Opinion
Nos. 05-05-01161-CR, 05-05-01162-CR, 05-05-01163-CR, 05-05-01164-CR, 05-05-01165-CR, 05-05-01166-CR, 05-05-01167-CR
Opinion issued November 1, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F05-00962-HQ, F05-00963-HQ, F05-00964-HQ, F05-00965-HQ, F05-00966-HQ, F03-27594-Iq F03-27595-IQ. Affirmed.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
OPINION
Wesley Ray LaCuesta appeals his convictions for five counts of aggravated sexual assault of a child under fourteen years of age and two counts of indecency with a child under seventeen years of age. After appellant entered seven "open" guilty pleas, the trial judge assessed punishment at forty-five years' confinement in each aggravated sexual assault case and twenty years' confinement in each indecency case. In two issues, appellant contends his due process rights were violated because he was incompetent at the time he entered his guilty pleas and that the trial judge abused his discretion in denying appellant's motions for new trial. Concluding appellant's complaints lack merit, we affirm the trial court's judgments. Appellant complains his "due process rights were violated because he was incompetent to plead at the time of his guilty plea(s)." He argues the trial judge should have sua sponte ordered a competency hearing. After reviewing the record in these cases, we disagree. We review a trial judge's failure to conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999); Brown v. State, 129 S.W.3d 762, 765 (Tex.App.-Houston [1st Dist.] 2004, no pet.). We do not substitute our judgment for that of the trial judge, but rather we decide whether the trial judge's decision was arbitrary or unreasonable. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). A person is legally incompetent to stand trial if he does not have (i) a rational as well as factual understanding of the nature and object of the proceedings against him and (ii) sufficient present ability to consult with counsel with a reasonable degree of rational understanding. Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon Supp. 2006); see McDaniel v. State, 98 S.W.3d 704, 709 (Tex.Crim.App. 2003). The conviction of an accused who is legally incompetent violates due process; therefore, to protect criminal defendant's constitutional rights, a trial judge must inquire into the accused's mental competence once the issue is sufficiently raised. McDaniel, 98 S.W.3d at 709. If, after an informal inquiry, the judge determines evidence exists to support a finding of incompetency, the judge shall order an examination to determine whether the defendant is incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.005(a) (Vernon Supp. 2006). Evidence which shows recent severe mental illness, moderate or greater retardation, or truly bizarre acts by the defendant is sufficient to create a question of competency. McDaniel, 98 S.W.3d at 710. However, evidence of previous psychiatric treatment, suicidal behavior, or drug addiction, standing alone, does not raise the issue of competency. See Ex parte McWilliams, 634 S.W.2d 815, 821 (Tex.Crim.App. 1980); cf. Leyva v. State, 552 S.W.2d 158, 161 (Tex.Crim.App. 1977) (mere fact that appellant received psychiatric treatment does not support finding of incompetency); Reeves v. State, 46 S.W.3d 397, 400 (Tex.App.-Texarkana 2001, pet. dism'd) (evidence of appellant's drug addiction and suicide attempt did not reflect on ability to understand or participate in proceedings on day of trial). In determining whether a defendant's competency is an issue, the trial judge must consider only that evidence tending to show incompetency, putting aside all competing indications of competency. Barber v. State, 737 S.W.2d 824, 828 (Tex.Crim.App. 1987). Although appellant contends the evidence establishes he did not have a rational as well as factual understanding of the proceedings against him during trial, we cannot agree. Appellant pleaded guilty during a hearing on July 15, 2005. During the hearing, appellant was admonished and questioned by the trial judge. Appellant then took the stand and was questioned by his attorney. Appellant testified he was waiving jury trials and had rejected the State's plea bargain agreements because he was asking the judge to consider deferred adjudication probation in all seven cases. The judge found the evidence supported appellant's guilty pleas but did not find appellant guilty in light of the request for deferred adjudication probation. The judge then ordered a pre-sentence investigation (PSI) and set the cases for punishment hearing. The record reflects that, during the July 2005 hearing, appellant responded clearly, concisely, and logically to questions from the trial judge and trial counsel. Our review of this portion of the record reveals nothing raised the issue of incompetency. On August 12, 2005, appellant appeared before the trial judge for the punishment phase. After appellant's step-daughters testified about his sexual abuse, their mother took the stand. During Mother's testimony, she recounted her relationship with appellant. She testified she and appellant frequently argued and fought during their marriage. After one such fight in March 1999, Mother tried to take her children and leave the house. Appellant would not let her leave and tried to intimidate her by bumping and kicking her. He then threatened to commit suicide by shooting himself in the head with a gun he had. When she called 9-1-1, he hit her with the phone. Police arrived and asked him to leave. Mother got a protective order following that incident but later reconciled with appellant. During a January 2001 fight, the police were called to the house and again asked appellant to leave. Later that night, Mother received a call from Baylor Hospital saying appellant had attempted to commit suicide. According to Mother, from that time on, appellant threatened to commit suicide nearly every time they argued until they were divorced in October 2003. In contrast, appellant's daughter, Kim LaCuesta, testified appellant is a good father and grandfather. Although her parents divorced when she was thirteen, Kim has remained in contact with her father. According to Ms. LaCuesta, appellant acted appropriate toward her and her children and is a kind, loving, caring person. She testified she believed he would be a good candidate for probation. Kenneth Fletcher testified he has been dating Kim for six years and knows appellant through that relationship. He similarly testified appellant is a kind caring person, a "real gentleman." Appellant testified at length during the hearing. Appellant is sixty-two years old and lives in Austin with his former wife and Kim's mother, Swanni LaCuesta. According to appellant, he understood what was occurring at the hearing, particularly that he (i) had pleaded guilty to the seven counts against him, (ii) seriously considered his actions before pleading guilty, having had "many discussions surrounding and regarding" the cases with his attorney as well as other attorneys, (iii) rejected the State's offer of plea bargains, (iv) waived his right to jury trials, (v) elected to have the trial judge assess punishment, (vi) knew he would have to live with the judge's decision on punishment, (vii) would be required to register as a sex offender regardless of what punishment the judge assessed, and (viii) could be required to stay away from children under the age of seventeen years of age, including his grandchildren, if given probation. Appellant testified he fully accepted responsibility for his actions in these cases. He had reviewed the PSI report and had no objections to it. Nevertheless, he testified there were some corrections he would make to the report. Appellant explained that the discrepancies were probably the result of when the PSI interview occurred. Appellant is diabetic and has kidney dialysis; the PSI interview occurred the morning after dialysis, and appellant had not taken his regular medications the night before out of concern he might oversleep or miss the interview. According to appellant, he was not having a good day the day of the PSI interview. He then testified regarding several errors in the PSI. These included dates of events that were incorrect as well as job titles and duties listed in his employment history. Appellant also disputed the section regarding mental and physical health. He testified that, while the PSI stated he had end-stage retina disease, he in fact has been diagnosed with end-stage renal disease. Appellant did not mention any mental health issues. In response to a question from the judge, appellant testified in detail about his health. He testified he had a history of hypertension and had suffered two heart attacks, beginning in 1996. In 1998, he was diagnosed with diabetes. In August 2004, he was diagnosed with renal, or kidney, failure. Appellant had also been diagnosed with multiple melanoma. He testified his renal failure was a result of the melanoma as was his congestive heart failure. According to appellant, because he had two heart attacks and had diabetes, he is not a candidate for a kidney transplant. Appellant then testified about the impact his medical conditions will likely have on his life expectancy, stating that it would likely shorten his life span substantially. Appellant ended his direct testimony by recounting his professional history, including published articles on law enforcement, certificates and letters of appreciation from governmental entities and U.S. congressmen, and numerous documents and certificates regarding training and continuing education in law enforcement. Although appellant claims, on appeal, that "evidence of [his] incompetency was brought to the attention of the court" during the sentencing and punishment phase, we cannot agree. The records of the plea and punishment hearings reflect no evidence suggesting appellant was incompetent to stand trial. Appellant's methodical and detailed testimony throughout the proceedings indicate he had a rational and factual understanding of the nature and object of the proceedings against him. His testimony also establishes he had sufficient ability at the time to consult with his trial counsel with a reasonable degree of rational understanding. See Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon Supp. 2006); McDaniel, 98 S.W.3d at 709. That his ex-wife testified he attempted suicide or threatened to commit suicide several years before trial does not reflect a lack of understanding of the proceeding or an inability to consult with counsel on the day of the hearing. See Reeves, 46 S.W.3d at 400 (evidence of appellant's prior suicide attempt did not reflect on ability to understand or participate in proceedings on day of trial); Guzman v. State, 923 S.W.2d 792, 798 (Tex.App.-Corpus Christi 1996, no pet.) (evidence that appellant had been previously hospitalized for depression and suicide attempts did not raise "bona fide doubt" as to appellant's competency on date of revocation hearing); Thompson v. State, 915 S.W.2d 897, 902 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (symptoms of depression and evidence of suicide attempts do not amount to evidence of "recent severe mental illness."). Therefore, we cannot conclude the trial judge abused his discretion in failing to conduct a competency inquiry during the punishment hearing. See Moore, 999 S.W.2d at 393. Appellant also argues the trial judge should have granted a competency hearing based on evidence raised during the motions for new trial. After reviewing this argument and the record on the motions for new trial, we likewise conclude the trial judge did not abuse his discretion in failing to do so. We review the trial judge's denial of a defendant's motion for new trial under an abuse of discretion standard. Charles, 146 S.W.3d at 208; Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). The trial judge is given great deference and may be overruled only if his decision is arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). The credibility of witnesses is primarily a determination for the trial judge. Goodoy v. State, 122 S.W.3d 315, 319 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Thus, the trial judge may accept or reject any or all of the witnesses' testimony and is not required to believe a defendant's testimony or evidence simply because it is uncontroverted. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App. [Panel Op.] 1978); Goodoy, 122 S.W.3d at 319; see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997) (appellate court affords almost total deference to trial judge's determination of historical facts that record supports, especially when findings are based on evaluation of credibility and demeanor). During the hearing on the motions for new trial, Kim, Kenneth, and Swanni testified. Each witness testified that, around the time of the punishment hearing, appellant had short term memory losses, was easily misled by others, did not fully understand what was happening, was very docile, and would go along with whatever a person suggested. In addition, appellant presented medical records detailing his medical situation and medications. The judge, who heard appellant's detailed, concise, and thorough testimony during punishment, was well positioned to determine whether appellant was competent to plead guilty in these cases. The judge was also entitled to balance the evidence presented at the hearing on the motions for new trial against the record of the punishment hearing, including his own observations of appellant at the time of the plea and punishment hearing. Under these facts and circumstances, we cannot conclude the trial judge abused his discretion in denying appellant's motions for new trial. See Brown v. State, 960 S.W.2d 772, 780 (Tex.App.-Dallas 1997, pet. ref'd); Goodoy, 122 S.W.3d at 321. We overrule appellant's two issues on appeal. We affirm the trial court's judgments.