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

• Court: Court of Appeals of Texas
• Decided: December 16, 2008
• Docket: 06-07-00145-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00145-CV

IN THE MATTER OF C.D.H., A JUVENILE

On Appeal from the County Court at Law

Cass County, Texas

Trial Court No. 07-J-015

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Carter

O P I N I O N

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.

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 (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 (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 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 cannot be a law that is forfeited by a party's inaction." Id. (quoting Mendez, 138 S.W.3d at 343). Thus, a court's failure to properly admonish a defendant cannot be forfeited and may be raised for the first time on appeal unless it is expressly waived. By contrast, the statute requiring the trial court to explain the "possible consequences of the proceedings" in a juvenile adjudication hearing explicitly requires preservation of any failure of the trial court to provide the proper explanation.

While no precise rule has been announced for determining if a right is waivable only instead of forfeitable, it is important to be reminded of the reasons for requiring preservation of errors. "Stated more broadly, objections promote the prevention and correction of errors. When valid objections are timely made and sustained, the parties may have a lawful trial." Saldano, 70 S.W.3d at 887. Here, if the trial court had been apprised of the misstatement of the law, the court could have promptly corrected it and cured any error. There is no evidence that the trial itself or the decision of the trial court was influenced in any manner by the trial court's misstatement. Further, the omission does not directly or adversely affect the interests of the public generally or bring disrespect to the judicial process. See Dix and Dawson, Texas Practice: Criminal Practice and Procedure § 42.252 (2d ed. 2001). We find that, if there is a right to be sentenced to the range of punishment previously announced by the trial court in a juvenile proceeding, it is not a right that is waivable only, but may be forfeited.

Absolute, systemic requirements include jurisdiction of the person, jurisdiction of the subject matter, and a penal statute's being in compliance with the "separation of powers" section of the state constitution. See Aldrich, 104 S.W.3d at 895. As discussed previously, there is simply no authority that would suggest that the type of error alleged here is in the nature of a systemic defect. The error alleged here, even though framed in terms of constitutional terms, does not fall within the exceptions that would excuse failure to lodge an objection in the trial court. It must have been raised in the trial court to preserve the issue for our review. ⁽⁴⁾

Even if we were to conclude that this error need not be preserved for our review, C.D.H.'s contention would fail in that he must, but cannot show harm from, the alleged error. C.D.H. pled not guilty, and the record does not show that C.D.H. suffered harm as a result of the trial court's initial misstatement of the range of punishment and subsequent sentencing that might go beyond the range initially pronounced. ⁽⁵⁾ The record would not demonstrate harm resulting from the error alleged.

IV. Conclusion

The error alleged here was not preserved for our review and is not the type of error that is immune to preservation requirements. We are left then with the general rule regarding preservation of error: a party waives error unless the party preserves error for appeal by objecting in the trial court. See Tex. R. App. P. 33.1. Applying that general rule, the absence of an objection, either at the time of the admonishment or at the time the indeterminate sentence was pronounced, leads us to conclude that the alleged error is not before this Court. We, therefore, overrule C.D.H.'s contention and affirm the adjudication and disposition of the trial court.

Jack Carter

Justice

Date Submitted: October 8, 2008

Date Decided: December 16, 2008

1. When a juvenile court imposes an indeterminate sentence, it may only commit the child to the custody of the TYC, and the TYC must release the child no later than his or her nineteenth birthday. Tex. Fam. Code Ann. § 54.04(d)(2) (Vernon Supp. 2008); Tex. Hum. Res. Code Ann. § 61.084(e) (Vernon Supp. 2008). When the trial court imposes an indeterminate sentence for a child who committed aggravated assault, the term of confinement in a TYC residential facility ranges from twelve months to the child's nineteenth birthday. Tex. Hum. Res. Code Ann. § 61.084(e); 37 Tex. Admin. Code § 85.23(d)(3) (2008) (Tex. Youth Comm'n, Classification); 37 Tex. Admin. Code § 85.25(d)(3) (2008) (Tex. Youth Comm'n, Classification, Minimum Length of Stay).

2. The Texas Family Code requires the judge to explain to the child certain information at the beginning of an adjudication hearing. Tex. Fam. Code Ann. § 54.03(b). One of the requirements is the judge is to explain the "nature and possible consequences of the proceedings." Id. C.D.H. does not rely on Section 54.03, but makes only a constitutional argument. At one time, the failure to give the explanations in Section 54.03 did not have to be preserved for appeal by an objection, but later section (i) was added requiring preservation. Tex. Fam. Code Ann. § 54.03(i) (Vernon Supp. 2008). The Houston-First Court has read Section 54.03(i) as applicable only to omitted (as opposed to erroneous) admonishments, relying on the rule prior to the enactment of Section 54.03(i) that no objection was required to preserve error regarding the omission of the required juvenile admonishments. See In re T.W.C., 258 S.W.3d 218, 221 (Tex. App.--Houston [1st Dist.] 2008, no pet.) (citing In re C.O.S., 988 S.W.2d 760, 767 (Tex. 1999)). But see In re L.A.S., 981 S.W.2d 691, 692 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (concluding that, even if Section 54.03(b) admonishment were inadequate, any error associated with the admonishment was not preserved as required by Section 54.03(i)). C.D.H. does not address the error as one related to Section 54.03(b).

3. Juvenile proceedings are civil in nature. Tex. Fam. Code Ann. § 51.13 (Vernon Supp. 2008). Despite the civil nature of juvenile proceedings, the Texas Supreme Court has recognized a juvenile's right to the essentials of due process and fair treatment. In re B.P.H., 83 S.W.3d 400, 405 (Tex. App.--Fort Worth 2002, no pet.). The Texas Supreme Court looks to authority from the Texas Court of Criminal Appeals for guidance on issues of preservation of error. See In re C.O.S., 988 S.W.2d 760 (Tex. 1999); In re D.I.B., 988 S.W.2d 753 (Tex. 1999). Again, prior to the enactment of Section 54.03(i), error associated with the trial court's failure to provide required admonishments was treated as fundamental error to which no objection was required. We note that the error alleged here is characterized differently and was not briefed in terms of Section 54.03.

4. Consistent with our conclusion in the instant case, this Court has concluded that, within the context of juvenile probation revocation hearings, a due process complaint must have been raised before the trial court to preserve the error for appellate review. See In re J.L.D., 74 S.W.3d 166, 169 (Tex. App.--Texarkana 2002, no pet.).

5. Looking again at the closely related issue of failure to warn in strict compliance with a Section 54.03(b) admonishment, the Texas Supreme Court explained that error associated with Section 54.03 was not the type of error that defied analysis:

Nor is the "data . . . insufficient" to conduct a meaningful analysis of harm in this case. D.I.B. pleaded "not true" to the allegations against her; she presented a defense; and she was found to be a delinquent. There is no indication that, had D.I.B. known of the potential uses of the record of an adjudication in juvenile court, she would have been able to avoid an adjudication of delinquency. Nor is there any evidence that she was offered and would have accepted an agreement to plead to an offense other than murder as the basis for her adjudication. Absent a showing that the trial court's failure to give the required explanation may have affected the adjudication or the basis for it, the error was harmless.

D.I.B., 988 S.W.2d at 759. The court further explained that harm may be shown by proof that the juvenile could and would have entered into a plea agreement with the State based on a lesser offense if he or she had been properly admonished. C.O.S., 988 S.W.2d at 768. Such considerations lend themselves to harm analysis of the error alleged here.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-10-00076-CR

                                 WILLIAM MARBIE JONES, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the 124th Judicial District Court

                                                             Gregg County, Texas

                                                          Trial Court No. 38,331-B

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

            William Marbie Jones was convicted by a jury for the felony offense of driving while intoxicated (DWI), “3rd or more.”  Jones’ punishment was enhanced to that of a second-degree felony, and he was sentenced to twenty years’ imprisonment.  In a single point of error, Jones appeals his conviction on the ground that counsel rendered ineffective assistance for failing to investigate the validity of a Marion County DWI conviction.  We affirm the trial court’s judgment.

I.          Standard of Review

            We begin our analysis with the rule that any allegation of ineffectiveness of counsel must be firmly founded in the record.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.––Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003).  From the record received by this Court, Jones bears the burden of proving that counsel was ineffective by a preponderance of the evidence.  Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984).

            We apply the two-pronged Strickland test handed down by the United States Supreme Court to determine whether Jones received ineffective assistance of counsel.  Strickland v. Washington, 466 U.S. 668 (1984).  Failure to satisfy either prong of the Strickland test is fatal.  Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006).  Thus, we need not examine both Strickland prongs if one cannot be met.  Strickland, 466 U.S. at 697.

            First, Jones must show that counsel’s performance fell below an objective standard of reasonableness in light of prevailing professional norms.  Id. at 687–88.  There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered sound trial strategy.  Id. at 689; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  Therefore, we will not second-guess the strategy of Jones’ counsel at trial through hindsight.  Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.––Texarkana 2005, pet. ref’d).

            The second Strickland prejudice prong requires a showing that but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different.  Strickland, 466 U.S. at 687–88. 

II.        Claim of Ineffective Assistance of Counsel 

            A first offense DWI is a class B misdemeanor.  See Tex. Penal Code Ann. § 49.04(b) (Vernon 2003).  In contrast with a first offense DWI, it becomes a third-degree felony when the State proves “the person has previously been convicted . . . two times of any other offense relating to the operating of a motor vehicle while intoxicated . . . .” See Tex. Penal Code Ann. § 49.09(b)(2) (Vernon Supp. 2010).  The State’s indictment alleged that Jones had been previously convicted of DWI “in cause number 3806 in the 276th District Court of Marion County, Texas,” “in cause number 97-612 in the County Court at Law of Harrison County, Texas” and “in cause number 2001-C-137 in the County Court at Law of Panola County, Texas.”  Although Jones pled “true” to the Marion County and Panola County DWI convictions, he did this without mentioning the Harrison County conviction. 

            It should be pointed out that the elevation of a DWI from a misdemeanor to a felony offense by using previous DWI convictions does not enhance punishment, but creates an entirely different offense that vests the trial court with jurisdiction.  See Harris v. State, 204 S.W.3d 19, 27–28 (Tex. App.––Houston [14th Dist.] 2006, pet. ref’d); Perez v. State, 124 S.W.3d 214, 216 (Tex. App.––Fort Worth 2002, no pet.); Carroll v. State, 51 S.W.3d 797, 800–01 (Tex. App.––Houston [1st Dist.] 2001, pet. ref’d).  On a showing of any two of the three of the above alleged convictions, the instant offense would be a third-degree felony, punishable by a term of two years’ to ten years’ imprisonment.  See Tex. Penal Code Ann. § 12.34 (Vernon Supp. 2010), § 49.09(b).  In addition to prosecution of the instant offense as a felony, the State also sought––pursuant to Tex. Penal Code Ann. § 12.42(a)(2) (Vernon Supp. 2010)––to enhance the punishment range for this offense from that of a third-degree felony to that of a second-degree felony by alleging a previous conviction of “the felony offense of” DWI “in cause number 2005-C-0151 in the 123rd District Court of Panola County, Texas.”  Due to this previous felony conviction, Jones’ punishment was enhanced to that of a second-degree felony, and he was sentenced to twenty years’ imprisonment.

            Jones complains that the Marion County judgment of conviction was invalid and that he received ineffective assistance of counsel because no challenge was made to the validity of that prior conviction.  Jones also maintains that the validity of the judgment can be raised at this time because the State relied on it as a predicate to giving the trial court jurisdiction of the instant case as a felony.  In examining Marion County cause number 3806, we note that Jones pled guilty to DWI and was sentenced to community supervision.  Jones rests his challenge to the validity of the Marion County case on the allegation that Jones was not represented by counsel when he entered a guilty plea to the charges in that case. 

            The record in the Marion County case is somewhat contradictory.  Some of the records in it reflect that Jones was represented by counsel during the proceeding, and the final judgment entered after Jones’ written plea contains counsel’s name.  Contrarily, although the written waiver in that case recites “[t]hat my attorney has [advised] me of the consequences of a plea of guilty,” the same document contains the word “waived” in the signature line for Jones’ counsel.  Despite what was written on the waiver, the written plea states that Jones pled guilty to the Marion County offense “in open Court, joined by his attorney with whom he has previously consulted.”  No record of the proceedings in open court or testimony from Jones’ counsel in the Marion County case was presented to us. 

            In any event, Jones’ counsel submitted an affidavit containing the following:

            As part of my trial strategy, I advised Mr. Jones stipulate that he had twice before been convicted of DWI so that we could minimize the evidence placed before the jury about Mr. Jones[’] prior DWI convictions.  At the time, I had reviewed the discovery, which include the copies of each DWI conviction on Mr. Jones[’] record.  Everything appeared to be in order and I did not perceive any problem the State would have proving any of the convictions.  I did not obtain a copy of the entire file on any of the underlying convictions or review the clerk’s file of any of the convictions but relied on what the District Attorney’s Office provided.

            . . . . The Marion County conviction was used as a jurisdictional element for this conviction and also the felony conviction that was used to enhance his punishment to that of a second degree.

            Mr. Cassel provided me with a certified copy of the entire file from the Marion County conviction . . . .

            There is no written waiver or warning of Mr. Jones’ right to counsel contained in the entire Marion County file though it appears R. Daryl Bennett represented Mr. Jones.  There is no Motion to Withdraw either.  Thus, it would appear that Mr. Jones[’] plea was obtained without his lawyer and without a proper waiver of his right to counsel or warning of proceeding pro se.  Accordingly, had I known these issues existed, I would have filed a motion to quash the indictment or otherwise challenged the ability of the State to prove the jurisdictional DWI convictions because [the] Marion County conviction would be constitutionally infirm. 

            On the assumption (based upon an incomplete record of the Marion County cause) that Jones waived his right to counsel involuntarily and without proper admonishments and that this ground could be used to render a final judgment void without preservation of such a point of error because it was relied on to give the trial court in this case jurisdiction of the third-degree felony offense, Jones argues his counsel was ineffective for failing to investigate whether the Marion County conviction was invalid.

            Although, in the face of contrary evidence in the record which contradicts the conclusion, we doubt that simply the inclusion of the word “waived” in the space for Jones’ counsel’s signature on the waiver form is sufficient to affirmatively show that he waived his right to counsel involuntarily and without proper admonishments (thus rendering the Marion County conviction invalid for these purposes),^[1] we will examine as if it did.  In other words, we will assume for the purpose of argument that Jones has met the first prong of the Strickland test.  Be that as it may, even making the assumption under that premise that Jones could meet the first Strickland prong, the second Strickland prong certainly cannot be met. 

            In order to establish jurisdiction as a felony, the State was only required to prove the existence of two prior convictions for offenses relating to operating a motor vehicle while intoxicated for jurisdictional purposes.  Jones stipulated to the Panola County conviction, cause number 2001-C-137.  A stipulation is “a kind of judicial admission” such that a defendant will not be heard to question the stipulated fact on appeal.  Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005).  This established the first jurisdictional offense.  In addition to the Panola County misdemeanor offense, the record contains a written plea of guilt signed by Jones and final judgment of conviction “in cause number 97-612 in the County Court at Law of Harrison County, Texas.”  This established the second jurisdictional offense.  As a consequence, even if Jones had successfully contested the validity of the Marion County conviction, there would still have been the requisite two convictions (i.e., the Panola County case and the Harrison County case) to establish this case as a third-degree felony.  Therefore, Jones would not be able to demonstrate harm such that the result of the proceedings would have been different. 

III.       Conclusion

            We affirm the trial court’s judgment.

                                                                        Bailey C. Moseley

Date Submitted:          November 2, 2010

Date Decided:             December 15, 2010

Do Not Publish

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^[1]If the defendant in a misdemeanor case where guilt is not contested signs a written waiver of counsel in court and there is no contradicting evidence or any evidence that the defendant was coerced or intimidated, then the record is sufficient to support a finding that the defendant’s waiver of counsel was valid.  Hatten v. State, 89 S.W.3d 160, 163 (Tex. App.––Texarkana 2002, no pet.).  The Marion County case was a misdemeanor.