In the Matter of A.V.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00632-CV

IN THE MATTER OF A.V.

From the 289th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-JUV-01300

Honorable Carmen Kelsey, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Rebecca Simmons, Justice

Delivered and Filed: July 20, 2005

AFFIRMED.

A.V., a juvenile appellant, appeals a judgment in which the trial court found he engaged in delinquent conduct by committing the offense of arson, a second degree felony. Tex. Pen. Code Ann. 28.02(a)(2), (d) (Vernon 2003). A.V. pled true to the charge and waived his right to a jury trial. After finding A.V. had engaged in delinquent conduct, the trial court committed A.V. to the Texas Youth Commission until his 21st birthday. On appeal, A.V. contends the evidence is legally insufficient to support his adjudication for arson; he was denied effective assistance of counsel in violation of the Texas and United States Constitutions; and his counsel s ineffectiveness renders his plea involuntary.

Sufficiency of the Evidence

In his first issue, A.V. contends that the only evidence presented by the State to support his adjudication was an out-of-court statement A.V. made to the police in which he admitted committing the offense. A.V. contends that section 54.03(e) of the Family Code is analogous to article 1.15 of the Code of Criminal Procedure and requires more than a juvenile s out-of-court statement to support an adjudication of delinquency. Compare Tex. Fam. Code Ann. 54.03(e) (Vernon 2002) (a child s out-of-court statement is insufficient to support a finding of delinquent conduct unless it is corroborated by other evidence) with Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005) (a defendant may not be convicted of a felony in a bench trial upon his plea alone).

The record reflects, however, that A.V. judicially confessed to the delinquent conduct allegation in the State s petition. At the beginning of the adjudication hearing, the trial court read the allegation in the State s petition that A.V. committed the offense of arson. A.V. stated he was willing to enter a plea, verified he understood he was entitled to a jury and had signed a jury waiver, and then entered a plea of true to the State s allegation. The trial court then found A.V. to be a child who had engaged in delinquent conduct.

A judicial confession standing alone is sufficient to sustain a conviction upon a guilty plea even if the defendant does nothing more than affirm that the allegations are true and correct. See Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980). Because A.V. affirmed that the allegation in the State s petition was true, we conclude that A.V. judicially confessed to the allegation in the State s petition. Viewing the evidence in the light most favorable to the trial court s ruling, we conclude A.V. s judicial confession, made in open court and under oath, after being fully informed of the charge against him, is sufficient evidence for any rational fact finder to conclude beyond a reasonable doubt that A.V. committed arson as alleged. See In re J.M.B., 990 S.W.2d 294, 297 (Tex. App. San Antonio 1998, pet. denied). We overrule A.V. s first issue.

Ineffective Assistance of Counsel and Voluntariness of the Plea

In three issues, A.V. contends he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution, which affected the voluntariness of his plea. U.S. Const. amend. VI; Tex. Const. art. I, 10. A.V. contends the State s evidence prior to his judicial confession was insufficient to support his adjudication, and therefore faults his counsel for not advising him against entering a plea of true.

A juvenile is entitled to effective assistance of counsel in adjudication proceedings. See In re R.D.B., 102 S.W.3d 798, 800 (Tex. App. Fort Worth 2003, no pet.). We review the effectiveness of counsel s representation in a juvenile proceeding under the two-prong Strickland standard. Id. First, the appellant must show that his counsel s performance was deficient; second, appellant must show the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is whether counsel s assistance was reasonable under all the circumstances, and we strongly presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Our scrutiny must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689. That another attorney, including appellant s counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); see also Sessums v. State, 129 S.W.3d 242, 246 (Tex. App. Texarkana 2004, pet. ref d).

The second prong of Strickland requires a showing that counsel s errors were so serious that they deprived the defendant of a fair trial, a trial whose result is unreliable. Strickland, 466 U.S. at 687. An appellant must show there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

When a defendant challenges the voluntariness of a plea entered upon the advice of counsel contending that his counsel was ineffective, the voluntariness of the plea depends upon: 1) whether counsel s advice was within the range of competence demanded, and if not, 2) whether there is a reasonable probability that, but for the ineffective assistance, the defendant would not have entered a plea and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). To support his ineffective assistance claim, A.V. points to the statement of his previous counsel, Mario Trevino, during the detention hearing: Of course, he gets caught and he didn t get caught, he actually confessed; he went in. Without his confession, we, really would have had nothing. A.V. contends this statement indicates his second counsel at the adjudication hearing, Henry Beltran, did not believe the State had a case against A.V., and that his counsel should therefore have advised him not to enter his plea.

The portion of the record cited by A.V., however, does not provide insight as to his trial counsel s strategy at the adjudication hearing. We note that although A.V. filed a motion for new trial, no hearing was conducted to explore trial counsel s strategy. The record has not been developed with respect to the reasons for the entry of A.V. s plea or the advice provided to him. Without a developed record on these issues, we are unable to determine whether A.V. entered his plea on the advice of counsel or whether counsel s advice was made pursuant to sound trial strategy. To find A.V. s trial counsel ineffective on the basis of the record before this court would require us to speculate, which we cannot do. Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). We overrule A.V. s second and third issues.

Further, we note that the record contains evidence demonstrating that A.V. s plea was freely and voluntarily made. After explaining the State s allegations, the trial court advised A.V.:

[Y]ou have some very important rights. You can say these charges are not true and you can have a trial and make the attorneys for the State prove the charges against you beyond a reasonable doubt. You have a right to confront any witnesses against you. You have a privilege against self-incrimination. You have a right to a trial by jury and you have a right to be represented by an attorney.

A.V. stated he understood these rights, had discussed them with his attorney, and was willing to waive his right to a jury and plead true. The record reflects A.V. reviewed a written jury waiver and stipulation of testimony with his attorney, and signed them. Because the record reflects A.V. knowingly and voluntarily entered his plea, we overrule his fourth issue. The trial court s judgment is affirmed.

Catherine Stone, Justice