Description: Villegas, who has a mild intellectual disability, was indicted for sexual assault of a child in
August 2010. The next month, the trial court ordered an evaluation on Villegas to determine
whether he was competent to stand trial. In November 2010, the trial court signed an agreed
- 2 -
judgment finding Villegas not competent to stand trial and ordering Villegas committed to a state
Villegas was later determined to be competent. The trial court signed a judgment of
restoration of competency, and Villegas entered into a plea bargain with the State. During the plea
hearing in July 2011, the trial court explained Villegasís rights to him, and Villegas stated he
understood his rights and wanted to enter a plea of no contest. The trial court accepted Villegasís
plea and requested a pre-sentence investigation.
In September 2011, Villegas filed a motion suggesting he was not competent to stand trial.
The trial court ordered another competency evaluation, and the doctor who evaluated Villegas
determined he was competent to stand trial. At a hearing, the State and Villegasís trial counsel
agreed, and the trial court found Villegas was competent to stand trial.
In accordance with the plea bargain, the trial court signed a February 7, 2012 order of
deferred adjudication community supervision for a period of ten years. Villegasís conditions of
community supervision required that he not have contact with a minor child without prior approval
from the court.
Over two years later, the State moved to revoke Villegasís community supervision. The
State alleged Villegas violated numerous community supervision conditions, including the
requirement that he not have unapproved contact with a minor child. Villegas filed another motion
requesting a competency evaluation, and the trial court yet again ordered that Villegas be
evaluated. Villegas was again evaluated and determined competent to stand trial.
At a June 9, 2015 hearing, Villegasís trial counsel again agreed Villegas was competent to
stand trial and withdrew his motion. For the record, Villegasís trial counsel offered the testimony
of Dr. Michael Jumes. Dr. Jumes testified he evaluated Villegas in 2012, in March 2015, and on
the day of the hearing. He testified Villegas was, as of the day of the hearing, competent to stand
- 3 -
trial. The trial court found Villegas competent to stand trial. However, the State withdrew its
motion to revoke Villegasís community supervision.
In March 2016, the State again moved to revoke Villegasís community supervision. The
State alleged Villegas removed his GPS monitoring system. Villegas pled true to the allegations
at a March 22, 2016 hearing. He also responded he understood the implications of his pleading
true to the Stateís allegations. The trial court did not revoke Villegasís community supervision,
but it signed an order amending the conditions of his community supervision.
In June 2016, the State filed a third motion to revoke Villegasís community supervision
and to proceed to an adjudication of guilt. The State alleged that on three occasions, Villegas
violated a community supervision condition that he not illegally consume alcohol. The trial court
held a hearing on the motion in July 2016, and Villegas pled the Stateís allegations were not true.
After the hearing, the trial court again did not revoke Villegasís community supervision, and
instead signed an order amending his conditions of community supervision.
In May 2017, the State filed a fourth motion to revoke Villegasís community supervision
and sought an adjudication of guilt. The State alleged Villegas again had unapproved contact with
a minor child. At a June 5, 2017 hearing on the Stateís fourth motion, Villegas pled the Stateís
allegation was true. However, the following discussion occurred when the trial court asked
Villegas whether he understood the implications of his plea:
THE COURT: . . . . Based on your plea of true, I can find you guilty, revoke your community supervision, and sentence you to the maximum in the prison. Did you know that?
THE DEFENDANT: No, maíam.
THE COURT: All right. Well, do you know it now that I told you?
THE DEFENDANT: Yes.
- 4 -
THE COURT: Okay. So you know just telling me this is true is enough for me to send you to prison on this. Did you know that?
THE DEFENDANT: Yes, maíam.
THE COURT: You still want to tell me itís true?
THE DEFENDANT: Yes, it is true.
. . . .
THE COURT: And I talk to -- I remember last time talking to Mr. Villegas for a very long time. Do you remember that? Do you remember talking to me and me telling you what you could and couldnít do?
THE DEFENDANT: Yes, maíam.
THE COURT: Do you remember that? Do you remember what I told you, that you werenít going to leave me too many choices if you did continue to do the things we told you you couldnít do. Do you remember that?
THE DEFENDANT: Yes, maíam.
The trial court granted the Stateís motion, revoked Villegasís community supervision, found
Villegas guilty, and sentenced him to six years in prison. Villegas filed a timely notice of appeal. COMPETENCY Villegas argues the trial court erred by revoking his community supervision, adjudicating
his guilt, and imposing his sentence because he was not competent to stand trial at the time of his
revocation. ďEither party may suggest by motion, or the trial court may suggest on its own motion,
that the defendant may be incompetent to stand trial.Ē TEX. CODE CRIM. PROC. ANN. art.
46B.004(a) (West Supp. 2017). ďIf after an informal inquiry the court determines that evidence
exists to support a finding of incompetency, the court shall order an examination . . . to determine
whether the defendant is incompetent to stand trial in a criminal case.Ē Id. art. 46B.005(a) (West
2006). If a defendant is determined to be competent, ďthe trial court is not obliged to revisit the
issue later absent a material change of circumstances suggesting that the defendantís mental status
- 5 -
has deteriorated.Ē Turner v. State, 422 S.W.3d 676, 693 (Tex. Crim. App. 2013); see TEX. CODE
CRIM. PROC. art. 46B.003(b) (West 2006) (ďA defendant is presumed competent to stand
trial . . . .Ē).
Although the parties initially agreed Villegas was not competent to stand trial in 2010, the
trial court later adjudged Villegas competent as of June 2011. In each subsequent evaluation,
Villegas was determined to be competent to stand trial, and Villegasís trial counsel and the State
agreed Villegas was competent. Villegas does not argue, and the record does not show, there were
any material changes in circumstances as of the June 5, 2017 hearing when the trial court granted
the Stateís motion to revoke Villegasís community supervision. See Turner, 422 S.W.3d at 693.
Although Villegas argues the trial court should have asked Villegas open-ended questions, as
opposed to yes-or-no questions, to determine whether he was competent, the trial court was not
obliged to revisit the issue of Villegasís competency absent a material change of circumstances
suggesting Villegasís mental status had deteriorated. See id.; see also TEX. CODE CRIM. PROC. art.
46B.003(b). The record does not support Villegasís contention that he was not competent to stand
trial at the time of his revocation. We therefore cannot say the trial court erred by granting the
Stateís motion to revoke Villegasís community supervision at the June 5, 2017 hearing. INEFFECTIVE ASSISTANCE OF COUNSEL Villegas argues he received ineffective assistance of counsel throughout the competency
proceedings. Sixth Amendment ineffective assistance of counsel claims are governed by
Strickland v. Washingtonís two-prong test under which we determine (1) whether trial counselís
representation was constitutionally deficient, and (2) whether the deficient performance prejudiced
the defense. 466 U.S. 668 (1984); accord Russell v. State, 90 S.W.3d 865, 875 (Tex. App.óSan
Antonio 2002, pet. refíd). To satisfy Stricklandís first prong on direct appeal, the record must
demonstrate: (1) trial counselís deficient performance of some act or failure to perform some act,
- 6 -
and (2) trial counsel had no reasonable trial strategy for the act or omission. See Lopez v. State,
343 S.W.3d 137, 143 (Tex. Crim. App. 2011). ďAny allegation of ineffectiveness must be firmly
founded in the record.Ē Russell, 90 S.W.3d at 875.
ďThere is a strong presumption that counselís conduct fell within the wide range of
reasonable professional assistance.Ē Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Generally, trial counsel should be afforded an opportunity to explain his actions before
being denounced as ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).
When trial counsel is not given that opportunity, we will not find counselís performance deficient
unless the challenged conduct was ďso outrageous that no competent attorney would have engaged
in it.Ē Id. Thus, ď[u]nder normal circumstances, the record on direct appeal will not be sufficient
to show that counselís representation was so deficient and so lacking in tactical or strategic
decisionmaking as to overcome the presumption that counselís conduct was reasonable and
professional.Ē Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Villegas argues ďcounselís performance was deficient, falling below an objective standard
of reasonableness, when he agreed to Villegasí[s] competency at the competency disposition
hearing held before the Magistrate court, as well as during the revocation hearings before the
Court, despite arguing to the Court that Villegas understood the proceedings against him.Ē
Villegasís trial counsel was not afforded an opportunity to explain his actions, and the record
before us is therefore silent as to why counsel agreed Villegas was competent to stand trial. The
record before us contains determinations by a medical professional that as of June 2011 and
thereafter, Villegas was competent to stand trial. Considering the record before us, we hold
Villegas has failed to overcome the strong presumption that his trial counselís conduct fell within
the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 813. We
therefore cannot say Villegas received ineffective assistance of counsel.