                            NUMBER 13-13-00120-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

WALTER FORGE,                                                             Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 214th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      Appellant, Walter Forge, entered an open no contest plea to criminal mischief

causing pecuniary loss of more than $1,500 but less than $20,000, a state jail felony.

See TEX. PENAL CODE ANN. § 28.03(a)(1), (b)(4)(A) (West 2011). He was convicted,

sentenced to two years in state jail, and ordered to pay $419 in court costs and $245 in
restitution. On appeal, Forge contends by three issues that (1) the trial court erred in

not conducting a full competency hearing, and (2) his trial counsel was ineffective. We

affirm.

                                      I. BACKGROUND

          Forge was charged by indictment with having committed criminal mischief by

causing over $1,500 in damage to paint on a vehicle. See id. § 28.03(a)(1) (“A person

commits an offense if, without the effective consent of the owner, . . . he intentionally or

knowingly damages or destroys the tangible property of the owner.”). Forge’s counsel

filed a “Motion Suggesting Incompetency and Request for Examination” asking the trial

court to appoint an expert to perform a competency evaluation. See TEX. CODE CRIM.

PROC ANN. art. 46B.021(a) (West 2006) (“On a suggestion that the defendant may be

incompetent to stand trial, the court may appoint one or more disinterested experts

to . . . examine the defendant and report to the court on the competency or

incompetency of the defendant . . . .”). The trial court granted the motion and appointed

Velda Vela-Trujillo, Ph.D., a psychologist. Dr. Vela-Trujillo performed an examination

and prepared a forensic examination report in which she concluded that Forge is

competent to stand trial.

          At the plea hearing, defense counsel acknowledged that he received the doctor’s

report and discussed it with Forge and stated that “I think he’s come to understand more

of what’s going on.” Forge acknowledged receiving a copy of the indictment. The

following colloquy then occurred:

          THE COURT:          All right, sir. You have certain constitutional rights.
                              I’ll go over those with you. You have the right to
                              have the indictment read to you out loud in court;
                              have a right to a jury trial; you have a right to confront

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                     and cross-examine State witnesses; you have a right
                     to bring your own witnesses before the Court; you
                     have a right to remain silent; a right to give up these
                     rights. Do you understand your rights, sir?

[Forge]:             Yes, sir.

THE COURT:           If you’ve entered into a plea bargain agreement with
                     the State and I accept it, your rights of appeal will be
                     limited to matters I’ve already ruled on. But, [defense
                     counsel], you state there are no pending matters?

[Defense counsel]:   There is no pending matter.

THE COURT:           All right. And there is no plea bargain agreement,
                     am I correct?

[Prosecutor]:        That is correct, Your Honor.

THE COURT:           Knowing all that, sir, do you wish to waive these
                     rights I mentioned to you and continue with a plea?

[Forge]:             Yes.

THE COURT:           And to the charge in the indictment, how do you
                     plead, guilty or not guilty?

[Forge]:             No contest.

THE COURT:           Are you pleading no contest because you do not
                     wish to contest the matter?

[Forge]:             Yes.

THE COURT:           All right. All right. Knowing all that, sir, did anybody
                     force you to give up the right to a jury trial?

[Forge]:             No, sir.

THE COURT:           Anybody promise you anything?

[Forge]:             No, sir.

THE COURT:           Are you satisfied with the work [defense counsel] has
                     done for you?



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      [Forge]:              Yes, sir.

      THE COURT:            [Defense counsel], in your opinion, is your client
                            competent to stand trial and has he been able to
                            assist you?

      [Defense counsel]:    Yes, Your Honor. I think he’s competent, based on
                            the medication that he’s under.

      THE COURT:            All right.

      [Defense counsel]:    And he’s clearly understanding what’s happening
                            here today.

The court then accepted Forge’s plea and found Forge guilty of criminal mischief. This

appeal followed.

                            I. COMPETENCY TO STAND TRIAL

A.    Applicable Law and Standard of Review

       “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).      “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.” Id. art. 46B.003(b). “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. art. 46B.004(c) (West

Supp. 2011). The trial court must also conduct such an informal inquiry if there is “a

bona fide doubt about the competency of the defendant.”         Gonzales v. State, 313




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S.W.3d 840, 841 (Tex. Crim. App. 2010) (citing Montoya v. State, 291 S.W.3d 420, 425

(Tex. Crim. App. 2009)).

      If the court determines by the informal inquiry that there is evidence to support a

finding of incompetency to stand trial, the trial court must hold a full competency trial

unless: (1) neither party’s counsel requests a trial on the issue of incompetency; (2)

neither party’s counsel opposes a finding of incompetency; and (3) the court does not,

on its own motion, determine that a trial is necessary to determine incompetency. TEX.

CODE CRIM. PROC ANN. art. 46B.005(c). In determining whether the evidence requires a

full competency trial, the trial court must “assay just that evidence tending to show

incompetency, putting aside all competing indications of competency, to find whether

there is some evidence, a quantity more than none or a scintilla, that rationally may lead

to a conclusion of incompetency.” Ex parte LaHood, 401 S.W.3d 45, 53 (Tex. Crim.

App. 2013) (quoting Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980)). This

is a higher standard than the “bona fide doubt” which triggers the informal competency

inquiry. See McDaniel v. State, 98 S.W.3d 704, 711 n.20 (Tex. Crim. App. 2003).

      We review the trial court’s competency determination for abuse of discretion.

Montoya, 291 S.W.3d at 426; Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App.

1999). We do not substitute our judgment for that of the trial court, but rather determine

whether its decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426

B.    Analysis

      Forge argues by his first issue that his “due process rights were violated by the

failure to conduct a full competency hearing.” See McDaniel, 98 S.W.3d at 709 (“The

conviction of an accused person while he is legally incompetent violates due process.”).



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In support of this issue, Forge notes that, at the time of the competency evaluation, he

erroneously believed he was charged with criminal trespass, not criminal mischief.

Forge further asserts that, at the time he pleaded guilty, he erroneously believed that he

had entered into a plea bargain agreement with respect to his guilty plea.

       Defense    counsel’s   “Motion   Suggesting Incompetency and Request for

Examination” triggered an informal competency inquiry under subsection (c) of code of

criminal procedure article 46B.004. TEX. CODE CRIM. PROC ANN. art. 46B.005(c). The

record reflects that Dr. Vela-Trujillo’s examination and report were part of the informal

inquiry.   The doctor’s report does indicate that Forge, as well as his trial counsel,

believed at the time of the examination that Forge was charged with criminal trespass.

However, the trial court correctly admonished Forge at his plea hearing that he was in

fact charged with criminal mischief, and Forge acknowledged that he understood that

charge at the plea hearing. Forge also signed and initialed written admonishments that

correctly stated the charge and level of offense. Also at the plea hearing, the trial court

advised Forge of his limited right to appeal if he had entered into a plea bargain

agreement; however, it was made clear at the plea hearing that no such agreement was

entered into in this case.

       Forge does not contend that his guilty plea was not freely and voluntarily given.

See id. art. 26.13(b) (West Supp. 2011) (“No plea of guilty or plea of nolo contendere

shall be accepted by the court unless it appears that the defendant is mentally

competent and the plea is free and voluntary.”). On this record, we cannot conclude

that the evidence raised at the informal inquiry “rationally may lead to a conclusion of

incompetency” so as to require a full competency trial. See id. art. 46B.003(b); LaHood,



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401 S.W.3d at 53.     Accordingly, the trial court did not abuse its discretion in not

conducting a full competency trial. We overrule Forge’s first issue.

                        III. INEFFECTIVE ASSISTANCE OF COUNSEL

A.    Applicable Law and Standard of Review

      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. Davis v.

State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). “Deficient performance means that ‘counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010)

(quoting Strickland, 466 U.S. at 687).      The prejudice prong requires showing “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 248 (citing Strickland, 466 U.S. at 694).

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. (citing Strickland, 466 U.S. at 694). “[E]ach case must be judged on its

own unique facts.” Davis, 278 S.W.3d at 353.

      The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Appellant must overcome the strong presumption that counsel’s conduct

fell within the wide range of reasonable professional assistance and that his actions

could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v.



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State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing

court will not second-guess legitimate tactical decisions made by trial counsel. State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (noting that, “unless there is a

record sufficient to demonstrate that counsel’s conduct was not the product of a

strategic or tactical decision, a reviewing court should presume that trial counsel’s

performance was constitutionally adequate”). Counsel's effectiveness is judged by the

totality of the representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at

813; Jaynes, 216 S.W.3d at 851.         An allegation of ineffectiveness must be firmly

founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002);

Thompson, 9 S.W.3d at 814 n.6. In most cases, a silent record which provides no

explanation for counsel’s actions will not overcome the strong presumption of

reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001);

Thompson, 9 S.W.3d at 813–14.

B.     Analysis

       Forge’s second issue contends that his trial counsel was ineffective because he

failed to challenge the trial court’s competency finding. This issue lacks merit in light of

our conclusion that there was no evidence adduced that would support a full trial as to

competency. See LaHood, 401 S.W.3d at 57 (quoting TEX. CODE CRIM. PROC. ANN. art.

46B.003(a)) (noting that, to prevail in a claim of ineffective assistance of counsel based

on the failure of counsel to seek a full competency evaluation, “there must be some

affirmative showing that the [defendant] lacked ‘sufficient present ability to consult with

the person's lawyer with a reasonable degree of rational understanding’ or ‘a rational as

well as factual understanding of the proceedings against the person’”).



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         By his third issue, Forge argues that his trial counsel was ineffective because he

failed to “argu[e] for a lesser sentence.” Forge claims that he “indicated . . . his desire to

seek some form of community supervision” during his competency evaluation but that

counsel did not request community supervision.         Forge further asserts that counsel

“made no argument to the trial court concerning what he felt would be an appropriate

sentence.” He claims that “[t]here can be no trial strategy that would support such

action” because “[t]here was nothing to lose by telling the judge why a lesser sentence

might be more appropriate . . . .”

         The State concedes that the right to effective assistance of counsel under the

Sixth Amendment to the United States Constitution includes the right of the defendant to

have the opportunity to make a closing argument. See Herring v. New York, 422 U.S.

853, 858 (1975) (noting that “counsel for the defense has a right to make a closing

summation to the jury, no matter how strong the case for the prosecution may appear to

the presiding judge”). In this case, Forge’s defense counsel declined to assert that

right.   But we disagree with Forge that “[t]here can be no trial strategy that would

support such action.” In particular, counsel may have chosen not to make a closing

argument urging a lesser sentence because that may have led the prosecutor to invoke

his right to make a closing argument, which may have resulted in a harsher sentence.

See Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting, in the context of an ineffective

assistance claim, that “it might sometimes make sense to forgo closing argument

altogether”). As it turned out, the trial court imposed the maximum jail term prescribed

for a state jail felony, see TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 2011); but, at

the time counsel declined to offer a closing argument, counsel may reasonably have



                                              9
believed that Forge would have received a lesser sentence if neither he nor the

prosecutor made closing arguments. Moreover, the trial court did not impose any fine,

though the statute authorizes a fine of up to $10,000 for a state jail felony, see id. §

12.35(b), and it did not order restitution of the full amount of damage to property caused

by Forge according to his stipulation. Defense counsel may have reasonably believed

that, had he and the prosecutor both made closing arguments, a fine or full restitution

would have been ordered.

      Even assuming, but not deciding, that counsel’s failure to argue for a lesser

sentence fell outside “the wide range of reasonable professional assistance,” see

Strickland, 466 U.S. at 689, Forge has not shown prejudice.            Forge notes that,

according to evidence in the record, the total cost of repairing the damage he caused to

the vehicle was $1,640.63, which is “in the lowest part of the range” for state jail felony

criminal mischief. See TEX. PENAL CODE ANN. § 28.03(b)(4)(A) (providing that criminal

mischief is a state jail felony if the amount of pecuniary loss is $1,500 or more but less

than $20,000). However, this information was available to the trial court as of the time it

assessed punishment. Accordingly, Forge has not shown a “reasonable probability”

that, had his trial counsel made a closing argument urging a lesser sentence, the result

of the proceeding would have been different. See Ex parte Napper, 322 S.W.3d at 248;

see also Ex parte Bratcher, No. AP-76,994, 2013 WL 3282972, at *12 (Tex. Crim. App.

June 26, 2013) (“The likelihood of a different result must be substantial, not just

conceivable.”) (quoting Harrington v. Richter, 131 S. Ct. 770, 792 (U.S. 2011)).

      We overrule Forge’s second and third issues.




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                                     III. CONCLUSION

       The trial court’s judgment is affirmed.


                                                 _______________________
                                                 DORI CONTRERAS GARZA
                                                 Justice

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

Delivered and filed the
5th day of December, 2013.




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