Date: 10-04-2020

Case Style:

Case Number: 05-19-01255-CR

Judge: Robbie Partida-Kipness

Court: Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney: Karla Baugh
James Brett Smith

Defendant's Attorney:

Description: Sherman, TX - Criminal Defense Attorney, Driving while intoxicated third or more, assault of a peace officer, and obstruction or retaliation.


Mills was arrested for driving while intoxicated after being pulled over for
speeding. Mills became belligerent toward the arresting officer, Chris Bell, while
being transported to Texoma Medical Center (TMC) for a blood draw to determine
his blood alcohol concentration (BAC). Mills yelled and cussed at Officer Bell
during the drive to TMC. When they arrived at TMC, Officer Bell walked Mills
through the emergency room to a secured area to obtain the warrant and conduct the
blood draw. Mills continued to yell at Officer Bell, became more verbally and
physically aggressive, and tried to break free of Officer Bell by jerking away from
him and pushing Officer Bell into a wall. Mills also yelled that if Officer Bell took
the handcuffs off of Mills, he would assault Officer Bell. After getting Mills onto a
stretcher and calling for security, Mills rolled over and kicked Officer Bell on the
left side of his face in the temple area. The kick stung Officer Bell and dazed him
for a minute. Mills then yelled more threats at Officer Bell and said the officer’s
badge was the only thing protecting Officer Bell from Mills. These events were
captured on Officer Bell’s dash-cam and body-cam. The videos of the traffic stop
and arrest were admitted into evidence at trial.
The State indicted Mills on three counts: (1) driving while intoxicated third or
more, (2) assault on a peace officer, and (3) obstruction or retaliation. Mills pleaded
true to two punishment enhancements. Before being indicted, Mills filed a signed
waiver of his right to apply for court appointed counsel and chose to defend himself
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during all pretrial proceedings and trial. After being indicted, he filed several handwritten form motions, including a motion for discovery and inspection of evidence,
a motion for State to produce discovery documents, a motion for speedy trial, a
motion to dismiss all charges, and motion to reinstate driver’s license.
A. Pretrial proceedings
At his arraignment on May 23, 2019, the trial judge admonished Mills against
representing himself, but Mills confirmed there was nothing the trial judge could do
to convince him to enlist counsel. After the indictment was read, Mills pleaded not
guilty to each of the three counts alleged in the indictment. The State read the two
punishment enhancements and stated that the range of punishment for all three
counts was 25 years to 99 years or life without eligibility for probation. Mills told
the court he understood the range of punishment. The trial judge admonished Mills
of the very serious nature of the charges and again asked Mills if the court could talk
Mills out of representing himself. Mills responded, “No, sir,” and told the court he
did not want an attorney because his attorney “sold him out” in 1994 when he was
convicted of assault on a police officer, and he would not have been convicted if he
had represented himself. Mills was also very concerned with obtaining a speedy trial.
He eventually agreed to have stand-by counsel appointed as long as the appointment
order stated that the attorney could not delay the trial or make decisions for Mills.
At a motions hearing two weeks later, the trial judge again encouraged Mills
to have an attorney represent him and asked Mills if he was still requesting to
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represent himself. Mills confirmed that was correct. The trial judge then asked Mills
to explain the roles of everyone in the courtroom. Mills pointed out the prosecutor,
judge, court reporter, and bailiff and explained their roles correctly. Mills also stated
that he had never been found incompetent by any court. The trial judge found Mills
competent:
I will find that you’re competent and aware and you know to continue
to support your right to represent yourself. I still encourage you that it’s
not always in your best interest to be your own attorney even if you
aren’t – if you’re an attorney or not. But I won’t spend much more time
talking about that. But just initially we will do that.
Mills then asked the court why his BAC test results had not been received, objected
to the delay, requested a speedy trial, and complained that he was not given adequate
writing materials in jail and standby counsel had not received his correspondence.
Mills engaged in a reasoned discussion with the trial judge on these matters, and the
judge devised a plan acceptable to Mills regarding the writing materials and
correspondence issues. Mills represented himself at three more hearings, including
the September 12, 2019 pretrial hearing.
At the start of the pretrial hearing, the trial judge again asked Mills if he still
wanted to represent himself, and Mills responded “Yes, Your Honor.” Standby
counsel remained present and seated with Mills. The trial judge then explained that
he would hear each side’s motions in limine and Mills’s motion to dismiss or quash
the indictments. The trial judge treated the motion to dismiss or quash as a motion
to suppress after confirming at a prior hearing that Mills’s complaint in the motion
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was that the stop was unlawful. The trial judge also explained how the trial would
work, discussing each stage of trial from voir dire through sentencing. Mills told the
court he had no questions. The State read the amended indictment, and Mills stated
that he understood the two prior convictions alleged by the State that allowed the
State to charge him with a third or more DWI.
Mills had no questions regarding the motions in limine and, when asked if he
understood the judge’s ruling on particular motions in limine, Mills either answered
yes or nodded that he understood the ruling. The court then heard the motion to
suppress. Officer Bell testified for the State. The court admitted the dash-cam and
body-cam videos for purposes of the hearing. Mills cross-examined Officer Bell by
asking him three questions on two topics: whether it is normal to pull someone over
for speeding and not write them a citation, and whether Officer Bell found alcohol
in Mills’s vehicle. The State presented argument in response, to which Mills replied
that he looked at his speedometer and he was not speeding. The trial court denied
the motion to suppress.
B. Voir Dire
Trial began eleven days later, on September 23, 2019. Before voir dire, the
trial judge explained the voir dire process to Mills, and Mills said he understood the
process. Mills again confirmed he wanted to represent himself and told the court that
the judge could not talk him out of it. The trial judge told Mills he would respect
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Mills’s right to proceed pro se but ordered stand-by counsel to remain with Mills
during trial. Mills made only two statements to the venire during voir dire:
THE COURT: All right. Mr. Mills, do you have questions for the jury?
MR. MILLS: I just have one. I just want to know if y’all are aware that
the Bible’s no longer allowed in the courtroom. That’s the only one I
wanted to state. Thank you.
THE COURT: All right. If anybody has a response to that, they can
have one. All right. Yes.
PROSPECTIVE JUROR: Why would you like us to know that?
[THE STATE]: Well --
MR. MILLS: Well, I think it’s important.
Mills moved to strike three jurors for cause. Although he agreed to release several
jurors for cause requested by the State, he also objected to one of the State’s
requested strikes. The trial judge agreed with Mills and denied the State’s request as
to that juror. Although Mills did not use all of his peremptory strikes, the trial judge
confirmed that Mills was aware that he had more strikes available to exercise. Mills
did not object to the list of the jury and alternate.
C. Guilt-Innocence Phase
Mills did not make an opening statement after the State’s opening statement.
Mills did not object to the admission of any of the State’s exhibits and did not
question any witnesses. During the charge conference, Mills asked that the
definitions of controlled substance, drug, and dangerous drug be removed from the
charge, and the State agreed because the State only put on evidence of alcohol. Mills
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had no other objections to the charge or verdict form. Then, before the jury returned
from recess, Mills told the court he was ready for the trial to be over:
THE COURT: So, if Mr. Mills chooses not to take the stand, then I
think this is ready to go. There weren’t any objections to it when we
had it up on the board. And so, depending on timing, we might just go
right into -- after you finish, we might go into me reading the charge
and closing arguments, then. Or we might wait until tomorrow. So, it
depends. Do you have a preference?
[THE STATE]: We’re ready to go today, Judge. That way, they can get
the charge, deliberate today, and come back in the morning.
THE COURT: Mr. Mills, what’s your preference?
MR. MILLS: I’m just ready to get it over, Your Honor.
THE COURT: All right. Let’s bring the jury in.
After the State rested, Mills chose not to give an opening statement, and he put on
no evidence. He rested, the State closed, and Mills closed. The judge then read the
charge to the jury with no objections from either side. The State presented its closing
argument, and Mills declined to give a closing argument. The jury deliberated and
returned a guilty verdict on all three counts.
D. Punishment Phase
The punishment phase proceeded in much the same way as the guiltinnocence phase. Mills made no opening statement, had no objections to the State’s
exhibits, presented no evidence, made no objections to the charge or verdict form,
and made no closing argument. Mills pleaded true to the indictment’s enhancement
paragraphs and told the court he had no questions regarding the enhancements or
punishment range as a result of pleading true. The jury returned a punishment verdict
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of ninety-nine years on each count. The trial judge assessed judgment at ninety-nine
years to run concurrently, and Mills did not object. This appeal followed.
STANDARD OF REVIEW
We review a trial court’s decision not to conduct an informal competency
inquiry into a defendant’s competency to stand trial for an abuse of discretion.
Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by
statute on other grounds, Turner v. State, 422 S.W.3d 676, 692 & n.31 (Tex. Crim.
App. 2013); Lindsey v. State, 544 S.W.3d 14, 21 (Tex. App.—Houston [14th Dist.]
2018, no pet.). When determining whether the trial court has abused its discretion,
we do not substitute our own judgment for that of the trial court; instead, we
determine whether the trial court’s decision was arbitrary or unreasonable. Montoya,
291 S.W.3d at 426. A trial court’s firsthand factual assessment of a defendant’s
competency is entitled to great deference on appeal. Ross v. State, 133 S.W.3d 618,
627 (Tex. Crim. App. 2004) (citing McDaniel v. State, 98 S.W.3d 704, 713 (Tex.
Crim. App. 2003).
APPLICABLE LAW
A defendant is presumed to be competent to stand trial and shall be found
competent unless proved incompetent by a preponderance of the evidence. TEX.
CODE CRIM. PROC. art. 46B.003(b). A defendant is incompetent to stand trial 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
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understanding of the proceedings against him. TEX. CODE CRIM. PROC. art.
46B.003(a). Either party may suggest by motion, or the trial court may suggest on
its own motion, that a defendant may be incompetent to stand trial. TEX. CODE CRIM.
PROC. art. 46B.004(a). The initial inquiry is informal and is required only if evidence
suggesting incompetency comes to the trial court’s attention. TEX. CODE CRIM.
PROC. art. 46B.004(b)–(c); Staples v. State, No. 05-18-00177-CR, 2018 WL
6428152, at *1 (Tex. App.—Dallas Dec. 7, 2018, no pet.) (mem. op., not designated
for publication); Jackson v. State, 391 S.W.3d 139, 141 (Tex. App.—Texarkana
2012, no pet.). The trial court, on its own motion, “shall suggest that the defendant
may be incompetent to stand trial” if evidence suggesting that the defendant may be
incompetent to stand trial comes to the trial court’s attention. TEX. CODE CRIM.
PROC. art. 46B.004(b); Lindsey, 544 S.W.3d at 21; Lewis v. State, 532 S.W.3d 423,
432 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
Under article 46B.004, a suggestion of a defendant’s incompetency to stand
trial may consist solely of a credible source’s representation that the defendant may
be incompetent. TEX. CODE CRIM. PROC. art. 46B.004(c-1). No further evidentiary
showing is required, nor is the trial court required to have a bona fide doubt regarding
a defendant’s competency. Id. 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
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incompetent within the meaning of article 46B.003. Id. The relevant factors under
article 46B.024 are:
(1) the capacity of the defendant during criminal proceedings to:
(A) rationally understand the charges against the defendant and
the potential consequences of the pending criminal proceedings;
(B) disclose to 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;
(2) as supported by current indications and the defendant’s personal
history, whether the defendant:
(A) is a person with mental illness; or
(B) is a person with an intellectual disability;
(3) whether the identified condition has lasted or is expected to last
continuously for at least one year;
(4) the degree of impairment resulting from the mental illness or
intellectual disability, if existent, and the specific impact on the
defendant’s capacity to engage with counsel in a reasonable and
rational manner; and
(5) if the defendant is taking psychoactive or other medication:
(A) whether the medication is necessary to maintain the
defendant’s competency; and
(B) the effect, if any, of the medication on the defendant’s
appearance, demeanor, or ability to participate in the
proceedings.
Id. art. 46B.024.
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ANALYSIS
On appeal, Mills does not contend he was incompetent to represent himself.
Rather, Mills argues the trial court was put on notice that it should conduct an
informal inquiry into his competency to stand trial because his “behavior became
significantly more passive and bizarre” at voir dire when he asked the venire panel
if they were aware the Bible is no longer allowed in the courtroom, and during trial
when he “ceased to take any action whatsoever to defend himself.” We disagree.
Nothing in the record suggests that Mills was incapable of rationally
consulting with his stand-by counsel or rationally and factually understanding the
proceedings against him. Although Mills chose not to present arguments or evidence
at trial, the record reflects he understood the nature and consequences of the
proceedings against him and communicated cogently with the trial judge throughout
trial. Mills participated in voir dire, including discussions regarding striking jurors
for cause, made legally correct objections to the jury charge, exhibited appropriate
courtroom behavior, and clearly responded to the trial court’s questions.
Mills provides the Court with no authority, and we have found none, to
support a proposition that a pro se defendant’s failure to actively participate at trial
provides the necessary evidence to suggest incompetency that would require a trial
judge to sua sponte hold a competency hearing during trial. A poor trial strategy is
insufficient to suggest incompetence. Lindsey, 544 S.W.3d at 24 (“Lack of legal skill
or mediocre legal strategy does not show a defendant is incompetent to stand trial.”).
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In Lindsey, a venire member told the judge that the defendant’s rambling during voir
dire concerned the venire member and caused the venire member to question
whether the defendant was capable of representing himself. Id. The appellate court
concluded that the comments did not go to Lindsey’s mental competency and did
not support a finding that the trial court abused its discretion by failing to inquire
into Lindsey’s competency to stand trial because the comments did not relate to
“appellant’s understanding of the proceedings or appellant’s ability to communicate
effectively with his legal advisor.” Id. The same can be said for Mills’s statement to
the venire about the Bible, and his decision to remain silent during trial; neither of
these pieces of “evidence” cited by Mills on appeal shows a misunderstanding by
Mills of the proceedings or an inability to communicate effectively with his standby counsel.
Further, we disagree with Mills’s depiction of his conduct at trial as being the
“polar opposite” of his pretrial conduct. The record shows that Mills asked questions
during pretrial proceedings, indicated his desire for a speedy trial, filed several
handwritten, form pretrial motions, and asked Officer Bell three questions on crossexamination at the pretrial hearing. At trial, Mills participated in voir dire by making
one statement, responding to a venire member’s question, moving to strike a venire
member for cause, and objecting to the State’s motion to strike one venire member
for cause. Mills also objected to certain definitions in the proposed jury charge and,
as he did during pretrial proceedings, responded cogently and respectfully to the trial
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court’s questions during the proceeding. The record indicates Mills’s demeanor,
conduct, and strategy were essentially the same throughout the underlying
proceedings and provides no evidence that Mills exhibited any sign of incompetence
during trial. The trial court judge, however, was in the best position to determine
whether that demeanor changed to an extent that his competency was in question
and had ample opportunity to observe Mills’s conduct and demeanor throughout the
proceedings. The trial court could have reasonably concluded that Mills’s decision
not to present evidence or argument in his own defense was similar to his mostly
silent pretrial demeanor.
The trial court could have also reasonably concluded that his decision was not
fueled by a lack of rational understanding, but rather a desire to try the case quickly,
which is consistent with Mills’s pretrial requests for a speedy trial. When the judge
asked if Mills preferred to push through to present the charge and closing arguments
at the end of the first day of trial or wait until the following morning, Mills
responded, “I’m just ready to get it over, Your Honor.” From this statement, the trial
judge could have reasonably inferred that Mills’s attitude and strategy arose from a
desire to get through trial and see what the jury would do with the facts brought
against him. While this may have been a poor trial strategy, it was not illustrative of
incompetence to stand trial such that the trial judge should have conducted an
informal competency hearing. We conclude that the evidence in this case did not
suggest that Mills was incompetent to stand trial and, thus, did not trigger the trial
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court’s duty to conduct an informal inquiry. Affording the trial court the great
deference it is entitled to, we conclude the court did not abuse its discretion by failing
to conduct an informal competency inquiry.

Outcome: Having concluded the trial court did not abuse its discretion by failing to sua
sponte conduct a competency hearing during trial, we overrule appellant’s sole point of error. Accordingly, we affirm the trial court’s judgment.

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