Michael Lee Montgomery v. State of Texas

• Court: Court of Appeals of Texas
• Decided: March 28, 2003
• Docket: 07-00-00574-CR
• Status: Published

Opinion

NO. 07-00-0574-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MARCH 28, 2003 ______________________________

MICHAEL LEE MONTGOMERY,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 230^TH DISTRICT COURT OF HARRIS COUNTY;

NO. 845063; HON. BOB BURNETTE, PRESIDING _______________________________

ON MOTION FOR REHEARING _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ. ⁽¹⁾

Pending before this court is the motion for rehearing of appellant Michael Lee Montgomery. Though he asserts several matters, we conclude that only one necessitates extended consideration. It involves his contention that we failed to address his argument in his supplemental brief that the Family Code and his right to due process were violated by the failure of his counsel at his juvenile proceeding to obtain a psychiatric and a psychological examination. The argument was made within the context of alleging that his attorney was ineffective in specifically requesting that those examinations not be conducted. Appellant did not separately argue and brief the contentions, however. Again, he merely alluded to them in passing via a conclusory statement. Thus, the matters were inadequately briefed and, therefore, presented nothing for review. Tex. R. App. P. 38.1(h) (providing that the brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record); Billy v. State, 77 S.W.3d 427, 429 (Tex. App.--Dallas 2002, pet. ref'd) (holding same).

Furthermore, even if they had been preserved, we disagree with appellant's contention that the failure of a juvenile to undergo a mental examination per §54.02(d) of the Texas Family Code ipso facto renders invalid his certification as an adult. The statute does require a juvenile court to "order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense" as a condition of certifying a minor to stand trial as an adult. Tex. Fam. Code Ann. §54.02(d) (Vernon 2002). Yet, if psychological exams are not completed due to interference by the juvenile or his attorney, certification may nevertheless result. For instance, in R.E.M. v. State, 541 S.W.2d 841 (Tex. Civ. App.--San Antonio 1976, writ ref'd n.r.e.), the accused juvenile refused to answer questions asked by psychiatrists since his attorney advised him to remain silent. Consequently, those examining him could and did not provide the juvenile court with complete diagnostic studies on the boy. Nonetheless, the appellate court concluded that the absence of the studies did not alone preclude certification. Id. at 845. Simply put, the court held that §54.02(d) did not require the accomplishment of that which the juvenile and his attorney prevented. Id. And, a corollary to this holding would be that due process is not denied to one who intentionally prevents application of the process allegedly due. Indeed, this is nothing more than the application of the invited error doctrine. One cannot complain about a situation he caused.

Given R.E.M., we deduce several conclusions. First, a juvenile defendant and his attorney may indeed impede or thwart the trial court's compliance with aspects of §54.02(d). Second, actively thwarting compliance with aspects of the statute does not alone prevent the certification of the juvenile as an adult or result in the denial of any process due the youth. And, because the juvenile and attorney may thwart compliance, the decision to do so may well be a part of some reasonable trial strategy, as described in our original opinion. Finally, since the trial court at bar ordered appellant to undergo testing, his attorney demanded that he not be so tested and, consequently, he was not tested, the absence of such testing did not in and of itself constitute a violation of §54.02(d). Nor did it negate appellant's subsequent certification as an adult or deny him due process.

With the foregoing said, we overrule all aspects of the motion for rehearing.

Brian Quinn

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

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NO. 07-10-00508-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 9, 2011

LESHAWN MCREYNOLDS, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 60,114-E; HONORABLE DOUGLAS WOODBURN, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ORDER OF ABATEMENT AND REMAND

Appellant, Leshawn McReynolds, filed a notice of appeal from his placement on ten years deferred adjudication community supervision for possession of a controlled substance, marijuana.  On January 19, 2011, this Court received a request from the trial court clerk for extension of time to file the clerk’s record.  This motion indicated that appellant has not paid or made arrangements to pay for the clerk’s record nor has an attorney “appeared” on the case for appeal.  On that same date, this Court granted the clerk’s request for extension, and sent separate notice to appellant regarding his failure to pay for or make arrangements to pay for the clerk’s record.  Further, this Court notified appellant that, if this Court did not receive the clerk=s record or a certification from the clerk or appellant that the record had been paid for or that satisfactory arrangements had been made for the preparation of the record by February 21, 2011, this Court may dismiss the appeal for want of prosecution.  See Tex. R. App. P. 37.3(b).  We have not received the clerk’s record and, in fact, received another request for extension of time to file the clerk’s record, which again indicates that appellant has not paid or made arrangements to pay for the clerk’s record nor has an attorney “appeared” on the case for appeal. 

Additionally, appellant’s notice of appeal was submitted by Darrell R. Carey.  Carey expresses appellant’s desire to appeal, and indicates that he was trial counsel for appellant.  However, Carey also states that he “has not been appointed or retained on the appeal.”  In this Court’s January 19, 2011 correspondence, we expressly informed Carey that as the attorney whose signature first appears on appellant’s notice of appeal, Carey is properly designated as lead counsel for appellant in this appeal.  See Tex. R. App. P. 6.1.  We also expressly informed Carey that, to the extent that the notice of appeal was intended to constitute a nonrepresentation notice, it is deficient.  See Tex. R. App. P. 6.4.  Finally, we noted that Carey’s statement in the notice of appeal could not be construed to constitute a motion to withdraw, see Tex. R. App. P. 6.5(a), (b), and that nothing in the record available to the Court indicates that the trial court had permitted Carey to withdraw from continued representation of appellant. 

Because the clerk’s record has not yet been filed and due to the confusion regarding representation of appellant on appeal, we now abate this appeal and remand the cause to the trial court.  See Tex. R. App. P. 37.3(a)(2).  Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appellant is indigent; (3) if appellant is indigent and desires to prosecute the appeal, whether he is entitled to have the appellate record furnished without charge; (4) whether present counsel for appellant has abandoned the appeal; (5) if appellant desires to prosecute this appeal and is indigent, whether appellant=s present counsel should be replaced; and (6) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant=s appeal if appellant does not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued.  If the trial court determines that the present attorney for appellant should be replaced, the trial court should cause the Clerk of this Court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney. 

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law, and recommendations and cause them to be included in a supplemental clerk=s record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter=s record; (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk=s record or the supplemental reporter=s record; and (5) cause the records of the proceedings to be sent to this Court.  In the absence of a request for extension of time from the trial court, the supplemental clerk=s record, supplemental reporter=s record, and any additional proceeding records, including any orders, findings, conclusions, and recommendations, are to be sent so as to be received by the Clerk of this Court not later than April 4, 2011.

Per Curiam