











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

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No. 06-03-00167-CR
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EX PARTE:  REGINALD DEMOND GRAY


                                              

On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 16556 HC-2


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter


O P I N I O N

            In 2001, Reginald Demond Gray pled guilty to arson and was placed on deferred community
supervision pursuant to a negotiated plea agreement.  In 2003, Gray challenged the voluntariness of
that plea in an application for writ of habeas corpus, filed pursuant to Article 11.08 of the Texas
Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 11.08 (Vernon 1977).  In the
writ application, Gray contended he received ineffective assistance of counsel at the time of the
original guilty plea because his trial counsel did not assert an insanity defense based on Gray's 1997
acquittal by reason of insanity for a charge of aggravated assault.  The trial court denied relief.  We
affirm.
Factual And Procedural Background
            The record shows Gray has a lengthy history of severe mental illness.  In 1995, Gray was
charged with indecency of a child in two cases.  On August 31, 1995, the State dismissed both
indecency charges based on the psychologist's report that Gray was insane at the time of the alleged
offenses.  Later that evening, Gray was arrested and charged with the stabbing of his grandfather
(Gray's primary caretaker), in trial court cause number 16643.  See Tex. Pen. Code Ann.
§ 22.02(a)(2) (Vernon Supp. 2004).  Gray was also subsequently indicted for a November 15, 1996,
arson, trial court cause number 16556.
  See Tex. Pen. Code Ann. § 28.02 (Vernon 2003).  On
June 25, 1997, a jury found Gray not guilty of aggravated assault by reason of insanity.  Gray was
committed to Terrell State Hospital for psychiatric evaluation and treatment, then released from the
psychiatric hospital sometime before March 2001. 
            Subsequent to his release from the hospital, Gray pled guilty on March 30, 2001, to both the
aggravated assault and the arson in trial court cause numbers 16643 and 16556, respectively, the
former being the same charge of which a jury had previously acquitted Gray by reason of insanity. 
The trial court accepted Gray's plea and found the evidence substantiated Gray's guilt in both cases,
but deferred a finding of guilt and placed Gray on community supervision for a period of five years
pursuant to a negotiated plea agreement.  The record reflects neither the State nor defense counsel
knew of Gray's earlier acquittal of the aggravated assault charge.
            On August 1, 2002, the State filed a motion to adjudicate Gray's guilt in cause number 16556
(arson).  On February 24, 2003, the State asked the trial court to set aside its judgment in the
aggravated assault case.
  The State's motion conceded Gray had previously been acquitted of the
aggravated assault charge by reason of insanity, and the State further acknowledged that a computer
error contributed to the State's erroneous March 2001 prosecution of that charge.  The trial court
granted the State's motion, voided the judgment of community supervision on the aggravated assault
charge, and dismissed that case for lack of jurisdiction.
            With the motion to revoke on the arson charge still pending as of June 2, 2003, Gray filed
a pre-conviction application for writ of habeas corpus in cause number 16556.
  Gray alleged he
received ineffective assistance of counsel at the time of his original guilty plea, in violation of the
Sixth Amendment to the United States Constitution.  Because Gray had previously been acquitted
of aggravated assault by reason of insanity, Gray alleged his trial counsel on the arson plea was
ineffective for failing to pursue an insanity defense on that charge.  After conducting a hearing, in
which the trial court heard testimony from seven live witnesses, the trial court denied Gray's
application for writ of habeas corpus on June 20, 2003.  It is from this determination that Gray
appeals.
Analysis of the Issue Presented
            Gray  contends he received ineffective assistance of counsel at his original guilty plea.  Both
the United States and Texas Constitutions guarantee a criminal defendant the effective assistance
of counsel at every stage of trial.  U.S. Const. amend. VI; Tex. Const. art. I, § 10; Powell v.
Alabama, 287 U.S. 45 (1932); Ex parte Harris, 596 S.W.2d 893, 894 (Tex. Crim. App. 1980).  "A
guilty plea rendered without effective assistance of counsel (or a knowing and intelligent waiver of
counsel) is not a voluntary and knowledgeable act, and habeas corpus relief will be granted" if the
record supports a finding of ineffective assistance.  Harris, 596 S.W.2d at 894.  To attack a guilty
plea because the defendant allegedly received ineffective assistance of counsel at the time of the plea,
"a defendant must show counsel's alleged deficiencies caused [the defendant's] plea to be unknowing
and involuntary.  This standard requires a defendant to show there is a reasonable probability that,
but for counsel's errors, defendant would not have pled guilty, but would have insisted on going to
trial."  Hernandez v. State, 84 S.W.3d 26, 35 (Tex. App.—Texarkana 2002, pet. ref'd).  An allegation
of ineffective assistance must be "firmly rooted" in the record, and the Court must afford great
deference to counsel's trial strategy in accordance with the strong presumption that counsel's actions
fell "within the wide range of reasonable professional assistance."  Id.
            In this case, Barney Sawyer testified at the hearing on Gray's habeas application.  Sawyer,
an attorney with over twenty years' experience, served as defense counsel when Gray pled guilty to
aggravated assault and arson in cause numbers 16443 and 16556, respectively.  Sawyer stated he has
known Gray and his family for over fifteen years and was well aware of Gray's history of mental
illness at the time Gray pled guilty to arson.  Sawyer admitted he did not review the district clerk's
file on the aggravated assault charge and was not aware, at the time of Gray's plea, that Gray had
previously been acquitted of aggravated assault by reason of insanity.  However, Sawyer did know
the State had previously dismissed two charges against Gray because the State believed Gray was
insane at the time he allegedly committed the offenses. 
            In testimony during the habeas evidentiary hearing, Sawyer said he had discussed the arson
charge with Gray's former defense attorney, Scott McDowell, and had reviewed a March 4, 1997,
report from Dr. Randy Crittenden, a psychologist, who found Gray was sane at the time he allegedly
set fire to his grandfather's house.  Sawyer had also discussed the arson charge with the State and
with Gray's grandfather, both of whom believed Gray was sane.  According to Sawyer's testimony,
the negotiated plea agreement required the State to recommend Gray receive deferred adjudication
on the aggravated assault and arson charges in exchange for Gray's guilty plea, with the stipulation
that the State then dismiss three additional charges of indecency with a minor (which included the
two previously dismissed but recently refiled charges, plus a separate, new case charge of
indecency).
  The negotiated plea agreement therefore resolved five pending cases against Gray, with
none resulting in an immediate adjudication of guilt. 
            Sawyer explained that, before encouraging Gray to plead guilty on the arson charge, Sawyer
had several fears about the potential resolutions to Gray's cases, which he discussed with both Gray
and his grandfather:  First, Sawyer was doubtful that an insanity defense would be successful. 
Second, if Gray unsuccessfully gambled on obtaining a verdict of not guilty by reason of insanity and
received one or more prison sentences, Sawyer believed Gray would not fare well in the penitentiary
given his mental illness.  Third, if Gray was found guilty of all the charges, but received community
supervision, Sawyer believed Gray would quickly violate community supervision by failing to
register as a sex offender, thereby aggravating his situation with the potential of imprisonment on
both the five current charges as well as a new felony charge of failing to register as a sex offender. 
See Tex. Code Crim. Proc. Ann. art. 62.01(6) (Vernon Supp. 2004) ("sexually violent offense"
includes conviction for indecency with a child); Tex. Code Crim. Proc. Ann. art. 62.06(a) (Vernon
Supp. 2004) (a person who commits a sexually violent offense is required to register every ninety
days); and Tex. Code Crim. Proc. Ann. art. 62.10(a)(3) (Vernon Supp. 2004) (failure to register
as a sex offender when required every ninety days is a second-degree felony).  
            The State's offer of a deferred sentence (when combined with the dismissal of the indecency
charges), however, avoided the registration requirements and, by requiring Gray to live with his
sister in Dallas, provided a structured environment that offered the best chance of success with both
resolving his criminal charges and ensuring consistency with his mental health treatment.  After
weighing all these options, Sawyer made the strategic decision to recommend Gray accept the State's
offer of a deferred sentence.  According to Sawyer's testimony at the habeas hearing, even had he
reviewed all the relevant files and known at the time of Gray's guilty plea all that Sawyer now knows
about Gray's involvement with the criminal justice system, Sawyer would still have recommended
Gray accept the State's offer because Sawyer believed the negotiated plea agreement was the best
possible outcome for Gray. 
            McDowell, now a district court judge, was also called as a witness.  McDowell testified that,
had he remained on Gray's case, he would have mounted an insanity defense on all the charges rather
than recommending Gray accept the State's negotiated plea offer.  McDowell based such a strategy
on his review of Gray's psychiatric and police records, his discussions with Dr. Crittenden and Gray's
grandfather, and his belief that, at the time the offenses were committed, Gray did not know right
from wrong.  Nonetheless, McDowell conceded he understood why Sawyer recommended Gray
accept the State's plea offer, given Gray's mental health problems.  McDowell also acknowledged
that, just a few months after the arson took place, Dr. Crittenden had authored a report finding Gray
sane at the time of the alleged offense. 
            Dr. David Bell, a psychologist appointed by the trial court to review Gray's case for the
habeas corpus petition, testified about his October 2002 examinations of Gray.  At that time, Dr. Bell
found Gray incompetent.
  In a later evaluation on March 27, 2003, Dr. Bell found Gray had regained
competency to stand trial.  Dr. Bell, however, disagreed with the report of Dr. Crittenden; Dr. Bell
found Gray was not sane in 1996 at the time Gray allegedly committed the arson offense, even
though Dr. Bell later testified "[t]here are no objective measures that could be used [in 2003] to go
back and judge his [Gray's] mental status at the time of the offense, unfortunately."  Dr. Bell also
acknowledged that, like competency, sanity can come and go; "it's possible . . . for a person to be
sane for one offense and insane for another offense." 
            In his testimony before the habeas trial court, Dr. Crittenden disagreed with Dr. Bell's
conclusion that Gray was insane and that there was no way to effectively judge Gray's sanity at the
time of the alleged offense.  Dr. Crittenden explained that one could determine sanity by looking for
evidence of delusional thoughts about the incident, by examining whether the defendant was reacting
appropriately to stressors that typically trigger psychotic or abnormal behavior, and by determining
whether the defendant is able to recall events regarding the alleged offense that demonstrated a
factual awareness of the defendant's conduct, the rightness or wrongness of that conduct, and an
understanding of behavioral consequences.  Dr. Crittenden also reiterated his belief that Gray was
sane at the time he allegedly committed the arson in 1996 based on Gray's descriptions of his
interactions with the arresting officers and the recorded observations of Gray by the arresting
officers.   
            Another former defense attorney also testified.  Before becoming the current County Attorney
for Lamar County, Mark Burtner previously represented Gray in several competency hearings. 
Burtner testified he had talked to Gray on several occasions when Gray knew right from wrong. 
Burtner informed the trial court that for Gray, both competency and sanity ebbed and flowed,
depending on whether Gray took his medication and whether he had used any illegal street drugs. 
Most importantly, Burtner agreed there were times when Gray was both competent and sane. 
            In his appeal to this Court, Gray assumes that, had Sawyer mounted an insanity defense on
the arson charge, any potential jury would necessarily have acquitted Gray because (1) a different
jury had already acquitted Gray of the aggravated assault charge by reason of insanity, and (2) the
State had previously dismissed two indecency charges on the belief that Gray was not sane at the
time he allegedly committed those offenses.  These facts, however, would not necessarily and
inevitably lead a subsequent jury to conclude Gray was insane at the time of the alleged arson
offense.  First, the unequivocal testimony from both lay and expert witnesses was that Gray's sanity
was something that was not constant:  Gray had moments of lucidity as well as periods of mental
incapacity.  Second, there was specific evidence that Gray was, in fact, sane at the time he allegedly
committed the arson.  Dr. Crittenden testified he believed Gray was sane at the time of the alleged
arson offense.  And there was evidence that Gray's grandfather believed Gray was sane at that time. 
            The general rule in Texas is that the prosecution does not have to prove the defendant was
sane at the time the defendant committed a criminal offense.  Riley v. State, 830 S.W.2d 584, 584
(Tex. Crim. App. 1992).  Instead, the Texas Penal Code defines insanity as an affirmative defense,
the burden of proof for which usually rests with the defendant.  See Tex. Pen. Code Ann. §§ 2.04,
8.01 (Vernon 2003); Riley, 830 S.W.2d at 585.  The burden of disproving insanity, however, shifts
to the State if there is a prior adjudication for insanity by a court of competent jurisdiction.  Arnold
v. State, 873 S.W.2d 27, 30 (Tex. Crim. App. 1993).  Thus, evidence of a prior judgment of insanity
may provide "presumptive or prima facie evidence of insanity as to the time covered by the finding
of the mental status of the party prior to the adjudication."  Witty v. State, 69 Tex. Crim. 125, 153
S.W. 1146, 1146 (1913).  The State may nonetheless rebut this presumption by proving the accused
was sane at the time of the charged offense beyond a reasonable doubt.  Id. at 1146–47.
            If the case now before us were tried to a jury, Gray's insanity adjudication during the
aggravated assault trial would necessitate the State proving, beyond a reasonable doubt, that Gray
was sane at the time he allegedly set fire to his grandfather's home.  See Arnold, 873 S.W.2d at 30. 
This is because the prior jury had found Gray insane at the time he committed the aggravated assault,
an event occurring before Gray's alleged commission of the arson.  See id. (defendant having been
adjudged insane before the offense is presumed insane at the time of the subsequent offense).  There
was evidence from several sources, including both an expert and Gray's grandfather, that would
support the State's position Gray was sane at the time he allegedly set fire to the victim's home.  A
defense expert's opinion contradicts those claims.  Regardless, given the evidence both supporting
and controverting an insanity defense, the jury's decision is one that would ultimately rest on which
witness(es) the jury found most believable and credible.  Sawyer knew each of the lay witnesses, had
reviewed the expert reports, had known Gray personally for many years, and had discussed the case
in detail with both the State and Gray's former attorneys.  Sawyer had been an attorney in the area
for many years.  He was in an excellent position to predict how receptive a potential jury might be
to testimony from each of the prospective lay and expert witnesses.  Given these considerations, and
when weighed against the potential adverse outcome of five felony convictions (including three
convictions for sex offenses), Sawyer's trial strategy—of encouraging Gray to enter into a negotiated
plea agreement for a deferred sentence, avoiding prosecution of three other sex offenses—did not
fall below an objective standard of reasonableness and was within the wide range of reasonable
professional assistance.  Even McDowell, Gray's former defense attorney, conceded he understood
why Sawyer pursued the chosen trial strategy.
Conclusion
            Sawyer's representation of Gray did not fall below an objective standard of reasonableness. 
We overrule Gray's point of error and affirm the trial court's denial of habeas relief.
 

                                                                        Jack Carter
                                                                        Justice

Date submitted:          December 18, 2003
Date decided:              December 31, 2003

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