NUMBER 13-13-00120-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

WALTER FORGE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 214th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Garza

Appellant, Walter Forge, entered an open no contest plea to criminal mischief 

causing pecuniary loss of more than $1,500 but less than $20,000, a state jail felony. 

See TEX. PENAL CODE ANN. § 28.03(a)(1), (b)(4)(A) (West 2011). He was convicted, 

sentenced to two years in state jail, and ordered to pay $419 in court costs and $245 in 
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restitution. On appeal, Forge contends by three issues that (1) the trial court erred in 

not conducting a full competency hearing, and (2) his trial counsel was ineffective. We 

affirm.

I. BACKGROUND

Forge was charged by indictment with having committed criminal mischief by 

causing over $1,500 in damage to paint on a vehicle. See id. § 28.03(a)(1) (“A person 

commits an offense if, without the effective consent of the owner, . . . he intentionally or 

knowingly damages or destroys the tangible property of the owner.”). Forge’s counsel 

filed a “Motion Suggesting Incompetency and Request for Examination” asking the trial 

court to appoint an expert to perform a competency evaluation. See TEX. CODE CRIM.

PROC ANN. art. 46B.021(a) (West 2006) (“On a suggestion that the defendant may be 

incompetent to stand trial, the court may appoint one or more disinterested experts 

to . . . examine the defendant and report to the court on the competency or 

incompetency of the defendant . . . .”). The trial court granted the motion and appointed 

Velda Vela-Trujillo, Ph.D., a psychologist. Dr. Vela-Trujillo performed an examination 

and prepared a forensic examination report in which she concluded that Forge is 

competent to stand trial.

At the plea hearing, defense counsel acknowledged that he received the doctor’s 

report and discussed it with Forge and stated that “I think he’s come to understand more 

of what’s going on.” Forge acknowledged receiving a copy of the indictment. The 

following colloquy then occurred:

THE COURT: All right, sir. You have certain constitutional rights. 

I’ll go over those with you. You have the right to 

have the indictment read to you out loud in court; 

have a right to a jury trial; you have a right to confront 
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and cross-examine State witnesses; you have a right 

to bring your own witnesses before the Court; you 

have a right to remain silent; a right to give up these 

rights. Do you understand your rights, sir?

[Forge]: Yes, sir.

THE COURT: If you’ve entered into a plea bargain agreement with 

the State and I accept it, your rights of appeal will be 

limited to matters I’ve already ruled on. But, [defense 

counsel], you state there are no pending matters?

[Defense counsel]: There is no pending matter.

THE COURT: All right. And there is no plea bargain agreement, 

am I correct?

[Prosecutor]: That is correct, Your Honor.

THE COURT: Knowing all that, sir, do you wish to waive these 

rights I mentioned to you and continue with a plea?

[Forge]: Yes.

THE COURT: And to the charge in the indictment, how do you 

plead, guilty or not guilty?

[Forge]: No contest.

THE COURT: Are you pleading no contest because you do not 

wish to contest the matter?

[Forge]: Yes.

THE COURT: All right. All right. Knowing all that, sir, did anybody 

force you to give up the right to a jury trial?

[Forge]: No, sir.

THE COURT: Anybody promise you anything?

[Forge]: No, sir.

THE COURT: Are you satisfied with the work [defense counsel] has 

done for you?
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[Forge]: Yes, sir.

THE COURT: [Defense counsel], in your opinion, is your client 

competent to stand trial and has he been able to 

assist you?

[Defense counsel]: Yes, Your Honor. I think he’s competent, based on 

the medication that he’s under.

THE COURT: All right.

[Defense counsel]: And he’s clearly understanding what’s happening 

here today.

The court then accepted Forge’s plea and found Forge guilty of criminal mischief. This 

appeal followed.

I. COMPETENCY TO STAND TRIAL

A. Applicable Law and Standard of Review

“A person is incompetent to stand trial if the person does not have: (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) (West 2006). “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. art. 46B.003(b). “On suggestion 

that the defendant may be incompetent to stand trial, the court 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. art. 46B.004(c) (West 

Supp. 2011). The trial court must also conduct such an informal inquiry if there is “a 

bona fide doubt about the competency of the defendant.” Gonzales v. State, 313 
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S.W.3d 840, 841 (Tex. Crim. App. 2010) (citing Montoya v. State, 291 S.W.3d 420, 425 

(Tex. Crim. App. 2009)).

If the court determines by the informal inquiry that there is evidence to support a 

finding of incompetency to stand trial, the trial court must hold a full competency trial 

unless: (1) neither party’s counsel requests a trial on the issue of incompetency; (2) 

neither party’s counsel opposes a finding of incompetency; and (3) the court does not, 

on its own motion, determine that a trial is necessary to determine incompetency. TEX.

CODE CRIM. PROC ANN. art. 46B.005(c). In determining whether the evidence requires a 

full competency trial, the trial court must “assay just that evidence tending to show 

incompetency, putting aside all competing indications of competency, to find whether 

there is some evidence, a quantity more than none or a scintilla, that rationally may lead 

to a conclusion of incompetency.” Ex parte LaHood, 401 S.W.3d 45, 53 (Tex. Crim. 

App. 2013) (quoting Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980)). This 

is a higher standard than the “bona fide doubt” which triggers the informal competency 

inquiry. See McDaniel v. State, 98 S.W.3d 704, 711 n.20 (Tex. Crim. App. 2003).

We review the trial court’s competency determination for abuse of discretion. 

Montoya, 291 S.W.3d at 426; Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 

1999). We do not substitute our judgment for that of the trial court, but rather determine

whether its decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426

B. Analysis

Forge argues by his first issue that his “due process rights were violated by the 

failure to conduct a full competency hearing.” See McDaniel, 98 S.W.3d at 709 (“The 

conviction of an accused person while he is legally incompetent violates due process.”). 
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In support of this issue, Forge notes that, at the time of the competency evaluation, he 

erroneously believed he was charged with criminal trespass, not criminal mischief. 

Forge further asserts that, at the time he pleaded guilty, he erroneously believed that he 

had entered into a plea bargain agreement with respect to his guilty plea.

Defense counsel’s “Motion Suggesting Incompetency and Request for 

Examination” triggered an informal competency inquiry under subsection (c) of code of 

criminal procedure article 46B.004. TEX. CODE CRIM. PROC ANN. art. 46B.005(c). The 

record reflects that Dr. Vela-Trujillo’s examination and report were part of the informal 

inquiry. The doctor’s report does indicate that Forge, as well as his trial counsel, 

believed at the time of the examination that Forge was charged with criminal trespass. 

However, the trial court correctly admonished Forge at his plea hearing that he was in 

fact charged with criminal mischief, and Forge acknowledged that he understood that 

charge at the plea hearing. Forge also signed and initialed written admonishments that 

correctly stated the charge and level of offense. Also at the plea hearing, the trial court 

advised Forge of his limited right to appeal if he had entered into a plea bargain 

agreement; however, it was made clear at the plea hearing that no such agreement was 

entered into in this case.

Forge does not contend that his guilty plea was not freely and voluntarily given. 

See id. art. 26.13(b) (West Supp. 2011) (“No plea of guilty or plea of nolo contendere 

shall be accepted by the court unless it appears that the defendant is mentally 

competent and the plea is free and voluntary.”). On this record, we cannot conclude 

that the evidence raised at the informal inquiry “rationally may lead to a conclusion of 

incompetency” so as to require a full competency trial. See id. art. 46B.003(b); LaHood, 
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401 S.W.3d at 53. Accordingly, the trial court did not abuse its discretion in not 

conducting a full competency trial. We overrule Forge’s first issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Applicable Law and Standard of Review

To obtain a reversal of a conviction for ineffective assistance of counsel, a 

defendant must show that (1) counsel’s performance fell below an objective standard of 

reasonableness and (2) counsel’s deficient performance prejudiced the defense, 

resulting in an unreliable or fundamentally unfair outcome of the proceeding. Davis v. 

State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 

466 U.S. 668, 687 (1984)). “Deficient performance means that ‘counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by 

the Sixth Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) 

(quoting Strickland, 466 U.S. at 687). The prejudice prong requires showing “a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 248 (citing Strickland, 466 U.S. at 694). 

“A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. (citing Strickland, 466 U.S. at 694). “[E]ach case must be judged on its 

own unique facts.” Davis, 278 S.W.3d at 353.

The burden is on appellant to prove ineffective assistance of counsel by a 

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Appellant must overcome the strong presumption that counsel’s conduct 

fell within the wide range of reasonable professional assistance and that his actions 

could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. 
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State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing 

court will not second-guess legitimate tactical decisions made by trial counsel. State v. 

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (noting that, “unless there is a 

record sufficient to demonstrate that counsel’s conduct was not the product of a 

strategic or tactical decision, a reviewing court should presume that trial counsel’s 

performance was constitutionally adequate”). Counsel's effectiveness is judged by the 

totality of the representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 

813; Jaynes, 216 S.W.3d at 851. An allegation of ineffectiveness must be firmly 

founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); 

Thompson, 9 S.W.3d at 814 n.6. In most cases, a silent record which provides no 

explanation for counsel’s actions will not overcome the strong presumption of 

reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); 

Thompson, 9 S.W.3d at 813–14.

B. Analysis

Forge’s second issue contends that his trial counsel was ineffective because he 

failed to challenge the trial court’s competency finding. This issue lacks merit in light of 

our conclusion that there was no evidence adduced that would support a full trial as to 

competency. See LaHood, 401 S.W.3d at 57 (quoting TEX. CODE CRIM. PROC. ANN. art. 

46B.003(a)) (noting that, to prevail in a claim of ineffective assistance of counsel based 

on the failure of counsel to seek a full competency evaluation, “there must be some 

affirmative showing that the [defendant] lacked ‘sufficient present ability to consult with 

the person's lawyer with a reasonable degree of rational understanding’ or ‘a rational as 

well as factual understanding of the proceedings against the person’”).
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By his third issue, Forge argues that his trial counsel was ineffective because he 

failed to “argu[e] for a lesser sentence.” Forge claims that he “indicated . . . his desire to 

seek some form of community supervision” during his competency evaluation but that 

counsel did not request community supervision. Forge further asserts that counsel 

“made no argument to the trial court concerning what he felt would be an appropriate 

sentence.” He claims that “[t]here can be no trial strategy that would support such 

action” because “[t]here was nothing to lose by telling the judge why a lesser sentence 

might be more appropriate . . . .”

The State concedes that the right to effective assistance of counsel under the 

Sixth Amendment to the United States Constitution includes the right of the defendant to 

have the opportunity to make a closing argument. See Herring v. New York, 422 U.S. 

853, 858 (1975) (noting that “counsel for the defense has a right to make a closing 

summation to the jury, no matter how strong the case for the prosecution may appear to 

the presiding judge”). In this case, Forge’s defense counsel declined to assert that 

right. But we disagree with Forge that “[t]here can be no trial strategy that would 

support such action.” In particular, counsel may have chosen not to make a closing 

argument urging a lesser sentence because that may have led the prosecutor to invoke 

his right to make a closing argument, which may have resulted in a harsher sentence. 

See Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting, in the context of an ineffective 

assistance claim, that “it might sometimes make sense to forgo closing argument 

altogether”). As it turned out, the trial court imposed the maximum jail term prescribed 

for a state jail felony, see TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 2011); but, at 

the time counsel declined to offer a closing argument, counsel may reasonably have 
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believed that Forge would have received a lesser sentence if neither he nor the 

prosecutor made closing arguments. Moreover, the trial court did not impose any fine, 

though the statute authorizes a fine of up to $10,000 for a state jail felony, see id. § 

12.35(b), and it did not order restitution of the full amount of damage to property caused 

by Forge according to his stipulation. Defense counsel may have reasonably believed 

that, had he and the prosecutor both made closing arguments, a fine or full restitution 

would have been ordered.

Even assuming, but not deciding, that counsel’s failure to argue for a lesser 

sentence fell outside “the wide range of reasonable professional assistance,” see

Strickland, 466 U.S. at 689, Forge has not shown prejudice. Forge notes that, 

according to evidence in the record, the total cost of repairing the damage he caused to 

the vehicle was $1,640.63, which is “in the lowest part of the range” for state jail felony 

criminal mischief. See TEX. PENAL CODE ANN. § 28.03(b)(4)(A) (providing that criminal 

mischief is a state jail felony if the amount of pecuniary loss is $1,500 or more but less 

than $20,000). However, this information was available to the trial court as of the time it 

assessed punishment. Accordingly, Forge has not shown a “reasonable probability” 

that, had his trial counsel made a closing argument urging a lesser sentence, the result 

of the proceeding would have been different. See Ex parte Napper, 322 S.W.3d at 248; 

see also Ex parte Bratcher, No. AP-76,994, 2013 WL 3282972, at *12 (Tex. Crim. App. 

June 26, 2013) (“The likelihood of a different result must be substantial, not just 

conceivable.”) (quoting Harrington v. Richter, 131 S. Ct. 770, 792 (U.S. 2011)).

We overrule Forge’s second and third issues.
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III. CONCLUSION

The trial court’s judgment is affirmed.

_______________________

DORI CONTRERAS GARZA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

5th day of December, 2013.