MEMORANDUM OPINION No. 04-10-00805-CV
EX PARTE A.M., a Juvenile
From the 289th Judicial District Court, Bexar County, Texas Trial Court No. 2005-JUV-02514 Honorable Carmen Kelsey, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice
Delivered and Filed: August 17, 2011
AFFIRMED
A.M., a juvenile, appeals from the trial court’s denial of his post-adjudication petition for
habeas corpus relief. See TEX. CONST. art. V, § 8. We affirm the trial court’s order.
ANALYSIS
On March 31, 2006, A.M. was adjudicated as having engaged in delinquent conduct by
committing an aggravated sexual assault of his four-year-old niece. Following a disposition
hearing, the court sentenced A.M. to a determinate sentence of forty years, committing him to
the Texas Youth Commission until the age of 18 with a possible transfer to the Texas
Department of Criminal Justice. See TEX. FAM. CODE ANN. §§ 54.04(d)(3), 54.11 (West Supp.
2010). A.M. appealed, asserting that the trial court erred in refusing to conduct an evidentiary 04-10-00805-CV
hearing on his motion for new trial, and that his trial counsel rendered ineffective assistance by
(i) failing to object to admission of the outcry testimony based on lack of notice, (ii) failing to
cross-examine the outcry witness at the outcry hearing, (iii) failing to call Catherine Cordova as a
witness, and (iv) opening the door to extraneous offense evidence. On August 22, 2007, we
issued a memorandum opinion affirming the trial court’s judgment. See In re A.M., No. 04-06-
00483-CV, 2007 WL 2376077 (Tex. App.—San Antonio Aug. 22, 2007, no pet.) (mem. op.).
Thereafter, on June 17, 2010, A.M. filed a post-adjudication petition for writ of habeas corpus
raising multiple grounds. A.M. attached copies of affidavits, excerpts of the trial transcript, and
other exhibits to his pro se habeas petition. Without a hearing, on August 19, 2010 the trial court
denied the petition in a written order containing its findings of fact and conclusions of law. A.M.
now appeals the denial of habeas corpus relief.
As an initial matter, A.M. contends he was entitled to appointed counsel to represent him
on the habeas petition. A.M. cites no authority in support. Section 51.10(a)(7) of the Juvenile
Justice Code provides, “[a] child may be represented by an attorney at every stage of proceedings
under this title, including . . . habeas corpus proceedings challenging the legality of detention
resulting from action under this title . . . .” TEX. FAM. CODE ANN. § 51.10(a)(7) (West 2008).
However, an indigent juvenile offender does not have the right to appointed counsel in a habeas
corpus proceeding instituted after adjudication and commitment. See In re Hall, 286 S.W.3d
925, 928-30 (Tex. 2009) (interpreting section 51.10(a)(7) as providing a right to counsel in a
habeas corpus proceeding only if it challenges the legality of a juvenile’s pre-adjudication
confinement, i.e., detention, under the Juvenile Justice Code, not the juvenile’s commitment after
an adjudication). Here, A.M. is not challenging the legality of his detention, but rather the
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legality of his commitment after an adjudication of delinquency; therefore, he is not entitled to
appointed counsel in the habeas proceeding. Id. at 929-30.
Turning to the merits of A.M.’s habeas claims, he asserts that his restraint is illegal
because: (1) his forty-year determinate sentence constitutes cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution and Article I, § 10 of the
Texas Constitution; (2) he received ineffective assistance of counsel at trial and on appeal; (3)
the State engaged in several instances of prosecutorial misconduct at trial; and (4) the trial court
abused its discretion on nine occasions. A.M. asserts the cumulative effect of these errors
deprived him of a fair trial, due process, and equal protection as guaranteed by the federal and
state constitutions. We must affirm a trial court’s decision on an application for writ of habeas
corpus absent a clear abuse of discretion. In re M.P.A., No. 03-08-00337-CV, 2010 WL
2789649, at *5 (Tex. App.—Austin July 14, 2010, pet. filed) (mem. op.) (appellate court views
evidence in light most favorable to trial court’s ruling, deferring to court’s determination of
historical facts supported by record and application of law to facts to extent it turns on
credibility, but reviewing purely legal issues de novo).
The State contends that most of A.M.’s present claims are barred because they either
were, or should have been, raised on direct appeal. We agree. As an extraordinary remedy, the
writ of habeas corpus may not be used to raise matters that should have been raised on direct
appeal. Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004); Ex parte Banks, 769
S.W.2d 539, 540 (Tex. Crim. App. 1989). Even a constitutional claim may be forfeited if the
claim could have been raised on direct appeal. Ex parte Townsend, 137 S.W.3d at 81; Ex parte
Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994) (habeas remedy is available only when
there is no other adequate remedy at law). With respect to A.M.’s claims of prosecutorial
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misconduct 1 and erroneous rulings by the trial court, 2 these claims are based on the trial record
and were thus available to be raised by A.M. in his appeal. Because they could have been, but
were not, raised and resolved in A.M.’s direct appeal, they may not be raised through a
subsequent petition for habeas corpus relief. Similarly, A.M.’s constitutional claim that his
forty-year determinate sentence amounts to cruel and unusual punishment could have been, but
was not, raised in the trial court and on appeal, and has thus been forfeited. Ex parte Townsend,
137 S.W.3d at 81. Moreover, the forty-year determinate sentence is not cruel and unusual
because it falls within the statutory range of punishment and there is nothing to show that the
prosecuting attorney did not follow the procedures set by the Family Code. See TEX. FAM. CODE
ANN. § 54.04(d)(3); Id. § 53.045 (West 2008); see also Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984).
As to A.M.’s claims of ineffective assistance, he alleges twenty-one acts and omissions
by his trial counsel that he asserts constitute ineffective assistance. Of these, four were
addressed on their merits and rejected in the direct appeal. See In re A.M., 2007 WL 2376077, at
*3-6. As to the other seventeen allegations of ineffective assistance, they consist of alleged
errors by trial counsel such as failure to investigate, subpoena witnesses and documents, object to
the admission of evidence and the prosecutor’s misconduct, and request jury instructions, and
other similar trial actions and omissions that were known to A.M. at the time of his direct appeal.
Moreover, in his habeas proceeding A.M. has failed to meet his burden to prove that the alleged
1 A.M.
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MEMORANDUM OPINION No. 04-10-00805-CV
EX PARTE A.M., a Juvenile
From the 289th Judicial District Court, Bexar County, Texas Trial Court No. 2005-JUV-02514 Honorable Carmen Kelsey, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice
Delivered and Filed: August 17, 2011
AFFIRMED
A.M., a juvenile, appeals from the trial court’s denial of his post-adjudication petition for
habeas corpus relief. See TEX. CONST. art. V, § 8. We affirm the trial court’s order.
ANALYSIS
On March 31, 2006, A.M. was adjudicated as having engaged in delinquent conduct by
committing an aggravated sexual assault of his four-year-old niece. Following a disposition
hearing, the court sentenced A.M. to a determinate sentence of forty years, committing him to
the Texas Youth Commission until the age of 18 with a possible transfer to the Texas
Department of Criminal Justice. See TEX. FAM. CODE ANN. §§ 54.04(d)(3), 54.11 (West Supp.
2010). A.M. appealed, asserting that the trial court erred in refusing to conduct an evidentiary 04-10-00805-CV
hearing on his motion for new trial, and that his trial counsel rendered ineffective assistance by
(i) failing to object to admission of the outcry testimony based on lack of notice, (ii) failing to
cross-examine the outcry witness at the outcry hearing, (iii) failing to call Catherine Cordova as a
witness, and (iv) opening the door to extraneous offense evidence. On August 22, 2007, we
issued a memorandum opinion affirming the trial court’s judgment. See In re A.M., No. 04-06-
00483-CV, 2007 WL 2376077 (Tex. App.—San Antonio Aug. 22, 2007, no pet.) (mem. op.).
Thereafter, on June 17, 2010, A.M. filed a post-adjudication petition for writ of habeas corpus
raising multiple grounds. A.M. attached copies of affidavits, excerpts of the trial transcript, and
other exhibits to his pro se habeas petition. Without a hearing, on August 19, 2010 the trial court
denied the petition in a written order containing its findings of fact and conclusions of law. A.M.
now appeals the denial of habeas corpus relief.
As an initial matter, A.M. contends he was entitled to appointed counsel to represent him
on the habeas petition. A.M. cites no authority in support. Section 51.10(a)(7) of the Juvenile
Justice Code provides, “[a] child may be represented by an attorney at every stage of proceedings
under this title, including . . . habeas corpus proceedings challenging the legality of detention
resulting from action under this title . . . .” TEX. FAM. CODE ANN. § 51.10(a)(7) (West 2008).
However, an indigent juvenile offender does not have the right to appointed counsel in a habeas
corpus proceeding instituted after adjudication and commitment. See In re Hall, 286 S.W.3d
925, 928-30 (Tex. 2009) (interpreting section 51.10(a)(7) as providing a right to counsel in a
habeas corpus proceeding only if it challenges the legality of a juvenile’s pre-adjudication
confinement, i.e., detention, under the Juvenile Justice Code, not the juvenile’s commitment after
an adjudication). Here, A.M. is not challenging the legality of his detention, but rather the
-2- 04-10-00805-CV
legality of his commitment after an adjudication of delinquency; therefore, he is not entitled to
appointed counsel in the habeas proceeding. Id. at 929-30.
Turning to the merits of A.M.’s habeas claims, he asserts that his restraint is illegal
because: (1) his forty-year determinate sentence constitutes cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution and Article I, § 10 of the
Texas Constitution; (2) he received ineffective assistance of counsel at trial and on appeal; (3)
the State engaged in several instances of prosecutorial misconduct at trial; and (4) the trial court
abused its discretion on nine occasions. A.M. asserts the cumulative effect of these errors
deprived him of a fair trial, due process, and equal protection as guaranteed by the federal and
state constitutions. We must affirm a trial court’s decision on an application for writ of habeas
corpus absent a clear abuse of discretion. In re M.P.A., No. 03-08-00337-CV, 2010 WL
2789649, at *5 (Tex. App.—Austin July 14, 2010, pet. filed) (mem. op.) (appellate court views
evidence in light most favorable to trial court’s ruling, deferring to court’s determination of
historical facts supported by record and application of law to facts to extent it turns on
credibility, but reviewing purely legal issues de novo).
The State contends that most of A.M.’s present claims are barred because they either
were, or should have been, raised on direct appeal. We agree. As an extraordinary remedy, the
writ of habeas corpus may not be used to raise matters that should have been raised on direct
appeal. Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004); Ex parte Banks, 769
S.W.2d 539, 540 (Tex. Crim. App. 1989). Even a constitutional claim may be forfeited if the
claim could have been raised on direct appeal. Ex parte Townsend, 137 S.W.3d at 81; Ex parte
Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994) (habeas remedy is available only when
there is no other adequate remedy at law). With respect to A.M.’s claims of prosecutorial
-3- 04-10-00805-CV
misconduct 1 and erroneous rulings by the trial court, 2 these claims are based on the trial record
and were thus available to be raised by A.M. in his appeal. Because they could have been, but
were not, raised and resolved in A.M.’s direct appeal, they may not be raised through a
subsequent petition for habeas corpus relief. Similarly, A.M.’s constitutional claim that his
forty-year determinate sentence amounts to cruel and unusual punishment could have been, but
was not, raised in the trial court and on appeal, and has thus been forfeited. Ex parte Townsend,
137 S.W.3d at 81. Moreover, the forty-year determinate sentence is not cruel and unusual
because it falls within the statutory range of punishment and there is nothing to show that the
prosecuting attorney did not follow the procedures set by the Family Code. See TEX. FAM. CODE
ANN. § 54.04(d)(3); Id. § 53.045 (West 2008); see also Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984).
As to A.M.’s claims of ineffective assistance, he alleges twenty-one acts and omissions
by his trial counsel that he asserts constitute ineffective assistance. Of these, four were
addressed on their merits and rejected in the direct appeal. See In re A.M., 2007 WL 2376077, at
*3-6. As to the other seventeen allegations of ineffective assistance, they consist of alleged
errors by trial counsel such as failure to investigate, subpoena witnesses and documents, object to
the admission of evidence and the prosecutor’s misconduct, and request jury instructions, and
other similar trial actions and omissions that were known to A.M. at the time of his direct appeal.
Moreover, in his habeas proceeding A.M. has failed to meet his burden to prove that the alleged
1 A.M. asserts the State engaged in prosecutorial misconduct by (i) failing to elect which provision of the Penal Code under which to proceed, (ii) leading a witness during rebuttal, (iii) the prosecutor testifying for the child victim during rebuttal, and (iv) requesting that A.M. be sentenced to forty years based on the prior acts of misconduct. 2 A.M. contends the trial court abused its discretion by (i) failing to rule on his pre-trial motions, (ii) failing to give a limiting instruction under Rule 404, (iii) failing to require the State to meet its burden of proof as to each element of the offense, (iv) failing to grant his first and second motions to quash, (v) failing to grant his motion for an instructed verdict, (vi) imposing the forty-year sentence based on “stacking” of “a ten year sentence for each of the prior acts of misconduct,” (vii) failing to charge the jury on each element the State had to prove, and (viii) failing to charge the jury on his defense theory of “lack of access to the victim.”
-4- 04-10-00805-CV
acts or omissions constitute deficient performance which prejudiced his defense, in that there is a
reasonable probability that, absent counsel’s errors, the result of the proceeding would have been
different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); In re R.D.B., 102
S.W.3d 798, 800 (Tex. App.—Fort Worth 2003, no pet.) (ineffective assistance claim in juvenile
proceeding is reviewed under Strickland standard). An applicant for a writ of habeas corpus
must provide a sufficient record that supports his factual allegations of ineffective assistance
with proof by a preponderance of the evidence and overcomes the strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance. Ex parte
Chandler, 182 S.W.3d 350, 353 n.2, 354 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). There is nothing in the record to show that A.M. requested an
evidentiary hearing on his habeas petition in order to develop a record in support of his
ineffective assistance claims, and it appears that no hearing was held during which trial counsel
could explain the reasoning or strategy underlying her conduct. See Rylander v. State, 101
S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (a record that is silent as to counsel’s strategy is
generally not sufficiently developed to overcome the presumption of effective assistance as
counsel should be afforded an opportunity to explain before being held ineffective). Viewing the
totality of the representation by trial counsel, we are unable to conclude that counsel’s
performance fell below objective standards and that any errors were so serious that they deprived
A.M. of a fair trial. Strickland, 466 U.S. at 687. Based on the record before us, A.M. has failed
to meet his burden of proof to establish any of his ineffective assistance claims. Likewise,
because we have determined that A.M. has failed to show his allegations of ineffective assistance
by trial counsel have merit, his claim that appellate counsel was ineffective for failing to raise all
these allegations of ineffective assistance in his appeal similarly fails.
-5- 04-10-00805-CV
Accordingly, based on the foregoing reasons, we hold the trial court’s denial of A.M.’s
request for habeas relief was not a clear abuse of discretion and we affirm the trial court’s order.
Phylis J. Speedlin, Justice
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