By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Criminal defendant failed to prove he was not
represented when adjudicated in a prior juvenile case (99-2-09).
On March 31, 1999, the Dallas Court of
Appeal held that vague testimony by a criminal defendant that he had been
unrepresented in juvenile court during some hearing was not sufficient to rebut
the judgment recital that he was represented at his juvenile adjudication and
disposition proceedings. Accordingly, the prior adjudication was properly
admitted into evidence at the penalty phase of the later criminal proceedings.
99-2-09. Harris v. State, UNPUBLISHED, No. 05-96-01531-CR, 1999 WL 173683, 1999
Tex.App.Lexis ___ (Tex.App.--Dallas 3/31/99)[Texas Juvenile Law (4th Ed. 1996)].
Facts: Appellant Derrick Harris appeals his conviction, after a jury trial, of
first degree murder. The jury assessed punishment at sixty years' confinement.
In nine points of error, appellant complains that the trial court erred in
denying his request for a mistrial and his motion for new trial; that he was
denied effective assistance of counsel; that the trial court erred in denying
his requested jury charge to include lesser included offenses; and that the
trial court erred in admitting certain evidence.
Appellant and three other young men were riding together one afternoon. As they
approached a convenience store, they saw a number of youths wearing gang colors
and "throwing up gang signs." The riders in the car saw the signs as
threatening and, in fact, the gang members rushed the car. To frighten off the
gang members, appellant, who had a gun, fired four shots out the car window. As
Raymond Douglas, a retired postal worker who did substitute teaching, was
driving by in his pickup truck, a bullet struck and killed him. Appellant was
charged with his murder.
Held: Affirmed.
Opinion Text: In his eighth point of error, appellant contends that the trial
court erred in admitting an allegedly void juvenile "conviction" into
evidence during the punishment phase of trial. [FN1] The State introduced an
order adjudicating appellant as a child engaged in delinquent conduct and a
judgment of disposition committing him to the Texas Youth Commission facility.
The order and judgment both state that appellant was represented at the
adjudication and disposition hearings by an attorney. Appellant asserts in his
brief that the adjudication and disposition are void because he was not
represented at the juvenile hearings by an attorney, despite the facial
representations of the order and judgment. Appellant contends that the copies of
the order and judgment introduced into evidence were not certified and that
appellant, by his own testimony, rebutted the representations that he had an
attorney. We disagree.
FN1. Appellant had been adjudicated a child engaged in delinquent conduct and
committed to the Texas Youth Commission. The parties treat the adjudication and
commitment as if they constituted a prior conviction for enhancement purposes,
and the authorities the parties cite are enhancement cases. Here the State was
offering the adjudication evidence simply to assist the jury in assessing
punishment during the punishment phase. We address the argument as the parties
have framed it.
Generally, the trial court has broad discretion in determining the admissibility
of evidence, and we will not reverse unless a clear abuse of discretion is
shown. Johnston v. State, 959 S.W.2d 230, 237 (Tex.App.- Dallas 1997, no pet.).
The State establishes a prima facie case of proof of a prior conviction by
introducing a copy of the judgment and connecting it with the defendant. Once
the State makes that prima facie showing, the burden shifts to the defendant to
make an affirmative showing of any defect in the judgment. Where procedural
requirements do not affirmatively appear in the record to have been violated,
the presumption of regularity must prevail. Thus, in his collateral attack on
this conviction, appellant had the burden to show affirmatively that the
judgment was void. Cunningham v. State, 815 S.W.2d 313, 315 (Tex.App.-Dallas
1991, no pet.).
Despite what the brief asserts, appellant admitted that counsel represented him
at the adjudication hearing. Because the record reflects that the disposition
hearing followed immediately afterwards on the same day and the disposition
judgment identifies appellant's attorney as the same one who represented him at
the adjudication hearing, we conclude that appellant was represented at the
disposition hearing in the absence of any positive assertion in the record to
the contrary. His identity as the juvenile adjudicated was not an issue. He
stated conclusorily that he did not have representation at "all" of
the juvenile proceedings. The trial court then asked appellant:
THE COURT: I'm just curious, Mr. Harris, what judges were these having these
proceedings without you having a lawyer there?
THE DEFENDANT: I don't remember.
THE COURT: You don't know and you don't remember.
THE DEFENDANT: Nope.
THE COURT: But you think there's some sort of proceeding when you didn't have a
lawyer, is that right?
THE DEFENDANT: Yes, I did.
THE COURT: What proceeding are we talking about?
DEFENDANT: When I was at the hearings.
THE COURT: What hearings?
THE DEFENDANT: In juvenile.
THE COURT: What kind of hearings?
THE DEFENDANT: I don't know, to see if they retain me and stuff. To keep me in
juvenile.
This testimony is scarcely the affirmative showing required to establish that
appellant's adjudication of him as a child engaged in delinquent conduct is
void. The face of the adjudication order states that he was represented by
counsel; appellant admitted that, at that particular hearing he was represented
by counsel; all that appellant's testimony showed was that he vaguely recalled
some occasions in the juvenile process when he did not have an attorney. We
conclude that appellant has not shown that his adjudication was void.
We also conclude that certification of the adjudication order was not a
requisite of its admissibility. The court of criminal appeals has recognized a
variety of ways to prove a previous conviction. See Montgomery v. State, 876
S.W.2d 414, 415 (Tex.App.-Austin 1994, pet. ref'd) (undisputed recitation about
a prior conviction in a presentence report is sufficient to establish the fact
of prior conviction). In this case, appellant did not dispute the accuracy of
the copies of the adjudication order and the disposition judgment, except
insofar as they recited that appellant was represented by counsel. We have
already concluded that appellant did not succeed in affirmatively showing that
he was not represented by counsel in the hearings leading up to his adjudication
and commitment. Because he does not dispute the accuracy of anything else in the
copies of the order and judgment, the copies were sufficient to establish
appellant's juvenile "conviction." Montgomery, 876 S.W.2d at 416. We
cannot conclude that the trial court abused its discretion. We overrule
appellant's eighth point of error.