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

              No. 06-09-00128-CR
        ______________________________


            JAROD TAYLOR, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 188th Judicial District Court
                Gregg County, Texas
             Trial Court No. 37,969-A




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                         MEMORANDUM OPINION

         After he had initially been determined incompetent to stand trial, Jarod Taylor was later

determined competent and he entered an open plea of guilty to the charge of aggravated sexual

assault of a child. At that plea hearing, Taylor sought to be placed on deferred adjudication

community supervision.1 Instead, the trial court sentenced Taylor to ten years‟ incarceration.

Taylor now appeals the trial court‟s judgment on two points of error: (1) he maintains that his

trial counsel was ineffective because he failed to investigate the possible defense of insanity; and

(2) he contends that because trial counsel did not inform him of his ability to enter a plea of not

guilty by reason of insanity and he was unaware of it, his plea was not entered voluntarily. We

overrule Taylor‟s points of error and affirm the trial court‟s judgment and sentence.

Background, Taylor’s Mental Status

         On August 16, 2008, Taylor was engaging in sexual intercourse with his six-year-old

cousin when he was discovered by the victim‟s ten-year-old brother. At the time, Taylor was

seventeen years old; he had been diagnosed with an IQ of about eighty-six, and Taylor‟s father

testified that a doctor had described Taylor as having the intelligence level of a sixth grader.

Upon being discovered, Taylor told the ten-year-old not to reveal what he had seen; later, when the

children‟s grandmother returned home, Taylor repeatedly interrupted when the ten-year-old tried

1
 Although at the plea hearing neither Taylor nor his counsel used that term and the trial court did not mention deferred
adjudication and referred to Taylor‟s request for “probation,” we assume this was Taylor‟s goal, as only deferred
adjudication community supervision was available to him in light of the charged offense. See TEX. CODE CRIM.
PROC. ANN. art. 42.12, §§ 3, 5 (Vernon Supp. 2009). Also, one piece of paperwork filled out by Taylor for the plea
hearing said the defense‟s plea recommendation was for deferred adjudication.

                                                           2
to tell the grandmother what had occurred. When police came to question Taylor about the

offense, he told them, “I know what this is about.” Taylor told the investigating detective that

while the victim was lying on a bed, Taylor reached for a comb on the headboard when his penis

accidently fell out of his pants and penetrated the young child‟s vagina.

           Within a week of the offense Taylor‟s court-appointed attorney, Craig Bass, visited him in

jail. Bass described Taylor as “scared to death”; Bass had difficulty communicating with Taylor

about the offense and charge. Bass also said he believed, on the strength of what he learned from

Taylor in that first interview, that Taylor understood the difference between right and wrong. 2

Bass experienced difficulty in communicating with Taylor during that interview and requested that

Taylor be evaluated to determine his competency to stand trial.3 In early October 2008, Taylor

was examined by a physician, who found Taylor could not effectively communicate with his

attorney and was therefore not competent to stand trial at that time. This competency evaluation

was presented to the trial court about November 4, 2008; from the record before us, it appears

Taylor was admitted to a state hospital in the third week of January 2009. While in the hospital,

Taylor was administered antipsychotic medications. Later, at the hearing on Taylor‟s motion for

new trial, there was testimony that Taylor had been prescribed these or similar medications for

some time, and his mother saw to it that Taylor took the medications. However, Taylor‟s mother

2
 Bass said, “We had discussed what had occurred when I first met Jarod that first day on August 21st, I sat down and
I asked him what happened, and he immediately told me what happened. It - - and it - - he made me feel like he knew
the difference between right and wrong when he was explaining it to me.”
3
    See TEX. CODE CRIM. PROC. ANN. art. 46B.003 (Vernon 2006).

                                                         3
died about five months before the sexual offense occurred and Taylor had become irregular about

taking his medications, if he took them at all. On March 3, 2009, a second competency evaluation

was performed. At this time, Taylor was found competent to understand and participate in the

legal proceedings, including consulting and cooperating with his attorney.                           Of particular

relevance to the instant appeal, the evaluation states that Taylor was able to “name[] and accurately

define[] all four plea options available in the State of Texas. . . . Regarding the Not Guilty by

Reason of Insanity plea, Mr. Taylor stated, „saying that you were insane at the time of the crime,

you did it but you were insane.‟”4

         The record does not indicate when Taylor was discharged from the hospital. On June 3,

2009, Taylor waived both indictment and a trial by jury and entered an open plea before the trial

court. At that plea hearing, Taylor represented that his attorney had not pressured him to plead

guilty, that he himself made the decision to plead guilty, and that he was in fact guilty of the

charged offense of aggravated sexual assault of a child. The trial court explained to Taylor that

there was no plea bargain agreement in place and that Taylor was eligible for community

supervision or, alternatively, that his sentence could range anywhere between five and ninety-nine

years‟ imprisonment. At the same time, the court explained that the charged offense was a “3g”



4
 The evaluation goes on to state Taylor, while in the hospital, had “no problem expressing his thoughts, wants and
needs. His verbal ability is suggestive of average intelligence and he is considered to have the ability to testify
relevantly should he choose to do so. When asked if he could be forced to testify, he responded, „No, because it‟s the
5th Amendment.‟”


                                                          4
offense 5 and if Taylor were sentenced to prison, the law would require that he actually be

incarcerated at least half of the term to which he was sentenced. The trial court discussed

Taylor‟s competency history and asked Bass if he had been able to effectively communicate with

Taylor; Bass responded affirmatively. The trial court then asked Bass if he believed Taylor to be

mentally competent; Bass answered, “Based on the Northeast [sic] Texas Mental Hospital‟s

assessment, yes.”

           Taylor testified at the plea hearing; he told the trial court he was remorseful for the sexual

assault. Taylor took responsibility and clearly acknowledged that he knew at the time his actions

were wrong. In doing so, he said that he did not know what made him assault the young girl, but

he knew it was wrong and that he was hurting her, but that he did not think anyone would discover

what he had done. Taylor admitted that when the ten-year-old brother of the victim witnessed the

assault, Taylor had told the boy not to tell anyone; he acknowledged lying to the detective who

questioned Taylor when he told the detective the sexual contact was accidental. Taylor and his

father (who also testified at the plea hearing) asked the trial court to place Taylor on deferred

adjudication community supervision. Instead, the trial court sentenced Taylor to ten years‟

incarceration, and Taylor immediately announced that he wished to appeal the judgment.

           Two months later, the trial court heard Taylor‟s motion for new trial. Trial counsel Bass

testified that he would pursue a defense of insanity where the defendant “obviously doesn‟t know

the difference between right and wrong, which fits the definition of insanity,” and Bass believed
5
    See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g; TEX. GOV‟T CODE ANN. § 508.145(d) (Vernon Supp. 2009).

                                                        5
that Taylor understood the difference between right and wrong. In contrast to his testimony at the

plea hearing, Taylor testified that he did not remember the offense or the events surrounding it,

including the fact that he was discovered in the act by the ten-year-old cousin. Taylor said that at

the time the offense occurred, he was not taking his medications, and when he did not take those

medications, he did not understand the difference between right and wrong. When asked to

explain the statement he gave to police, that the penetration occurred accidentally when Taylor

was reaching for a comb, Taylor said, “Well, I wasn‟t - - I didn‟t know what to say to them [the

police]. I wasn‟t in my right mind when he asked me them questions.” Taylor did remember

talking to the Gregg County community supervision officer Rex Fennell; he told Fennell he did not

want to talk about the offense, not because Taylor knew it was wrong, but because “it was

embarrassing.” The trial court denied Taylor‟s motion for new trial.6

Ineffective Assistance of Counsel

         The standard for establishing a claim of ineffective assistance of counsel is well

established. Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, an

appellant must prove by a preponderance of the evidence (1) that his counsel‟s representation fell

below an objective standard of reasonableness and (2) that the deficient performance prejudiced

the defense. Id. at 689; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet

this burden, the appellant must prove that the attorney‟s representation fell below the standard of

6
 Taylor‟s appellate point does not claim the trial court erred in failing to grant him a new trial, but rather claims his
trial counsel was ineffective. Thus, we will not review the trial court‟s decision on the motion for new trial for an
abuse of discretion; we will analyze the effectiveness of trial counsel under the applicable law.

                                                           6
prevailing professional norms and that there is a reasonable probability that, but for the attorney‟s

deficiency, the result of the trial would have been different. Ex parte Martinez, 195 S.W.3d 713,

730 (Tex. Crim. App. 2006); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under

this standard, a claimant must prove that counsel‟s representation so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result. Strickland, 466 U.S. at 686. When a defendant challenges the voluntariness of a plea

entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness

of the plea depends on (1) whether counsel‟s advice was within the range of competence

demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability

that, but for counsel‟s errors, the defendant would not have pled guilty and would have insisted on

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

Strickland, 466 U.S. at 694) (A “reasonable probability” is a probability sufficient to undermine

confidence in the outcome.). In a situation where counsel failed to advise a defendant of a

possible affirmative defense, the determination of the “prejudice” inquiry of an ineffective

assistance claim “will depend largely on whether the affirmative defense likely would have

succeeded at trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

       Taylor‟s claim of ineffective assistance of counsel rests upon his assertion that his counsel

did not adequately investigate the possibility of raising an insanity defense. Taylor bases his

claim on the Texas Court of Criminal Appeals‟s holding in Ex parte Imoudu, 284 S.W.3d 866



                                                 7
(Tex. Crim. App. 2009). In that case, Imoudu had been diagnosed with various mental illnesses

about six or seven months before the commission of the offense with which he was charged;

counsel neither investigated nor discovered the medical records detailing those mental illnesses,

despite having concerns about Imoudu‟s competency as evidenced by the fact that he requested the

trial court to order a competency examination for Imoudu. (Imoudu was found competent to

stand trial.) Imoudu‟s trial counsel remained so concerned about Imoudu‟s behavior that he

advised Imoudu and his family to accept the State‟s plea offer because counsel was worried about

how Imoudu might behave should he have taken the stand to testify. Id. at 870.

       Imoudu pled guilty and was sentenced to seventeen years‟ incarceration. Post-conviction,

his counsel in a habeas corpus proceeding discovered “extensive” medical records, compiled while

Imoudu was jailed on the felony charges to which he eventually pled guilty, as well as a

misdemeanor offense, for which Imoudu had been jailed six months before the felony arrest. Id.

at 868. These medical records indicated significant mental illness; in jail, Imoudu was prescribed

antipsychotic medications, used to treat schizophrenia. Post-conviction, a psychiatrist reviewed

these medical records and concluded that at the time of the offense, Imoudu suffered from

untreated schizophrenia; as a result of that illness, he could not discern right from wrong and was,

therefore, insane. Id. at 868–69, 871.

       Taylor‟s case bears important distinctions from Imoudu. Although Taylor‟s trial counsel,

Bass, did say when he first met with Taylor that he had difficulty communicating with him and this



                                                 8
led Bass to request Taylor be examined for competency, Bass also said that at that initial meeting,

Taylor told him about the offense. The manner with which Taylor told him of the occurrence led

Bass to “feel like [Taylor] knew the difference between right and wrong when he was explaining it

to me.” Bass said it would be his practice to present an insanity defense7 where the defendant did

not know the difference between right and wrong, but that Bass believed Taylor comprehended

that difference. Thus, the record demonstrates a basis for Bass‟s trial strategy and for not

presenting a defense of insanity.

         Additionally, we find it significant that immediately after Taylor was caught in the act of

sexual assault, he engaged in conduct which was plainly an attempt to hide his culpability: (1) he

told the ten-year-old cousin who witnessed the offense not to tell anyone; (2) when the child‟s

grandmother returned home and the ten-year-old tried to tell her what had happened, Taylor

repeatedly interrupted the boy; (3) when police questioned Taylor, he told them, “ I know what this

is about,” and he told the detective investigating the case that he had only been reaching for a comb

when his penis fell out and accidently penetrated the young victim.                          This conduct shows

cognizance of guilt, or that Taylor knew he had done something wrong. Conversely, in Imoudu,

there is no indication the defendant engaged in any conduct trying to distance himself from

culpability or indicating he knew his acts were wrong. In Martinez, 195 S.W.3d at 721–22, the

Texas Court of Criminal Appeals found counsel was not ineffective for failing to present a

7
 “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe
mental disease or defect, did not know that his conduct was wrong.” TEX. PENAL CODE ANN. § 8.01(a) (Vernon
2003).

                                                           9
mitigation defense of temporary insanity where there was evidence Martinez knew his acts were

wrong––he confessed to police; denied taking drugs or alcohol (his habeas claim of ineffective

assistance said trial counsel should have pursued a temporary insanity defense based on voluntary

intoxication); and he told friends he could not believe he had committed the murders. We find

Taylor‟s acts evincing a consciousness of guilt a significant distinction from Imoudu.

       Taylor nonetheless points to similarities in his case and the circumstances of Imoudu.

Where Imoudu‟s trial counsel failed to discover the medical records indicating the possibility of

mental defects, Taylor cites to Bass‟s admitted failure to research psychological evaluations

compiled about two months before the charged offense. Bass acknowledged doing no research

on either the medical reports provided by Taylor‟s family or on Abilify, an antipsychotic

medication the family had indicated to Bass that Taylor was supposed to take. However, Bass did

testify he gave the medical reports to the physician who did the first competency examination of

Taylor. These medical reports, consisting of evaluations by a psychologist and a psychiatrist

performed in June and July 2008, made no suggestion that Taylor suffered from hallucinations or

delusions or that Taylor was unable to discern right from wrong. Although Taylor and his father

both testified that Taylor had been diagnosed as bipolar and as suffering paranoid schizophrenia,

there is nothing in the record substantiating these claims. It is true the doctor who performed the

first competency evaluation, finding Taylor not competent to confer with his attorney and stand




                                                10
trial, diagnosed “[p]ossible prodromal8 schizophrenia” and stated Taylor‟s “age is during the peak

age of onset of schizophrenia (late teens to early 20s),” but the evaluation also states that the scope

of the evaluation did not extend to Taylor‟s sanity at the time of the offense. This evidence is

much different, and substantially weaker, than that present in Imoudu.

        Also different from Imoudu, Taylor presented no expert evidence supporting a possible

assertion of insanity at the time of the offense. Whereas Imoudu had an affidavit from a

psychiatrist who concluded that Imoudu did not know right from wrong at the time of the offense,

Taylor presented his own testimony that due to his intermittent or nonexistent use of his prescribed

medications, he did not know right from wrong at the time of the offense. He also presented

testimony from his pastor, who offered his nonexpert opinion that at the time of the offense, Taylor

did not know right from wrong. This lay testimony bears a striking difference to the expert

evidence offered in Imoudu.

        Because Bass believed Taylor could discern right from wrong, and Taylor has presented no

significant evidence to undermine Bass‟s belief, we cannot say Bass was ineffective for failing to

further investigate the possibility of an insanity defense. Our conclusion is supported by the lack

of expert evidence of the kind present in Imoudu.




8
 “[P]remonitory; indicating the onset of a disease or morbid state.”   DORLAND‟S ILLUSTRATED MEDICAL
DICTIONARY 1513 (30th ed. 2003).

                                                   11
Prejudice

         Even if, under Imoudu, we were to find trial counsel to have been ineffective for his failure

to investigate an insanity defense, Taylor has not demonstrated prejudice, or that the outcome of

his trial would likely have been different. At the new trial hearing, Taylor testified he would not

have entered a guilty plea if his trial counsel had told him of the possibility of pleading not guilty

by reason of insanity, indicating that he did not know that this was a possible strategy. However,

where a defendant claims he or she would not have pled guilty and insisted on going to trial but for

trial counsel‟s failure to advise the defendant of a possible affirmative defense, the Strickland

“prejudice” analysis must give consideration to whether the affirmative defense would likely have

been successful. Hill, 474 U.S. at 59; Imoudu, 284 S.W.3d at 870.

         Taylor has failed to demonstrate that he could have successfully urged an insanity defense

had he gone to trial on this matter. As pointed out above, the only evidence he produced

(post-trial) that he did not know the difference between right and wrong, was the nonexpert

testimony of Taylor and his pastor. 9             The Texas Court of Criminal Appeals relied on the

psychiatrist‟s affidavit in finding the prejudice prong to have been satisfied in Imoudu. Imoudu,

284 S.W.3d at 871. Further, nothing in the psychological evaluations done on Taylor earlier in

9
 “[P]redicated lay opinion testimony when considered with facts and circumstances concerning an accused and of the
offense may be sufficient to raise the issue [of insanity].” Pacheco v. State, 757 S.W.2d 729, 736 (Tex. Crim. App.
1988). That premise, though, along with the testimony of Taylor and his pastor, in this case, do not convince us the
insanity defense could have been successfully raised here, i.e., that Taylor was likely to have been acquitted had he
presented the defense at trial. Cf. Reyna v. State, 116 S.W.3d 362, 369 (Tex. App.––El Paso 2003, no pet.), where
“[n]o rational jury could decide from the evidence presented that Reyna was able to appreciate the wrongfulness of his
actions.”


                                                         12
the summer of the offense establish a mental defect of such magnitude as to impede his ability to

discern right from wrong.            Taylor has failed to show prejudice as required by Strickland;

therefore, his claim of ineffective assistance of counsel fails. See Conrad v. State, 77 S.W.3d 424,

426–27 (Tex. App.––Fort Worth 2002, pet. ref‟d) (although counsel was ineffective for failing to

investigate Conrad‟s mental status, failure to put on any evidence he was actually insane at the

time of offense doomed claim of ineffective assistance).10

Voluntariness of Plea

         Taylor‟s second point of error claims that because he was not advised of the possibility of

pleading not guilty by reason of insanity, his plea of guilty was not made voluntarily. Taylor

presents no authority for this assertion. Rather, he cites his mental illness as evidence he did not

know or appreciate the ramifications of his plea.

         At the plea hearing, the trial court admonished Taylor of the range of punishment for the

charged offense and of the requirement to register as a sex offender upon conviction for the offense

at issue. He further pointed out that there was no plea bargain agreement in place. The trial court

also summarized the competency proceedings and discussed with trial counsel whether counsel

believed Taylor to be competent, and counsel replied in the affirmative, referring to the second

competency assessment.            The trial court‟s admonishments substantially complied with the


10
  See also Vaughn v. State, No. 14-08-00522-CR, 2009 WL 3294998 (Tex. App.––Houston [14th Dist.] Oct. 15, 2009,
pet. dism‟d) (mem. op., not designated for publication) (assuming arguendo counsel‟s failure to investigate was
ineffective, mere speculation as to what a psychiatrist might have said was insufficient to prove prejudice) (we cite this
case not as authority, but for its persuasive value).

                                                           13
requirements of Article 26.13 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC.

ANN. art. 26.13 (Vernon Supp. 2009). Thus, a prima facie showing was made that Taylor‟s plea

was entered knowingly and voluntarily. After such a prima facie showing, the burden shifted to

Taylor to demonstrate that he did not fully understand the consequences of his plea and that he

thereby suffered harm. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).

       Taylor‟s claim that his plea was not made voluntarily is undermined by the fact that before

he entered his guilty plea, he apparently discussed the insanity defense with the examining

physician while at the state hospital.    Based on Taylor‟s statements recited in the second

competency evaluation, Taylor was familiar with the meanings of his different options: a plea of

guilty; a plea of not guilty; a no contest plea; and a plea of not guilty by reason of insanity. He

was able to discuss with the doctor various aspects of trial proceedings, including the Fifth

Amendment‟s protection against compelled testimony. This rebuts Taylor‟s assertion that he was

unaware of the possibility of an insanity defense.

       The trial court explicitly found that Taylor‟s plea was made “freely and voluntarily” and

that he was “mentally competent.” As for the requirement an appellant must demonstrate he did

not understand the consequences of his plea such that the appellant suffered harm, we refer to our

discussion above regarding the dearth of evidence supporting an insanity defense in this case.

Taylor has not met his burden of proving his plea was not voluntarily made; we overrule his

second point of error and affirm the trial court‟s judgment and sentence.



                                                14
                                  Bailey C. Moseley
                                  Justice

Date Submitted:   June 30, 2010
Date Decided:     July 16, 2010

Do Not Publish




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