Opinion
06-20-00123-CR
12-22-2021
JULIAN DIXON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: October 27, 2021
On Appeal from the 361st District Court Brazos County, Texas Trial Court No. 19-02477-CRF-361
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Scott E. Stevens, Justice
Pursuant to a Brazos County jury's verdict, Julian Dixon was convicted of three counts of assault on a public servant and sentenced to eighteen years' imprisonment on each count. On appeal, Dixon complains (1) that the trial court abused its discretion by not conducting an informal inquiry into his competency to stand trial, (2) that he did not competently waive his right to counsel, and (3) that the trial court was required to make an inquiry as to his competency to conduct his own defense. Because we find that (1) the trial court did not abuse its discretion (a) by not conducting an informal inquiry into Dixon's competency to stand trial or (b) by finding that he competently waived his right to counsel and because we find that (2) the trial court did not have to inquire into his competency to conduct his own defense, we affirm the trial court's judgment.
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov't Code Ann. § 73.001. We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
I. Background
Early on the morning of April 7, 2019, Bryan, Texas, police officers arrested Dixon on an outstanding arrest warrant for terroristic threat. Dixon resisted arrest, and during the struggle to detain him, Dixon head-butted one officer and tried to grab another officer's weapon. After Dixon was taken to the Brazos County Detention Center (BCDC), he was first placed in a detox holding cell because of his hollering and screaming. When Dixon calmed down, he was taken to a larger holding cell so that he could begin the booking process. But while in that cell, he began stripping off his clothes while he was across from the holding cell for female detainees. Officers persuaded him to put his clothes on, and three officers walked him back to the detox holding cell. During that walk, Dixon, without provocation, struck one of the officers, Austin O'Brien, in the face with a closed fist. As the officers were putting him in the cell, Dixon struck O'Brien two more times and also struck the other officers.
Although the return on the arrest warrant indicated that it was executed on April 6, 2019, a recording of the arrest taken by body cameras indicated that the arrest occurred shortly after 1:00 a.m. on April 7, 2019.
Although Dixon maintained throughout this case that he was never brought before a magistrate after his arrest, a magistrate's warning form showed that, later on the morning of April 7, 2019, Dixon appeared before Judge Kenny E. Elliott, who administered the warnings required by Article 15.17 of the Texas Code of Criminal Procedure. Besides the terroristic threat charge for which the warrant had been issued, the record shows that Dixon was informed that he was accused of resisting arrest, assault on a public servant, attempting to take a weapon from a law enforcement officer, possession of a controlled substance, obstruction or retaliation, and three more assaults on a public servant.
Although the Warning by Magistrate contains the signature of both the magistrate and a witness, the space for the defendant's signature contains the hand-written word "Refused."
See Tex. Code Crim. Proc. Ann. arts. 14.06(a) (Supp.), 15.17(a) (requiring that an arrested person be brought to a magistrate not later than forty-eight hours after the person is arrested and informed by the magistrate of the accusation against him, his right to retain counsel, and other rights).
The additional charges apparently resulted from the altercation during Dixon's arrest and the altercation at the BCDC.
On April 8, 2019, Mark Maltsberger was appointed as counsel for Dixon on all his pending charges. Apparently, on April 15, 2019, the Honorable Jim Locke, judge of the County Court at Law No. 2 of Brazos County, entered an order on motion for competency evaluation and referred Dixon to Vivian Pan, Ph.D., for a forensic psychological evaluation to determine his competency to stand trial. By her report dated May 10, 2019, Pan set forth her findings. She noted that Dixon had been hospitalized at North Texas State Hospital for two months in 2005 for competency restoration. At that time, he was diagnosed with substance induced psychosis with delusions and hallucinations, treated, and deemed competent at the time of his discharge.
At the time, Dixon apparently had three misdemeanor cases pending in the county court at law.
During Pan's evaluation, Dixon denied any psychiatric symptoms, including significant mood fluctuations suggestive of depression or mania, anxiety, auditory hallucinations, or visual hallucinations. Pan observed that Dixon did not exhibit delusional thought content but that he did make some grandiose statements and that he was religiously preoccupied. Pan also observed that Dixon was oriented to person, place, time, and situation, that his attention and concentration were adequate, and that his recent and remote memory were good, though his insight and judgment were poor. Her diagnostic impression was an unspecified bipolar and related disorder.
Regarding Dixon's competency to stand trial, Pan found that (1) Dixon demonstrated a rational understanding of his charges and the potential consequences of the pending criminal proceedings; (2) he demonstrated sufficient ability to disclose pertinent facts, events, and states of mind to counsel; (3) he demonstrated sufficient ability to engage in a reasoned choice of legal strategies and options; (4) he demonstrated sufficient understanding of the adversarial nature of criminal proceedings; (5) he was capable of conforming his behavior to appropriate courtroom standards; and (6) he appeared capable of effectively testifying on his own behalf. She also found that, although Dixon had a diagnosable mental illness, his symptoms did not impair his ability to consult with his attorney. Pan also noted that Dixon expressed a desire to represent himself based on his prior experiences with attorneys. She opined that Dixon's desire to represent himself or his refusal to work with an attorney would be volitional, considered behavior based on his prior experiences, and would not be due to impairment from a mental illness. For those reasons, she found that Dixon was competent to stand trial. She cautioned, however, that, because of his prior substance induced psychosis, he should be monitored for any deterioration in mental status or functioning.
As Dixon acknowledges in his brief, there was no evidence in the record that the trial court saw, or even knew of the existence of, Pan's report before or during the trial of this case. Pan's report was not filed in the record of this case until November 16, 2020, three weeks after Dixon's conviction. Nothing in the record suggests the report was brought to the trial court's attention by the State, Dixon, or Dixon's standby counsel at any time.
On May 30, 2019, an amended order was entered that appointed Maltsberger as co-counsel for Dixon on all his pending charges. The order noted that a hearing was held on May 30, 2019, at which time Dixon requested to represent himself in all of his cases and agreed to allow Maltsberger to act as co-counsel. On June 6, 2019, Dixon was indicted in this case. On July 25, 2019, Dixon was arraigned on his pending cases, including this case, and Maltsberger appeared as his standby counsel.
Neither a transcript nor a recording of this hearing is contained in the appellate record.
At a status hearing on September 9, 2019, Dixon appeared with his standby counsel. Dixon asked that the charges against him be dropped because, he contended, he had not been brought before a magistrate as required by Article 14.06(a). During the hearing, Dixon asked to speak directly to the State about his case. Dixon was put under oath, and then the trial judge left the courtroom so the parties could discuss a plea offer. Dixon confirmed under oath that he understood that at least one of the charges against him had an enhanced punishment range of five years to life, that there was a possibility that his punishment would be stacked, that he rejected a plea offer to resolve all his pending charges, and that he wanted to go to trial.
At his initial final pretrial on February 3, 2020, Dixon stated, "My name is Julian Michael, also known as Isa Hakim Kabir Mudhill," and "All praise be to Allah." He then engaged the trial court in an exchange on the presumption of innocence, questioned the trial court on why he had been in jail for 304 days when there was an inconsistency between his arrest record and the indictment, and reiterated that he was representing himself. The State then requested that the trial court, for record purposes, "make sure that [Dixon was] admonished as pro se counsel for himself and also competence." The trial court then admonished Dixon that he would be at a significant disadvantage in representing himself with no training in the law, criminal procedure, and the rules of evidence and explained the effect his inexperience might have on his presentation to the jury. Dixon then stated that he wanted a jury of his peers and that he wanted "an Israelite, Judah males, age 40." The trial court denied that specific request but assured Dixon that he would get a jury of his peers who would be authorized citizens of Brazos County.
As noted earlier, Dixon's arrest record indicated that he was arrested on April 6, 2019, and the indictment in this case alleged that the assaults in this case occurred on April 7, 2019.
On March 11, 2020, Dixon filed a pro se motion to release pursuant to Article 17.151 of the Texas Code of Criminal Procedure. Three months later, Dixon's standby counsel moved for either a reduction in Dixon's bond or a speedy trial and a preferential trial setting. At the hearing on that motion, the trial court cautioned Dixon that he could not choose to represent himself and have standby counsel do his legal work and make arguments for him. Rather, the court continued, if he chose to represent himself, he would have to file papers, not standby counsel. Dixon then argued for a reduction in his bond, which was opposed by the State.
See TEX. Code Crim. Proc. Ann. art. 17.151, § 1(1) (Supp.) (requiring that a jailed defendant who is accused of a felony "be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within ... 90 days from the commencement of his detention").
On August 28, 2020, standby counsel moved to withdraw as counsel and stated that Dixon wished to proceed pro se, instructed standby counsel to file a motion to withdraw, and relieved standby counsel of his duties. By letter dated August 29, 2020, Dixon confirmed that he had relieved standby counsel of his duties. A hearing on the motion to withdraw was held on September 25, 2020, and the trial court once again admonished Dixon of his right to represent himself, that he would need to know the rules of procedure and rules of evidence at trial, that no one would be able to help him, and that the trial court would not give him any more leeway than it gave the State on evidence and procedure. The court also explained that Dixon could continue to represent himself with standby counsel that could answer questions but not give him legal advice, or he could have a lawyer represent him. Dixon confirmed that he wanted to represent himself, and the trial court granted the motion to withdraw in Dixon's five pending cases.
On September 30, 2020, the trial court held a final pretrial hearing on Dixon's five pending cases. During that hearing, the trial court determined that Dixon was forty-one years old, that he had completed one year of college, and that his work experience included telemarketing, general business, janitorial work, and landscaping. The trial court admonished Dixon on one of his other cases in which he was charged with one count of assault on a public servant and one count of attempting to take an officer's weapon, with enhanced punishment ranges of five years to life and two to ten years, respectively. The court again admonished Dixon that, because he chose to represent himself, he had to follow the rules of evidence and rules of procedure, with no special consideration because of his lack of legal training. Dixon was admonished that he had a right to an attorney and to have one appointed if he could not afford one, which Dixon confirmed that he waived in favor of representing himself. The trial court then found that Dixon had sufficient age, background, and education to understand the implications of his self-representation and that he had been informed of the nature of the charged offenses and the possible penalties, if convicted; that he would need to follow the rules of evidence and procedure without special consideration for his lack of legal training and experience; that he would not be allowed to obstruct the orderly procedure of the court or interfere with the fair administration of justice; and that he would have no right to standby counsel unless he requested one.
Dixon does not complain that the trial court failed to specifically admonish him on the three charges here, each of which had an enhanced punishment range of two to twenty years.
Dixon also signed an acknowledgment that he had received those warnings and admonishments and that, after being advised by the court of his right to representation by counsel, he had waived that right and chosen to represent himself.
Although the record includes no request for standby counsel by Dixon after this hearing, the record shows that Maltsberger was present at voir dire and the trial of this case as standby counsel.
During voir dire, Dixon spoke with the jury about being fair, discerning facts, and seeing the truth and explained to them that he had chosen to wear jail clothes because he had been incarcerated for eighteen months. In his opening statement, Dixon informed the jury panel that the recordings of the incidents had no audio, so they would be unable to hear the threats from the deputies, but that he would take them through the incident to show that he was defending himself. During the State's case-in-chief, Dixon cross-examined the complaining witnesses, attempted to explain some of his behavior, and questioned them about the booking process, about the contention that one of the officers hit him, and about his right to defend himself.
Dixon testified on his own behalf in his case-in-chief. After briefly telling the jury about his family, Dixon complained that he had been incarcerated for 563 days even though he was innocent. He claimed that he had never been booked into jail and that he had never been taken before a magistrate or received his Miranda warnings, as required by Articles 14.06 and 15.17. He acknowledged that there was a document that said he had been before a magistrate, but claimed that it was falsified and pointed out what he believed were inconsistencies in the document and that no recording of the proceeding had been produced by the State. Dixon also complained to the jury that he had tried to alert the trial court to those issues many times. Dixon also complained about problems with representing himself and what he perceived were deficiencies in his standby counsel's communications and assistance in obtaining discovery.
Dixon had subpoenaed several witnesses for his case-in-chief in order to question them regarding events that took place during his arrest to support his claim of self-defense and to present evidence of his peaceful character. But the trial court ruled that that testimony would only be admissible in the punishment phase of the trial if Dixon were convicted. Dixon does not complain, on appeal, about the exclusion of that testimony.
Dixon also testified that he initiated contact with the first officer in response to a verbal threat, which was not heard on the recording because the audio was deleted. He also explained that he had been almost strangled to death by the officers who had arrested him and that he had received other lingering injuries during the altercation with the officers. On cross-examination, Dixon steadfastly maintained that the altercation in the jail resulted from the verbal threats by the officers.
After final arguments, the jury found Dixon guilty on each count of assault of a public servant, and after the punishment hearing, the jury assessed him eighteen years' imprisonment on each count.
II. The Trial Court Did Not Abuse Its Discretion by Not Conducting an Informal Inquiry into Dixon's Competency to Stand Trial
In his first issue, Dixon asserts that the trial court abused its discretion by not conducting an informal inquiry into Dixon's competency to stand trial and by not ordering a competency evaluation. "The prosecution and conviction of a defendant while legally incompetent violates due process." Huskins v. State, No. 10-19-00414-CR, 2020 WL 7253373, at *1 (Tex. App - Waco Dec. 9, 2020, no pet.) (mem. op., not designated for publication) (citing Morris v. State, 301 S.W.3d 281, 299 (Tex. Crim. App. 2009)). "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. (quoting Tex. Code Crim. Proc. Ann. art. 46B.003(b)). "A defendant is incompetent to stand trial for a criminal offense if he does not have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or (2) a rational, as well as factual, understanding of the proceedings against him." Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.003(a)).
"Although unpublished cases have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.-Texarkana 2017, pet. ref d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.-Amarillo 2003, pet. ref d)).
"Article 46B of the Code of Criminal Procedure implements the constitutional standard for competency to stand trial and notes the 'circumstances that require, and procedures for making, a determination of whether a defendant is competent to stand trial.'" Id. (quoting Turner v. State, 411 S.W.3d 676, 689 (Tex. Crim. App. 2013)). "If evidence suggesting a defendant may be incompetent to stand trial comes to the trial court's attention, 'the court on its own motion shall suggest that the defendant may be incompetent to stand trial' and '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. (quoting Tex. Code Crim. Proc. Ann art. 46B.004(b)-(c)). "The threshold requirements for an informal inquiry is a 'suggestion of incompetency,' and it 'may consist solely of a representation from any credible source that the defendant may be incompetent.'" Id. (quoting Tex. Code Crim. Proc. Ann. art. 46B.004(c-1)). "A further evidentiary showing is not required to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency of the defendant." Id. (quoting Tex. Code Crim. Proc. Ann. art. 46B.004(c-1)). "Evidence suggesting the need for an informal inquiry may be based on observations made in relation to one or more of the factors described by Article 46B.024 or on any other indication that the defendant is incompetent within the meaning of Article 46B.003." Id. (quoting Tex. Code Crim. Proc. Ann. art. 46B.004(c-1)).
These factors include the capacity of the defendant to (a) rationally understand the charges against him and the potential consequences of the pending criminal proceeding; (b) discuss with counsel pertinent facts, events, and states of mind; (c) engage in a reasoned choice of legal strategies and options; (d) understand the adversarial nature of criminal proceedings; (e) exhibit appropriate courtroom behavior; and (f) testify.Id. (citing Tex. Code Crim. Proc. Ann. art. 46B.024(1)(A)-(F)).
"We review a trial court's decision regarding an informal competency inquiry for an abuse of discretion." Id. at *2 (citing Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded on other grounds by statute as recognized in Turner, 411 S.W.3d at 692 n.31). "In conducting our review, we do not substitute our judgment for that of the trial court, but rather determine whether the trial court's decision was arbitrary or unreasonable." Id. (citing Montoya, 291 S.W.3d at 426).
Dixon argues that there were two instances in the proceedings below that were sufficient to raise a suggestion of incompetency under the statutory standards. First, Dixon points to his statement at the February 3, 2020, hearing regarding his Arabic name, his praising Allah, and his very specific characterization of who he considered his peers. Dixon argues that those statements are evidence of religious grandiosity and delusional episodes. We disagree. While those statements were certainly evidence of Dixon's religious convictions and showed that he had an incorrect assumption that a jury of his peers entitled him to a jury of his peers as defined by his religion, they did not rise to a suggestion (1) that Dixon was incompetent within the meaning of Article 46B.003, (2) that he lacked the capacity to understand the charges against him or the potential consequences and adversarial nature of the proceedings, or (3) that he lacked (a) the ability to disclose pertinent facts, events, and states of mind, (b) to engage in reasoned choice of legal strategies, or (c) to testify. See Tex. Code Crim. Proc. Ann. arts. 46B.003, 46B.024(1)(A)-(F).
Dixon also points to his rejection of the State's plea offer in September 2019, as evidence that he lacked a rational understanding of the proceedings. Yet, although the offer and Dixon's refusal appeared in the reporter's record, the record also shows that the trial judge excused himself from this courtroom during the discussion between the State and Dixon. There is no evidence in the record that the trial court was ever informed of the offer and refusal. For that reason, Dixon's refusal of the plea offer cannot be considered in our determination of whether the trial court abused its discretion in not conducting an informal inquiry.
Dixon asserts that the State's request at the February 3 hearing that the trial court ensure that Dixon was "admonished as pro se counsel for himself and also competence" was a sufficient basis alone to trigger an informal competency inquiry. However, in the context of that hearing, there is nothing to indicate that the State's reference to "competence" was a suggestion that Dixon might be incompetent to stand trial. Rather, in context, it appears that the State was requesting that the trial court admonish Dixon of the dangers and disadvantages of self-representation, as required by Farreta v. California and to assure itself that Dixon was competent to represent himself. In fact, the record shows that this was how the trial court interpreted that request. Because there was no suggestion that Dixon was incompetent to stand trial from any credible source, and no other evidence suggested a need for an informal inquiry into his competence to stand trial, we cannot say that the trial court abused its discretion by not conducting an informal inquiry at the February 3 hearing.
Farreta v. California, Ml U.S. 806, 835 (1975).
Next, Dixon asserts that an informal inquiry should have been triggered by his direct testimony. Dixon points to (1) the fact that he chose to wear his jail uniform to trial; (2) his complaints regarding his treatment in jail, against the judges involved, and against his standby counsel; and (3) his contentions that he had not been booked or brought before a magistrate and that the jail recording had the audio deleted as evidence of paranoia and rigid, fixed thinking. He also points to his several religious and scripture references as evidence of religious fixation and grandiosity.
Even so, our review of Dixon's testimony showed that, although his testimony touched on many issues, it was neither disjointed nor delusional. At voir dire, Dixon explained to the venire members that he chose to wear his jail uniform because he had been incarcerated for 563 days. This, along with his direct testimony regarding his treatment in jail, his contention that he had never been booked or brought before a magistrate, and his complaints against the judges and standby counsel, was in support of his contention that he had been unjustly retained in jail and appears to support a strategy to obtain sympathy from the jury. Two of his religious references appeared to be designed to convey to the jury that he was a religious man, either in an attempt to gain sympathy or to show that he was not a violent man. The other religious references were made to illustrate that deleting the audio from the jail recording left the jury with an incomplete picture of what happened before the altercation. Dixon's testimony that the jail recording had the audio deleted was offered in support of his contention that the State did not want the jury to hear the verbal threats made by the officers before the altercation. That testimony was in support of his defensive theory that he acted in self-defense.
Although Dixon's strategy may have been misguided and unusual, it showed a certain logic, not a confused or delusional thought process. See Baker v. State, No. 04-14-00676-CR, 2016 WL 1588278, at *3 (Tex. App-San Antonio Apr. 20, 2016, pet. refd) (mem. op., not designated for publication); Guerrero v. State, 271 S.W.3d 309, 316 (Tex. App.-San Antonio 2008), off d in part and rev'd in part on other grounds, 305 S.W.3d 546 (Tex. Crim. App. 2009). For that reason, we find that the trial court did not abuse its discretion by not conducting an informal inquiry in response to Dixon's testimony.
Finally, Dixon acknowledges that Pan's report found that Dixon's desire to represent himself or his refusal to work with an attorney was not due to impairment from a mental illness but was, rather, considered volitional behavior based on his prior experiences with court- appointed attorneys. He argues, nevertheless, that his insistence on representing himself and what he characterizes as paranoia and irrational fixation with his lack of jail booking and magistration, required a second look at his competency.
In support of his argument, Dixon cites Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013). In Turner, the trial court granted a motion that Turner be evaluated for his competency to stand trial, and Turner was evaluated by a psychologist and a psychiatrist. Id. at 679. Although the psychologist noted that Turner had possible delusional and paranoid thinking, she opined that he was competent to stand trial. Id. at 679-80. The psychiatrist diagnosed him with a possible paranoid disorder and noted that he exhibited some paranoid ideation and appeared to be delusional. He also noted that Turner was mildly impaired in his capacity to engage with counsel and to engage in a reasoned choice of legal strategies and options and that his possible paranoid disorder may be contributing to the problems he was having with his attorney. The psychiatrist still opined that Turner was competent to stand trial. Id. at 680. The Texas Court of Criminal Appeals held that those reports "effectively put [the trial court] on notice of the need to maintain vigilance to assure that the appellant's due process rights were preserved." Id. at 694.
Turner had been indicted for the intentional murder of his wife and mother-in-law during the same criminal transaction, a capital offense. Turner, 422 S.W.3d at 678.
"[W]hen there has been a suggestion of incompetency but no formal adjudication of the issue, due process requires the trial court to remain ever vigilant for changes in circumstances that would make a formal adjudication appropriate." Turner, 422 S.W.3d at 693 (citing Drope v. Missouri, 420 U.S. 162, 181 (1975)).
The Texas Court of Criminal Appeals summarized what happened after those evaluations:
Barely over a month after the initial evaluations, the appellant's attorneys were already experiencing "a little bit of a disconnect" with him. By November of 2010, the appellant had filed a grievance against his lawyers and requested a new "defense team." In December, Gonzalez's continued representation of the appellant became "untenable" after the appellant threatened him with physical violence over their disagreement with the defense strategy to depose the appellant's children. By April of 2011, it began to emerge that the appellant's displeasure with trial counsel involved more than the depositions alone; he was also upset that trial counsel were not pursuing a sufficiently vigorous investigation into his apparently delusional-and, in any event, clearly irrelevant-claim that the Mayor of Kendleton had sired his youngest child.According to Moncriffe, "He seems to have one train of thought and he disregards all other rational thoughts completely." The appellant's paranoia had progressed to the point that, if the representations of his own lawyers are to be credited, he believed that they were openly conspiring with the prosecutors to secure his conviction. He flatly refused to communicate with them during the voir dire proceedings.Id. Consequently, the court held that the trial court erred in failing to grant Turner's request for a formal competency trial. Id. at 696.
Turner exhibited an "irrational belief that his ongoing delusion with respect to the Mayor of Kendleton somehow provided him with a defense to prosecution for capital murder." Id. at 695.
Moncriffe was appointed to replace Turner's former counsel, Gonzalez. Id. at 681.
Turner's trial counsel filed two motions for a formal competency trial during voir dire, which the trial court denied. Id. at 682-84.
Unlike Turner, the trial court in this case did not order a competency evaluation of Dixon, and there is no evidence that the trial court had ever reviewed or been made aware of Pan's report. For that reason, the trial court could not have been put on notice of the need to maintain vigilance regarding any cautions contained in the report.
In addition, Pan did not find that Dixon had a mental illness that impacted his capacity to engage with counsel in a reasonable and rational manner; to understand the charges against him or the potential consequences and adversarial nature of the proceedings; to disclose pertinent facts, events, and states of mind; to engage in reasoned choice of legal strategies; or to testify. Further, as we have previously discussed, Dixon did not exhibit a delusional fixation on an irrational strategy to the exclusion of all others. Rather, Dixon sought to establish his defensive theory of self-defense through both his cross-examination of the complaining witnesses and his own testimony and engaged in an apparent strategy to elicit sympathy from the jury.
In reviewing this record, we do not find any suggestion from any credible source that Dixon was incompetent to stand trial or any evidence suggesting Dixon lacked the capacity "to (a) rationally understand the charges against him and the potential consequences of the pending criminal proceeding; (b) discuss with counsel pertinent facts, events, and states of mind; (c) engage in a reasoned choice of legal strategies and options; (d) understand the adversarial nature of criminal proceedings; (e) exhibit appropriate courtroom behavior; and (f) testify." Huskins, 2020 WL 7253373, at *1 (citing Tex. Code Crim. Proc. Ann. art. 46B.024(1)(A)-(F)). For these reasons, we find that the trial court did not abuse its discretion in not conducting an informal inquiry into Dixon's competency to stand trial. We, therefore, overrule Dixon's first issue.
III. The Trial Court Did Not Abuse Its Discretion by Finding that Dixon Competently Waived His Right to Counsel
Dixon's second issue asserts that he did not competently waive his right to counsel. "The Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished for any felony." Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997) (citing Faretta, 422 U.S. at 807-08). "Those amendments also guarantee that any such defendant may dispense with counsel and make his own defense. Id. (citing Faretta, 422 U.S. at 818-20). "Such a decision, to be constitutionally effective, must be made (1) competently, (2) knowingly and intelligently, and (3) voluntarily." Id. (citing Godinez v. Moran, 509 U.S. 389, 400-01 (1993); Faretta, 422 U.S. at 834-836). "The decision to waive counsel and proceed pro se is made 'knowingly and intelligently' if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation." Id. at 626 (citing Faretta, 422 U.S. at 834-36). "The decision is made 'voluntarily' if it is uncoerced." Id. (citing Godinez, 509 U.S. at 401 n.12).
Dixon's second issue also purports to complain that he did not knowingly, intelligently, and voluntarily waive his right to counsel. Even so, in his brief, Dixon concedes, and the record reflects, that the trial court advised him of his right to counsel and admonished him, on three separate occasions, of the dangers and disadvantages of self-representation, as required by Faretta, and also determined Dixon's age, education, and work experience. Further, Dixon makes no argument in support of his contention that his waiver of the right to counsel was not knowingly, intelligently, and voluntarily made. Dixon does point out that the trial court incorrectly admonished Dixon about the charges and punishment ranges in another case that also involved a charge of assault on a public servant, a case in which the punishment had been enhanced to a first-degree-felony range. Dixon does not contend that admonishing him on the higher range of punishment was reversible error. Even if he had, "the failure of the trial court to advise a defendant of the possible punishment range, by itself, does not require reversal." Dolph v. State, 440 S.W.3d 898, 906 n.13 (Tex. App.- Texarkana 2013, pet. ref'd) (citing Halliburton v. State, 928 S.W.2d 650, 652-53 (Tex. App.-San Antonio 1996, pet. ref'd)).
"[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." Godinez v. Moran, 509 U.S. 389, 399 (1993). The standard of competence to waive the right of counsel is no higher than the standard of competence to stand trial. Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010) (citing Godinez, 509 U.S. at 399).
Because competence "is a mixed question of law and fact that turns on an evaluation of credibility and demeanor, we review the trial judge's ruling for an abuse of discretion." Id. at 561 (citing Indiana v. Edwards, 554 U.S. 164, 177-78 (2008)). "We afford almost total deference to a trial judge's rulings on mixed questions of law and fact when the resolution of the issue turns on an evaluation of credibility and demeanor." Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). "We view the evidence in the light most favorable to the trial judge's ruling." Id. (citing Guzman, 955 S.W.2d at 89). "And we will imply any findings of fact supported by the evidence and necessary to support the trial judge's ruling when the judge failed to make explicit findings." Id. (citing Guzman, 955 S.W.2d at 89).
Although not entirely clear, Dixon appears to rely on the same circumstances and events he asserted in his first issue to support his contention that he did not competently waive his right to counsel. We found in analyzing Dixon's first issue that no evidence suggested that Dixon was not competent to stand trial. Likewise, we find that there is no evidence that Dixon was not competent to waive his right to counsel. See Godinez, 509 U.S. at 398. For that reason, we find that the trial court did not abuse its discretion in finding that Dixon was competent to waive his right to counsel. As a result, we overrule Dixon's second issue.
IV. The Trial Court Was Not Required to Inquire Into Dixon's Competency to Self-Represent
In his third issue, Dixon asserts that the trial court erred by failing to inquire whether he was competent to conduct his own defense. Dixon argues that this inquiry was required under Indiana v. Edwards, 554 U.S. 164 (2008). In Edwards, the respondent complained that the trial court had unconstitutionally denied his request for self-representation. Id. at 169. Between his arrest and trial, Edwards had twice been determined to be incompetent to stand trial because of delusions and schizophrenic illness, and he was committed to a psychiatric hospital for treatment. Id. at 168. Eventually his condition improved, and he was determined to be competent to stand trial. Id. at 169. Just before his trial began, Edwards requested to represent himself. The trial court referred to the "lengthy record of psychiatric reports," noted that he still suffered from schizophrenia, and concluded that, while he was competent to stand trial, he was not competent to represent himself at trial. Id.
Dixon cites no authority holding that Edwards requires the trial court to conduct an inquiry into a defendant's competence to self-represent.
On appeal, Edwards contended that he had been denied his constitutional right to self-representation. Id. In deciding whether the Constitution allowed "a mental-illness-related limitation on the scope of the self-representation right," id. at 171, the United States Supreme Court concluded that
the Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.Id. at 177-78.
Dusky v. United States, 362 U.S. 402 (1960) (per curiam).
The Texas Court of Criminal Appeals has noted that, in Edwards, "the Court .... declined to adopt the more specific standard proposed by Indiana, stating that such a standard would 'deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury.'" Chadwick, 309 S.W.3d at 561 (quoting Edwards, 554 U.S. at 178). Rather, "[t]he [Supreme] Court held 'only that the lack of mental competence can under some circumstances form a basis for denying the right to proceed prose.'" Id. (citingEdwards, 554 U.S. at 189 (Scalia, J., dissenting)).
While the Supreme Court recognized that the constitutional right to self-representation may be limited in cases of severe mental illness, its language in Edwards was permissive, not mandatory. Cofer v. State, No. 02-16-00101-CR, 2017 WL 3821885, at *5 (Tex. App -Fort Worth Aug. 31, 2017, no pet.) (mem. op., not designated for publication). For that reason, courts have held that Edwards does not require a trial court to deny the right of self-representation to a defendant who may be incompetent to conduct trial proceedings pro se because of a severe mental illness. See id; Fletcher v. State, 474 S.W.3d 389, 400 (Tex. App.-Houston [14th Dist] 2015, pet. ref d) ("The Constitution does not require States to impose counsel on" defendants suffering severe mental illness). Concomitantly, the Constitution does not require a trial court to conduct further inquiry into the defendant's competence to self-represent who is competent to stand trial and who has validly waived his right to counsel. Cofer, 2017 WL 3821885 at *5; Baker, 2016 WL 1588278, at *7; Fletcher, 474 S.W.3d at 401.
We have previously found that there is no evidence suggesting that Dixon was not competent to stand trial and that there is no evidence that Dixon was not competent to waive his right to counsel. In addition, the record shows that Dixon knowingly, intelligently, and voluntarily waived his right to counsel. For those reasons, we find that the trial court was not required to conduct a further inquiry into Dixon's competence to self-represent. We, therefore, overrule Dixon's third issue.
V. Conclusion
We affirm the trial court's judgment.