Jaubert v. State
| Decision Date | 15 March 2000 |
| Docket Number | No. 10-99-094-CR.,No. 10-99-090-CR.,No. 10-99-093-CR.,No. 10-99-091-CR.,No. 10-99-092-CR.,10-99-090-CR.,10-99-091-CR.,10-99-092-CR.,10-99-093-CR.,10-99-094-CR. |
| Citation | 65 S.W.3d 73 |
| Parties | James Harmon JAUBERT, Jr., aka James Harmon, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Louis E. Sturns, Arlington, for appellant.
Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Asst. Dist. Atty., Fort Worth, for appellee.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
James Jaubert, Jr., was charged with one count of murder and four counts of attempted murder. See Tex. Pen.Code Ann. §§ 19.02, 15.01 (Vernon 1994). He pled guilty to each charge and elected to have a jury assess punishment. Jaubert was sentenced to sixty years for the murder charge, twenty years for one attempted murder charge, and ten years for each additional attempted murder charge. He appeals, asserting only that he received ineffective assistance of counsel. We will affirm the judgment.
In his sole issue for review, Jaubert contends that his retained trial counsel "failed to render effective assistance of counsel as required by the Sixth Amendment to the U.S. Constitution and by Article 1, Section 10 of the Texas State Constitution." It is undisputed that these claims were not presented to the trial court in a motion for new trial or otherwise. We have determined that ineffective-assistance-of-counsel claims must be presented to the trial court to be preserved for appellate review. Foster v. State, 8 S.W.3d 445, 446 (Tex.App.-Waco 1999, no pet.) (citing Gonzalez v. State, 994 S.W.2d 369, 372-74 (Tex.App.-Waco 1999, no pet.)); TEX. R.APP. P. 33.1(a).
Jaubert's case was transferred to this court by order of the Texas Supreme Court. There are some who argue that we should apply the law of the court from which the case was transferred to cases transferred out of one court of appeals and into another. We disagree. Because this case has been transferred to us, we apply our interpretation of Rule 33.1. Therefore, because this complaint has not been preserved as required by Rule 33.1 and Gonzalez, we overruled Jaubert's complaint.
The judgment of the trial court is affirmed.
This case presents yet another problem created by the transfer of cases from one court of appeals to another under the plan for docket equalization.1 We have now reached the point of substantively altering the procedural due process which a litigant would otherwise obtain. If this case had not been transferred, there is no reason to believe that the Fort Worth Court of Appeals would not have reviewed the merits of the issue presented, ineffective assistance of counsel. However, this court requires preservation of a claim of ineffective assistance of counsel. Because the issue was not preserved, we decline to review the merits of this appeal.
It is a fundamental rule of appellate practice, with very few exceptions, that to complain about something a trial court did, you must have brought it to the attention of the trial court at a time and in a manner that the trial court understood the complaint and had the opportunity to correct it. See Lemons v. EMW Manufacturing, 747 S.W.2d 372, 373 (Tex.1988); Voth v. Felderhoff, 768 S.W.2d 403, 412 (Tex. App.-Fort Worth 1989, writ denied); Blue v. State, 983 S.W.2d 811, 812 (Tex. App.-Houston [1st Dist.] 1998, pet. granted). This rule is currently embodied in the rules of appellate procedure. Tex. R.App. P. 33.1(a). The exceptions to this rule in civil cases are few. Voth, 768 S.W.2d at 412 (fundamental error). Jurisdiction is the issue most often allowed to be raised for the first time on appeal. See id.
However, in criminal cases there has traditionally been much greater latitude in issues that could be raised for the first time on appeal. There seems to be little justification for treating civil cases differently than criminal cases in terms of the need to preserve error at the trial court before it can be reviewed on appeal. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.App. 2000, en banc). However, in criminal cases there are a variety of issues that have traditionally been allowed to be raised for the first time on appeal. One of these traditional areas has been claims of ineffective assistance of counsel.
There are fourteen courts of appeals across Texas. Until we issued the Gonzalez decision not a single court had held that it was necessary to preserve a claim of ineffective assistance of counsel. Gonzalez v. State, 994 S.W.2d 369 (Tex.App.-Waco 1999, no pet.). We have continued to follow the analysis of Gonzalez and the Court of Criminal Appeals has granted a petition for discretionary review in Robinson v. State, No. 10-98-194-CR (Tex. App.-Waco August 25, 1999, pet. granted) (not designated for publication), a case disposed of entirely upon the basis of Gonzalez. Robinson v. State, No. 99-1701 (Tex. Crim.App. December 15, 1999) (). We have also elaborated on our analysis and reasoning in subsequent cases. See Foster v. State, 8 S.W.3d 445 (Tex.App.-Waco 1999, no pet.).
Notwithstanding our belief that Gonzalez and Foster are correct on the issue, they have not, as of yet, obtained universal acceptance. In particular, we have found no opinion from Fort Worth which follows Gonzalez or holds that ineffective assistance of counsel claims must be preserved before they can be presented on appeal. To the contrary, Fort Worth has continued to review ineffective assistance of counsel claims on the merits without discussing the preservation issue. Mallet v. State, 9 S.W.3d 856 (Tex.App.-Fort Worth 2000, no pet.); Wood v. State, 4 S.W.3d 85 (Tex. App.-Fort Worth 1999, no pet.). The case currently before this Court was decided by a Tarrant County District Court. Appeal was taken to the Fort Worth Court of Appeals. By a transfer order from the Supreme Court for the purposes of docket equalization, it was transferred to this Court. The question is: Should we apply the law as we believe it should be across the State of Texas or should we apply the law in the manner we believe Fort Worth would apply it?
Because I am bound by the principle of stare decisis, I must yield my individual opinion to the law as previously announced by this court on transfer cases. We will apply the law as we believe it should be across the state. McLendon v. Department of Public Safety, 985 S.W.2d 571, 576-77 n. 6 (Tex.App.-Waco 1998, pet. filed). In McLendon, under the banner of being non-parochial, this court held that it would apply the law as it saw it, regardless of what some other court of appeals (from where the case originated) had announced it to be. What could be more parochial? Nevertheless, that is the rule under which I must operate at this time, for this case, and until directed otherwise by the high courts of this State. Accordingly, I concur in the majority opinion.
ORDER
On March 15, 2000, we issued an opinion affirming James Jaubert's conviction for one court of murder and four counts of attempted murder. See Tex. Pen. Code Ann. §§ 19.02, 15.01 (Vernon 1994). His only assertion on appeal was ineffective assistance of counsel, which we declined to review on the basis that it had not been preserved in compliance with Rule 33.1. See Tex.R.App.P.33.1. Jaubert filed a petition for discretionary review on April 7. On April 13, the Court of Criminal appeals issued Robinson v. State, holding that compliance with Rule 33.1 is not necessary to bring a claim of ineffective assistance of counsel on appeal. Robinson v. State, 16 S.W.3d 808, 813 (Tex. Crim. App.2000). Thus, we grant rehearing in this cause on our own motion so that we may address the merits of Jaubert's complaint. Tex. R.App. P.50. The original opinion and judgment of March 15, 2000, are withdrawn. Id.1
James Jaubert, Jr. pled guilty to one count of murder and four counts of attempted murder. He elected to have the jury assess punishment. After the punishment hearing, Jaubert was sentenced to sixty years for the murder charge, twenty years for one attempted murder charge, and ten years for each additional attempted murder charge. He appeals, asserting only that trial counsel was ineffective in failing to request that the State give notice of its intent to offer evidence of extraneous offenses or bad acts. We will reverse the judgment and order a new punishment hearing.
On March 15, 2000, we issued an opinion affirming Jaubert's conviction. His only assertion on appeal was ineffective assistance of counsel, which we declined to review on the basis that it had not been preserved in compliance with Rule 33.1. See Tex.R.App. P. 33.1. Jaubert filed a petition for discretionary review on April 7. On April 13, the Court of Criminal Appeals issued Robinson v. State, holding that compliance with Rule 33.1 is not necessary to bring a claim of ineffective assistance of counsel on appeal. Robinson v. State, 16 S.W.3d 808, 813 (Tex.Crim.App. 2000). Thus, we granted rehearing in this cause on our own motion so that we could address the merits of Jaubert's complaint. Tex.R.App. P. 50.
Jaubert and fellow gang-members were involved in three drive-by-shootings in Fort Worth during April 1994 and July 1995. Bullets killed one young man and wounded four others. Jaubert pled guilty to five separate indictments and elected to have a jury assess punishment. During the punishment stage, Jaubert testified about the shootings and presented character evidence from several witnesses. Jaubert argues that he was ambushed when the State repeatedly attempted to elicit...
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