggest that appellant was incompetent to be


                                         7
sentenced); Edwards v. State, 993 S.W.2d 171, 178 (Tex. App.—El Paso 1999,

pet. ref’d) (holding that personality disorder did not render appellant legally

incompetent to understand proceedings or to consult with his attorney with a

reasonable degree of rational understanding).

       Accordingly, we hold that the trial court did not abuse its discretion by

failing to sua sponte conduct an informal inquiry into Lugo’s competency before

imposing sentence.     See Jackson, 391 S.W.3d at 143 (holding no abuse of

discretion by trial court in deciding not to conduct, sua sponte, an informal inquiry

at sentencing); Lindsey v. State, 310 S.W.3d 186, 190 (Tex. App.—Amarillo

2010, no pet.) (holding that trial court did not abuse its discretion by failing to

initiate an informal inquiry). We overrule Lugo’s first issue.

       III. LUGO DID NOT REBUT THE RECORD’S PRIMA-FACIE SHOWING OF THE
      VOLUNTARINESS OF HIS PLEA, AND LUGO DID NOT OVERCOME THE STRONG
         PRESUMPTION THAT TRIAL COUNSEL’S CONDUCT WAS NOT DEFICIENT

       In his second and third issues, Lugo argues that his guilty plea was

involuntary as a result of his trial counsel’s deficient performance.

       A guilty plea may not be accepted by a court unless it appears to be free

and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2016). In

considering the voluntariness of a guilty plea, the court should examine the

record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.

1998). When a defendant is properly admonished before entering his plea, a

prima-facie showing of voluntariness is established, which shifts the burden to

the   defendant   to   show    he   pleaded    guilty   without   understanding   the


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consequences of his plea. See id. This burden is a high one that is difficult to

meet in light of proper admonishments. See Starks v. State, 266 S.W.3d 605,

614 (Tex. App.—El Paso 2008, no pet.).

      When an appellant challenges the voluntariness of a plea, contending that

trial counsel was ineffective, the appellant must prove: (1) that counsel’s advice

was not within the range of competence demanded of attorneys in criminal cases

and if it is not, (2) that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to

trial. Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999). The

court must first make a threshold determination that counsel erroneously and

incompetently advised the appellant before the second prong concerning

prejudice to the appellant is reached. Fimberg v. State, 922 S.W.2d 205, 208

(Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). An appellant’s uncorroborated

testimony that he was misinformed by counsel is not sufficient to show that his

plea was involuntary. Id. Instead, an ineffective-assistance claim must be “firmly

founded in the record,” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999).      Moreover, review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct was not deficient. Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.

2013).




                                         9
      Here,   Lugo    concedes     that   he   received   the   required   statutory

admonishments, which establish a prima-facie showing of the voluntariness of

Lugo’s guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c) (setting

forth admonishments); Martinez, 981 S.W.2d at 197. The burden thus shifted to

Lugo to show he pleaded guilty without understanding the consequences of his

plea. On appeal, Lugo argues that the admonishments were written in English

and that he was never asked whether he could read the English language.7

During the plea hearing, however, the trial court thoroughly questioned Lugo, and

Lugo answered all of the trial court’s questions in a lucid manner in English.

Lugo has therefore failed to rebut the prima-facie showing of the voluntariness of

his plea. See Martinez, 981 S.W.2d at 197.

      Lugo also argues that his trial counsel provided ineffective assistance by

failing to adequately investigate his mental health issues, by failing to file a

motion suggesting incompetency prior to the plea hearing based on the issue

identified by Dr. Fallis—that Lugo identified as a twelve-year-old boy, by failing to

request a long-term commitment in a mental institution, and by failing to inquire

whether Lugo could understand English. Lugo further argues, “It is difficult to see

what possible trial strategy could consist [of] not telling the judge the client

believes he is 12 years old” and that it “seems of questionable strategy not to file

a competency motion when counsel’s own expert, with 30 years [of] psychiatric

      7
       Lugo points to evidence from the punishment hearing showing that the
farthest he had ever gone in school when he lived in Mexico was the sixth grade.


                                          10
experience, is prepared to testify that the client belongs in a mental institution.”

We have thoroughly analyzed the competency issue above and have held that

the record contains no evidence suggesting that Lugo was incompetent at any

time during the proceedings. Lugo has thus not shown how trial counsel’s failure

to file a motion suggesting incompetency “was not within the range of

competence demanded of attorneys in criminal cases.” See Moody, 991 S.W.2d

at 857–58. Based on the record before us and the strong presumption that

counsel’s conduct was not deficient, we hold that Lugo has not met his burden of

showing by a preponderance of the evidence that his trial counsel’s

representation was deficient. See Nava, 415 S.W.3d at 307; Hall v. State, 766

S.W.2d 903, 906–07 (Tex. App.—Fort Worth 1989, no pet.) (holding trial counsel

was not ineffective for failing to request psychiatric examination to determine

appellant’s mental competency to stand trial because there was no evidence

suggesting incompetency).

      Accordingly, we overrule Lugo’s second and third issues.

                                 IV. CONCLUSION

      Having overruled Lugo’s three issues, we affirm the trial court’s judgment.

                                                   PER CURIAM


PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 3, 2016


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