By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Defense counsel was ineffective for failure
to investigate alibi defense [In re K.J.O.] (00-4-02).
On September 12, 2000, the Dallas Court of Appeals held that the juvenile
respondent was provided with ineffective assistance of counsel because the
lawyer failed to investigate a potential alibi defense.
00-4-02. In the Matter of K.J.O., ___ S.W.3d ___, No. 05-99-01070-CV, 2000 WL
1281183, 2000 Tex.App.Lexis ___ (Tex.App.-Dallas 9/12/00)[Texas Juvenile Law
(5th Edition 2000)].
Facts: K.J.O. appeals the trial court's adjudication that she engaged in
delinquent conduct. A jury found appellant engaged in delinquent conduct and
recommended she be committed to the Texas Youth Commission for eight years. In
four issues on appeal, appellant argues (1) the trial court erred in ruling that
defense counsel must consent to a juvenile's right to testify and unduly
restricting counsel's questioning of witnesses at the hearing on appellant's
motion for new trial; (2) she received ineffective assistance of counsel; and
(3) the State failed to reveal the identity of defense witnesses. Concluding
appellant received ineffective assistance of counsel, we reverse the trial
court's adjudication that appellant engaged in delinquent conduct and remand
this cause for a new trial.
At appellant's adjudication hearing, Victor J. Flowers testified he was working
as a security guard at an apartment complex on January 11, 1999. At
approximately 1:30 a.m., Flowers was sitting in his car writing out his daily
report when his supervisor alerted him over his radio that two suspects were
wanted in connection with an earlier offense. The suspects were described as a
"skinny" Latin female wearing a white Adidas jacket and a
"chubby" Hispanic female wearing a black Adidas jacket. Flowers saw
two females who fit the description climb through a hole in a fence and alerted
his supervisor over the radio. Flowers got out of his car, identified himself as
a security officer, and told the females he needed to talk to them. The
heavy-set female withdrew what appeared to be an automatic pistol, and she and
the other female began running. Flowers called his supervisor and took cover.
Flowers's supervisor notified police and asked Flowers to follow the two
females. Flowers followed, but the two females jumped over a fence. As they
climbed over the fence, Flowers noticed the heavy-set female had
"Baby" tattooed on her neck, and the skinnier female was wearing white
pants with a stain from the fence. Flowers climbed on a truck and jumped over
the fence. As his feet hit the ground, Flowers heard a series of clicks, looked
up, and saw the two females pointing guns at him. In addition to the clicking
sounds, Flowers heard one female say, "Mine ain't working" and the
other one reply, "Mine neither." He also heard someone say, "Kill
him. Kill him." Flowers identified appellant as the skinnier female who
pointed a gun at him. Flowers dove to the ground, and the two females ran away.
He tried to follow them but lost them. Twenty or thirty minutes later, Flowers
saw the police arresting two females in the parking lot of the Capricornio bar.
Flowers recognized the females as the two who attempted to shoot him; one had
the "Baby" tattoo and the other had the stain on her pants. He also
recognized a jacket that police found under the seat of a truck nearby.
Dallas police officer Michael Bryan testified he received a report over his
radio regarding two Hispanic females on January 11, 1999. One of the females was
reported to have "Baby" tattooed on her neck, and both females had
long dark hair and were wearing Adidas jackets, one white and one black. The
report said a security guard had been following the females and observed them
getting into a blue Cadillac. In response to questioning by the prosecutor,
Bryan testified it might have been someone other than the security guard who saw
them getting in the blue Cadillac. Bryan drove around the area and saw a blue
Cadillac parked in a parking lot across the street from the Capricornio bar.
Bryan approached the Cadillac and saw a Hispanic male and female inside. In
front of the Cadillac was a Ford pickup. A female got out of the Cadillac, and
Bryan asked her name. She said "Baby," and Bryan saw the word
"Baby" tattooed on her neck. Bryan recognized "Baby" as one
of the suspects mentioned in the radio report and asked her to put her hands on
the trunk of the vehicle. At that point, another vehicle rammed the vehicle next
to his squad car. Three men exited the vehicle and approached Bryan, and he
retreated approximately twenty yards, drew his gun, and ordered them to stop.
Bryan called for emergency backup as the men continued to approach. Other
officers and a helicopter arrived, and appellant and a Latin male got out of the
Ford pickup. When she got out of the pickup, appellant had her hands up.
Dallas police officer Ernest Fierro testified he arrived at the scene and saw
Bryan, with weapon drawn, ordering people to the ground. Fierro arrested
appellant who was wearing white pants but no jacket. When Bryan informed Fierro
that appellant had gotten out of the Ford pickup, Fierro searched the pickup.
Fierro found no weapons, but he found a reversible black and white Adidas
jacket. Flowers arrived on the scene, and Fierro asked Flowers if the jacket he
found in the truck was "the jacket the Defendant was wearing." Flowers
said it was, pointed at appellant, and said she was the one who had been wearing
the jacket. Appellant's trial counsel called no witnesses. The jury found
appellant engaged in delinquent conduct.
We first address appellant's third issue on appeal in which she argues she
received ineffective assistance of counsel. The Supreme Court of Texas has never
directly addressed whether appellants in juvenile cases may attack the
effectiveness of their trial counsel. However, the United States Supreme Court
has held that a juvenile is entitled to representation by counsel. In re Gault,
387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The right to
representation includes the right to effective assistance of counsel. Strickland
v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Numerous appellate courts in Texas have held a juvenile is entitled to raise on
appeal the issue of his trial counsel's effectiveness. In re M.S., 940 S.W.2d
789, 791 (Tex.App.-Austin 1997, no writ.); R.X.F. v. State, 921 S.W.2d 888, 902
(Tex.App.-Waco 1996, no writ); In re M.R.R., 903 S.W.2d 49, 51-52 (Tex.App.-San
Antonio 1995, no writ); M.B. v. State, 905 S.W.2d 344, 346 (Tex.App.-El Paso
1995, no writ). In other Texas cases, courts have simply reviewed the
effectiveness of a juvenile's trial counsel without specifically stating that a
juvenile is entitled to such a review. In re S.P., 9 S.W.3d 304, 306 (Tex.App.-San
Antonio 1999, no pet.); In re J.F., 948 S.W.2d 807, 811 (Tex.App.-San Antonio
1997, no writ); see In re C.W.C., 920 S.W.2d 387, 391 (Tex.App.-Houston [1 st
Dist.] 1996, no writ). Courts in other jurisdictions have directly stated a
juvenile is entitled to challenge on appeal the effectiveness of his trial
counsel. In re A.V., 285 Ill.App.3d 470, 220 Ill.Dec. 847, 674 N.E.2d 118, 120
(Ill.App.Ct.1996) ("right to effective assistance of counsel applies in
juvenile, as well as adult proceedings, and in probation hearings as well as
criminal trials"); Perkins v. State, 718 N.E.2d 790, 793 (Ind.Ct.App.1999)
("[l]ike defendants in criminal proceedings, respondents in juvenile
delinquency proceedings have a Sixth Amendment right to the effective assistance
of counsel"). We conclude that, although a juvenile delinquency trial is a
civil proceeding, it is quasi- criminal in nature and, therefore, the juvenile
is guaranteed the constitutional right to effective assistance of counsel which
he would have as an adult in a criminal proceeding. See C.E.J. v. State, 788
S.W.2d 849, 852 (Tex.App.-Dallas 1990, writ denied) (applying Batson to juvenile
delinquency proceeding).
Held: Reversed and remanded.
Opinion Text: Turning to the facts of this case, we evaluate the effectiveness
of counsel during guilt-innocence and punishment under the standard enunciated
in Strickland. See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999)
(adopting Strickland standard for ineffective assistance of counsel at
punishment phase of trial); Hernandez v. State, 726 S.W.2d 53, 57
(Tex.Crim.App.1986) (adopting Strickland standard for ineffective assistance of
counsel at guilt-innocence phase of trial). To prevail on a claim counsel was
ineffective, appellant must show: (1) counsel's performance fell below an
objective standard of reasonableness and (2) a reasonable probability exists
that, but for counsel's unprofessional errors, a different outcome would have
resulted. See Strickland, 466 U.S. at 687-88. The record must support a claim of
ineffective assistance. See Johnson v. State, 691 S.W.2d 619, 627
(Tex.Crim.App.1984).
We have reviewed the record of appellant's adjudication proceeding and note
appellant's trial counsel called no witnesses. On February 23, 1999, the day of
trial, counsel had not spoken with any witnesses other than appellant and
appellant's mother. At a later hearing on appellant's motion for new trial,
counsel testified she did not intend to put anyone on the stand at trial and did
not tell appellant of this intent before trial, although counsel testified she
told appellant's mother a couple of days before trial. The morning of trial,
counsel attempted to work out a plea agreement with the prosecutor. She did not
get appellant's permission to enter into plea negotiations. At one point,
counsel anticipated that appellant was going to plead guilty, and she and
appellant approached the bench. The trial judge looked at appellant and asked
her, "Are you pleading guilty because you are guilty?" and appellant
said, "No, I'm not guilty." The judge then refused to accept
appellant's plea, and the trial proceeded. Counsel did not ask for a
continuance, even though she had not spoken to any witnesses. Further, she did
not tell the trial court she had unsuccessfully attempted to serve subpoenas on
some defense witnesses. During voir dire of a prospective juror, the trial court
stated appellant's trial counsel had "vetoed" appellant's ability to
testify in this case. Thus, the only direct evidence presented was that
proffered by the State.
In her cross-examination of Flowers, appellant's trial counsel asked, "To
your knowledge did my client or her companion have a chance to leave the
immediate area before the detention by the police?" Counsel's question
presupposes appellant and Baby were together and committed the charged offense.
Flowers answered affirmatively. While this misstatement alone does not render
trial counsel ineffective, it is some indication that appellant's counsel
presumed appellant was guilty. The jury ultimately found appellant engaged in
delinquent conduct.
At the hearing on appellant's motion for new trial, trial counsel testified she
was hired by appellant's mother to represent appellant on January 25, 1999.
Appellant's mother gave counsel the first name of R.E., a friend who was with
appellant on the night of January 11, 1999. Counsel eventually learned R.E.'s
last name but did not get her address. Counsel learned from appellant that R.E.
was inside the Capricornio "when this incident happened," but counsel
was unsure whether R.E. was inside the night club when the arrest took place or
when the incident happened. Counsel asked appellant's mother to provide full
names and telephone numbers of witnesses and to bring the witnesses to her
office. Appellant's mother also told counsel the full name of the security guard
at Capricornio. Counsel attempted to subpoena the guard but discovered on
February 18, 1999 that the subpoena had not been served. The Dallas county
constable who attempted to serve the subpoena told counsel the guard was not at
the night club when he went to serve the subpoena. Counsel was never able to
talk to anybody at the night club and did not go there in person.
Appellant's mother gave counsel the name "Juan" and Juan's telephone
number, but Juan never responded to counsel's messages. Counsel testified she
repeatedly tried to get addresses, phone numbers, and full names of witnesses,
and appellant's mother told her she would try to obtain the information. Counsel
also told appellant's mother to bring the witnesses to counsel's office, but she
never did.
Counsel received a copy of the petition and a predisposition probation report on
January 26, 1999. She received nothing else from the Dallas County District
Attorney's office and requested nothing. Counsel also did not ask to see the
district attorney's files concerning this case. On February 10, 1999, counsel
spoke with appellant for the first and only time before trial. Counsel testified
her schedule prevented her from speaking with appellant sooner, though she
supposed she could have spoken with her on a Saturday or Sunday. Appellant told
counsel she was innocent. She also told counsel she was with her boyfriend,
Hector, at the time of her arrest and that Hector was incarcerated in Dallas
County awaiting deportation. Counsel understood that if she did not get Hector's
deposition soon she would lose his testimony when he was deported. Nevertheless,
counsel made no effort to preserve Hector's testimony because his credibility
would be in question in light of his arrest for drug possession. Counsel did not
verify that Hector's incarceration had anything to do with drug possession.
Appellant also told counsel about two young women who were with her for the
three hours preceding her arrest. The two young women could account for
appellant's whereabouts and establish that she was in a car driving between
three bars trying to find her boyfriend shortly before she was arrested. Counsel
did not contact the two young women because "neither one was present when
the alleged incident took place," and they were inside the night club
restroom at the time appellant was arrested. Appellant told counsel the clothes
she was wearing at the time of her arrest did not match the description Flowers
gave of the clothes worn by the thinner woman who pointed a gun at him.
Appellant told counsel the coat she was wearing was in the hands of a Dallas
police officer conducting an inventory of things taken from her. Counsel did not
go and look at the clothes taken from appellant at the time of her arrest and
did not determine whether appellant's clothes were removed when she was brought
to the juvenile detention center. Counsel testified she did not ask the district
attorney's office for a copy of the police arrest report and did not visit the
scenes of the arrest or assault to determine lighting conditions. She testified
neither appellant nor her mother left her any telephone messages saying they
were concerned about contacting witnesses.
Appellant's friend R.E. testified she was with appellant on the night appellant
was arrested. R.E. testified appellant picked her up at her house at 10:00 p.m.,
and they went to appellant's house with another girl to get ready to go out for
the evening. According to R.E., she, appellant, and the other girl left
appellant's house at about 12:00 or 12:15 a.m. in appellant's mother's truck and
drove around looking for appellant's boyfriend. They arrived in Dallas at
approximately 12:30 a.m. and drove by three bars, Paradise, The Office, and
finally Capricornio, where they parked at approximately 12:40 a.m. R.E.
testified she was with appellant until a few minutes before her arrest when R.E.
went inside Capricornio.
Valerie Vega testified she and her husband arrived at Capricornio around 12:30
a.m. on the night appellant was arrested. Vega's husband recognized appellant's
mother's truck in the parking lot, and Vega testified she saw appellant and a
young man in the truck. Vega and her husband discussed going inside Capricornio
and, at about 1:10 a.m., Vega's husband went inside. Vega walked to an apartment
complex behind the parking lot. Five or ten minutes later, Vega heard a
helicopter and police and walked back to the parking lot at about 1:20 or 1:30
a.m. Juan Yruegas, the owner of Capricornio, testified he was outside
Capricornio at about 12:45 a.m. and saw appellant drive a pickup truck into the
parking lot. Two other people were in the pickup truck.
Appellant introduced into evidence the clothes she was wearing on the night of
her arrest. These clothes included a pair of blue jeans, not white pants as
Flowers and Fierro testified at trial. Appellant testified she was under arrest
and handcuffed when police asked her to bend over to show an alleged mark on the
back of her pants. The record does not reflect whether such a mark appeared on
the back of the jeans when they were introduced at the hearing on appellant's
motion for new trial.
We have reviewed the entire record and conclude the performance of appellant's
trial counsel fell below an objective standard of reasonableness in that it
appears counsel wholly failed to investigate the facts and circumstances
surrounding appellant's alleged involvement in the underlying offense. Further,
a reasonable probability exists that, had appellant's counsel questioned the
available witnesses, she would have been able to establish an alibi for
appellant on the night she was arrested, resulting in a different outcome at
trial. Under the facts of this case, we conclude appellant received ineffective
assistance of counsel. See Strickland, 466 U.S. at 687-88; Hernandez, 726 S.W.2d
at 57. Accordingly, we sustain appellant's third issue on appeal. Because of our
disposition of appellant's third issue on appeal, we need not address
appellant's remaining issues on appeal.
We reverse the trial court's judgment and remand this cause for a new trial.