Body

By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

2003 Case Summaries 2002 Case Summaries 2001 Case Summaries 2000 Case Summaries 1999 Case Summaries

Failure in criminal trial to file written pre-trial motion objecting to jurisdiction waives respondent's claim of juvenility; failure to file not ineffective assistance [Marquez v. State] (03-3-01).

On May 30, 2003, the Dallas Court of Appeals held that because respondent failed to file a written pre-trial motion as required by article 4.18 of the Code of Criminal Procedure challenging jurisdiction on the grounds of juvenility, he waived that claim. It was not ineffective assistance under these circumstances for counsel not to have filed that motion.

03-3-01. Marquez v. State, UNPUBLISHED, No. 05-02-00530-CR, 2003 WL 21246408, 2003 Tex.App.Lexis ____ (Tex.App.-Dallas 5/30/03) Texas Juvenile Law (5th Ed. 2000).

Facts: Appellant appeals his conviction for capital murder. After a jury found appellant guilty, the trial court assessed a mandatory life sentence. In ten points of error, appellant contends: (1) the evidence is legally and factually insufficient to support his conviction, (2) the trial court lacked jurisdiction, (3) appellant is entitled to a hearing on his motion for new trial with "conflict free" appellate counsel, and (4) he received ineffective assistance of counsel.

The grand jury indicted appellant for capital murder alleging appellant committed murder in the course of committing or attempting to commit robbery. At trial, the State presented evidence that appellant killed the victim behind a dumpster and stole her watch. Specifically, eyewitnesses saw appellant fighting with the victim near a dumpster at an apartment complex and called police. When police arrived, they directed flashlights toward the dumpster, and appellant emerged. Appellant told police that his friend was behind the dumpster. Police then found the victim. She was unclothed from the waist down and had been strangled to death. When appellant was arrested, a "Winnie the Pooh" watch was found in his boot. The victim's daughter testified the watch belonged to her mother.

Appellant testified at trial and claimed the victim was a prostitute and offered to have sexual relations with him for $50. When the woman first approached him, she was in a car with two black men and appellant ignored her offer. However, she returned on foot shortly thereafter and repeated her offer. Appellant followed the victim to the dumpsters. He admitted fighting with the victim near the dumpsters because she took his wallet. After they struggled over the wallet, they went behind the dumpsters and embraced. Appellant was then attacked from behind and he lost consciousness. When he awoke, he saw the victim on the ground. He denied killing the victim or stealing her watch. He claimed the first time he saw the Winnie the Pooh watch was when police found it in his boot.

After hearing the evidence, the jury found appellant guilty of capital murder. Specifically, the jury found appellant murdered the victim in the course of committing or attempting to commit robbery. In appellant's first through sixth, and tenth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction.

Held: Affirmed.

Opinion Text: [Legal and factual sufficiency discussion omitted.]

In his seventh point of error, appellant contends the trial court lacked jurisdiction because he was a juvenile (i.e. under seventeen years of age) at the time of the offense and the juvenile court never transferred jurisdiction. We begin by noting evidence at trial concerning appellant's age was not consistent. The State presented evidence that appellant gave police varying information regarding his age. Specifically, appellant told arresting officers that he was born on October 23, 1981, which would have made him nineteen years old. He also told another officer that he was born on October 23, 1981, but claimed he was twenty one years old. Appellant's own witness and roommate at the time of the offense, Rogelio Herrera Montez, testified appellant was seventeen years old at the time of the offense. However, appellant testified he was sixteen at that time. He said he lied to police about the year he was born so his father would not find out about his arrest. The defense offered a certified copy of a Mexican birth certificate showing appellant would have been sixteen at the time of the offense. Although the birth certificate was certified on August 27, 2001, the day after the murder, appellant admitted he did not tell anyone his birth date until that Monday, the day the jury was selected and testimony began. Nevertheless, we will assume, for purposes of this opinion, appellant showed he was a juvenile at the time of the offense.

Article 4.18 of the code of criminal procedure provides that a claim that a district court does not have jurisdiction because jurisdiction is exclusively in the juvenile court must be made by written motion filed with the court in which criminal charges are filed. See Tex.Code Crim. Proc. Ann. art. 4.18(a)(b) (Vernon Supp.2003). In a jury trial, the motion must be filed and presented before jury selection begins. Id. A person who fails to file a timely motion cannot contest the jurisdiction of the district court. Id. In this case, appellant did not file a motion contesting the trial court's jurisdiction, timely or otherwise. Consequently, pursuant to article 4.18, appellant cannot contest jurisdiction. See id; see also Rushing v. State, 85 S.W.3d 283, 286 (Tex.Crim.App.2002).

Appellant nevertheless asserts article 4.18 is unconstitutional as a violation of his rights under the United States Constitution. Appellant first asserts article 4.18 violates his right to equal protection of the law because he is treated differently than a juvenile who timely notifies the trial court of his juvenile status. He asserts there is no rational basis for this distinction in cases where a juvenile, like himself, has committed a serious crime for which he might not be eligible for probation. See Light v. State, 993 S.W.2d 740, 747 (Tex.App. Austin 1999) (explaining rationale for requiring a juvenile to object in the trial court is to prevent a juvenile from obtaining probation in criminal court then using his juvenile status to defeat a motion to revoke probation), judgm't vacated on other grounds, 15 S.W.3d 104 (Tex . Crim.App.2000).

To preserve for appellate review an attack on the constitutionality of a statute as applied to him, an appellant must first have raised the issue in the trial court. Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995). Here, appellant did not raise his constitutional challenge in the trial court. However, appellant asserts he can raise his complaint for the first time on appeal because he is challenging the facial constitutionality of a statute upon which his conviction was based. See Rabb v. State, 730 S.W.2d 751, 752 (Tex.Crim.App.1987). However, the substance of appellant's argument is not a facial challenge. Rather, he complains there is no justification for requiring him to challenge jurisdiction in the trial court because he was charged with the serious crime of capital murder. Because the substance of appellant's complaint is an as applied challenge, appellant waived error by not raising his complaint in the trial court. See Curry, 910 S.W.2d at 496.

Appellant also asserts article 4.18 violates his due process rights and his rights under the Eighth Amendment. Appellant provides no meaningful legal analysis or argument under these complaints. We conclude they are inadequately briefed and present nothing to review. See Wood v. State, 18 S.W.3d 642, 650 (Tex.Crim.App.2000) (concluding appellant waived facial challenge to penal code provision by failing to support his argument with authority and failing to adequately develop his argument.). We overrule appellant's seventh point of error.
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In his ninth point of error, appellant contends he received ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687 88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App.1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). The defendant must prove, by a preponderance of the evidence, there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 813 814. In such cases, we need not speculate as to the basis for trial counsel's decisions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813.

Appellant first asserts counsel was ineffective for failing to defeat jurisdiction by filing a plea in bar based on appellant's juvenile status. However, the record shows trial counsel was not aware of appellant's alleged age until it was too late to contest the trial court's jurisdiction. Although appellant gave police inconsistent information regarding his age and date of birth, appellant never told police he was a juvenile and there is nothing in the record to otherwise show counsel should have known appellant was a juvenile. [FN3] We conclude appellant has not shown counsel was ineffective for failing to file a motion contesting the trial court's jurisdiction.

FN3. We do not agree with appellant's assertion that his "youthful appearance" should have alerted trial counsel to the fact appellant might have been a juvenile. To the contrary, our review of photographs taken at the time of appellant's arrest would not have put counsel on notice that appellant may have been a juvenile.

Appellant next asserts his trial counsel was ineffective for failing to object to a jury charge instructing the jury that appellant's status as a juvenile did not affect the trial court's jurisdiction over him. The record contains no reasons for counsel's failure to object, and we cannot conclude there is no plausible basis for counsel's actions. Therefore, appellant has not met his burden to show ineffective assistance.

Appellant also asserts counsel was ineffective for failing to seek suppression of evidence obtained in violation of his rights as a juvenile. Specifically, appellant asserts trial counsel should have filed a motion to suppress or requested a jury instruction regarding whether appellant's statement was taken in violation of his rights as a juvenile. Appellant's complaint here is premised on his assumption that a juvenile who misrepresents his age to authorities is entitled to the protection of the family code regarding the questioning of juveniles. Appellant cites no authority to support this assertion. Therefore, he has not shown his trial counsel was ineffective. See Mallet v. State, 9 S.W.3d 856, 867 (Tex.App. Fort Worth 2000, no pet.); Ryan v. State, 937 S.W.2d 93, 98 (Tex.App. Beaumont 1996, pet. ref'd).

Finally, appellant asserts trial counsel should have withdrawn after judgment to allow another attorney to file a motion for new trial based on ineffective assistance. However, absent a showing of ineffective assistance in the first instance, we cannot conclude trial counsel should have withdrawn. We overrule appellant's ninth point of error.

2003 Case Summaries 2002 Case Summaries 2001 Case Summaries 2000 Case Summaries 1999 Case Summaries