By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Service of modification summons on guardian ad litem not required when respondent's mother was served and appeared at the hearing [In re R.M.R.] (02-1-07).
On December 6, 2001, the Houston First District Court of Appeals held that it was not reversible error for the juvenile court to proceed with a hearing to modify disposition when the respondent's mother was served and present at the hearing. Failure to serve a guardian ad litem who had been appointed at the detention hearing was not error, or if it was, not preserved for appellate review.
02-1-07. In the Matter of R.M.R., UNPUBLISHED, No. 01-01-00347-CV, 2001 WL 1555304, 2001 Tex.App.Lexis ___ (Tex.App.--Houston [1st Dist.] 12/6/01) [Texas Juvenile Law (5th Edition 2000)].
Facts: A judge placed appellant, R.M.R., a juvenile, on probation for a period of one year after appellant pled true to having engaged in delinquent conduct, namely, unauthorized use of a motor vehicle. Six months later, and after several probation modifications, the trial court revoked appellant's probation and placed him in the Texas Youth Commission. Appellant raises two points of error: (1) the record fails to establish that the guardian ad litem was summoned to appear at the hearing to revoke probation, and (2) appellant was denied effective assistance of counsel because counsel failed to timely object to the State's scientific evidence.
Appellant pled true to having engaged in delinquent conduct, namely, unauthorized use of a motor vehicle, and the trial court placed appellant on probation with strict conditions, including attending the Star placement program at Lamar Junior High School and the BEAR (Brown Education and Recovery) program, which would have picked him up everyday and provided him with activities and counseling. Appellant did not participate in these programs and also engaged in delinquent conduct, namely, attempted arson. Appellant pled true to having violated the terms of his probation, which was modified and extended until his 18th birthday. After attending and being released from the Day Star residential treatment program, appellant violated his probation by not attending school and testing positive for marijuana. Appellant's mother did not attend the detention hearing, and the trial court appointed Carlette White as appellant's guardian ad litem. Appellant and his mother were served with a copy of the motion to modify disposition (revoke probation). No summons was issued for the guardian ad litem. Appellant, his mother, and his attorney appeared at the probation revocation hearing. At the hearing, the State introduced evidence of appellant's drug use, including a urinalysis test. The State also introduced evidence that appellant had run away from home and associated with drug dealers. The trial court revoked appellant's probation and placed him in the Texas Youth Commission until his 21st birthday.
Held: Affirmed.
Opinion Text: Lack of Notice to Guardian Ad Litem
In point of error one, appellant argues the probation revocation was improper because the record does not establish that his guardian ad litem was summoned to the probation revocation hearing. The Family Code requires notice of a hearing affecting a child to be issued to: (1) the child named in the petition, (2) the child's parent, guardian, or custodian, (3) the child's guardian ad litem, and (4) any other person who appears to the court to be a proper or necessary party to the proceeding. Tex. Fam.Code Ann. § 53.06(a) (Vernon 1996). Sections 54.05 and 51.115 also require reasonable notice of a hearing to be given to all parties. Tex. Fam.Code Ann. §§ 51.115(a)(4), 54.05(d) (Vernon 1996). The basic principle of the notice requirement is to assure that every child has the assistance of some friendly, competent adult who can supply the child with support and guidance. In the Matter of J.S., 602 S.W.2d 585, 590 (Tex.Civ.App.--Amarillo 1980, no writ); In the Matter of Honsaker, 539 S.W.2d 198, 200-01 (Tex. Civ App.--Dallas 1976, writ ref'd n.r.e.).
Appellant did not object to the lack of notice to his guardian ad litem. Moreover, appellant's mother and appellant's attorney were both present at the hearing. Service of summons under the Texas Family Code can be waived. In the Matter of K.M.P., 701 S.W.2d 939, 941 (Tex.App.--Fort Worth 1986, no writ). Without objection to the lack of notice at the trial court, no error was preserved for review on appeal. In the Matter of P.S.G., 942 S.W.2d 227, 229 (Tex.App.--Beaumont 1997, no writ).
We overrule appellant's first point of error.
Ineffective Assistance of Counsel
In point of error two, appellant alleges he was denied effective assistance of counsel. Appellant must show: (1) that counsel's representation fell below an objective standard of reasonableness, and (2) but for counsel's errors, the result of the proceedings would have been different. Strickland v. Washington, 446 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). The reasonableness standard in Strickland requires analyzing the attorney's performance based on the "totality" of the representation. Strickland, 446 U.S. at 690, 104 S.Ct. at 2069. Failure to object to every instance of improper evidence does not rise to the level of ineffective assistance of counsel. Id.
The defendant must overcome the presumption that the challenged action of counsel might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Appellant contends that counsel's failure to object to the introduction of the urinalysis test amounted to ineffective assistance of counsel. Appellant, however, admitted to his probation officer that he used marijuana, cocaine, and alcohol on a regular basis. Moreover, the State introduced evidence that appellant ran away from home, failed to attend school, and lived on the streets. Appellant had already admitted to drug use and trial counsel used appellant's drug problem to suggest appellant be assigned to another program, rather than be committed to the Texas Youth Commission. Appellant has neither demonstrated that trial counsel's failure to object to the introduction of the urinalysis was not legitimate trial strategy, nor that an objection would have obtained a different result even if successful.
We overrule appellant's second point of error.