By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Competency exam not required on facts;
commitment findings supported by evidence (00-1-09)
On December 23, 1999, the Austin Court of Appeals held that in the absence
of a motion from a party or evidence requiring the juvenile court to act on its
own, there was no legal requirement that the juvenile court order a study of the
respondent's fitness to stand trial. The Court of Appeals also held that there
was sufficient evidence to support the juvenile court's findings made to justify
commitment of the respondent to the TYC.
00-1-09. In the of Matter A.D.V., UNPUBLISHED, No. 03-99-00020-CV, 1999 WL
1243287, 1999 Tex.App.Lexis ____ (Tex.App.-- Austin 12/23/99)[Texas Juvenile Law
225, 179 (4th Edition 1996)].
Facts: On October 26, 1998, the district court sitting as a juvenile court found
that juvenile appellant A.D.V. engaged in delinquent conduct by committing the
offense of burglary. See Tex. Penal Code Ann. ß 30.02 (West Supp.2000);
Tex.Fam.Code Ann. ß 51.03 (West Supp.2000). The court rendered an initial
disposition placing A.D.V. on probation. After A.D.V. violated the terms of that
probation, the court vacated its original disposition and held a second
disposition proceeding, after which it committed A.D.V. to the Texas Youth
Commission (TYC). In five issues, A.D.V. appeals.
In its petition, the State alleged that on or about March 28, 1998, A.D.V., then
fourteen years of age, knowingly and intentionally entered a habitation without
the effective consent of its owner and attempted to commit and committed theft
therein. See Tex. Penal Code Ann. ß 30.02. A.D.V. admitted committing the acts
alleged, and the juvenile court adjudged that A.D.V. had
engaged in delinquent conduct.
The court received evidence that A.D.V. had suffered head trauma in April 1997
and had been diagnosed with Tourette's Syndrome, attention-deficit hyperactivity
disorder, and borderline intellectual functioning or mild mental retardation. At
the initial disposition proceeding, A.D.V.'s probation officer recommended that
A.D.V. be placed on probation following treatment at a mental health facility to
address his head injury, medication, and emotional, educational, and
substance-abuse needs.
In its disposition order of October 28, the court placed A.D.V. on probation for
one year beginning with ninety days' treatment at a mental health facility in
Plainview, Texas. The court orally warned A.D.V. that if he violated the terms
of his probation or failed to complete his treatment, the court would revoke
probation and commit him to TYC.
Within a few days, A.D.V. left the Plainview facility without having been
discharged. The juvenile court vacated its original disposition, held a second
disposition hearing, and rendered a new disposition order committing A.D.V. to
TYC. A.D.V. appeals the adjudication and disposition.
Held: Affirmed.
Opinion Text: Failure to order mental health examination
In his first issue, A.D.V. argues that the court had a duty to order an
examination to determine A.D.V.'s mental capacity. Different sections of the
Family Code govern the exact procedure to be used in the juvenile court
depending on whether the issue is a juvenile's competence to proceed, capacity
to be held responsible for his conduct, or need for court-ordered mental health
services. [FN1] All of these sections, however, use very similar language
regarding the court's duty and state that, unless either party or the court
files a motion alleging that a juvenile is mentally ill or retarded, the
juvenile court has no duty to order examination or inquiry into the matter. See
Tex.Fam.Code Ann. ßß 55.01-.05 (West 1996 & Supp.1999). [FN2] Therefore,
we believe the same reasoning applies in evaluating the court's actions
regardless of the nature of the specific inquiry involved.
FN1. The legislature recently made substantial revisions to Family Code Chapter
55 governing proceedings for juveniles with mental illness or mental
retardation. See Act of June 19, 1999, 76th Leg., ch 1477 s 14, eff. Sept. 1,
1999. Because the legislature explicitly stated that "the change in law
made by this Act applies only to conduct that occurs after the effective date of
this Act," we will the law as it existed prior to the revisions, and all
references to Chapter 55 will be to the former statute. Id. s 39(a).
FN2. Section 55.01 states that the juvenile court may order that a juvenile be
examined by a physician, psychiatrist, or psychologist. See Tex.Fam.Code Ann. s
55.01(a) (West 1996). Sections 55.04 and 55.05 provide that the court must order
examination under 55 .01 if either party or the court makes a motion alleging
lack of fitness or of responsibility. See id. ß 55.04(b), .05(b) (West 1996).
Section 55.02 provides that a court must order mental health service if a child
is alleged by motion of the court or either party to be mentally ill or if the
child is found to be unfit or not responsible for his conduct. See id. ß 55.02
(West 1996). Section 55.03 provides that if a child is found or alleged unfit or
not responsible due to mental retardation, the court must order a determination
of mental retardation. See id . ß 55.03 (West 1996 & Supp.1999). In sum,
the juvenile court has a duty to conduct an inquiry into capacity only if there
is a motion alleging incapacity.
In this case, neither party filed a motion alleging that A.D.V.'s medical,
psychological, or emotional history affected his capacity. [FN3] Therefore, the
sole issue is whether the juvenile court was under a duty to act on its own
motion given the facts of this case.
FN3. A.D.V. cites us to T.P.S. v. State for guidance in determining whether
mental health services were needed. See 590 S.W.2d 946 (Tex.Civ.App.--Dallas
1979, writ ref'd n.r.e.). Because the juvenile in that case moved for a
competency inquiry, it provides no guidance on the issue of the court's duty to
make an inquiry on its own motion.
Although classified as civil proceedings, juvenile cases are quasi-criminal in
nature. See In re M.A.F., 966 S.W.2d 448, 450 (Tex.1998). Because of the serious
nature of juvenile proceedings and the possibility that a juvenile may be
deprived of liberty, this Court looks to criminal cases for guidance on many
issues in juvenile cases. See In re M.S., 940 S.W.2d 789, 791 92 (Tex.App
--Austin 1995, no writ). In the adult criminal context, the Court of Criminal
Appeals has held that a court is required to make an inquiry regarding an
accused's competency sua sponte only if there is evidence before the court that
raises a bona fide doubt in the judge's mind as to an accused's competency to
stand trial. See Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App.1997),
cert. denied, __ U.S. __, 142 L.Ed.2d 276 (1998). Generally a bona fide doubt is
raised "only if the evidence indicates recent severe mental illness, at
least moderate mental retardation, or truly bizarre acts by the defendant."
Id. (citing Mata v. State, 632 S.W.2d 355, 359 (Tex.Crim.App.1982)). Because the
evidence does not indicate that A.D.V. exhibited any of these conditions so as
to raise a bona fide doubt of his competency, the court was under no duty to
move for an inquiry into A.D.V.'s capacity or need for mental health services.
Having concluded that the juvenile court was not required to conduct an inquiry
regarding A.D.V.'s capacity, we need not address A.D.V.'s argument regarding
what the inquiry should have involved. We overrule A.D.V.'s first issue.
Failure to admonish A.D.V.
In his second issue, A.D.V. argues that the court failed to explain to him the
possible consequences of the proceedings against him under section 54.03(b)(3)
of the Family Code. See Tex.Fam.Code Ann. ß 54.03(b) (West Supp.2000). In
particular, A.D.V. seems to argue that because this was his second felony
adjudication, the court should have warned him that, if he were to commit a
third felony, the petition in that case could be referred to a grand jury for
consideration, creating a possibility that A.D.V. could be assessed a
determinate sentence with eventual transfer to a Texas Department of Corrections
facility. See id. ß 53.045 (West Supp
.2000).
A.D.V. has failed to preserve this issue for review. In an uncontested
adjudication such as this, section 54.03(i) provides that, in order to preserve
the issue of inadequate explanation for review, the juvenile's attorney must
place the issue before the court and obtain a ruling before the child pleads to
the petition or agrees to a stipulation of evidence. See id. ß 54.03(i);
Tex.R.App.P. 33.1; In re C.C., No. 3 98 651 CV, slip op. at 9-10 (Tex.App.--Austin
Dec. 2, 1999, no pet. h.). Because A.D.V. did not follow the necessary steps to
preserve this issue, we overrule it.
Determinate commitment to Texas Youth Commission
In his third issue, A.D.V. complains that the court orally committed him to the
Texas Youth Commission for a determinate period in violation of section 54.04 of
the Family Code. See Tex.Fam.Code Ann. ß 54.04 (West Supp.2000). That section
provides that a court may generally commit a juvenile to TYC only for an
indeterminate period. See id. ß 54.04(d)(2).
To support his argument, A.D.V. relies on In re A.N.M. See 542 S.W.2d 916 (Tex.Civ.App.--Dallas
1976, no writ). In that case, the court of appeals held that an oral order of
commitment for a determinate period was error. See id. at 920. The court did not
quote the language employed by the trial court but merely stated, "the
statement of facts reveals that the court orally ordered the minor to be
committed to the Texas Youth Council for a period of one year." Id. Because
that case does not elaborate on what it considered to be an order by the trial
court, it offers little guidance here.
A.D.V. alleges that the following interchange constituted an oral order:
THE RESPONDENT: How long is the time, sir?
THE COURT: A burglary is 12 months. I think 12 months for a burglary.
(Emphasis added.).
The court's statement was not phrased as an order; it merely constituted the
court's estimation of how long TYC might detain A.D.V. The court's written order
specifically stated that A.D.V.'s commitment to TYC was for an
"indeterminate period." The above-quoted exchange in no way
contradicts that order. We overrule A.D.V.'s third issue.
Court's reasons for committing A.D.V. to TYC
In his fourth issue, A.D.V. complains that the court's reasons for committing
A.D.V. to TYC are not sufficiently specific and that the reasons are unsupported
by evidence in the record. Under the Family Code, a court must state specific
reasons for its disposition. See Tex.Fam.Code Ann. ß 54.04(f).
In its order, the court stated that it was "considering the record,
evidence, and argument of counsel" and proceeded to set out its reasons for
committing A.D.V. to TYC. The order stated, "The Respondent will not accept
parental supervision and has demonstrated a disregard for all authority."
The order also noted that, "the local resources of this Court are not
adequate to meet such needs or accomplish the necessary protection of the
public." In addition, the order recited the findings that a juvenile court
must make in every disposition. See id. ß 54.04(c).
The statutory recitals, by themselves, do not provide a specific reason for the
court's ruling. See In re J.T.H., 779 S.W.2d 954, 959 (Tex.App.--Austin 1989, no
writ). But these recitals were supplemented by the above-quoted findings and
other information in the record that was incorporated by reference. Taken
together, these items constitute sufficiently specific reasons for the court's
disposition of appellant.
A.D.V. also argues that the court's reasons are unsupported by legally
sufficient evidence in the record. [FN5] To determine legal sufficiency in a
disposition, we apply the criminal standard of review and look at all the
evidence in the light most favorable to the verdict and ask whether a rational
trier of fact could have made the disputed finding beyond a reasonable doubt.
See In re C.C., slip op. at 7; In re M.S., 940 S.W.2d at 791 92, 792 n. 2.
FN5. Although A.D.V. does not make an explicit legal sufficiency argument or
cite us to a standard of review, statements in his brief that the reasons are
"not supported" and "unsupported" lead us to believe that
this is the claim he is making.
Specifically A.D.V. contends that the court's statement that A.D.V. will not
accept parental supervision and has no respect for any authority is unsupported
by the record. A.D.V. also argues that there is no evidence supporting the
court's finding that A.D.V.'s home lacks the level of support and supervision
needed to meet the conditions of probation.
The record clearly contains some evidence to support the court's reasons. The
court summary, which was admitted into evidence without objection and which the
court stated it had reviewed, states that A.D.V. resisted any attempt his mother
made at discipline, becoming angry and verbally abusive. His probation officer
also testified that A.D.V. did not follow rules while in detention and as a
result was subject to more restrictions at various points. In addition, the
record indicates that A.D.V. violated the terms of his previous probation; the
record also contains uncontroverted evidence that A.D.V. violated the original
disposition order by leaving the Plainview facility without having been
discharged. A.D.V. argues that the State focused on A.D.V.'s problems at school
and flight from the Plainview facility, neither of which involve A.D . V.'s
respect for parental authority. However, both the fights at school--a violation
of school rules--and the flight from Plainview--a violation of a court order--do
support the court's statement that A.D.V. "has demonstrated a disregard for
all authority." And the court could reasonably infer from the fact that
A.D.V. violated the terms of his probation that there was inadequate support and
supervision for him to meet its conditions.
A.D.V. also argues that the court's reasons in the disposition order are
contradicted by the judge's remarks on the record and the disposition provided
for in the vacated order. A.D.V. claims that the statement that he disregards
all authority is contradicted by the court's on-the-record remark that A.D.V.
was well-behaved in detention following his return to Austin. Although this is
some evidence that A.D.V. can respect authority, the court's reason did not
state that A.D.V. could not follow authority; instead, the court stated that
A.D.V. disregarded or chose not to follow authority. In addition, A.D.V. argues
that the court received no evidence to support its change in position from the
original disposition order in which the court stated that the best interests of
society and A.D.V. would be served by A.D.V. being placed on probation with his
mother. On the contrary, the fact that A.D.V. violated the terms of the original
order is itself evidence that could convince the court to reassess its prior
decision. In addition, prior to rendering the original disposition, the court
warned A.D.V. that if he violated probation he would be sent to TYC, and so his
argument that the court's disposition was somehow unexpected is disingenuous.
Viewing the evidence as a whole in the light most favorable to the verdict, we
hold that a rational trier of fact could have made the disputed findings beyond
a reasonable doubt. We overrule A.D.V.'s fourth issue.
Ineffective assistance of counsel
In his fifth issue, A.D.V. claims that his trial counsel was ineffective in: (1)
failing to move for an appropriate mental health examination and hearing; (2)
failing to object to the court's improper explanation under section 54.03(b) of
the Family Code; and (3) failing to object to the fact that all of the evidence
offered by the State at the disposition hearing was hearsay.
Because of the quasi-criminal nature of juvenile proceedings, we will look to
criminal cases for the standards applicable in evaluating an ineffective
assistance claim in a juvenile case. To evaluate this claim, we first must
examine whether counsel's conduct failed to meet an objective standard for
reasonable performance and then determine whether that failure deprived the
appellant of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687,
(1984); Ex parte Walker, 777 S.W.2d 427, 430 (Tex.Crim.App.1989). We presume
that counsel provided adequate assistance and made all the significant decisions
in the exercise of reasonable professional judgment. See Strickland, 466 U.S. at
690. Counsel is allowed wide latitude within reasonable professional standards
to make tactical decisions. See id. at 689. We look at the totality of the
representation. See Ex parte Carillo, 687 S.W.2d 320, 324 (Tex.Crim.App.1985);
Mayhue v. State, 969 S.W.2d 503, 510 (Tex.App.--Austin 1998, no pet.). The
representation need not be free of error. See Ingham v. State, 679 S.W.2d 503,
509 (Tex.Crim.App.1984); Vasquez v. State, 819 S.W.2d 932, 938 (Tex
.App.--Corpus Christi 1991, pet. ref'd). Finally, the client must show a
reasonable probability that, but for counsel's errors, the result of the
proceedings would have been different. See id.
A.D.V.'s burden of showing counsel was ineffective becomes more difficult in the
absence of an evidentiary hearing dedicated to the issue of counsel's
effectiveness. "In most instances, the record on direct appeal is
inadequate to develop an ineffective assistance claim." Ex parte Torres,
943 S.W.2d 469, 475 (Tex.Crim.App.1997); see Oldham v. State, 977 S.W.2d 354,
363 (Tex.Crim.App.1998); Jackson v. State, 973 S.W.2d 954, 957 (Tex .
Crim.App.1998); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim .App.1994); Ex
parte Duffy, 607 S.W.2d 507, 513 (Tex.Crim.App.1980); Mayhue v. State, 969
S.W.2d at 511; see also Osorio v.
State, 994 S.W.2d 249, 253 (Tex.App.--Houston [14th Dist.] 1999, no pet.). The
court held in Duffy and reiterated in Oldham that, "where the alleged
derelictions primarily are errors of omission de hors the record rather than
commission revealed in the trial record, collateral attack may be the vehicle by
which a thorough and detailed examination of alleged ineffectiveness may be
developed and spread upon a record." Duffy, 607 S.W.2d 513; see Oldham, 977
S.W.2d at 363. In the 1998 Jackson case, the Court of Criminal Appeals reversed
the judgment that counsel was ineffective for failing to file a motion to
suppress the only evidence that defendant possessed cocaine; the Court of
Criminal Appeals held that defendant's claim failed because he had not proven by
a preponderance of the evidence that the cocaine should have been suppressed.
Jackson, 973 S.W.2d at 956 57. In the 1994 Jackson case, the Court of Criminal
Appeals reversed the judgment that counsel was ineffective for failing to move
to strike for cause a jury panelist who said that a recent burglary of his home
probably would affect his impartiality in a robbery trial; the Court of Criminal
Appeals reversed because the record was silent regarding defense counsel's
reason for not moving to strike the panelist. Jackson, 877 S.W.2d at 771.
The deficiencies A.D.V. alleges against his trial counsel all comprise omissions
rather than commissions. A.D.V. criticizes his trial counsel for failing to make
certain motions and objections, but the record contains no showing why trial
counsel chose not to act. Appellate counsel did not move for a new trial or
request a hearing thereon to develop a record relating to trial counsel's
strategy.
We conclude that A.D.V. has failed to demonstrate on this record that the trial
counsel rendered ineffective assistance. The silent record gives no guidance,
and the Court of Criminal Appeals instructs us not to speculate about counsel's
motives. See Jackson, 877 S.W.2d at 771; see also Jackson, 973 S.W.2d at 957.
This proscription, coupled with the presumption of competence, requires us to
overrule point five.
We hold that because neither party moved for a hearing and the evidence did not
raise a bona fide doubt as to A.D.V.'s competence, A.D.V. has failed to show
that the juvenile court erred in not holding a hearing on the issue of A.D.V.'s
competence. We also hold that A.D.V. failed to preserve the issue of whether he
received an adequate explanation under section 54.03 of the Family Code, and
that the juvenile court did not order A.D.V. to a determinate commitment at TYC
in violation of section 54.04 of the Family Code. Finally, we hold that the
juvenile court gave sufficiently specific reasons for its decision to commit
A.D.V. to TYC and that A.D.V. has failed to present us with an adequately
developed record to show that he was deprived of a fair trial by receiving
ineffective assistance of counsel. Having overruled all of A.D.V.'s issues on
appeal, we affirm the disposition order of the juvenile court.