MARK PEREZ, APPELLANT THE STATE OF TEXAS, APPELLEE STATE S BRIEF

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1 Nos CR and CR The State Waives Oral Argument 5th Court of Appeals FILED: 06/04/ :00 Lisa Matz, Clerk IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS MARK PEREZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE On appeal from the 194th Judicial District Court of Dallas County in Cause Numbers F N and F N STATE S BRIEF Counsel of Record: CRAIG WATKINS MARTIN L. PETERSON CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BLDG. 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS (214) (214) fax

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... ii STATEMENT OF THE CASES STATEMENT OF FACTS... 3 SUMMARY OF ARGUMENT... 3 ARGUMENT RESPONSE TO FIRST ISSUE: THE RECORD FAILS TO SHOW THAT PEREZ WAS NOT COMPETENT TO PROCEED TO TRIAL ON AUGUST 30, 2010 OR ANYTHING SUGGESTING HIS PLEAS TO THE ALLEGATIONS AGAINST HIM WERE NOT KNOWING AND VOLUNTARY RESPONSE TO SECOND ISSUE: THE RECORD FAILS TO SHOW THERE WAS GOOD CAUSE FOR PEREZ'S REQUEST THAT THE PROCEEDINGS BE FURTHER DELAYED DUE TO HIS MENTAL CONDITION; PEREZ'S MOTION FOR CONTINUANCE WAS PROPERLY DENIED PRAYER... 7 CERTIFICATE OF SERVICE... 8 i

3 INDEX OF AUTHORITIES Cases Hobbs v. State, 359 S.W.3d 919 (Tex. App. Houston [14th Dist.] 2012, no pet.)... 5 Reyes v. State, 2009 Tex. App. LEXIS 1540 (Tex. App. Dallas Mar. 10, 2009, pet. ref d) (not designated for publication)... 5 Stine v. State, 300 S.W.3d 52 (Tex. App. Texarkana 2009, no pet.)... 5 White v. State, 982 S.W.2d 642 (Tex. App. Texarkana 1998, pet. ref d)... 7 Statutes and Rules TEX. CODE CRIM. PROC. art TEX. CODE CRIM. PROC. art. 46B.003(b)... 6, 7 TEX. CODE CRIM. PROC. art. 46B.021(f)... 6 TEX. PENAL CODE 22.01(a)(1), (b)(2)... 1 TEX. PENAL CODE 38.11(b)... 1 TEX. PENAL CODE 38.11(d)(1)... 5 ii

4 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in response to the brief of appellant, Mark Perez, in the two cases on appeal. STATEMENT OF THE CASES Appellant (hereinafter Perez ) pled guilty in July of 2007 to having assaulted a family member, with an enhanced range of punishment due to previous convictions. Tex. Penal Code 22.01(a)(1), (b)(2). The court followed the prosecutor s recommendation and deferred adjudication of guilt and placed Perez on community supervision. Later, on January 20, 2010, the assault case was transferred from Criminal District Court No. 7 to the 194th District Court. On February 4, 2010, the 194th District Court modified the conditions of Perez s supervision, to require him to serve a term of confinement and treatment in a substance abuse treatment facility (as an alternative to imprisonment). Tex. Code Crim. Proc. art The court ordered that Perez be confined in the county jail until space became available at a SAFPF for him. (CR1: 44). 1 While in the county jail pursuant to that order, Perez was indicted for the offense of taking a prohibited substance (marihuana) into a correctional facility (the Lew Sterrett Jail), which allegedly occurred on April 30, Tex. Penal Code 38.11(b). A motion to proceed with adjudication of guilt was filed in the assault case alleging this new offense as a violation of the conditions of supervision. (CR1: 45-46). 1 CR1 will be used to designate the Clerk s Record filed in Cause No CR. CR2 will be used to designate the Clerk s Record filed in Cause No CR. 1

5 The prohibited substance case was initially heard by a criminal law magistrate on August 13, 2010, because the parties had apparently reached a plea bargain (to the extent that the State agreed to abandon one of the punishment enhancement allegations). (RR2: 5). The parties reappeared before the District Judge (Ernest White) on August 30, 2010, who proceeded as though nothing had occurred on August 13 with the exception of the fact that Judge White thought Perez had pled true to the allegations in the motion to proceed in the assault case. (RR3: 7-9). In any event, Perez still desired to waive trial by jury and enter a plea of guilty to the indictment and a plea of true to the allegations in the motion to adjudicate. Initially, Perez s attorney stated that he considered Perez to be competent. (RR3: 8). At the end of the hearing, however, Perez s attorney asked for some kind of continuance to get [his client medicated and] in a couple of weeks... come back here and see that there is any difference. (RR3: 34-35). Mr. Jeffrey then argued, as a basis for a suspended sentence, I am not convinced that [Perez] knows everything that is going on here. Apparently no ruling was requested on the motion for continuance. Rather, the court merely proceeded to pronounce (1) his ruling on the motion to adjudicate and (2) a sentence in each of the cases. Perez was sentenced to serve concurrent terms of 35 years confinement in each case (after adjudication of his guilt in the assault case). Perez filed motions for new trial solely on the basis that the verdict is contrary to the law and the evidence. Each motion 2

6 was overruled without a hearing. Perez timely gave notice of appeal in each case. STATEMENT OF FACTS Perez made a judicial confession, by written stipulation of fact and while testifying, that he had intentionally and knowingly taken a quantity of marihuana into his cell at the Lew Sterrett Jail on April 30, (CR2: 24; RR3: 18, 26, 33). Perez states in his brief that he declined to accept a recommendation from the prosecutor that he be assessed ten and seven years confinement (which would have included an abandonment by the State of the habitual offender punishment enhancement allegations in the indictments, but also a waiver of right to appeal by Perez). Perez states that he did this in order to try to convince the trial judge to continue him on community supervision in the assault case and to grant him a deferred adjudication of guilt in the prohibited substance case. Appellant s Br. at 30. SUMMARY OF ARGUMENT There was no evidence that Perez lacked sufficient competence to validly acknowledge his guilt or to present any favorable evidence. The trial court correctly denied the oral motion for continuance and properly accepted Perez s pleas as intelligent, knowing, and voluntary in nature. 3

7 ARGUMENT In Reply to Both of the Issues Raised Perez s pleas did not become unknowing or involuntary merely because he may not have fully understood everything that was going on. Nothing suggests Perez was incapable of making a rational choice about his pleas or unable to assist his counsel to the extent necessary. There was no good cause for the court to grant a continuance of the August 30 proceeding (merely for purposes of delay). Although he frames the issue in terms of an involuntary and unknowing decision to acknowledge his guilt, what Perez apparently seeks to demonstrate is that he was incompetent on August 13, to enter a plea of guilty to possessing a prohibited substance (and secondarily a plea of true to having thereby violated a condition of his community supervision in the assault case). As proof that he lacked a rational understanding of the proceeding (which in turn is what he says made his plea involuntary or unknowing), he directs attention to the fact that he stated during the hearing that he was not fully understanding everything that was going on and that his attorney expressed the same concern about his client s comprehension. He further asserts that he had not received the medication that his medical providers stated that he needed to prevent anxiety attacks or uncontrolled outbursts of anger. 2 In his brief, Perez takes the position that his pleas were taken and accepted on August 13, by a Dallas County Magistrate (surrogate) Judge. But, the record further reflects Perez re-entered those pleas and judicially confessed to the possession of prohibited substance offense (and concomitant probation violation) on August 30, before the District Judge. In any event, even if the August 30 appearance was merely for sentencing, that would be all the more reason why the court could decline to grant a continuance. The nature of the proceeding required little participation from Perez, as his primary hope lay in receiving mercy from the court. 4

8 In contrast to such claim, the trial court had observed Perez s conduct during the plea/revocation hearing and knew that Perez had recently been examined by a psychiatrist who found Perez had sufficient mental ability to understand the nature of, and factual basis for, the proceeding and to assist his attorney as necessary. See Stine v. State, 300 S.W.3d 52, 60 (Tex. App. Texarkana 2009, no pet.) (recent mental exam dispelled idea of defendant s incompetence, although attorney stated his client could not think straight and [was] unable to make any decisions ). Specifically, Dr. Clayton had stated: Mr. Perez understands the charges pending against him. He also understands the range of punishment for the crime and the various duties of courtroom personnel in a trial process. (CR2: 20). The court no doubt also recognized: (1) that the diagnosis of Perez s mental illness was neither that it was severe nor of such type as might normally render him incompetent to stand trial, and (2) that there was no reason to doubt that Perez had violated section 38.11(d)(1) of the Penal Code (by receiving marihuana from his wife and storing or concealing it in his sock). Cf. Reyes v. State, Nos CR and CR, 2009 Tex. App. LEXIS 1540, at *89-9 (Tex. App. Dallas Mar. 10, 2009, pet. ref d) (not designated for publication). Thus, there was no reason for the court to halt the proceedings or to decline to accept Perez s pleas. Hobbs v. State, 359 S.W.3d 919, 926 (Tex. App. Houston [14th Dist.] 2012, no pet.). Simply put, a failure to understand everything that was going on was not a requirement for his pleas to be valid or for Perez to be legally competent to 5

9 proceed with the disposition of his cases at that time. There is no evidence that Perez lacked rationality due to an anxiety attack. While his answers to some questions may have seemed opaque, a defendant need not always make sense on the witness stand. A person who is competent may easily misapprehend how his responses to questions would register or become confused by some questions. Nor does the fact that Perez brashly refused to follow the advice of his attorney and declined to accept the State s recommendation as to his punishment prove he had become incompetent. Perez was not forced to testify or even to go to trial on August 13. To avoid that, all he had to do was to withdraw his plea of guilty and refuse to make a judicial confession of his guilt. Moreover, the record reflects Perez not only understood the open nature of his pleas, but also the full range of punishment applicable to each offense (a minimum of 25 years up to life imprisonment). (CR2: 37, 39). Perez s failure to withdraw his plea, and his making of a judicial confession of guilt, evidences that he had no desire or reason to challenge the conclusion reached by Dr. Clayton nor the implied finding by the court that Perez was competent (which was the presumption at law under article 46B.003(b) of the Code of Criminal Procedure). Notably, Perez never made a request to be examined by an expert of his own choice. See Tex. Code Crim. Proc. art. 46B.021(f). Nothing in the record suggests that Perez could ever have succeeded in proving by a preponderance of the evidence that he was incompetent to proceed with the disposition of his cases at the times he did. See Tex. 6

10 Code Crim Proc. art. 46B.003(b). There was no written motion for continuance. There was no good cause shown for further delay. Even if an equitable reason for some delay was shown, the trial court could deny the oral motion. White v. State, 982 S.W.2d 642, (Tex. App. Texarkana 1998, pet. ref d). In truth, Perez appeals merely because he is dissatisfied with the punishments chosen by Judge White, and not because his mental illness hampered his ability to participate meaningfully in the hearing or make a rational choice about whether to contest his guilt. The judgments should be affirmed. PRAYER The State prays that the Court will deny the relief requested by Perez and affirm the judgments of the trial court. Respectfully submitted, CRAIG WATKINS MARTIN L. PETERSON CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BLDG. 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS (214) (214) fax 7

11 CERTIFICATE OF SERVICE I certify that a true copy of the foregoing State s brief has been served by mail upon Mr. Bruce C. Kaye, Attorney for Appellant, at 2309 Boll St., Dallas, Texas and by to on June 4, Martin L. Peterson 8

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