In the Matter of F.H.--Appeal from 289th Judicial District Court of Bexar County

No. 04-98-00065-CV
IN THE MATTER OF F.H., A Juvenile,
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 96-JUV-03063
Honorable Carmen Kelsey, Judge Presiding(1)

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: October 21, 1998

AFFIRMED

F.H., a juvenile, was alleged to have engaged in delinquent conduct by committing the offense of robbery on or about August 12, 1996. Apparently pursuant to a plea bargain, F.H. pled true to the lesser included offense of theft from a person, stipulated to all the evidence against him, and waived his right to a jury trial. The juvenile referee accepted the plea of true, and finding that the State's evidence supported the charge, found that F.H. had engaged in delinquent conduct. Despite a recommendation that F.H. be granted probation, the juvenile referee recommended that F.H. be committed to the Texas Youth Commission. The disposition order was approved by the district court, and F.H. filed a motion for new trial, alleging his plea was rendered involuntary by his trial counsel's erroneous advise that the court was bound to follow their plea agreement, and by the court's failure to properly admonish him. The motion was denied and this appeal follows in which F.H. argues the involuntariness of his appeal. Finding no error, we affirm.

Arguments on Appeal

In two points of error, F.H. challenges the voluntariness of plea. In his first point of error, F.H. alleges his plea was involuntary because before accepting it, the court failed to warn him that it was not bound to follow the agreement. Next, F.H. contends that his plea was not freely and voluntarily given because it was based on his trial counsel's erroneous instruction that the court was bound to follow the plea bargain. While the plea bargain between F.H. and the State is not contained in the clerk's record, we nevertheless accept as true the fact that it did exist. References to such an agreement are found in the transcriptions of both the adjudication and disposition hearings; the plea, at least in part, appears to have involved the charge reduction plus a recommendation of probation in exchange for a plea of "true."

1. Admonishments in Juvenile Adjudication Hearing

Citing to article 26.13 (a) of the Code of Criminal Procedure, F.H. alleges error in the court's failure to instruct him that it was not bound to follow their plea bargain. Section 54.03 of the Texas Family Code, not article 26.13 (a) of the Code of Criminal Procedure, governs the admonishments a court is directed to administer to a juvenile prior to taking a juvenile's plea in an adjudication proceeding. See Tex. Fam. Code Ann. 54.03 (b) (Vernon 1996). Section 54.03, like its counterpart article 26.13, is designed to ensure that pleas are knowingly and voluntarily made. In the Matter of L.T., 848 S.W.2d 769, 772 (Tex. App.--Corpus Christi 1993, no writ). Pursuant to the version of section 54.03 in effect at the time the offense was alleged to have been committed, the court was required only to explain to F.H. the allegations against him, the nature and possible consequences of the proceeding, including the law relating to the admissibility of the record of a juvenile court adjudication in a criminal proceeding, the privilege against self-incrimination, the right to a trial and to confront witnesses, the right to representation, and the right to trial by jury. See Tex. Fam. Code Ann. 54.03(b) (Vernon 1996). The record in the instant case reveals that the court fulfilled its statutory duty. Contrary to F.H.'s assertion of error, the court was not statutorily required to instruct him that it was not bound to follow the plea agreement, see Act of June 2, 1997, 75th Leg., R.S., ch. 1086, 10, 53 (a), 55 (a), 1997 Tex. Gen. Laws 4179, 4184, 4199 (amending section 54.03 to require court to admonish juvenile that it is not bound to accept plea agreement and that consequently, court must allow juvenile to withdraw plea if agreement not accepted; applicable to conduct committed on or after September 1, 1997), and thus, the court's failure to do so in the instant case did not render involuntary F.H.'s plea. Point of error number one is overruled.

2. Ineffective Assistance of Counsel

F.H. further challenges the voluntariness of his plea on the basis he was denied effective assistance of counsel because he relied on his trial counsel's erroneous advice regarding the court's obligation to follow the plea bargain. F.H. asserts that but for his trial counsel's misinformation, he would not have pled true. Finding no record support for this contention, we reject it.

A plea of true is not knowingly and voluntarily made if it is made as a result of ineffective assistance of counsel. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); In the Matter of E.Q., 839 S.W.2d 144, 147 (Tex. App.--Austin 1992, no writ). To successfully challenge a plea on the basis of ineffective assistance of counsel, F.H. must show that counsel's alleged error resulted in the plea being unknowingly and involuntarily made. Gonzales v. State, 963 S.W.2d 844, 848 (Tex. App.--San Antonio 1998, no pet.) (citations omitted). The following record excerpt highlights trial counsel's misunderstanding of the law:

THE COURT: Not withstanding the reduction [in the charge from robbery to theft of a person], the Court is going to commit him to the Texas Youth Commission.

* * * *

The Court also finds, in the child's home, he cannot be provided with the quality of care and level of support and supervision that he needs to meet the conditions of probation, in this Court's opinion.

* * * *

MR. WOLF: Judge, I thought we had a plea bargain.

THE COURT: He has the right to appeal my decision.

* * * *

MR. WOLF: Judge, before we adjourn, I thought we had a plea bargain. I thought after the first of the year, if there was a plea bargain, then the Court is bound.

While the record reveals counsel's misunderstanding of the law, the record does not contain proof that this misinformation led to F.H.'s plea. Notably, we have no testimony from F.H. supporting the allegations lodged in his motion for new trial. The motion for new trial was not verified and contained no supporting affidavits. A motion, sworn or otherwise, is not evidence. White v. State, 871 S.W.2d 833, 836 (Tex. App.--Houston [14th Dist.] 1994, no pet.). Finding no evidence to support F.H.'s claim of reliance on his counsel's advice, see Gonzales, 963 S.W.2d at 848, we overrule point of error number two.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. The Honorable Irma Hernandez, Juvenile Referee, presided over both the adjudication and disposition proceedings, and the Honorable Carmen Kelsey signed the approval order committing F.H. to the Texas Youth

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