In the Matter of K.T., a Child--Appeal from County Court at Law of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00114-CV

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IN THE MATTER OF K. T., A CHILD

On Appeal from the County Court at Law

Gregg County, Texas

Trial Court No. 3748-J

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

K. T. appeals his adjudication and disposition for two offenses of misdemeanor assault, after proof he had twice before been adjudicated for felony offenses. He was committed to the Texas Youth Commission.

K. T.'s counsel has filed an appellate brief in which he states he has diligently reviewed the record, has researched the applicable law, and has found no reversible error in the record. See In re D.A.S., 973 S.W.2d 296, 299 (Tex. 1998) (extending Anders v. California, 386 U.S. 738 (1967), to juvenile delinquency proceedings based, in part, on quasi-criminal nature of proceedings).

Counsel has set out four arguable grounds of error in which he suggests that (1) there is insufficient evidence to support commitment, (2) the admission of unsworn testimony is error, (3) this constituted ineffective assistance of counsel, and (4) the record does not show K.T. was properly admonished by the trial court.

(1) The Evidence Is Sufficient

We review the sufficiency of the evidence under the standards set out in Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); In re K.H., No. 06-04-00103-CV, 2005 WL 1320162 (Tex. App. Texarkana June 5, 2005, no pet.) (not designated for publication). At the disposition hearing, evidence was introduced to show that K.T. had engaged in at least one instance of criminal conduct of the grade of felony and that he had committed misdemeanor assault. This is sufficient evidence under the Texas Family Code to allow commitment to the Texas Youth Commission. SeeTex. Fam. Code Ann. 54.04(d)(2), (t) (Vernon Supp. 2004 2005). Error is not shown.

(2) Error in Admitting the Unsworn Statements Was Not Preserved

Counsel also suggests there may be error in the consideration of statements made in open court by an unsworn representative of the probation office, Shelly Smith. In response to a question by the trial court, Smith provided information about the cost and availability of several alternative facilities, and about the types of services provided by those facilities. No objection was raised to this procedure, thus no claim of error has been preserved. Tex. R. App. P. 33.1.

(3) Ineffective Assistance of Counsel Has Not Been Shown

Counsel also suggests that the failure to object to Smith's unsworn statements resulted in ineffective assistance of counsel. In reviewing the ineffective assistance claim, we apply the standards set out by Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, Strickland requires an appellant to prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the defense to the degree that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different.

In this case, although the procedure was objectionable because an individual was questioned and provided information at the trial without being sworn, no prejudice to the defense has been shown. That information addressed only the pragmatic realities about placement alternatives other than the Texas Youth Commission, and the discussion was focused on attempting to find a way to use one of those facilities. Even if error exists, there is nothing to suggest that the outcome of this trial would have been different absent that error.

(4) Proper Admonishments Were Given

Finally, the record reflects that the admonishments required by Section 54.03(b) of the Texas Family Code were provided by the trial court to K.T. at different points in this proceeding. Thus, error has not been shown.

We have likewise examined the record of this case, and we agree with counsel that no reversible error appears.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: August 8, 2005

Date Decided: August 31, 2005