NO. 07-05-0182-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B JULY 5, 2006

______________________________ BARRY D WAYNE MIN NFEE, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 320 TH DISTRICT COURT OF POTTER COUNTY; NO. 49,678-D; HON. DON EMERSON, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Barry Dwayne Minnfee appeals his conviction for robbery via two issues. The first
concerns whether the trial c ourt should have in quired i nto wheth er he was competen t to stand trial. The second involves whether his trial attorney rendered effective assistance. We affirm t he judgme nt of the trial cou rt. Competency In his firstissue, appellant complains that the trial court shoul d have inquired into his competencyonce his counsel filed a motion for the ap pointment of a psychologist and given his supposed bizarre acts. We overrule the i ssue.2

A person i s incompe tent to sta nd tri al if he la cks a 1) s ufficien t present ability to consultwith his lawyer with a reasonable degree of rational understanding or 2) rational as well as factual understanding of the proceedingsagainst him. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 46B.003(a) (Vernon Supp. 2005). And, while adefen dant’s po tential incompetency maybe raised by motio n, id. art. 46B.004(a), conclusory allegations in the motion are not enough to trigger the need for investigation by the tri al court. McDaniel v. State , 98 S.W.3d 704, 7 11 (Tex. Crim. App. 2003). Rather, “evidence” must be brought to the trial court’s attention, id. , and tha t eviden ce must beof the il k to raise a bona fide doubt in the judge’s mi nd about th e defend ant’s com petency. Id. ; Alcott v. State, 51 S.W.3d 59 6, 601 (Tex

. Crim. App. 2001). Finally, evidence is usually sufficie nt to crea te such a doubt if it shows recentsevere me ntal ill ness, mod erate men tal retard ation, or truly bizarre acts by the defendan t. McDaniel

v. State, 98 S.W.3d at 710; Alcott v. State, 51 S.W.3d at 599 n.10. The “e vide nce” alluded to by appellant allegedl y satisfying the McDaniel standard consisted of the following: 1) trial counsel’s statement that he had “some q uestions personallyabout . . . [appellant’s] ability to think cle arly and . . . to help any counsel in the preparation of his ca se . . .,” 2 ) the nume rous ple adings f iled by appella nt, some of which refer to his dea th or inju ryat the hands of the judge, his attorney, and the district attorney, 3) appellant’s statement that he believed hiscounsel was working with the district attorney, 4) appellant’s belief that the attorney general had some authority over the cause , 5) appellant’s belief t hat he wa s being tried on a differe nt matt er, and 6 ) the rapidity of appellant’s mood swi ngs. As to the contents of the motion, none allude to acts indicative of incompe tency. Rather, defense counsel simply explained that appellant’s competency had yet to be asses sed, that he was to o poor tohire his own psyc hologis t, a psychologist3

was needed to determine appellant’s competency and sanity, a nd the ap pointmen t of same would assist i n appell ant’s de fense. S o given th e abse nce of anything other than concluso rystatement

s, its co ntents were not evidence suggestive of incompetency. McDaniel

v. State , supra
. Nor did the pretrial conversation between defense counsel, appellant, and the trial court provide the missing evidence. The exchange can best be described as di alogue evincing appella nt’s dis like for his trial counsel and desi re for ano ther attor ney, i.e. one of his own choosin g. See Reed v. State , 112 S.W.3d 706, 711 (Tex. App.–Houston [14 th Dist.] 2003, pet. ref’d) (stating that conflicts with cou nsel do not ne cessaril y illust rate incompetency). And, while appellant’s dislike for his counsel lead to his refusal to respon d to the questions asked him by the trial court, appel l ant’s belligerence evinced an understanding of the proceedings, attempts at manipulation of those proceeding s, and a desire to delay

his pros ecution. At the v eryleast, the trial court could so have reasonably interpreted them. Nor did appellant’s act of filing numerouspretrial motions, when viewed separately
or in conjunction with his conduct in general, depict evidence indicative of inco mpetency. Rather, his motions to suppress ev idence, for a speedy trial, to subpoena particular witnesses, for

bond, and the like evinced an understanding of his circumstances and the legal process as well as his desire to protect what he perceived to b e his rights. See Reed
v. State, su

pra , (noting that appellant’s filing of motions demonstrated an understanding of the lega l process

and hisability

to functi on withi n it). In sum , the record before the trial court did not give rise to a bona fide doubt regarding appella nt’s pres ent abil ity to con sult with his attorney with a reasonable degree4

of rational understanding or his rational and factual understanding of the legal proceedings to which he was subjected. So, the trial court did not abuse its di scretion in overruling the motion at issue. See Moore v. State , 999 S.W.2d 385, 393 (Tex. Crim. App. 1999) (holding that the d ecision to hold a compete ncy heari ng lies within t he trial court’s d iscretio n). Effectiveness of Counsel Next, appellant contends that his trial attorney was ineffective because he faile d to 1) inves tigate and p repare for trial, 2) bring forth evidence of appellant’s tattoos, and 3 ) investigate appellant’s mental health. We overrule thi s issue as well. To prevail on a claim of ineffective assistance, an appellant must show not only deficientperformance but prejudice arising from that d eficienc y. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Moreover, hisclaim must be firmly founded in the record. Goodspeed v. State, 187 S.W.3 d 390, 39 2 (Tex. C rim. App. 2005). Regarding the allegation about investigating appell ant’s mental compet en cy, we immediatelynote that counsel did move to have his cli ent exam ined and did so a t the time he did to determine whether there actually was basis for the motion; this smacks of trial strategy as oppos ed to neglec t. Moreover, the record before us lacks indication of incompetence. Thus, we can hardly criticize counsel for omitting to do that which appellant failed to show wa s warranted. As to the pu rported fa ilure to investig ate, appe llant fai ls to explain what could have been discovered and how it would have benefitted him or affected the trial’s ou tcome. Given this, we cannot say that any supposed neglect on the pa rt of his trial attorney resulted in prejudice.5

Finally, while appellant’s identity as the robbe r was at issue in trial, we cannot say thattrial coun sel’s failure to have appellant show hi s tattoos to the jury was ineffective. First, implicit in his argument is the assumption that appellant had tattoos when he robbe d the store; appe llant cites us to no evidence establishing that. And, unless established, it does not matter whether he had tattoos at trial. Second, tattoos may be indicative of gang involvementor prior

imprisonment and either possibility is something w hich a lawyer may notcare to share with a jury. In other words, what appell ant deems neglect m ay have actually been rea sonabletrial str ategy, wh ich we cannot imp ugn. Accordingly, the judgment of the trial court is affirmed.

Brian Quinn Chief Justice
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