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In re R.R.

Court of Appeals of Texas, Fifth District, Dallas
Dec 23, 2024
No. 05-23-01008-CV (Tex. App. Dec. 23, 2024)

Opinion

05-23-01008-CV

12-23-2024

IN THE MATTER OF R.R., A JUVENILE


On Appeal from the County Court at Law No. 1 Kaufman County, Texas Trial Court Cause No. 22J-084

Before Justices Goldstein, Kennedy, and Rosenberg

The Hon. Barbara Rosenberg, Justice, Assigned

MEMORANDUM OPINION

NANCY KENNEDY, JUSTICE

Appellant R.R. appeals from the trial court's judgment finding that he was a child engaged in delinquent conduct and order imposing a determinate sentence of forty year's confinement, purportedly under the determinate sentence provision of section 54.04 of the Texas Family Code. See TEX. FAM. CODE § 54.04. In his first issue, R.R. argues the trial court erred by imposing a determinate sentence because the State did not receive grand jury approval, file the grand jury's approval in the clerk's record, and obtain certification of the grand jury's approval. See id. § 53.045(d). As part of his first issue, R.R. urges the Order of Commitment for Determinate Sentence ("Order") under section 53.045 does not conform with the pleadings because the petition for adjudication requests he be committed to the Texas Youth Commission for a period not to exceed his nineteenth birthday, and the Order sentences him to forty years' confinement. R.R. also complains the trial court committed reversible error by failing to appoint a guardian ad litem. In his last issue, R.R. argues he received ineffective assistance of counsel from the two attorneys who represented him at trial, as well as the first attorney appointed to represent him on appeal.

We sustain R.R.'s first issue and overrule his complaints regarding any failure to appoint a guardian ad litem as well as his issue regarding effective assistance of counsel. We affirm the portion of the trial court's judgment adjudicating that R. R. engaged in delinquent conduct, reverse the trial court's Order of Commitment for Determinate Sentence, and remand the cause for a new disposition hearing. Because all dispositive issues are settled in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.2(a), 47.4.

Background

On or about May 13, 2022, police responded to reports of a male in possession of a handgun. A witness had reported seeing R.R. showing the handgun to another person before the witness returned to his own residence and heard three shots. R.R. was arrested, processed, and transported to the Gregg County Juvenile Detention Center. On May 19, he was released on court ordered conditions.

On June 14, the State filed an original adjudication petition alleging R.R. was fourteen years old and had engaged in delinquent conduct, namely unlawful carrying of a weapon, a misdemeanor. See TEX. PEN. CODE § 46.02(a)(2)(A).

On or about July 24, R.R. and his brother arranged to buy marijuana from Jada Mosley and Clarence Woods. Woods drove Mosley's car with Mosley in the front passenger seat to meet R.R. and his brother at a residential location in Forney, Texas. R.R. and his brother stood outside on the curb, and Woods drove the car to where they were standing and rolled down the front passenger side window to talk to R.R. and his brother. After R.R. mentioned he was hot, Woods invited him and his brother to sit inside the car in the backseat. Woods became suspicious that R.R. was not going to pay him, so he told R.R. and his brother to get out of the car. After R.R. got out of the car, his brother slid across the backseat to exit, then reached for the marijuana on Woods' lap and simultaneously began shooting into the front seat area at Woods and Mosley. R.R.'s brother eventually abandoned the struggle for the marijuana and got out of the car, and Woods drove off to get help for himself and Mosley, both of whom had been shot.

Mosley, who was five months' pregnant when she was shot, had multiple surgeries and later delivered a healthy child, but her injuries caused permanent paralysis from the waist down. Woods sustained injuries to his lung and ribs, from which he recovered.

On September 8, the State filed a first amended adjudication petition, adding allegations that R.R. had committed additional acts constituting delinquent conduct, namely two counts of aggravated assault with a deadly weapon of Mosely and Woods, second degree felonies. See PEN. § 22.02(a)(2), (b). On October 20, the State filed a second amended adjudication petition, adding allegations that R.R. had committed two counts of aggravated robbery of Mosely and Woods, first degree felonies. See id. 29.03(a)(2), (b). In none of its petitions did the State request the trial court impose a determinate sentence.

R.R.'s mother hired Lloyd V. Harrelson, Jr. to represent both R.R. and his brother. In February 2023, Harrelson later withdrew from representation of R.R., and the trial court appointed a different attorney to represent R.R. Within weeks of that withdrawal and appointment, R.R.'s mother retained Gerald J. Smith, Sr. to represent R.R.

On August 11, 2023, the trial court conducted a pretrial hearing at which R.R. was offered a plea deal of a sentence of ten years for pleading true to the allegations in the State's second amended petition and for testifying against his brother or, alternatively, a sentence of twenty years for pleading true without testifying against his brother. R.R. was advised of the sentence ranges associated with the first-degree and second-degree felonies, but elected to reject the plea deal. The cases proceeded to trial before a jury, who found R.R. had engaged in delinquent conduct, specifically two counts of aggravated robbery. R.R. elected for the trial judge to assess punishment, and the trial judge sentenced him to forty years' confinement.

R.R. filed a notice of appeal pro se, and on October 11, 2023, the trial court appointed Casey Boyd to represent R.R. on appeal. Having received neither brief nor any correspondence regarding same from Boyd in spite of a postcard and order notifying R.R. and Boyd the appellate brief was overdue, we issued an order dated February 29, in which we ordered the trial court to conduct a hearing to determine why R.R.'s brief had not been filed and abated the case for the trial court to do so. In response, the trial court signed orders noting significant health issues had prevented Boyd from completing the appellate brief and appointing Tina Hall Montoya to represent R.R. on appeal. This appeal followed.

Discussion

I. Jurisdiction and Authority to Impose Determinate Sentence

In his first issue, R.R. urges the trial court committed reversible error by (1) imposing a determinate sentence without jurisdiction; (2) rendering a judgment that does not conform to the pleadings; and (3) failing to appoint a guardian ad litem. In both the first and second arguments, R.R. challenges the trial court's decision to impose a determinate sentence as reversible error either for lack of grand jury approval or because the judgment fails to conform with the pleadings. As these two arguments are intertwined, we address both in this section. We separately address the argument regarding alleged error in failing to appoint a guardian ad litem in a subsequent section.

Juvenile cases, while classified as civil proceedings, are considered "quasicriminal" because under the Family Code, the Texas Rules of Evidence applicable to criminal cases and Chapter 38 of the Code of Criminal Procedure govern juvenile adjudication hearings. See In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998); see also FAM. § 54.03(d). The trial court's jurisdiction over a juvenile vests when the juvenile is served with the summons and the original petition, which provides notice to the juvenile of the State's charges. See FAM. §§ 51.17(a) (except as otherwise provided, Texas Rules of Civil Procedure govern juvenile cases); 53.04 (court petition and answer), 53.06 (summons), 53.07 (service of summons); State v. C.J.F., 183 S.W.3d 841, 851 (Tex. App.-Houston [1st Dist.] 2005, pet. denied) (citing Johnson v. State, 551 S.W.2d 379, 382 (Tex. Crim. App. 1977)); see also State v. Casanova, 494 S.W.2d 812 (Tex. 1973) (per curiam) (noting necessity for service of process in juvenile proceedings).

The record reflects that R.R. received summons for the original and first amended petitions, but not the second amended petition. The State argues in a supplemental brief that the trial court acquired jurisdiction over R.R. when he was served with copies of the original and first amended petitions. Based on the foregoing authority, we agree. We note, however, that the seconded amended petition included first degree felony allegations that were not included in either the original or first amended petition.

The question of whether and when the State's charges may be amended and the question of fair notice are closely related. Carrillo v. State, 480 S.W.2d 612, 615 (Tex. 1972). The strict prohibition against amendment of pleadings in criminal cases is not applicable in juvenile proceedings, but the State may only amend its petition at "such time, and under such circumstances, as to be basically fair to the minor." See id. (citing In re Gault, 387 U.S. 1, 33 (1967)). "Otherwise, there is a denial of due process." Id.

To determine if the amendments here were "basically fair" to R.R., we consider cases from the supreme court. The Carrillo court reversed and vacated the judgment of the juvenile court when the amendments took place after trial had begun and toward the end of trial, included a separate offense, and trial counsel insisted he was surprised and prejudiced. See id. In contrast, in State v. Santana, the court of criminal appeals held no due process violation where before trial, but on the day of trial, the State amended its charges from "assault to rape" to "rape" and trial counsel did not claim surprise. See 444 S.W.2d 614 (Tex. 1969) reversed on other grounds by Santana v. State, 397 U.S. 596 (1970). And, in L.G.R. v. State, the supreme court held where the State's pleading failed to set forth with reasonable particularity the place and manner of the acts submitted to the jury in the court's charge and no trial amendment was offered by the State, the juvenile was denied a fair trial. See 724 S.W.2d 775, 776 (Tex. 1987).

Here, the record of the detention hearings indicates that trial court conducted a July 12, 2023 detention hearing at which the seconded amended petition was discussed, including that two aggravated robbery counts were alleged. One month later, R.R. rejected a plea deal for a ten year sentence after being admonished about the range of punishments for the first degree felonies. The adjudication hearing took place September 19, 2023. Trial counsel did not claim surprise at any of these hearings. We conclude this case is most similar to that of Santana v. State in that R.R. had notice of the amendments in advance of trial and expressed no surprise at trial, such that, on this record, we conclude no due process violation took place.

Having concluded the trial court obtained jurisdiction over R.R., we address his complaint about the trial court's imposition of a determinate sentence despite any record of approval by the grand jury and despite the fact that none of the petitions sought a determinate sentence.

For delinquent conduct involving certain offenses-such as the one R.R. was alleged to have committed, the State has the option of seeking a determinate sentence, one that has a maximum term of years depending on the offense's severity. See FAM. § 53.045 ("offenses eligible for determinate sentence"), (a)(7) (listing aggravated robbery); Ex parte Brown, 591 S.W.3d 705, 708 (Tex. App.-Fort Worth 2019, pet. dism'd). In this way, to complete the disposition-to complete the determinate sentence-a juvenile may be held past his nineteenth birthday, when otherwise the Texas Juvenile Justice Department would "discharge [the juvenile] from its custody" at that time. See Ex parte Brown, 591 S.W.3d at 708 (citing TEX. HUM. RES. CODE § 245.151(d)). In order to seek a determinate sentence, the State must petition the grand jury and obtain its approval. See FAM. § 53.045(a), (d). If the grand jury approves of the petition, the fact of approval shall be certified to the juvenile court, and the certification shall be entered in the record of the case. See id. § 53.045 (d).

At the adjudication and disposition hearings, the trial judge stated that a grand jury had certified the petition, but there is no record the State petitioned the grand jury for a determinate sentence and there is no certificate of approval by the grand jury such that we conclude the trial court lacked the authority to impose a determinate sentence. See In re A.G.G., 860 S.W.2d 160, 162 (Tex. App.-Dallas 1993, no writ); see also Ex parte Brown, 591 S.W.3d at 709 (citing TEX. HUM. RES. CODE § 245.151(d) ("if the State does not get grand-jury approval for a determinate sentence, the maximum disposition that a juvenile can receive in the juvenile court extends only to his 19th birthday")); In re S.D.W., 811 S.W.2d 739, 744 (Tex. App.-Houston [1st Dist.] 1991, no writ) (concluding prosecutor's oral representations of approval by grand jury, even coupled with assent of defendant's counsel, not "certification" within the meaning of the section 53.045(d) and that without certification of grand jury approval, and entry of such certification into record of case, trial court was without authority to impose determinate sentence). Furthermore, Texas Rule of Civil Procedure 301 provides that the judgment entered must conform to the pleadings. See TEX. R. CIV. P. 301; see also FAM. §§ 51.17(a) (except as otherwise provided, Texas Rules of Civil Procedure govern juvenile cases). Therefore, we also conclude the judgment in this case did not conform to the pleadings because the judgment imposed a determinate sentence and none of the petitions sought the same.

In its response brief, the State urges R.R. waived his objections to the lack of grand jury approval and conformity with the pleadings. The family code provides:

Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title 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.
FAM. § 51.09. The State does not argue how the record demonstrates R.R. waived either of these objections, nor do we conclude it does when there was no discussion of the lack of the grand jury approval or any disparity between the admonishments on sentence range and the adjudicating petitions that sought commitment only to the Texas Youth Commission for a period not to exceed the nineteenth (19th) birthday.

We sustain the portion of R.R.'s first issue challenging the imposition of a determinate sentence to the extent we agree the trial court lacked any authority to impose a determinate sentence and that its judgment failed to conform with the pleadings.

II. No Error in Failing to Appoint a Guardian Ad Litem

As part of his first issue, R.R. urges the trial court erred by failing to appoint a guardian ad litem. He argues his mother could not have acted as his guardian ad litem because she had a conflict of interest between acting in the best interest of R.R.'s brother, who was also charged with the underlying conduct in a separate proceeding, and that of R.R. R.R. points to his mother's testimony that she speaks to "my oldest every day," R.R.'s rejection of plea offers, and "the lack of any real defense asserted by [R.R.'s] legal counsel" as support for his assertion that the trial court erred by not appointing a guardian ad litem.

The State argues R.R. failed to preserve and, thus waived, this issue by failing to make any objection to the trial court. As with its waiver argument above, the State failed to argue, and we cannot conclude the record contains, any waiver compliant with the family code's requirements. See FAM. § 51.09. The State notes that other intermediate appellate courts have required preservation of this issue. See, e.g., In re C.A.G., 410 S.W.3d 923, 924 (Tex. App.-El Paso 2013, no pet.); In re C.P.D., No. 2-03-132-CV, 2004 WL 1535218, at *2 (Tex. App.-Fort Worth July 8, 2004, no pet.); In re P.S.G., 942 S.W.2d 227, 229 (Tex. App.-Beaumont 1997, no writ). This Court has not addressed whether this issue must be preserved, and we conclude we need not in this case, because we conclude the record does not demonstrate any error. See TEX. R. APP. P. 47.4.

If a child appears before the juvenile court without a parent or guardian, the court shall appoint a guardian ad litem to protect the interests of the child. The juvenile court need not appoint a guardian ad litem if a parent or guardian appears with the child.
In any case in which it appears to the juvenile court that the child's parent or guardian is incapable or unwilling to make decisions in the best interest of the child with respect to proceedings under this title, the court may appoint a guardian ad litem to protect the interests of the child in the proceedings.
FAM. § 51.11(a-1), (b).

R.R.'s mother appeared at the adjudication hearing, as well as all of the detention and pretrial hearings. Thus, the trial court had the discretion to appoint a guardian ad litem only if it appeared R.R.'s mother was incapable or unwilling to make decisions in R.R.'s best interests. See FAM. § 51.11 (b). R.R. relies on our decision in In re A.G.G. to argue that the trial court should have appointed a guardian ad litem and that its failure to do so violated his rights to due process. 860 S.W.2d at 162.

R.R. also cites the rule of civil procedure requiring appointment of a guardian ad litem when guardian appears to the court to have an interest adverse to the party represented by a next friend or guardian, but the State responds, and we agree, that such rules of civil procedure do not control when in conflict with that of the family code statutes governing juvenile cases. Compare TEX. R. CIV. P. 173.2 with FAM. § 51.17 (a).

We conclude the facts of A.G.G. are distinguishable from that of the instant case. In A.G.G., this Court concluded that a juvenile's grandmother could not be a de facto guardian ad litem because she testified for the State and the record reflected she had not rendered friendly support and guidance. See id. In the instant appeal, we conclude what R.R. urges are evidence of a conflict of interest amounts to no more than the potential for conflict of interest and, moreover, nothing that would cause a trial judge to find she was incapable or unwilling to act in his best interest. R.R.'s mother testified on his behalf that he is "very respectful," "a good student," "pretty good" at basketball, and offered testimony to defend him against allegations from another witness. Regarding her older son, her testimony was complimentary and that she spoke with him every day. As for R.R.'s rejection of plea bargains, we note that while one offer was premised on testifying against his older brother, the other was not. Therefore, we cannot conclude his rejection of these offers was due to any conflict of interest on the part of his mother.

Instead, we conclude the facts here are more similar to those in cases where the reviewing courts concluded the potential for conflict could not cause the reviewing court to presume actual conflict existed. See, e.g., In re S.A., No. 06-14-00055-CV, 2014 WL 7442507, at *1 (Tex. App.-Texarkana Dec. 31, 2014, no pet.) (mem. op., not designated for publication) (concluding no error where "[t]here is nothing in the record . . . to suggest that [the mother of appellant and wife of victim] was incapable or unwilling to make decisions in [appellant's] best interest"); In re P.S.G., 942 S.W.2d at 229 ("The circumstances in which this family was embroiled, difficult as they must have been for [mother of both appellant and his victim], do not cause us to assume without inquiry that she could not render friendly support and guidance in these proceedings.").

For the reasons set forth above, we overrule the portion of R.R.'s first issue challenging the trial court's decision not to appoint a guardian ad litem.

III. No Ineffective Assistance of Counsel

In his second issue, R.R. urges he did not receive effective assistance of counsel from his trial counsel or his first appellate counsel. As discussed above, R.R. was represented by more than one attorney in the trial court and on appeal. He complains of the first and second attorneys who represented him at trial and his first appellate counsel, as well as the cumulative effect of alleged errors in the representation of all three attorneys.

A. Effective Assistance of Counsel

A juvenile is entitled to representation by counsel. In re K.J.O., 27 S.W.3d 340, 342 (Tex. App.-Dallas 2000, pet. denied) (citing In re Gault, 387 U.S. 1, 41 (1967)). The right to representation includes the right to effective assistance of counsel. See id. (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). 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. Id. (citing Strickland, 466 U.S. at 687-88). The record must support a claim of ineffective assistance. See id. (citing Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984)).

Unless appellant can prove both prongs, an appellate court must not find counsel's representation to be ineffective. Hurndon v. State, No. 05-19-01285-CR, 2020 WL 5951331, at *4 (Tex. App.-Dallas Oct. 8, 2020, no pet.) (mem. op., not designated for publication) (citing Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)). In order to satisfy the first prong, appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Further, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. (citing Strickland, 466 U.S. at 689). To prove the second prong, appellant must show that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different. Id. (citing Lopez, 343 S.W.3d at 142).

We ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See id. at *5 (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Without evidence of the strategy employed, we will presume sound trial strategy. Id. (citing Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003)). Texas procedure makes it "virtually impossible" for appellate counsel to present an adequate ineffective assistance of trial counsel claim on direct review. Id. (citing Trevino v. Thaler, 569 U.S. 413, 423 (2013)). This is because the inherent nature of most ineffective-assistance-of-trial-counsel claims means that the trial court record "will often fail to 'contai[n] the information necessary to substantiate' the claim." Id. (quoting Thaler, 569 U.S. at 424). As a result, the better procedural mechanism for pursuing a claim of ineffective assistance is almost always through writ of habeas corpus proceedings. See id. (citing Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) ("Generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard. The reasonableness of counsel's choices often involves facts that do not appear in the appellate record. A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims."); Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) ("[I]n most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts necessary to adequately evaluate such claims.")).

B. First Trial Counsel

R.R.'s first trial counsel Harrelson was retained by his mother to represent R.R. and his brother and later withdrew from representation of R.R. approximately seven months before trial. In his motion to withdraw, Harrelson stated he was withdrawing from representing R.R. "due to Non-Payment, Health Issues and a potential conflict of interest as I am also representing the Co-Defendant." R.R. complains Harrelson was ineffective because he had a conflict of interest arising from his representation of both R.R. and R.R.'s brother. As evidence in support of his argument, he points to the fact that he was offered a plea deal of ten years to testify against his brother, "but it was rejected by his mother." He urges he was at the mercy of his mother's decisions because she had hired Harrelson. We construe his argument to be that Harrelson's conflict was not only that he represented both R.R. and his brother, but that he was hired by R.R.'s mother, whom R.R. alleges had a conflict of interest between her two sons, such that any existing conflict of interest in representing both brothers was exacerbated by the alleged conflict of interest R.R. alleges his mother had.

An attorney's representation of multiple defendants is not a per se violation of a defendant's right to adequate legal assistance. Pedraza v. State, No. 05-11-00396-CR, 2012 WL 2308256, at *9 (Tex. App.-Dallas June 19, 2012, no pet.) (mem. op., not designated for publication) (citing Cuyler v. Sullivan, 446 U.S. 335, 347 (1980)). In order to establish a violation of such right, a defendant who raised no objection at trial must demonstrate (1) his counsel had an actual conflict of interest and (2) that conflict of interest adversely affected his counsel's performance at trial. Id. (citing Cuyler, 446 U.S. at 348). Once a defendant has shown that a conflict of interest actually affected the adequacy of his representation, he need not demonstrate prejudice in order to obtain relief. Id. (citing Cuyler, 446 U.S. at 349).

An "actual conflict of interest" exists if counsel is required to make a choice between advancing his client's interest in a fair trial and advancing other interests to the detriment of his client's interest. Id. (citing Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007)). An appellant must identify specific instances in the record that reflect a choice that counsel made between possible alternative courses of action, such as eliciting or failing to elicit evidence helpful to one interest but harmful to the other. Id. (citing Perez v. State, 352 S.W.3d 751, 755 (Tex. App.- San Antonio 2011, no pet.)). "'[A] potential conflict may become an actual conflict, but [an appellate court need not] speculate about a strategy an attorney might have pursued . . . in the absence of some showing that the potential conflict became an actual conflict.'" Id. (quoting Routier v. State, 112 S.W.3d 554, 585 (Tex. Crim. App. 2003)) (citing Ex parte McFarland, 163 S.W.3d 743, 759 n. 52 (Tex. Crim. App. 2005) ("The showing of a potential conflict of interest does not constitute an actual conflict of interest.")); James v. State, 763 S.W.2d 776, 782 (Tex. Crim. App. 1989) ("potential" conflict based on speculative hindsight never became "actual" conflict). "[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance." See id. (quoting Cuyler, 446 U.S. at 349-50) (citing Acosta, 233 S.W.3d at 355).

"To show that an actual conflict of interest adversely affected counsel's performance, the appellant must show that trial counsel actually acted on behalf of those other interests during the trial." Id. (quoting Acosta, 233 S.W.3d at 355) (citing Perez, 352 S.W.3d at 755). "The appellant must show that his trial counsel had to forego a strategy in the appellant's trial that he would have otherwise pursued if he had not represented [a conflicting interest]." Id. (quoting Routier, 112 S.W.3d at 586) (citing Perez, 352 S.W.3d at 755).

Other than identifying the potential conflict in representing both R.R. and his brother, R.R. does not argue, nor can we find, any evidence in the record that any actual conflict of interest adversely affected Harrelson's performance. Moreover, Harrelson withdrew from representation of R.R. approximately seven months before trial and prior to the hearing in which R.R. rejected the plea offers from the State. Accordingly, we cannot conclude R.R. has shown Harrelson's performance fell below an objective standard of reasonableness.

C. Second Trial Counsel

R.R.'s second trial counsel Gerald Smith was retained by his mother to represent R.R. after Harrelson withdrew from the case.

R.R. complains that Smith was ineffective at the adjudication hearing because he did not object to the State's petition not being approved by the grand jury; did not call any witnesses other than R.R.'s mother during the adjudication hearing; offered no exhibits at the adjudication hearing; did not subpoena Dr. John Kennedy to the adjudication hearing to testify regarding his conclusions that R.R. showed no signs of personality disorder or pathology; did not request an independent psychological on R.R. when Dr. Kennedy's first evaluation concluded R.R. had an I.Q. of 76; and did not hire an investigator to investigate the case or the victims who were drug dealers.

As noted above, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. As noted above, at the adjudication hearing, the trial judge stated that a grand jury had certified the petition, but it is unclear why there is nothing in the record regarding whether the State ever sought grand jury approval. Thus, R.R. cannot show by a preponderance of the evidence whether Smith's failure to object fell below an objective standard of reasonableness. As for R.R.'s complaints about other witnesses or exhibits, he only specifies Dr. Kennedy and a proposed psychological expert to opine on R.R., but he cannot overcome the strong presumption of reasonable assistance when the record is silent about Smith's trial strategy. Nor can R.R. show by a preponderance of the evidence whether Smith's failure to investigate the victims fell below an objective standard of reasonableness, particularly when the victims conceded in their testimony that they met with R.R. and his brother to sell illegal drugs to them.

R.R. complains Smith was ineffective at the disposition hearing because he did not call any witnesses other than Dr. Phillip Ortiz; did not present any mitigating factors; and did not subpoena Dr. John Kennedy to testify regarding his conclusions that R.R. showed no signs of personality disorder or pathology and that Dr. Kennedy recommended probation. Because we already concluded the trial court lacked the authority to impose a determinate sentence in connection with the disposition hearing, we will remand this case for a new disposition hearing, and thus we need not address R.R.'s complaints regarding counsel's performance at same. See In re A.G.G., 860 S.W.2d at 162 (remanding for new trial only after concluding trial court erred by failing to appoint guardian ad litem); In re C.L.W., No. 05-05-00754-CV, 2006 WL 321959, at *3 (Tex. App.-Dallas Feb. 13, 2006, no pet.) (mem. op., not designated for publication) (reversing and remanding for new disposition hearing after holding family code section permitting commitment to Texas Youth Commission for misdemeanor offenses precluded such disposition on record of case) (citing FAM. § 54.05(k)); see also TEX. R. APP. P. 47.4.

Finally, R.R. complains Smith was ineffective because he did not file a motion for new trial or notice of appeal as required by the family code. See FAM. § 56.01(f). R.R. does not explain what, if any, testimony, evidence, or issues would have been presented had Smith filed a motion for new trial, thus, he has failed to show, but for Smith's failure to file a motion for new trial, he would have received a different outcome. Similarly, although the family code requires an attorney who represents a child before the juvenile court to file a notice of appeal, such an obligation is premised on an expression of a desire to appeal by the child and his parent, guardian, or guardian ad litem. See id. Even assuming such a desire was expressed based on R.R.'s pro se notice of appeal, the record reflects he was appointed counsel and able to appeal. Accordingly, R.R. cannot show, but for Smith's failure to file a notice of appeal, he would have received a different outcome.

For the foregoing reasons, we conclude R.R. has not shown Smith's performance fell below an objective standard of reasonableness or that, but for any error, a different outcome would have resulted.

D. First Appellate Counsel

R.R. complains of his first appellate counsel Casey Boyd for Boyd's inaction in his representation of R.R. before the appointment of his current appellate counsel. More particularly, R.R. urges Boyd was ineffective for failing to file a motion for new trial challenging trial counsel's ineffectiveness or the validity of the determinate sentence. He argues, but for Boyd's inaction, he could have had a hearing in 2023, which could have resulted in a new trial or new disposition hearing.

Assuming without deciding that we agree Boyd's representation of R.R. fell below an objective standard of reasonableness, we cannot agree that R.R. has established a reasonable probability exists that, but for Boyd's unprofessional errors, a different outcome would have resulted. On the record before this Court, we have sustained R.R.'s complaint regarding the trial court's lack of authority to impose a determinate sentence. Having determined the trial court lacked authority to impose a determinate sentence, the remedy we would impose is to remand the case for a new disposition hearing, which would be the remedy here as well, not a new trial on the issues of whether R.R. engaged in delinquent conduct. See In re A.G.G., 860 S.W.2d at 162; In re C.L.W., 2006 WL 321959, at *3. Moreover, as R.R. argues, in his first issue, he "could have potentially only been incarcerated until his nineteenth birthday under the indeterminate scheme in the Texas Family Code," and R.R. will not have reached that milestone until over a year after this opinion issues. Thus, on this record, R.R. cannot show that, but for any error, a different outcome would have resulted

Accordingly, we conclude R.R. has not met both prongs in challenging the effectiveness of Boyd's representation.

E. Cumulative Effect

Finally, R.R. urges that multiple errors may be found to be harmful in their cumulative effect even if each error considered separately would be harmless. See Chamberlain v. State, 988 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en banc). Without agreeing or disagreeing with this statement, we note that R.R. has not established multiple errors on this record and that the court of criminal appeals has never found that "non-errors may in their cumulative effect cause error." See Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009) (quoting Chamberlain, 988 S.W.2d at 238.

Accordingly, we overrule R.R.'s second issue.

Conclusion

We affirm the portion of trial court's judgment adjudicating that R.R. engaged in delinquent conduct, but reverse the order of disposition and remand the cause for a new disposition hearing. See § 56.01(i) ("The appellate court may affirm, reverse, or modify the judgment or order, including an order of disposition or modified disposition, from which appeal was taken. It may reverse or modify an order of disposition or modified order of disposition while affirming the juvenile court adjudication that the child engaged in delinquent conduct or conduct indicating a need for supervision.").

JUDGMENT

In accordance with this Court's opinion of this date, we AFFIRM the portion of trial court's judgment adjudicating that R.R. engaged in delinquent conduct, but REVERSE the order of disposition and REMAND the cause for a new disposition hearing.


Summaries of

In re R.R.

Court of Appeals of Texas, Fifth District, Dallas
Dec 23, 2024
No. 05-23-01008-CV (Tex. App. Dec. 23, 2024)
Case details for

In re R.R.

Case Details

Full title:IN THE MATTER OF R.R., A JUVENILE

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 23, 2024

Citations

No. 05-23-01008-CV (Tex. App. Dec. 23, 2024)