In the Matter of K.J.O., 05-99-01070-CV

• Decision Date: 12 September 2000
• Docket Number: No. 05-99-01070-CV,05-99-01070-CV
• Citation: 27 S.W.3d 340
• Parties: (Tex.App.-Dallas 2000) IN THE MATTER OF K.J.O
• Court: Texas Court of Appeals

Page 340

27 S.W.3d 340 (Tex.App.-Dallas 2000)

IN THE MATTER OF K.J.O.

No. 05-99-01070-CV

In The Court of Appeals Fifth District of Texas at Dallas

September 12, 2000

On Appeal from the 304th District Court Dallas County, Texas Trial Court Cause No. JD-46160-W

Before Justices Kinkeade, Wright, and Bridges

OPINION

Opinion By Justice Bridges

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 whoattempted 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 (1967). The right to representation includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (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 theeffectiveness 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 [1st 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., 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,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).

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...