In Re CDH

273 S.W.3d 421, 2008 WL 5213196
CourtCourt of Appeals of Texas
DecidedDecember 16, 2008
Docket06-07-00145-CV
StatusPublished

This text of 273 S.W.3d 421 (In Re CDH) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re CDH, 273 S.W.3d 421, 2008 WL 5213196 (Tex. Ct. App. 2008).

Opinion

273 S.W.3d 421 (2008)

In the Matter of C.D.H., a Juvenile.

No. 06-07-00145-CV.

Court of Appeals of Texas, Texarkana.

Submitted October 8, 2008.
Decided December 16, 2008.

*422 Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, TX, for appellant.

Tina M. Richardson, Cass County Dist. Atty's Office, Linden, TX, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

C.D.H., a juvenile, waived his right to a jury trial, and the trial court found that C.D.H. engaged in delinquent conduct. The trial court then committed C.D.H. to the Texas Youth Commission (TYC) for an indeterminate sentence not to exceed his nineteenth birthday.

I. Background

Three boys, one of which was C.D.H., approached two younger boys walking in Atlanta, Texas. C.D.H. held a toy gun to the head of one of the boys and demanded money and a lighter. The younger boy, not knowing that the gun was a toy gun, threw some change and the lighter toward C.D.H. C.D.H. hit one of the younger boys in the face, and the two younger boys ran away.

Based on this conduct, the State filed its petition alleging delinquent conduct. Prior to the beginning of the adjudication proceeding and after explaining the allegations against C.D.H., the trial court admonished C.D.H. of the nature of the proceedings and the possible range of punishment:

Okay. The nature of this proceeding is to determine whether or not you are a juvenile who has engaged in delinquent conduct. A possible consequence of this proceeding is that you could be committed to the Texas Youth Commission where they're authorized by law to keep you until your eighteenth birthday.

*423 C.D.H.'s trial counsel did not object to this admonition.

After hearing testimony, the trial court found that C.D.H. did engage in delinquent conduct by committing the felony offense of robbery in violation of Section 29.02 of the Texas Penal Code and the misdemeanor offense of assault in violation of Section 22.01(a)(1) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon Supp.2008), § 29.02 (Vernon 2003). The trial court then sentenced C.D.H. to an indeterminate sentence in the custody of the TYC not to exceed his nineteenth birthday.[1] No objection was made when the trial court pronounced its disposition.

C.D.H. contends that he has a fundamental right to be sentenced in accordance with the trial court's admonishment. Disposition that does not mirror the admonition, then, runs afoul of his federal and state constitutional rights to due process and due course of law. The record clearly establishes that trial counsel lodged no objection to the trial court's admonition or disposition. C.D.H., then, is forced to address the issue of preservation of error and convince this Court that the error of which he complains is properly before this Court. First, he argues, the error is structural or systemic in nature, making it immune from preservation and harm analysis requirements. Alternatively, he contends the error is fundamental error to which no objection is necessary. We conclude the error alleged is neither and, therefore, was not preserved for our review.

II. Not Structural or Systemic Defect

The United States Supreme Court has mandated that certain federal constitutional errors labeled as "structural" are not subject to a harmless error analysis. See United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (erroneous deprivation of right to counsel of choice is structural error because it has "necessarily unquantifiable and indeterminate" consequences); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (improper jury instruction on proof beyond reasonable doubt not susceptible to harmless error analysis); Garrett v. State, 220 S.W.3d 926, 931 (Tex.Crim.App.2007); Johnson v. State, 169 S.W.3d 223, 235 (Tex.Crim.App. 2005) (discussing types of errors held to be structural by United States Supreme Court); see also Cain v. State, 947 S.W.2d 262, 264 n. 5 (Tex.Crim.App. 1997); Matchett v. State, 941 S.W.2d 922, 927 (Tex. Crim.App.1996). Except for those certain federal constitutional errors so labeled, no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis. Cain, 947 S.W.2d at 264. Harmless error analysis does not apply to a constitutional error that constitutes a "structural defect" in the trial process.

Simply put, we find no authority that would suggest that error associated with a *424 right to be sentenced in accordance with the trial court's admonishment required by Section 54.03(b) of the Texas Family Code is the type of error that can be characterized as a structural or systemic defect such that it would escape harmless error analysis. TEX. FAM.CODE ANN. § 54.03(b) (Vernon Supp.2008).

III. Not Fundamental Error

Further, the error alleged here[2] is not immune from the requirement that it be preserved for our review. The Texas Court of Criminal Appeals[3] has consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence, even when the error may concern a defendant's constitutional rights. See Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim.App.2002). All but the most fundamental rights may be forfeited if not insisted upon by the party to whom they belong. See Saldano, 70 S.W.3d at 887. An exception applies to two "relatively small" categories of errors: (1) violations of waivable-only rights; and (2) denials of absolute, systemic requirements. See Aldrich v. State, 104 S.W.3d 890, 895 (Tex.Crim.App. 2003); Saldano, 70 S.W.3d at 888.

Examples of rights that are waivable only include the right to the assistance of counsel, the right to trial by jury, and a right of appointed counsel to have ten days of trial preparation that a statute specifically made waivable only. Aldrich, 104 S.W.3d at 895. A waivable-only right cannot be forfeited by a party's inaction alone; a defendant must take affirmative action to waive such a right. See Bessey v. State, 239 S.W.3d 809, 812 (Tex.Crim.App.2007).

In Bessey, the Texas Court of Criminal Appeals held that a proper admonishment in an adult guilty plea was waivable only because the court has a statutory duty to properly admonish defendants as described by Article 26.13. "A law that puts a duty on the trial court to act sua sponte, creates a right that is waivable only. It *425

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Related

Sullivan v. Louisiana
508 U.S. 275 (Supreme Court, 1993)
United States v. Gonzalez-Lopez
548 U.S. 140 (Supreme Court, 2006)
Johnson v. State
169 S.W.3d 223 (Court of Criminal Appeals of Texas, 2005)
Saldano v. State
70 S.W.3d 873 (Court of Criminal Appeals of Texas, 2002)
Aldrich v. State
104 S.W.3d 890 (Court of Criminal Appeals of Texas, 2003)
Garrett v. State
220 S.W.3d 926 (Court of Criminal Appeals of Texas, 2007)
Matchett v. State
941 S.W.2d 922 (Court of Criminal Appeals of Texas, 1996)
Bessey v. State
239 S.W.3d 809 (Court of Criminal Appeals of Texas, 2007)
Cain v. State
947 S.W.2d 262 (Court of Criminal Appeals of Texas, 1997)
In the Matter of C.D.H., a Juvenile
273 S.W.3d 421 (Court of Appeals of Texas, 2008)
Matter of L.A.S.
981 S.W.2d 691 (Court of Appeals of Texas, 1998)
In the Matter of D.I.B.
988 S.W.2d 753 (Texas Supreme Court, 1999)
In the Matter of C.O.S.
988 S.W.2d 760 (Texas Supreme Court, 1999)
In re J.L.D.
74 S.W.3d 166 (Court of Appeals of Texas, 2002)

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Bluebook (online)
273 S.W.3d 421, 2008 WL 5213196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cdh-texapp-2008.