SMALL v. STATE (2000)

OPINION

Appellant, a juvenile, was certified for trial as an adult.   Appellant was charged with escape, possession with intent to deliver cocaine, and two charges of aggravated robbery with a deadly weapon.   Appellant pled guilty to the charges without an agreed recommendation.   The judge sentenced appellant to five years confinement for the escape case, five years confinement on the possession case, and 35 years confinement on the aggravated robberies to run concurrently.   We affirm.

BACKGROUND

Appellant, a 16-year-old, threw down a small bag containing three grams of crack cocaine in the presence of a Houston Police Officer, and then fled after being arrested and handcuffed.   The authorities charged him, as a juvenile, with escape and possession of a controlled substance.   Appellant was also later charged, as a juvenile, with two aggravated robberies with a deadly weapon that occurred before the possession and escape crimes.

On August 13, 1997, Arthur C. Washington was appointed to represent appellant in all four juvenile cases.   On September 30, 1997, Washington, then acting as an Associate Judge, signed appellant's detention order.   At that hearing, the record shows that Dan McCarins represented appellant.

The juvenile court waived its jurisdiction in each case and certified appellant to the adult criminal courts.   Four days later, the district court appointed Rudy Duarte to represent appellant in all four cases.

ANALYSIS

Ineffective Assistance of Counsel at the Adult Criminal Proceedings

In points of error one, three and four, appellant argues his counsel at the adult criminal case was ineffective for not appealing the juvenile court's certification order based on ineffective assistance of counsel at the juvenile proceedings.   The State argues counsel was not ineffective for failing to appeal appellant's certification order because appellant was not entitled to appeal the certification order.   We agree.

In the present case, the judge certified appellant to be transferred to the district court under Section 54.02 of the Texas Family Code, which provides that a juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court.  Tex. Fam.Code Ann. § 54.02 (Vernon's 1996).   The Family Code no longer permits juvenile defendants to appeal from the certification proceedings prior to being finally convicted as an adult.  Tex. Fam.Code Ann. § 56.01(c) (Vernon Supp.2000);  Miller v. State, 981 S.W.2d 447, 449 (Tex.App.-Texarkana 1998, pet. ref'd) (holding the 1995 amendment to section 56.01(c) removed all rights to appeal from a Section 54.02 ruling);  In the Matter of D.D., 938 S.W.2d 172, 173-74 (Tex.App.-Fort Worth 1996, no writ) (holding the revised section 56.01(c) applies to conduct that occurred after January 1, 1996).   The previous statute read:

(c) An appeal may be taken:

(1) by or on behalf of a child from an order entered under:

(A) Section 54.02 of this code respecting transfer of the child to criminal court for prosecution as an adult.

See Act of May 23, 1991, 72nd Leg., R.S., ch. 680, § 1, 1991 Tex. Gen. Laws 2466, amended by Act of May 27, 1995, 74th Leg., R.S., ch. 262, §§ 48, 106(b), 1995 Tex. Gen. Laws 2517, 2546, 2591.

Under the 1995 amendment to section 56.01(c), appeals may be taken from juvenile court orders entered under:

(A) Section 54.03 with regard to delinquent conduct or conduct indicating a need for supervision;

(B) Section 54.04 disposing of the case;

(C) Section 54.05 respecting modification of a previous juvenile court disposition;  or

(D) Chapter 55 by a juvenile court committing a child to a facility for the mentally ill or mentally retarded.

Tex. Fam.Code Ann. §  56.01(c) (Vernon Supp.2000).   Because section 56.01(c) no longer includes appeals from section 54.02 transfers from juvenile court to district court, counsel was not ineffective for failing to appeal appellant's certification order.   When we stated in Melendez v. State that a juvenile was required to appeal a transfer order itself to the court of appeals, we failed to take into account the amendment in section 56.01(c).  Melendez v. State, 4 S.W.3d 437, 440 (Tex.App.-Houston [1st Dist.] 1999, no pet.)   To the extent this opinion conflicts with our statement of law concerning juvenile transfer orders in Melendez, we overrule Melendez.   See Melendez, 4 S.W.3d at 440 (stating a defendant was required to appeal a transfer order itself to the court of appeals, and an appellant could raise only jurisdictional errors in the transfer process for the first time on appeal from a conviction after the transfer).¹

We overrule appellant's first, third, and fourth points of error.

A unanimous court voted to grant the panel's request for en banc consideration of points of error one, three, and four and agree with the panel's opinion on those points.

Accordingly, we affirm the judgment.

The discussion of the remaining points of error does not meet the criteria for publication, Tex.R.App. P. 47, and is thus ordered not published.

Ineffective Assistance of Counsel at Juvenile Proceeding

In points of error two, five, six, and seven, appellant contends his trial counsel was ineffective at the juvenile proceedings because he had a material conflict in representing appellant and acting as an associate judge in part of his case.   Appellant also contends counsel did not provide evidence or witnesses in appellant's defense against certification as an adult.

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).   See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999);  Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986);  Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.).   Appellant must show that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the sixth amendment, and (2) but for counsel's error, the result of the proceedings would have been different.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064;  Thompson, 9 S.W.3d at 812;  Gamble, 916 S.W.2d at 93.

It is the defendant's burden to prove ineffective assistance of counsel.   Strickland, 466 U.S. at 687, 104 S.Ct. at 2064;  Gamble, 916 S.W.2d at 93.   Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Strickland, 466 U.S. at 689, 104 S.Ct. at 2064;  Thompson, 9 S.W.3d at 813;  Gamble, 916 S.W.2d at 93.

In the present case, there is no reporter's record of the certification hearing.   Therefore, there is nothing in the record to indicate whether and when appellant retained McCarins, and nothing to suggest that Washington represented appellant and acted as a judge in appellant's case at the same time, as appellant implies.   The record is silent as to why appellant's trial counsel did not point out possible conflicts or provide evidence or witnesses at the juvenile proceedings.   See Gamble, 916 S.W.2d at 93.   To find that trial counsel was ineffective based on the asserted ground would call for speculation, which we will not do.   See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994);  Gamble, 916 S.W.2d at 93.

Due to lack of evidence in the record concerning trial counsel's reasons for not pointing out possible conflicts or not providing witnesses or evidence at the juvenile proceedings, we are unable to conclude that trial counsel's performance was deficient.   Appellant has not rebutted the presumption that trial counsel made all significant decisions in the exercise of reasonable professional judgment.

We overrule appellant's second, fifth, sixth, and seventh points of error.

Voluntariness of Plea

In his eighth point of error, appellant contends counsels' ineffectiveness at both the juvenile proceedings and the adult criminal case rendered his pleas of guilty involuntary.

The voluntariness of a plea is determined by an examination of the totality of the circumstances.  Edwards v. State, 921 S.W.2d 477, 479 (Tex.App.-Houston [1st Dist.] 1996, no pet.).   When a defendant attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden to prove on appeal that his plea was involuntary.  Id. When a plea is attacked based on ineffective assistance of counsel, the record must show that the ineffectiveness caused the defendant's plea to be involuntary.   Dusenberry v. State, 915 S.W.2d 947, 949 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).

When the record shows that the trial court properly admonished the defendant, it presents a prima facie showing that the guilty plea was knowing and voluntary and the burden shifts to the defendant to establish he did not understand the consequences of his plea.  Harrison v. State, 688 S.W.2d 497, 499 (Tex.Crim.App.1985).   Each of the four clerk's records contain waivers of constitutional rights, agreements to stipulate, judicial confessions, and pleas of guilty signed by appellant.   In each case, there is an admonishment form signed by appellant, and appellant initialed each applicable paragraph in the admonishment forms.

In his brief, appellant stated, “but for counsel's failure to file such appeal [from the certification order], appellant would not have entered a guilty plea,” and “counsel Duarte's failure to see and appeal counsel Washington's performance rendered appellant's guilty plea involuntary.”

Appellant has not overcome the burden imposed by his signed, written admonishments that he was competent to enter the plea, that he understood the consequences of the plea, and that he freely and voluntarily entered the plea.   See Edwards, 921 S.W.2d at 479.   Appellant has not shown that his counsels' ineffectiveness caused his plea to be involuntary.

We overrule appellant's eighth point of error.

A unanimous court voted to grant the panel's request for en banc consideration of points of error one, three, and four and agree with the panel's opinion on those points.

We affirm.

FOOTNOTES

1.   We note this statement of law does not affect the ultimate holding in Melendez.

SAM NUCHIA, Justice.