IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JUNE 17, 2003
______________________________
IN THE MATTER OF R. F.
_________________________________
FROM THE 317TH DISTRICT COURT OF JEFFERSON COUNTY,
SITTING AS A JUVENILE COURT;
NO. 8649-J; HONORABLE LARRY THORNE, JUDGE
_______________________________
MEMORANDUM OPINION (1)
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Following a modification of disposition hearing and judgment and order of commitment, appellant, R.F., a juvenile, was found to have engaged in delinquent conduct and committed to the Texas Youth Commission for an indeterminate period. By a sole issue, he contends his rights to due process and due course of law were violated because the trial court failed to admonish him regarding the immigration consequences of his plea of true. Based upon the rationale expressed herein, we affirm.
After finding that appellant had engaged in delinquent conduct and was in need of rehabilitation, on November 1, 2000, the trial court placed him on probation. On April 26, 2001, pursuant to the State's petition to modify disposition, the trial court found that appellant violated the conditions of probation and signed a judgment extending probation and placing him in the Intensive Supervision Program. Following a hearing on the State's second petition to modify disposition for further violations of probation and appellant's plea of true, the trial court signed a judgment and order committing appellant to the Texas Youth Commission for an indeterminate period.
By his sole contention, appellant argues his rights were violated by the trial court's failure to admonish him as required by section 54.03 of the Texas Family Code and article 26.13 of the Texas Code of Criminal Procedure. Specifically, he asserts he was not admonished that his plea of true could subject him to deportation. We disagree.
Juvenile proceedings are civil in nature. Carrillo v. State, 480 S.W.2d 612, 615 (Tex. 1972); see also Tex. Fam. Code Ann. § 51.13(a) (providing that generally an order of adjudication or disposition pursuant to the Juvenile Justice Code is not a conviction of crime). Section 54.03 of the Code provides that the trial court admonish a juvenile and his parent, guardian, or guardian ad litem as follows:
(1) the allegations made against the child;
(2) the nature and possible consequences of the proceedings, including the law relating to the admissibility of the record of a juvenile court adjudication in a criminal proceeding;
(3) the child's privilege against self-incrimination;
(4) the child's right to trial and to confrontation of witnesses;
(5) the child's right to representation by an attorney if he is not already represented; and
(6) the child's right to trial by jury.
Absent from the required admonishments in a juvenile proceeding is the possibility of deportation upon a plea of true. However, appellant argues that because juvenile proceedings are quasi-criminal in nature, the admonishments required by article 26.13(a) are also mandatory, specifically subsection (a)(4) providing that a plea of guilty or nolo contendere may result in deportation.
Delinquency proceedings are civil in nature and the Code of Criminal Procedure does not apply. Robinson v. State, 707 S.W.2d 47, 48-49 (Tex.Cr.App. 1986); see also Ex parte Brosky, 863 S.W.2d 775 (Tex.App.-Fort Worth 1993, no pet.). Furthermore, as pointed out by the State, a juvenile does not enter a plea of guilty or nolo contendere. We have not overlooked appellant's reliance on In re E.J.G.P., 5 S.W.3d 868 (Tex.App.-El Paso 1999, no pet.). However, our sister court was unable to find a case holding that possible deportation is a mandatory admonishment in a juvenile proceeding and instead, looked to criminal law to analyze the issue. It concluded that possible deportation is a collateral consequence of a plea of which a defendant need not be advised because it is civil and administered by an independent agency over which a trial judge has no control. Id. at 872. Thus, we conclude the trial court's failure to admonish appellant regarding deportation consequences in a juvenile proceeding did not violate his due process rights. Appellant's sole issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
1. Tex. R. App. P. 47.2(a).
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NO. 07-10-00193-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 14, 2011
MALCOLM DEAN SCOTT, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B18075-0906; HONORABLE EDWARD LEE SELF, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Malcolm Dean Scott, was convicted by jury of aggravated robbery.[1] As punishment, appellant was sentenced to life imprisonment. Appellant now appeals challenging the sufficiency of the evidence, the trial courts exclusion of evidence of appellants acquittal in a previous robbery trial, and the effectiveness of his trial counsel. We will affirm the trial courts judgment.
Factual and Procedural History
On May 14, 2009, Annadell Quebe was watching television when a man forcibly entered her home and ran upstairs. The intruder was wearing a ski-mask-like thing and gloves and carrying a handgun. The intruder returned to the first floor and demanded Quebes rings. He forcibly removed the rings from her hands and fled the home. Quebe then called the Plainview police.
That same night in the same neighborhood, Vicki Ballard was visiting her sisters home. Ballard was in the garage when a man entered and held a gun to her head. Ballard described the man as wearing a dark-colored greenish toboggan over his face, dark clothing, and gloves. The man attempted to pull Ballard toward the house and threatened to shoot her. She struggled with the man and screamed. The intruder struck her in the head with the gun and then fled the garage.
The neighboring Brooks family heard the commotion and Ballards distress and came to her aid. Officer Mike Hurst responded to their 911 call. Hurst and other PPD officers began to investigate and learned that Robert Brooks had seen a tan Cadillac driving through the neighborhood earlier that evening. Neighborhood residents Cynthia and Leah Olson informed officers that they had also seen a tan Cadillac in the neighborhood on their evening walk. They first saw the Cadillac when it turned its headlights off and parked on a residential road. Before the Olsons got home, they saw the Cadillac again. This time, the Cadillac was about a block away from them. When the car turned around and began heading in their direction, the Olsons rushed home where, a short time later, an unidentified person attempted to gain entry into their home.
Hurst had also noted a tan Cadillac on his way to respond to the emergency call. As he drove to Ballards neighborhood, he had seen a tan Cadillac in an otherwise empty parking lot and had noted that it seemed out of place. Responding to an urgent call and not yet aware that this vehicle may be connected to the home invasions, Hurst continued without further investigation of the suspicious vehicle in the parking lot.
While these events were occurring in Plainview, PPD Detective Cindy Vera and Officer Dustin Waters were returning to Plainview after dropping off a juvenile at a facility in Lubbock. Vera heard the radio traffic about the robberies and contacted Hurst and her supervisor, Manuel Balderas. Vera and Waters were instructed to watch for a tan Cadillac while en route back to Plainview.
Soon after receiving this instruction, Vera and Waters noticed a tan Cadillac headed south on Interstate 27. The officers turned around to follow the vehicle. Vera called the license plate number of the Cadillac in to dispatch. Appellant was the registered owner of the vehicle. When Vera and Waters caught up to the vehicle, they observed two occupants. As the officers pulled up alongside the car, Vera was able to get a clear view of the driver. Because the officers were approaching Lubbock and losing radio communication with PPD dispatch and because Vera was not wearing proper safety gear to confront likely armed suspects, the officers sought assistance from the Lubbock Police Department. The LPD obliged and set up a perimeter around appellants listed address.
Upon arriving in Lubbock and while still being followed by Vera and Waters, the Cadillac exited the freeway, re-entered, and then exited again before Vera and Waters lost track of the car in a residential neighborhood. Officer Jacob Flores of the LPD was dispatched to the Beech Street address listed on the cars registration. The Cadillac arrived at the address, and, as Flores approached the residence, the two black males exiting the vehicle saw him and fled on foot. Although he eluded police that evening, appellant was later arrested.
A search of the vehicle on the night of May 14th yielded evidence connecting the vehicle and its occupants to the Plainview robberies. Vera recovered a toboggan/ski mask that matched Ballards description. She also recovered appellants wallet, including his state-issued identification card. From the identification card photograph, Vera confirmed that it was appellant whom she had seen driving the vehicle earlier. Further, some jewelry was recovered from inside the car but this jewelry could not be connected to Ballard.
Appellant was charged with aggravated robbery in connection with the attack on Ballard. After hearing evidence, the Hale County jury found appellant guilty of aggravated robbery. Appellant pleaded true to the States enhancement allegations. After hearing punishment evidence, the jury assessed punishment at life imprisonment. This appeal followed. Appellant brings to this Court three issues: sufficiency of the evidence, exclusion of evidence, and ineffective assistance of counsel.
Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence to sustain his conviction.
Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). [O]nly that evidence which is sufficient in character, weight, and amount to justify a factfinder in concluding that every element of the offense has been proven beyond a reasonable doubt is adequate to support a conviction. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful that [t]here is no higher burden of proof in any trial, criminal or civil, and there is no higher standard of appellate review than the standard mandated by Jackson. Id. (Cochran, J., concurring). When reviewing all of the evidence under the Jackson standard of review, the ultimate question is whether the jurys finding of guilt was a rational finding. See id. at 906, 907 n.26 (discussing Judge Cochrans dissenting opinion in Watson v. State, 204 S.W.3d 404, 44850 (Tex.Crim.App. 2006), as outlining the proper application of a single evidentiary standard of review). [T]he reviewing court is required to defer to the jurys credibility and weight determinations because the jury is the sole judge of the witnesses credibility and the weight to be given their testimony. Id. at 899.
Analysis
A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he or she (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02. The offense becomes the first-degree felony offense of aggravated robbery when the actor, inter alia, uses or exhibits a deadly weapon. Id. § 29.03(a)(2).
Appellants contention focuses on the identity element of the offense. Specifically, appellant claims that there is insufficient evidence connecting him to the location where Ballard was attacked. However, the jury heard evidence that at least three neighborhood residents saw a tan Cadillac driving around Ballards neighborhood that evening. Officer Hurst testified that he, too, saw the vehicle in the neighborhood as he responded to the emergency calls but was unaware, at that time, of the vehicles significance. A vehicle of the same color, make, and model and registered to appellant was located on the highway heading away from Plainview and toward Lubbock in the relevant time frame. Detective Vera identified appellant as the driver. The Cadillac returned to appellants address.
Ballard identified the toboggan later found in appellants car as the same type of toboggan worn by the man who attacked her. The search of appellants vehicle also yielded appellants wallet containing his identification card, further connecting appellant to the vehicle. Ballard testified that, when she was shown a videotaped interview with appellant, she recognized his voice from that night. Joe Trawicki, custodian of records and former electronic surveillance team member for a national cell phone service provider, explained that detailed information from cell phone towers placed appellants cell phone in Plainview at times near the time of the Ballard robbery.
From our review of the evidence in the light most favorable to the verdict, we cannot say the jurys finding of guilt beyond a reasonable doubt was an irrational one. Accordingly, we overrule appellants issue.
Exclusion of Evidence of Previous Acquittal
Appellant contends that the trial court abused its discretion when it excluded evidence that appellant had been acquitted in a previous trial on charges related to the Quebe robbery.
Standard of Review
We review a trial courts decision to admit or exclude evidence for abuse of discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App. 2006). A trial court does not abuse its discretion if its decision is within the zone of reasonable disagreement. See Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on rehg). We will sustain the trial courts decision if that decision is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).
Analysis
Well after admission of evidence relating to the Quebe robbery, appellant unsuccessfully sought to introduce testimony from a PPD officer relating to appellants previous acquittal of the Quebe robbery. At trial, appellant sought admission of the acquittal on the basis that such evidence was necessary to cure the harm of allowing the jury to consider evidence of the Quebe robbery without knowing that appellant had been acquitted. Looking at the context of his contention at trial, we see that he cast his position in terms of collateral estoppel, arguing that collateral estoppel would apply to bar both re-litigation of the Quebe robbery and, by his argument, admission of evidence connecting appellant to the Quebe robbery.[2] From this context, we take trial counsels contention as one advancing the position that admission of evidence of the Quebe robbery was harmful error, and that evidence of acquittal was admissible to cure this harmful error.
On appeal, appellant relies exclusively on Kerbyson v. State, 711 S.W.2d 289 (Tex.App.Dallas 1986, pet. refd), to support his contention. In Kerbyson, the appellant was convicted of criminal mischief. Id. at 289. Over appellants objection, the trial court admitted evidence of an extraneous offense of theft for which the appellant had been acquitted. Id. at 290. Having found that the trial court erred in admitting evidence of the theft, the Dallas court reversed the criminal mischief conviction and remanded for a new trial. Id. It would appear from appellants reliance on Kerbyson that he contends evidence of the acquittal was relevant upon admission of extraneous offense evidence which, though he lodged no objection, was erroneously admitted.
The arguments underlying appellants theory of admissibility below and his contention on appeal seem to be distinct arguments. That is, at trial, appellant advanced the argument that the acquittal evidence was necessary to cure the error committed when the trial court admitted evidence of the robbery even though admission of such evidence was barred by collateral estoppel. However, on appeal, it would appear that appellant contends the acquittal evidence was relevant to explain or rebut the evidence related to an extraneous offense. Arguably, the acquittal may have been relevant but we are not convinced that the trial court was presented with this contention; appellant sought admission of the evidence as a curative measure to unobjected-to error. Based on our reading of his contentions, appellants complaint on appeal does not appear to comport with the theory of admissibility he advanced at trial. See Tex. R. App. P. 33.1; Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009) (concluding that complaint on appeal must comport with the complaint made at trial). That being so, we conclude that appellant has not preserved his appellate complaint for our review. See Martinez v. State, 91 S.W.3d 331, 336 (Tex.Crim.App. 2002) (pointing out that appellate courts may uphold a trial courts ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial courts ruling on any theory or basis that might have been applicable but was not raised). Accordingly, we overrule appellants issue.
Effectiveness of Counsel
By his final issue, appellant contends that trial counsels failures in voir dire and at trial rendered his assistance ineffective. The United States Constitutions guarantee of the right to counsel encompasses the right to effective assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). Included in the constitutionally guaranteed right to effective assistance of counsel is the right to question prospective jurors in order to intelligently and effectually exercise peremptory challenges and challenges for cause during the jury selection process. See Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Crim.App. 1990).
Applicable Law and Standard of Review
In determining whether counsels representation was so inadequate as to violate a defendants Sixth Amendment right to counsel, Texas courts apply the two-pronged test enunciated in Strickland, 466 U.S. at 687. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). Judicial review of an ineffective assistance of counsel claim must be highly deferential, and there is a strong presumption that counsels conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. An appellant bears the burden of proving by a preponderance of the evidence that (1) counsels representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the appellant. Freeman v. State, 125 S.W.3d 505, 511 (Tex.Crim.App. 2003). Failure to make the required showing of either deficient performance or sufficient prejudice is fatal to an ineffectiveness claim. See id.
In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsels actions.[3] Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). The Texas Court of Criminal Appeals has recognized that appellate courts can rarely decide the issue of ineffective assistance of counsel because the appellate record rarely speaks to the strategic reasons that counsel may have considered. Aldrich, 104 S.W.3d at 896. Only rarely, when trial counsels ineffectiveness is so apparent from the record, may an appellants ineffective assistance claim prevail on direct appeal. Freeman, 125 S.W.3d at 507 (quoting Massaro v. United States, 538 U.S. 500, 155 L.Ed. 2d 714, 123 S.Ct. 1690 (2003)). Reviewing courts commonly assume a strategic motive if any can be imagined and will conclude that counsels performance was deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005).
Analysis
With respect to appellants contentions regarding trial counsels failure to ask follow-up question during voir dire, we conclude that appellant has failed to show that counsels performance fell below an objective standard of reasonableness. Trial counsels questions during voir dire may be dictated by trial strategy. Jackson v. State, 491 S.W.2d 155, 156 (Tex.Crim.App. 1973). Trial counsels failure to ask questions appellate counsel deems important does not mean that trial counsels performance was deficient. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). In fact, the failure to ask any questions during voir dire may be a reasonable trial strategy when trial counsel believed that the States questions addressed his concerns. See id. The Texas Court of Criminal Appeals reiterated that, when looking at an ineffective assistance claim based on voir dire examination, the failure to ask certain questionsor any questionsmust amount to behavior that is so outrageous, no competent attorney would have engaged in it. Id. at 392. Especially when the complained-of questions involved subject matter that has already been covered, the decision to forego posing questions on the same subject may be characterized as sound trial strategy. See id.; Beck v. State, 976 S.W.2d 265, 267 (Tex.App.Amarillo 1998, pet. refd); Williams v. State, 970 S.W.2d 182, 184 (Tex.App.Houston [14th Dist.] 1998, pet. refd).
Appellant maintains that trial counsel should have asked follow-up questions regarding potential biases or prejudices on punishment issues. The record reveals that the State engaged in a fairly extensive, five-and-a-half-page exchange on general punishment issues including the bifurcated nature of the trial and the distinctions between the issues and evidence covered in each phase of the trial. From the States thorough discussion of and examination on punishment issues and the panels answers to the States questions, trial counsel could have been reasonably satisfied that punishment issues had been adequately explored. Further, our review of trial counsels questions during voir dire reveals a rather extensive examination on issues other than punishment-related biases or prejudices. That trial counsel chose to focus his examination on other issues, including attitudes toward crime and issues concerning the credibility of eyewitnesses and investigation techniques, is a reasonable trial strategy which we will not second-guess on appeal. See Beck, 976 S.W.2d at 267.
During the States voir dire examination, it was revealed that several prospective jurors had some knowledge of or some relationship with identified witnesses in the trial. Appellant focuses on the answers of two venire members who later served on the jury. One venireperson explained that Leah Olson was a good friend of the venirepersons daughter but explained that she did not think it would cause any problems. The State continued to explore the impact of the relationship between venireperson and witness: [W]ould you be able to judge those peoples testimony as you would anybody else, judge their credibility as to how they testify here in the trial? The venireperson answered affirmatively. Another venireperson explained that she knew Cynthia Olson from church but answered no when asked whether that relationship would cause her a problem with sitting on the jury. Again, both venire members ultimately sat on the jury.
The record establishes that the State explored the impact of the relationships between the venire members and witnesses. Trial counsel could have reasonably concluded that the States questions and the venire members answers on the matter gave fair assurance that the venire members would not be biased by their knowledge of or relationship with the witnesses. See Goodspeed, 187 S.W.3d at 392; Beck, 976 S.W.2d at 267. Trial counsel may have been satisfied with the venire members unequivocal answers to the States questions and may have chosen to spend his time and effort during voir dire on other matters he deemed more relevant and yet unexplored. In fact, trial counsel explained in his introductory remarks to the venire that he intended to do just that: Im going to also try not to cover over the same topic [the States attorney] covered; sometimes I will. Again, trial counsels voir dire examination appears thorough, and we will not review his decisions in hindsight to conclude that he should have revisited issues already covered during voir dire. See Beck, 976 S.W.2d at 267 (refusing to undertake the task of micromanaging trial counsels actions).
Next, we address the claim that trial counsels performance was rendered deficient by his failure to object to evidence of the Quebe robbery. As the record suggests, counsel may have anticipated being able to introduce evidence of the acquittal on charges related to the Quebe robbery. Though, ultimately, such strategy was unsuccessful, we cannot say that such an attempt was not a reasonable trial strategy. The record could be read to support the contention that trial counsels best chance at getting in the acquittal was to permit the incriminating evidence in first. Because we can imagine at least a plausible, albeit ultimately unsuccessful, trial strategy, we cannot conclude that trial counsels performance fell below an objective standard of reasonableness. See Ex parte Ellis, 233 S.W.3d 324, 331 (Tex.Crim.App. 2007) (observing that defensive course was risky but was not so unreasonable that no trial attorney would pursue such a course).
Given that trial counsels actions could have been reasonably construed as trial strategy, the record does not affirmatively demonstrate ineffectiveness of counsel, and we overrule appellants final issue.
Conclusion
Having overruled appellants issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
Pirtle, J., concurring.
[1] See Tex. Penal Code Ann. §§ 29.02, 29.03 (West 2003).
[2] We note that appellant made no objection, in terms of collateral estoppel or otherwise, to admission of evidence related to the Quebe robbery. Collateral estoppel is generally employed in this situation as a basis for excluding evidence of an extraneous offense. That is, generally speaking, evidence of an extraneous offense for which a defendant has been acquitted has generally been held inadmissible under the Double Jeopardy Clause of the United States and Texas constitutions and under the doctrine of collateral estoppel. See Ashe v. Swenson, 397 U.S. 436, 44546, 90 S.Ct. 1189, 25 L.Ed. 2d 469 (1970); Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App. [Panel Op.] 1981). However, evidence of an extraneous offense for which a defendant has been acquitted may be introduced into evidence against the defendant in a subsequent trial where the prior acquittal did not determine an ultimate issue in the subsequent case. Dowling v. United States, 493 U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed. 2d 708 (1990); Dunklin v. State, 194 S.W.3d 14, 24 (Tex.App.Tyler 2006, no pet.).
[3] The proper vehicle for raising such a claim is almost always an application for writ of habeas corpus. Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003).