in the Matter of L.G.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-07-418-CV

IN THE MATTER OF L.G.

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1

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I. Introduction

Appellant L.G., a juvenile, appeals his determinate sentence of four years

after the trial court adjudicated him delinquent. In one point, L.G. argues that

he was denied effective assistance of counsel when his trial counsel advised

him to waive the requirement of obtaining grand jury approval of the State’s

petition before a determinate sentence could be imposed. We affirm.

1
… See T EX. R. A PP. P. 47.4.
 II. Factual and Procedural Background

The State alleged that L.G. engaged in delinquent conduct by committing

two counts of aggravated assault with a firearm. The facts underlying the

charges of aggravated assault are not in dispute. L.G., who was fifteen years

old at the time of the incident, had a series of confrontations with the victims,

Raul Mata and Jose Conchas. On the night of October 14, 2007, immediately

following a dispute with the victims, L.G. fired a shotgun several times at them.

They were sitting in their vehicle in line at a drive-through restaurant. L.G. hit

both Mata and Conchas in the back with “birdshot,” and both victims saw L.G.

discharge the shotgun several times. They were released that night from the

hospital without serious injury.

L.G. was placed in detention on October 22, 2007. On October 26, the

State filed a petition regarding a child engaged in delinquent conduct, alleging

in two counts that L.G. “engaged in delinquent conduct in that [he] violated a

penal law of this state punishable by imprisonment, to-wit: Section 22.02 of

the Texas Penal Code.” 2 The trial court held an adjudication hearing and a

disposition hearing on November 14. Prior to these hearings, L.G., his attorney,

2
… L.G. was accused of committing two counts of aggravated assault,
a second degree felony. See T EX. P ENAL C ODE A NN. § 22.02 (Vernon Supp.
2008).

2
and one of his parents signed a waiver of grand jury approval. This waiver

allowed the trial court to impose a determinate sentence without the State first

seeking grand jury approval. 3

At the end of the adjudicative hearing, the trial court found that L.G. had

engaged in delinquent conduct as alleged by the State’s petition based on the

stipulated evidence. L.G. testified at the disposition hearing that he had only

one prior contact with the juvenile department, for which he received a

supervisory caution for an “accident/damage under $200” in February 2006.

Patsy Paxton, of Tarrant County Juvenile Services, was the officer who

supervised L.G. while he was in detention. Paxton testified that L.G. was a

good candidate for probation, that he would be able to successfully complete

probation, that he behaved well in detention, that he attended school regularly

and was passing all his classes, and that he had a good attitude. She did

testify, however, that L.G. associated with some gang members but that he

was not a member himself. L.G.’s father testified that this was L.G.’s first

offense and that he would ensure that L.G. complied with the terms of

probation.

3
… Under the determinate sentencing framework, the juvenile court may
commit the juvenile to the custody of the Texas Youth Commission (“TYC”)
with the possibility of a later transfer to prison. T EX. F AM. C ODE A NN. §
54.04(d)(3) (Vernon Supp. 2008).

3
 L.G. testified that if the trial court placed him on probation he would

comply with all terms and conditions, abide by any drug testing program, and

stay away from the victims. He also testified that he had no problems at home

or school and that he understood the need to complete his education.

At the conclusion of the evidence, L.G.’s attorney requested that the

court accept the juvenile department’s recommendation of community

supervision. The State did not recommend a disposition.

The trial court committed L.G. to TYC’s custody for four years, with a

possible transfer to the Institutional Division of the Texas Department of

Criminal Justice (“TDCJ”). This appeal followed.

III. Standard of Review

Juveniles are entitled to effective assistance of counsel, and such a claim

should be reviewed under the Strickland standard. Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); In re R.D.B., 102 S.W.3d

798, 800 (Tex. App.—Fort Worth 2003, no pet.). To establish ineffective

assistance of counsel, an appellant must show by a preponderance of the

evidence: (1) that his counsel’s representation fell below the standard of

prevailing professional norms; and (2) that there is a reasonable probability that,

but for counsel’s deficiency, the result of the trial would have been different.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Salinas v. State, 163 S.W.3d

4
734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62–63

(Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

App. 1999); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App.

1999).

In evaluating the effectiveness of counsel under the first Strickland prong,

we look to the totality of the representation and the particular circumstances

of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s

assistance was reasonable under all the circumstances and prevailing

professional norms at the time of the alleged error. See Strickland, 466 U.S.

at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that

counsel’s conduct fell within a wide range of reasonable representation.

Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63.

A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at

813–14. “In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel’s actions.”

Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome

the presumption of reasonable professional assistance, “any allegation of

ineffectiveness must be firmly founded in the record, and the record must

5
affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson,

9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer

ineffective assistance based upon unclear portions of the record. Mata v.

State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial

whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In

other words, the appellant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability

is a probability sufficient to undermine confidence in the outcome. Id., 104 S.

Ct. at 2068. The ultimate focus of our inquiry must be on the fundamental

fairness of the proceeding whose result is being challenged. Id. at 697, 104 S.

Ct. at 2070.

There is no requirement that we approach the two-pronged inquiry of

Strickland in any particular order, or even address both components of the

inquiry if the defendant makes an insufficient showing on one component. Id.,

104 S. Ct. at 2069.

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 IV. Analysis

L.G. argues that he was denied effective assistance of counsel when his

trial counsel advised him to sign the waiver of grand jury approval. He claims

that the advice was an error which no reasonable attorney would make because

it doubled his minimum incarceration time and exposed him to a possible

transfer to the adult prison system.

When a juvenile commits a felony, the juvenile court may impose either

an indeterminate sentence 4 or a determinate sentence. 5 T EX. F AM. C ODE A NN.

4
… When a juvenile court imposes an indeterminate sentence, it may only
commit the child to the custody of TYC, and TYC must release the child no
later than his nineteenth birthday. T EX. F AM. C ODE A NN. § 54.04(d)(2); T EX.
H UM. R ES. C ODE A NN. § 61.084(e) (Vernon Supp. 2008). When the trial court
imposes an indeterminate sentence for a child who committed aggravated
assault, the term of confinement in a TYC residential facility ranges from twelve
months to the child’s nineteenth birthday. T EX. H UM. R ES. C ODE A NN. §
61.084(e); 37 T EX. A DMIN. C ODE § 85.23(d)(3) (2006) (Tex. Youth Comm’n,
Classification); 37 T EX. A DMIN. C ODE § 85.25(d)(3) (2005) (Tex. Youth Comm’n,
Classification, Minimum Length of Stay).
5
… A child who receives a determinate sentence is committed to TYC’s
custody initially. See T EX. F AM. C ODE A NN. § 54.04(d)(3); T EX. H UM. R ES. C ODE
A NN. § 61.079 (Vernon Supp. 2008). Between the child’s sixteenth and
nineteenth birthdays, at TYC’s request the trial court may hold a hearing to
determine if the juvenile should be transferred to TDCJ or remain in the custody
of TYC. T EX. F AM. C ODE A NN. § 54.11(i); T EX. H UM. R ES. C ODE A NN. §
61.079(a). If a court has not already transferred the juvenile, TYC must
transfer anyone in its custody who has not completed his sentence to TDCJ on
his nineteenth birthday, and must release anyone in its custody who has
completed his sentence. T EX. H UM. R ES. C ODE A NN. § 61.084(b), (e).

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§ 54.04(d)(2)–(3). If a child committed aggravated assault, under an

indeterminate sentence he would spend at least one year in a TYC residential

facility, but TYC would have to release him no later than his nineteenth

birthday. Id. § 54.04(d)(2); T EX. H UM. R ES. C ODE A NN. § 61.084(e). That same

child, under a determinate sentence, would serve a two-to-twenty-year

sentence, initially at a TYC residential facility, with a possible transfer to TDCJ.

T EX. F AM. C ODE A NN. § 54.04(d)(3)(B); T EX. P ENAL C ODE A NN. § 22.02; 37 T EX.

A DMIN. C ODE § 85.25(c)(2)(B).

A trial court lacks the authority to impose a determinate sentence unless

the State presents its petition to the grand jury, and the grand jury approves it.

T EX. F AM. C ODE A NN. §§ 53.045, 54.04(d)(3); S.J., 977 S.W.2d at 149; In re

H.V.R., 974 S.W.2d 213, 215 (Tex. App.—San Antonio 1998, no pet.). If the

State obtains grand jury approval in accordance with section 53.045, then the

petition is deemed an indictment, allowing the juvenile to be transferred from

TYC to TDCJ. S.J., 977 S.W.2d at 149. However, a juvenile may waive his

The following steps must usually be taken in order for a court to impose
a determinate sentence: (1) the State’s petition must allege that the juvenile
committed one of the crimes enumerated in section 53.045(a); (2) the State
must refer the petition to the grand jury; (3) the grand jury must approve the
petition by a vote of at least nine jurors; (4) the approval by the grand jury must
be certified to the court; and (5) the certification must be entered in the record.
T EX. F AM. C ODE A NN. §§ 53.045, 54.04(d)(3); In re S.J., 977 S.W.2d 147, 149
(Tex. App.—San Antonio 1998, no pet.).

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right to grand jury approval if all statutory and constitutional requirements are

satisfied. In re A.R.A., 898 S.W.2d 14, 15–16 (Tex. App.—Austin 1995, no

writ).6

The trial court found that L.G. committed two counts of aggravated

assault, a second degree felony making him eligible for a determinate sentence.

See T EX. F AM. C ODE A NN. § 53.045(a)(6); T EX. P ENAL C ODE A NN. § 22.02. The

State, for reasons not found in the record, did not present its petition to the

grand jury for approval. However, L.G., his trial counsel, and one of his parents

signed a waiver of grand jury approval prior to the trial, giving the trial court the

power to impose a determinate sentence of four years in the custody of TYC

with a possible transfer to TDCJ. A.R.A., 898 S.W.2d at 15–16. L.G. argues

that his trial counsel’s advice to sign the waiver constituted ineffective

6
… See also William B. Connolly, “Same Difference”–Determinate
Sentencing, in S TATE B AR OF T EX. J UV. L. S EC., N UTS AND B OLTS OF J UVENILE L AW ,
8 (Aug. 2005) (stating that the “juvenile and counsel can waive presentation
and g ra n d ju ry approval of the p e t it io n ” ) , a v a ila b le at
http://www.juvenilelaw.org/Articles/2005/NB/Connolly.pdf; Hon. Jean Boyd,
Certification v. Determine Sentence, in S TATE B AR OF T EX. J UV. L. S EC., 16 TH
A NNUAL J UV. L AW C ONF., 6 (Feb. 2003) (stating that “the juvenile may waive his
right to grand jury approval so long as the formal requirements of Family code
5 1 . 0 9 a r e m e t ” ) , a v a i l a b l e a t
http://www.juvenilelaw.org/Articles/2003/CertificationDeterminateSentence.
pdf.

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assistance of counsel because the waiver enabled the trial court to impose a

determinate sentence when the State only sought an indeterminate sentence.

A. Validity of the Waiver

Within the discussion of his issue, L.G. challenges the validity of the

waiver by asserting that he did not understand the consequences of waiving

grand jury approval. A juvenile may waive the requirement of presentation to

the grand jury if:

(1) the waiver is made by the child and the attorney for the child;

(2) the child and the attorney waiving the right are informed of and
understand the right and the possible consequences of waiving it;

(3) the waiver is voluntary; and

(4) the waiver is made in writing or in court proceedings that are
recorded.

T EX. F AM. C ODE A NN. § 51.09 (Vernon 2002); A.R.A., 898 S.W.2d at 16.

L.G. concedes that he, his attorney, and one of his parents signed the

waiver and that the trial court acknowledged the signed waiver in open court.

By signing the document, he acknowledged that he was “informed of and

underst[ood his] right to have this matter presented to the Grand Jury,” and

that he “waive[d] the right to have the Grand Jury approve the Petition and

respectfully request[ed] and consent[ed] that the trial proceed upon the Petition

10
as filed and to accept a Determinate Sentence waiving the requirement of

Grand Jury Approval.”

L.G. argues that the waiver he signed does not adequately explain the

“intricacies of the determinate sentencing statute.” Texas law requires that the

child and attorney are “informed of and understand the right and the possible

consequences of waiving” that right. T EX. F AM. C ODE A NN. § 51.09(2). There

is no showing in the record that L.G. did not understand the possible

consequences of waiving his right to grand jury approval.

L.G. further argues that the trial court’s admonishment at the beginning

of the adjudication hearing did not expand his knowledge. The trial court

explained the right of grand jury approval and the consequences of waiving that

right in the following exchange:

THE COURT: Now, the Court makes note that you have signed and
your attorney has signed and also your parents a waiver of grand
jury approval?

[APPELLANT:] Yes, ma’am.

THE COURT: These are second-degree felonies; is that correct?

[THE STATE:] That’s correct, Your Honor.

THE COURT: Now, [L.G.], what that means is the State in this case
has a right to take this petition to the grand jury and seek grand
jury approval. And if the grand jury gives the State approval in this

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 case, then the possible sentence would be increased with this law
violation if you were found to have violated this law.

It’s my understanding that the district attorney has not gone
before the grand jury to seek approval, but you and your attorney
have discussed this matter and you’ve each signed this paper
saying that you would like to give up your right to have the grand
jury approve your petition and that, instead, you’d like to agree that
this Court should consider your petition as if it’s been approved by
the grand jury, which would increase the sentencing possibilities in
this case since this is a second-degree felony up to a possibility of
a 20-year sentence.

Do you understand that?

[APPELLANT:] Yes, ma’am.

From this exchange, L.G. knew that the State was required to obtain

grand jury approval of its petition before the court could impose an increased

sentence of up to twenty years and that the waiver relieved the State from its

burden of obtaining grand jury approval. The trial court informed L.G. that he

faced a greater sentence if the grand jury approved the petition or if he waived

that requirement than he would without the grand jury approval or waiver. L.G.

indicated that he and his trial counsel had discussed the waiver and that he

understood the court’s admonishment.

We hold that L.G. and his attorney were informed of and understood the

right of grand jury approval and the possible consequences of waiving that right

because L.G. and his attorney signed the waiver stating that they were

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informed of and understood the right; the trial court clearly informed L.G. in the

presence of his attorney of his right; the trial court informed L.G. that he faced

an increased sentence of up to twenty years if he waived this right; and L.G.

told the trial court that he understood the admonishment. See In re B.J., 960

S.W.2d 216, 220 (Tex. App.— San Antonio 1997, no pet.) (holding that the

court’s admonishment was ineffective and that the juvenile’s plea of true was

invalid when the court’s admonishment failed to inform the juvenile that, by

pleading true, he faced a sentence of up to forty years); In re R.W., 694

S.W.2d 578, 579 (Tex. App.—Corpus Christi 1985, no writ) (holding that a

juvenile knowingly, intelligently, and voluntarily waived his right to a jury trial

when he and his attorney signed a written waiver; the trial court admonished

the juvenile in the presence of his attorney that by signing the waiver, he was

giving up the right to have a jury decide his case; and the juvenile affirmatively

acknowledged that he understood and desired to waive that right). Therefore,

we hold that L.G. effectively waived his right to grand jury approval. See T EX.

F AM. C ODE A NN. § 51.09.

B. Ineffective Assistance of Counsel

L.G. also argues that he was denied effective assistance of counsel when

his trial counsel advised him to sign the waiver of grand jury approval prior to

13
the adjudication hearing because it doubled his minimum time of incarceration

and exposed him to a potential transfer to the adult prison system.

In order to prove the first prong, L.G. must show that his trial counsel’s

representation fell below the standard of prevailing professional norms. See

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Salinas, 163 S.W.3d at 740.

A strong presumption of reasonable professional assistance exists, and “any

allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.” Thompson,

9 S.W.3d at 814. Ineffective assistance of counsel claims are rarely successful

on direct appeal because of the undeveloped record. Id. at 813–14.

When an appellant raises an ineffective assistance of counsel claim based

on erroneous advice from his counsel, he must show that his decision was

based on his attorney’s advice and that, but for his attorney’s advice, he would

have made a different decision. State v. Recer, 815 S.W.2d 730, 731–32

(Tex. Crim. App. 1991). The record does not show whether L.G. waived grand

jury approval because of counsel’s advice, or whether he waived it against his

counsel’s advice. Therefore, we conclude that L.G.’s trial counsel did not

provide ineffective assistance by advising L.G. to waive grand jury approval.

See id. at 732 (declining to find that counsel’s advice was ineffective

assistance of counsel when the record did not reflect whether appellant waived

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a jury trial solely because of counsel’s advice); Flanagan v. State, 675 S.W.2d

734, 747 (Tex. Crim. App. 1984) (declining to find ineffective assistance of

counsel based on counsel’s advice because “[a]lthough the record reflects that

appellant waived his right to a jury trial, nothing in the record reflects whether

this waiver was made on counsel’s suggestion or at appellant’s insistence”).

Moreover, even if we assume that L.G. waived his right solely based on

his counsel’s advice, the record does not reflect, nor does L.G. allege, that he

was misinformed of the consequences of waiving his right to the grand jury.

The trial court clearly explained that waiving grand jury approval exposed L.G.

to an increased sentence, and L.G. stated that he understood his right and the

consequences of waiving it. While L.G. alleges that his counsel took no action

to ensure that L.G. understood the consequences of the waiver, there is no

evidence in the record that counsel did not so inform him. In fact, L.G. did not

disagree when the trial court stated, “[Y]ou and your attorney have discussed

this matter.” Therefore, because the trial court correctly informed L.G. of the

consequences of the waiver, because L.G. indicated that his counsel had

discussed the waiver with him, and because nothing in the record shows that

counsel misinformed L.G. of the consequences of the waiver, we cannot say

that he was denied effective assistance of counsel. See Riplowski v. State, 61

S.W.3d 378, 391 (Tex. Crim. App. 2001) (holding that counsel’s advice is not

15
ineffective assistance of counsel when “[a]ppellant received exactly what

counsel told him he would get”), cert. denied, 539 U.S. 916 (2003); Thacker

v. State, 999 S.W.2d 56, 69 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d) (holding that trial counsel’s advice to waive a right is not ineffective

assistance of counsel when the appellant presents no evidence that the waiver

is involuntary or that the trial counsel did not advise him of the consequences

of the waiver).

This case demonstrates the difficulties inherent in evaluating ineffective

assistance claims on direct appeal because the record does not show the

circumstances or reasons behind the waiver, nor does it “affirmatively

demonstrate the alleged ineffectiveness.” See Thompson, 9 S.W.3d at 814.

Therefore L.G. cannot present evidence that his trial counsel’s actions were

deficient to defeat the presumption of reasonable professional assistance. See

id.

Because nothing in the record shows that L.G.’s trial counsel’s conduct

was unreasonable or fell below the standard of prevailing professional norms,

we overrule L.G.’s sole point. See Strickland, 466 U.S. at 694, 104 S. Ct. at

2052.

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 V. Conclusion

Having overruled L.G.’s sole point, we affirm the judgment of the trial

court.

PER CURIAM

PANEL: MCCOY, J.; CAYCE, C.J.; and LIVINGSTON, J.

DELIVERED: August 28, 2008

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