By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Juvenile cannot directly appeal
certification order under 1995 amendment (00-3-03)
On June 15, 2000, the Houston First District Court of Appeals held that
under the 1995 amendment to the Family Code a juvenile cannot directly appeal a
certification order but must await criminal conviction to take a consolidated
appeal. Therefore, it was not ineffective assistance of counsel for
appellant’s juvenile court lawyer not to take a direct appeal. The Court of
Appeals overruled its opinion in Melendez v. State, which had erroneously held
such an appeal could be taken.
00-3-03. Small v. State, ___ S.W.3d ___, No. 01-98-0``52-CR, 2000 WL 768543,
2000 Tex.App.Lexis ____ (Tex.App.--Houston [1st Dist.] 6/15/00)[Texas Juvenile
Law 152. 315 (4th Edition 1996)].
Facts: Appellant, a juvenile, was certified for trial as an adult. Appellant was
charged with escape, possession with intent to deliver cocaine, and two charges
of aggravated robbery with a deadly weapon. Appellant pled guilty to the charges
without an agreed recommendation. The judge sentenced appellant to five years
confinement for the escape case, five years confinement on the possession case,
and 35 years confinement on the aggravated robberies to run concurrently.
Appellant, a 16-year-old, threw down a small bag containing three grams of crack
cocaine in the presence of a Houston Police Officer, and then fled after being
arrested and handcuffed. The authorities charged him, as a juvenile, with escape
and possession of a controlled substance. Appellant was also later charged, as a
juvenile, with two aggravated robberies with a deadly weapon that occurred
before the possession and escape crimes.
On August 13, 1997, Arthur C. Washington was appointed to represent appellant in
all four juvenile cases. On September 30, 1997, Washington, then acting as an
Associate Judge, signed appellant's detention order. At that hearing, the record
shows that Dan McCarins represented appellant.
The juvenile court waived its jurisdiction in each case and certified appellant
to the adult criminal courts. Four days later, the district court appointed Rudy
Duarte to represent appellant in all four cases.
In points of error one, three and four, appellant argues his counsel at the
adult criminal case was ineffective for not appealing the juvenile court's
certification order based on ineffective assistance of counsel at the juvenile
proceedings. The State argues counsel was not ineffective for failing to appeal
appellant's certification order because appellant was not entitled to appeal the
certification order. We agree.
In the present case, the judge certified appellant to be transferred to the
district court under Section 54.02 of the Texas Family Code, which provides that
a juvenile court may waive its exclusive original jurisdiction and transfer a
child to the appropriate district court or criminal district court. Tex.
Fam.Code Ann. § 54.02 (Vernon's 1996). The Family Code no longer permits
juvenile defendants to appeal from the certification proceedings prior to being
finally convicted as an adult. Tex. Fam.Code Ann. § 56.01(c) (Vernon
Supp.2000); Miller v. State, 981 S.W.2d 447, 449 (Tex.App.--Texarkana 1998, pet.
ref'd) (holding the 1995 amendment to section 56.01(c) removed all rights to
appeal from a Section 54.02 ruling); In the Matter of D.D., 938 S.W.2d 172,
173-74 (Tex.App.--Fort Worth 1996, no writ) (holding the revised section
56.01(c) applies to conduct that occurred after January 1, 1996). The previous
statute read:
(c) An appeal may be taken:
(1) by or on behalf of a child from an order entered under:
(A) Section 54.02 of this code respecting transfer of the child to criminal
court for prosecution as an adult.
See Act of May 23, 1991, 72nd Leg., R.S., ch. 680, § 1, 1991 Tex. Gen. Laws
2466, amended by Act of May 27, 1995, 74th Leg., R.S., ch. 262, §§ 48, 106(b),
1995 Tex. Gen. Laws 2517, 2546, 2591.
Under the 1995 amendment to section 56.01(c), appeals may be taken from juvenile
court orders entered under:
(A) Section 54.03 with regard to delinquent conduct or conduct indicating a need
for supervision;
(B) Section 54.04 disposing of the case;
(C) Section 54.05 respecting modification of a previous juvenile court
disposition; or
(D) Chapter 55 by a juvenile court committing a child to a facility for the
mentally ill or mentally retarded.
Tex. Fam.Code Ann. § 56.01(c) (Vernon Supp.2000). Because section 56.01(c) no
longer includes appeals from section 54.02 transfers from juvenile court to
district court, counsel was not ineffective for failing to appeal appellant's
certification order. When we stated in Melendez v. State that a juvenile was
required to appeal a transfer order itself to the court of appeals, we
failed to take into account the amendment in section 56.01(c). Melendez v.
State, 4 S.W.3d 437, 440 (Tex.App.--Houston [1st Dist.] 1999, no pet.)[Juvenile
Law Newsletter ¶ 99-4-19] To the extent this opinion conflicts with our
statement of law concerning juvenile transfer orders in Melendez, we overrule
Melendez. See Melendez, 4 S.W.3d at 440 (stating a defendant was required to
appeal a transfer order itself to the court of appeals, and an appellant could
raise only jurisdictional errors in the transfer process for the first time on
appeal from a conviction after the transfer).
We overrule appellant's first, third, and fourth points of error.
A unanimous court voted to grant the panel's request for en banc consideration
of points of error one, three, and four and agree with the panel's opinion on
those points.
Accordingly, we affirm the judgment.
The discussion of the remaining points of error does not meet the criteria for
publication, Tex.R.App. P. 47, and is thus ordered not published.
******UNPUBLISHED TEXT FOLLOWS******
In points of error two, five, six, and seven, appellant contends his trial
counsel was ineffective at the juvenile proceedings because he had a material
conflict in representing appellant and acting as an associate judge in part of
his case. Appellant also contends counsel did not provide evidence or witnesses
in appellant's defense against certification as an adult.
The standard of review for evaluating claims of ineffective assistance of
counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984). See Thompson v. State, 9 S.W.3d 808, 812
(Tex.Crim.App.1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986);
Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.--Houston [1st Dist.] 1996, no
pet.). Appellant must show that (1) counsel's performance was so deficient that
he was not functioning as acceptable counsel under the sixth amendment, and (2)
but for counsel's error, the result of the proceedings would have been
different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Thompson, 9 S.W.3d at
812; Gamble, 916 S.W.2d at 93.
It is the defendant's burden to prove ineffective assistance of counsel.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Gamble, 916 S.W.2d at 93.
Defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Strickland, 466 U.S.
at 689, 104 S.Ct. at 2064; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93.
In the present case, there is no reporter's record of the certification hearing.
Therefore, there is nothing in the record to indicate whether and when appellant
retained McCarins, and nothing to suggest that Washington represented appellant
and acted as a judge in appellant's case at the same time, as appellant implies.
The record is silent as to why appellant's trial counsel did not point out
possible conflicts or provide evidence or witnesses at the juvenile proceedings.
See Gamble, 916 S.W.2d at 93. To find that trial counsel was ineffective based
on the asserted ground would call for speculation, which we will not do. See
Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994); Gamble, 916 S.W.2d at
93.
Due to lack of evidence in the record concerning trial counsel's reasons for not
pointing out possible conflicts or not providing witnesses or evidence at the
juvenile proceedings, we are unable to conclude that trial counsel's performance
was deficient. Appellant has not rebutted the presumption that trial counsel
made all significant decisions in the exercise of reasonable professional
judgment.
We overrule appellant's second, fifth, sixth, and seventh points of error.