Affirm and Opinion Filed April 7, 2020




                                       In The
                          Court of Appeals
                   Fifth District of Texas at Dallas
                               No. 05-18-01008-CR

                ARNULFO MERCADO-PENA, JR., Appellant
                                V.
                    THE STATE OF TEXAS, Appellee

               On Appeal from the 296th Judicial District Court
                            Collin County, Texas
                   Trial Court Cause No. 296-84147-2017

                       MEMORANDUM OPINION
                Before Justices Pedersen, III, Reichek, and Carlyle
                         Opinion by Justice Pedersen, III
      A jury found appellant Arnulfo Mercado-Pena guilty of evading arrest with a

motor vehicle, which jurors found was used as a deadly weapon. The trial court

assessed his punishment at sixty years’ confinement in the Institutional Division of

the Texas Department of Corrections. In three issues, appellant contends that (1) the

trial court violated his constitutional and statutory rights by failing to comply with

Chapter 46B of the Texas Code of Criminal Procedure, (2) the trial court erroneously

found him competent to proceed to trial, and (3) he was denied effective assistance

of counsel. We affirm.
                                         Background

       A police officer was on patrol in Princeton, Texas when he observed appellant

driving a vehicle at a speed that appeared to be unreasonable and imprudent. The

officer, who was in a marked police car, turned on his overhead lights and siren and

pursued the vehicle. He testified that appellant was driving approximately 100 miles

per hour in a sixty mile-per-hour zone and was passing other cars in a dangerous

manner. Ultimately, appellant’s vehicle ran out of gas and slowed down. Appellant

jumped out and ran into a field. The officer followed and arrested him. Appellant

remained in custody after his arrest.

       The proceedings prior to trial are of significance to our review. The case was

first set for trial on June 11, 2018. The record shows, however, that early on the

morning of June 11, appellant was found in his cell following a possible suicide

attempt.

       Doctor Kristi Compton, a licensed psychologist, concluded that appellant was

not competent to stand trial that day because:

       He is morbidly depressed. The suicide attempt was a lethal attempt. He
       was started on Risperdal four days ago, and it can take up to two to four
       weeks for it to have its effectiveness.
Two weeks before, Dr. Compton had examined appellant1 and concluded that he was

malingering. However, she testified on June 11 that she was told he was unconscious



   1
      The record does not explain what triggered that examination. A Mental Illness Assessment was
submitted on May 28, 2018 following this assessment.
                                               –2–
when found and—while she had not performed malingering tests this time—she had

serious concerns about whether he was able to assist in his defense. She reminded

the court and those present that a person can be both mentally ill and malingering.

She did predict that—with hospitalization, drug therapy, and time for the drugs to

work—he could regain competency in two to four weeks. After conferring with

another mental health professional, the trial court ordered a continuance and returned

appellant to jail to continue his medicine regimen.

      Pursuant to an order by the trial court, Dr. Compton conducted a

comprehensive competency evaluation of appellant on July 25, 2018. Her report

related that information on which she had earlier relied—specifically, that appellant

had lost consciousness in the June suicide attempt and required resuscitation—was

incorrect; she concluded that appellant had not intended the attempt to be fatal. And

as to his mental condition on July 25, she concluded:

      [Appellant] demonstrated a sufficient understanding of his case,
      proceedings, and potential penalties. There is no evidence that he is
      suffering from a severe psychiatric disorder that impairs his capacity to
      communicate with his attorney, process information, weigh the pros
      and cons of various defense strategies, nor is there any evidence that he
      cannot testify in his own behalf. Thus, he exhibits sufficient capacity to
      assist in his defense if he chooses to do so.
Based on these assessments, the doctor found appellant competent to stand trial.

      Likewise, the trial court found that appellant was competent to stand trial, and

the trial went forward. The State called a single witness, the patrol officer who

arrested appellant. The defense rested without calling a witness. The jury found

                                         –3–
appellant guilty of evading arrest using a motor vehicle and found that he had used

the vehicle as a deadly weapon.

        During the punishment phase of trial, the State admitted exhibits that

established appellant’s prior offenses for failure to render assistance, resisting arrest,

aggravated sexual assault of a child, aggravated assault causing serious bodily

injury, and failure to register as a sex offender.2 The State also offered testimony of

appellant’s gang membership.

        Appellant’s sister testified on his behalf, explaining that he had a medical

history of seizures and that he had experienced one immediately before the incident

for which he was convicted. She testified that appellant had been released from

prison a matter of weeks before this incident, and she was not sure if he had obtained

the medications he needed.

        Appellant’s counsel asked the trial court to assess a minimum sentence of

twenty-five years; the court sentenced appellant to sixty years. This appeal followed.




    2
       Because defense counsel had stipulated to the admissibility of the exhibits, a number of other offenses
cited in motions to revoke were also admitted.
                                                    –4–
                            Competency to Stand Trial

      Due process does not allow a criminal defendant who is incompetent to be put

to trial. Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013). The

Legislature has codified procedures for determining competency to assure that

incompetent defendants do not stand trial. TEX. CODE CRIM. PROC. ANN. ch. 46B;

Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). We review a trial

court’s actions under these procedures for an abuse of discretion. Routon v. State,

No. 05-15-01278-CR, 2017 WL 85417, at *3 (Tex. App.—Dallas Jan. 10, 2017, pet.

ref’d) (mem. op., not designated for pub.). We may not substitute our judgment for

that of the trial court; instead we ask whether the trial court’s decision was arbitrary

or unreasonable. Id.

      We presume a criminal defendant is competent to stand trial unless he is

proved incompetent by a preponderance of the evidence. CRIM. PROC. art.

46B.003(b). The defendant is incompetent to stand trial if he lacks:

      (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). We give great deference to the trial court’s first-hand factual

assessment of a defendant’s competency and to its factual findings. See McDaniel v.

State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003).



                                          –5–
                        Following Chapter 46B Procedures

      Appellant’s first issue argues that the trial court failed to comply with the

procedures set out in Chapter 46B of the Texas Code of Criminal Procedure

concerning incompetency to stand trial. Specifically, appellant contends that the trial

court failed to comply with article 46B.071(a) when, after he was declared

incompetent on June 11, 2018, the trial court neither committed him to a facility

under article 46B.073 nor released him on bail. He also complains that the report

declaring him incompetent on that date was not made part of the record and that

there is no evidence he received treatment as required by Chapter 46B prior to the

finding that he was restored to competency. We address these arguments in turn.

      Appellant was initially scheduled to stand trial on June 11, 2018. Our record

includes the transcript of a hearing that morning. The trial judge began by stating

that appellant had been discovered in his cell after an apparent suicide attempt and,

as a result, the judge was “trying to address whether or not [he was] going to push

this case to trial.” The judge went on to explain that he had asked Dr. Compton to

evaluate appellant and that “[a]fter I hear from her, then I am going to determine on

whether or not we are ready to proceed.”

      Dr. Compton testified that she understood appellant’s suicide attempt was a

lethal attempt and that appellant was morbidly depressed. She explained that her

concern was appellant’s capacity to maintain appropriate courtroom decorum and to

assist in his defense. She stressed that appellant “clearly [had] an understanding of
                                         –6–
the role of [the] parties in his case. That’s without question.” She also testified that

a defendant could be malingering and suffer from mental illness at the same time.

But she acknowledged that she had concerns as to whether appellant could assist in

his defense. She explained to the court that appellant had begun a drug treatment

that—she believed—would become effective in treating his depression in two to four

weeks.

      Given that appellant had earlier been adjudged to be malingering, the trial

court expressed concern that the suicide attempt might be merely an attempt to avoid

trial; Dr. Compton testified that she had not had enough time to test him that morning

to determine if he was malingering. The judge discussed at some length that he

thought the jailer’s communication could be understood to describe a staged suicide

attempt rather than a lethal one. Following the doctor’s testimony, the judge granted

a continuance and initially stated he would order the appellant to Green Oaks, a

mental health facility. However, after conferring off the record with both attorneys

and a Ms. Ferguson (whom the judge identified as the director of the Mental Health

Managed Counsel Program), the judge stated that Ms. Ferguson “has advised the

court that the competency and restoration could occur in the jail with the appropriate

orders by the Court for that, and/or force meds, if the Defendant decides not to

cooperate. So I am going to order that and vacate the order with regard to Green

Oaks.” The judge then engaged in a lengthy conversation with appellant on the

record.
                                          –7–
      Appellant’s first issue focuses on repercussions of this June 11 hearing. He

argues that the trial court failed to follow the statutory options available to it after

determining appellant was incompetent to stand trial at that hearing. When such a

determination has been made, the court shall:

      if the defendant is charged with an offense punishable as a Class A
      misdemeanor or any higher category of offense:

             (A) release the defendant on bail under Article 46B.072; or

             (B) commit the defendant to a facility or a jail-based competency
             restoration program under Article 46B.073(c) or (d).
CRIM. PROC. art. 46B.071(a)(2). Appellant was charged with a felony.

Accordingly—if the trial court actually did make a determination that appellant was

incompetent to stand trial on June11—it was required to release appellant on bail or

to commit him to an appropriate facility.

      We look first to the threshold issue: whether the trial court made a

determination that appellant was incompetent to stand trial on June 11. There is no

formal, written order in the record making such a determination. Indeed, the only

document in our record related to the June 11 proceeding is a Notice of Agreed

Setting, passing the case until July 30. That document is signed by both parties’

attorneys and is dated June 11; the agreement was clearly reached after the June 11

hearing. It makes no reference to appellant’s competency. The clerk’s record, thus,

is consistent only with the trial court’s granting a continuance, not determining that

appellant was incompetent to stand trial.

                                          –8–
      Likewise, the reporter’s record of the June 11 hearing contains no order or

finding that the trial court—as opposed to Dr. Compton—had determined appellant

was incompetent to stand trial that day. To the contrary, the record suggests the trial

court concluded that no evidence rationally supported a finding that appellant was

incompetent. See Boyett, 545 S.W.3d at 564 (identifying a trial court’s initial

standard as requiring some evidence that rationally may lead to a conclusion of

incompetency) (citing Turner, 422 S.W.3d at 692). The trial judge addressed the jail

report and stated his understanding that the report described a staged incident. He

referred to the past finding that appellant had been malingering, a condition that Dr.

Compton was unable to test for that morning. The judge stressed that he would

consider the doctor’s testimony, but that he would make the decision whether the

case would proceed that day. And importantly, the judge engaged in a lengthy

conversation with appellant on the record. The two discussed appellant’s depression

and his fear of a life sentence. The judge explained to appellant that the result could

be far less than the life sentence he feared and that appellant had to stand trial. In the

course of the conversation, appellant attempted to negotiate a better plea deal than

he had been last offered, and he stated that he understood the enhancement aspect of

his sentence. Appellant was at all times coherent and rational. We understand the

trial court was not to weigh evidence of incompetency against evidence of

competency. Boyett, 545 S.W.3d at 564. We conclude the trial court was not

improperly weighing evidence but was discerning whether evidence of
                                           –9–
incompetency actually existed. We also conclude he could have found that no such

evidence existed.

         Finally, the record contains no objection by appellant or his counsel to his

return to jail to continue his medical regimen. Indeed, appellant stated he had no

problem with taking his medicine as required. The parties then re-set the trial to a

date certain with no mention of the need for a return to competency. Although there

was evidence of appellant’s depression at the hearing, the fact that a criminal

defendant is mentally ill does not by itself mean he is incompetent. Turner, 422

S.W.3d at 691. We conclude that the record as a whole indicates the trial court

granted a continuance on June 11; it did not make a determination that appellant was

incompetent. Accordingly, the court was not obligated to comply with article

46B.071(a).

         Appellant next complains that Dr. Compton’s report declaring him

incompetent on June 11 was not made part of the record. The reporter’s record from

that date does not refer to a written report. Instead, the record suggests that the

doctor’s evaluation of appellant was made relatively quickly and was based to a

significant degree on her interpretation of the early jail communication concerning

appellant’s attempted suicide.3 We find no requirement of a written report when




   3
       The jailer’s communication was read into the record by the trial judge.


                                                   –10–
there has been no determination of incompetency by the trial court. 4 Dr. Compton

testified, and a record was made of her testimony. We discern no error related to the

absence of a written report.

        In his final argument under this issue, appellant argues the record contains no

evidence showing that he received treatment prior to a finding that he had been

restored to competency. Again, provisions concerning restoration to competency are

not at issue here, when appellant was never determined to be incompetent.

        We overrule appellant’s first issue.

                                 Competency at the Time of Trial

        In his second issue, appellant argues that the trial court erred when it found

him competent to stand trial on July 25, 2018. He contends the trial court was aware

that he was not taking his medications, that he had previously received a diagnosis

of a bipolar disorder with psychotic features, and that he had attempted suicide in

2011. He also challenges Dr. Compton’s pre-trial evaluation report, which opined

that he was competent to stand trial, because it conflicts with the jail record

concerning his June 11 suicide attempt.

        The trial court was required to determine whether appellant was able to

consult with his attorney “with a reasonable degree of rational understanding” and



    4
      Appellant cites article 46B.0755(b) for the proposition that an expert’s report should be shown in the
record. That article addresses the expert report produced to determine whether a defendant has been returned
to competency following a determination that he was incompetent. CRIM. PROC. art. 46B.0755. It is not
relevant here where no such determination was made.
                                                   –11–
was rationally and factually able to understand the proceedings against him.” CRIM.

PROC. art. 46B.003(a). Again, we review the court’s determination for an abuse of

discretion. Routon, 2017 WL 85417, at *3. And we give great deference to the trial

court’s assessment of a defendant’s competency. See McDaniel, 98 S.W.3d at 713.

      Our review of the record does not disclose any evidence before the court at

the time of trial that would suggest appellant lacked either the ability to consult

rationally with his lawyer or an understanding of the proceedings against him.

Appellant points to a trial court comment directed to him during pre-trial

proceedings that “[t]aking your meds has been a problem.” But this statement is

ambiguous at best. Appellant offered no evidence as to the nature of this “problem”

and how it might prevent him from communicating with his counsel or participating

in the trial. Likewise, evidence of his past diagnosis or troubled behavior does not

speak to his abilities at the time of trial. Evidence of mental illness, standing alone,

is not proof of incompetency. Turner, 422 S.W.3d at 691. The issue is whether

appellant could meet the statute’s competency standards despite any ongoing mental

health problems. Appellant has not pointed us to anything in the record—and our

review has not identified anything—that would indicate he could not communicate

with his attorney effectively or that he did not rationally and factually understand

the nature of the proceedings against him.

      Finally, appellant attempts to discredit Dr. Compton’s report by identifying

inconsistencies between her conclusions and certain jail records from the time of his
                                         –12–
purported suicide attempt in June. He relies on the report by the first officer to

respond to his cell that morning, stating that he saw:

      Appellant slumped over the toilet with a noose tied around his neck
      attached to the vent above the toilet tied in a knot. He and another
      officer entered the cell to render aid with the other officer cutting below
      the knot while he grabbed Appellant and placed him on his side. Nurse
      James then entered the cell immediately behind them to render aid and
      provide medical assistance to Appellant.

While this report suggests that jail officials correctly responded to an apparent

emergency, Dr. Compton interviewed medical providers at the jail who confirmed

that there was no actual emergency. Appellant did not require resuscitation and was

not in respiratory distress after the incident. Instead, all his vital signs were normal;

he was alert and oriented. The evidence, thus, suggests not that appellant was

suicidal before his earlier trial date, but that he was malingering.

      That suggestion was confirmed by an extensive series of tests given to

appellant by Dr. Compton prior to trial. In each phase of the testing, appellant scored

at a level that identified him as malingering. And as to appellant’s competency to

stand trial, Dr. Compton observed that appellant “demonstrated a sufficient

understanding of his case, proceedings, and potential penalties.” She found no

evidence that he suffered from any psychiatric disorder severe enough to “impair his

capacity to communicate with his attorney, process information, weigh the pros and

cons of various defense strategies, nor is there any evidence that he cannot testify in

his own behalf.” She determined that he had the capacity to assist with his defense,


                                          –13–
and she ultimately concluded that appellant was competent to stand trial. This report

was a detailed, professional evaluation of appellant’s mental condition at the time of

trial.

         Moreover, before the trial court found appellant was competent to stand trial,

both appellant’s counsel and the prosecutor stated that they had no objection to that

finding. During arraignment, appellant’s counsel stated that appellant “understands

what he is charged with. He understands the enhancements that have been set forth

in this matter. He has elected to have a jury trial and pleads not guilty at this point.”

         The trial court could rely on Dr. Compton’s expert opinion and on these

representations by counsel when evaluating appellant’s competency. The court could

also rely on its own assessment of appellant’s behavior and condition. Appellant

offered no evidence that controverted the trial court’s conclusion.

         Given our review of the record as a whole, we conclude the trial court did not

abuse its discretion in determining appellant was competent to stand trial. We

overrule appellant’s second issue.

                           Ineffective Assistance of Counsel

         In his third issue, appellant contends that he was denied effective assistance

of counsel. He alleges that his attorney failed: to “investigate and litigate”

appellant’s mental health status, to object to a comment by the prosecutor

implicating appellant’s Fifth Amendment right not to testify, to request a

continuance when a material witness became unavailable at trial, to object to lack of
                                          –14–
notice and hearsay involving extraneous offenses, to object to testimony that invaded

the province of the jury, and to object to the court’s purported misstatement of the

law. He also alleges that his attorney cast him in a bad light by repeatedly referring

to him as a “knucklehead.”

      To prevail on an ineffective assistance of counsel claim, appellant must prove

by a preponderance of the evidence that (1) counsel’s representation fell below an

objective standard of reasonableness, and (2) there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Salinas v.

State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). We examine the totality of

counsel’s representation to determine whether appellant received effective

assistance. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We

do not judge counsel’s strategic decisions in hindsight, and we strongly presume

counsel’s competence. Id. Any allegation of ineffectiveness must be firmly founded

in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Id. In most cases, a silent record which provides no explanation for

counsel’s actions will not overcome the strong presumption of reasonable assistance.

Id. at 813–14. When the record contains no evidence of the reasoning behind trial

counsel’s actions, we cannot conclude that counsel’s performance was deficient. See

Jackson v. State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994).



                                        –15–
        In this case, appellant filed a motion for new trial and an amended motion for

new trial. However, neither motion raised the issue of ineffective assistance of

counsel. Thus, the record provides no discernible explanation of the motivation

behind counsel’s decisions, listed above, for which appellant claims harm. We will

not speculate as to counsel’s possible motives. “Ineffective assistance of counsel

claims are not built on retrospective speculation; they must ‘be firmly founded in the

record.’” Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (quoting

Thompson, 9 S.W.3d at 813–14). No such record exists in this case. Accordingly,

we cannot say that appellant received ineffective assistance from his counsel.

        We overrule appellant’s third issue.5




    5
       Because the reasonableness of counsel’s choices often involves facts that do not appear in the
appellate record, a petition for writ of habeas corpus is usually the appropriate vehicle to investigate
ineffective assistance claims. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The Texas
Code of Criminal Procedure entitles an indigent habeas applicant to appointed post-conviction counsel
whenever the court concludes that the interests of justice require representation. CRIM. PROC. art.
1.051(d)(3); see also Ex parte Garcia, 486 S.W.3d 565, 578 (Tex. Crim. App. 2016) (Alcala, J. dissenting)
(“The existing statutes, therefore, provide an adequate basis upon which to conclude that appointment of
counsel is required in any case in which either the pleadings or the face of the record gives rise to a
colorable, nonfrivolous claim for which legal expertise is required in order to ensure that the claim is
afforded meaningful consideration.”).


                                                 –16–
                                   Conclusion

      We affirm the trial court’s judgment.




                                          /Bill Pedersen, III//
                                          BILL PEDERSEN, III
                                          JUSTICE




      181008f.u05

Do Not Publish
TEX. R. APP. P. 47




                                       –17–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

ARNULFO MERCADO-PENA, JR.,                    On Appeal from the 296th Judicial
Appellant                                     District Court, Collin County, Texas
                                              Trial Court Cause No. 296-84147-
No. 05-18-01008-CR          V.                2017.
                                              Opinion delivered by Justice
THE STATE OF TEXAS, Appellee                  Pedersen, III. Justices Reichek and
                                              Carlyle participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 7th day of April, 2020.




                                       –18–
