In the Matter of R.S.--Appeal from 386th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00819-CV

IN THE MATTER OF R.S.

From the 386th Judicial District Court, Bexar County, Texas

Trial Court No. 2005-JUV-02160

Honorable Laura Parker , Judge Presiding

Opinion by: Catherine Stone , Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: September 6, 2006

AFFIRMED

R.S. appeals his commitment to the Texas Youth Commission (TYC) for a determinate sentence of fifteen years following a conviction of aggravated robbery. We affirm the trial court's judgment.

Factual and Procedural Background

On July 8, 2005, around 2:00 a.m., Danny Sevilla was leaving work at the Rialto theaters. Sevilla was walking through the parking lot to his vehicle when he noticed someone sitting in the parking lot. Sevilla was on his cellphone when this person, R.S., walked up behind him. As Sevilla turned around, R.S. demanded Sevilla's keys to his vehicle.

During this encounter, R.S. brandished a small green pocketknife. Sevilla complied with R.S.'s demands, and he even assisted R.S. in learning about the keyless entry. R.S. stated that he would not harm him for cooperating and then left in the vehicle. Sevilla subsequently called the police. At the scene, Officer William Kasberg conducted an investigation and took a statement from Sevilla regarding R.S.'s appearance and the details of the encounter.

Approximately a week later, R.S. took his girlfriend to Rivercenter Mall in the stolen vehicle; however, R.S. was unable to pay the parking fee when he attempted to leave. Due to R.S.'s inability to provide identification or payment, the parking attendant contacted security, who ultimately called the San Antonio Police Department (SAPD). Officer George Morales ran a license plate check which revealed that the vehicle had been stolen; thus, R.S. was arrested for the unauthorized operation of a motor vehicle. An investigating officer of the initial robbery created a photo lineup with six individuals, and Sevilla positively identified R.S. as the person who robbed him.

At trial Sevilla testified about the event that took place that night as well as the fear R.S. inflicted in him that evening. Several officers and the parking attendants testified about R.S.'s arrest and the numerous lies R.S. stated regarding the ownership of the vehicle and his age. Ultimately, the jury found that R.S. engaged in delinquent conduct, specifically, aggravated robbery.

The disposition proceeding was conducted immediately after the trial on the merits. At the disposition hearing the State called Landon Cross, R.S.'s juvenile probation officer. Due to R.S.'s criminal history, unstable family structure, and the seriousness of the offense, Cross and the probation staff recommended R.S. be committed to TYC. The jury agreed with the recommendation and returned a determinate sentence of fifteen years.

On appeal, R.S. raises four issues: 1) ineffective assistance of counsel; 2) failure to properly appoint a guardian; 3) legal and factual insufficiency of the evidence; and 4) abuse of discretion by committing R.S. to TYC.

Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, the defendant must prove by a preponderance of the evidence that: 1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and 2) there is a reasonable probability but for counsel's unprofessional errors, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003) (citing Strickland v. Washington, 477 U.S. 668, 687 (1984)). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The Strickland standard applies to claims of ineffective assistance both during the guilt/innocence and punishment phases of trial. Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999). As a reviewing court we cannot speculate as to the reasons why trial counsel acted as he did; rather, we must be highly deferential and presume trial counsel's actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Any allegations of ineffectiveness must be firmly founded in the record, and the appellant must prove he was denied a fair trial based on the totality of the representation, not by isolated instances or by only a portion of the trial. Id. at 835; Harling v. State, 899 S.W.2d 9, 12 (Tex. App.-San Antonio 1995, pet. ref'd). In assessing whether a defendant has met both prongs of Strickland, we are limited to the facts of the case. Thompson, 9 S.W.3d at 813. We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Generally, the trial record will not suffice to establish an ineffective assistance claim. Id.

R.S. contends that his trial counsel was ineffective throughout trial. First, R.S. contends his counsel was ineffective at voir dire because he failed to conduct a reasonable examination of the prospective jurors. Specifically, the alleged deficiency was from counsel's failure to "question jurors regarding the presumption of innocence and the State's burden of proof beyond [a] reasonable doubt." Additionally, R.S. complains of counsel failing to ask the jurors if they had any bias in favor of law enforcement or against robbery cases. Second, R.S. contends that trial counsel's performance was deficient during the trial on the merits. In particular, R.S. argues that his legal counsel was ineffective because he failed to call R.S.'s mother to corroborate R.S.'s story that R.S. was at home with his mother and asleep on the night in question, and additionally, R.S.'s girlfriend should have been called to corroborate his story that R.S. found the truck abandoned at "Devil's Den." Finally, R.S. contends that counsel was ineffective at trial due to counsel's failure to request an instruction for a lesser included offense of aggravated robbery, especially considering that there was little testimony regarding the knife.

The record illustrates that during voir dire, the judge commented on the State's burden of proof, and further, the State provided a detailed analysis of the beyond-a-reasonable-doubt burden as well as R.S.'s presumption of innocence. Despite filing a motion for new trial, there is no reason in the record which shows why R.S.'s counsel chose not to ask these particular questions. The same conclusion is true concerning trial counsel's failure to call the witnesses or request a lesser included offense. Because we will not speculate as to those reasons or base our judgment on isolated instances, we cannot conclude that R.S. has established that trial counsel's performance fell below an objective standard of reasonableness. See Rylander, 101 S.W.3d at 110.

Appointment of a Guardian Ad Litem

In his second issue, R.S. contends that the trial court reversibly erred when it allowed the trial to proceed without properly appointing a guardian ad litem. R.S. argues that the appointment of his grandfather as guardian ad litem, without an inquiry by the court that the grandfather would act in R.S.'s best interest, constitutes error. As support that the trial court reversibly erred, R.S. relies onIn re A.G.G., 860 S.W.2d 160 (Tex. App.-Dallas 1993, no writ).

In A.G.G., the juvenile's grandmother appeared in court, and the State argued that her appearance was to render friendly support and guidance pursuant to Section 51.11 of the Texas Family Code. (1) Id. at 162. The A.G.G. court held that the trial court reversibly erred in failing to appoint a guardian because the grandmother never provided the support and guidance to A.G.G. Id. This lack of support and guidance was apparent because the State called the grandmother as a witness and she even testified against A.G.G. Id.

R.S.'s reliance on A.G.G. is misguided for several reasons. First, R.S.'s grandfather was never called by the State to testify against R.S. Finally, R.S.'s issue on appeal is that the trial court improperly appointed his grandfather as guardian ad litem; however, A.G.G.'s argument was that the trial court erred in failing to appoint a guardian ad litem. An improper appointment as opposed to complete failure to appoint a guardian ad litem are two distinct arguments. Despite this difference, R.S. must still show that any error was harmful, and this he cannot do. See In re D.L., No. 2-03-008-CV, 2004 WL 743238, at *2 (Tex. App.-Fort Worth Apr. 8, 2004, no pet.) (mem. op.) (finding no reversible error in the trial court's appointment of a guardian especially considering that the appellant failed to object to the mother's absence at trial); In re J.A.S., No. 03-99-00327-CV, 2000 WL 490717, at *2 (Tex. App.-Austin Apr. 27, 2000, no pet.) (not designated for publication) (holding that the trial court's failure to appoint a guardian was harmless because the juvenile's aunt and uncle were present to provide the support and guidance required by the Family Code). We overrule R.S.'s second issue.

Evidentiary Sufficiency

Although juvenile cases are classified as civil proceedings, they are "quasi-criminal" in nature. In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998). Because the adjudication hearing requires guilt to be proven beyond a reasonable doubt, we review legal and factual sufficiency challenges pursuant to the criminal standards of review. In re T.K.E., 5 S.W.3d 782, 785 (Tex. App.-San Antonio 1999, no pet.).

Legal Sufficiency

To review a legal sufficiency challenge, this court shall "view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Johnson v. State, 23 S.W.3d 1,7 (Tex. Crim. App. 2000). When conducting a legal sufficiency review, an appellate court does not review the fact finder's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

In his third issue, R.S. complains that the evidence cannot support the conviction of aggravated robbery because there is no evidence showing R.S. used or exhibited a "deadly" weapon. (2) R.S. contends that Blain v. State, 647 S.W.2d 293 (Tex. Crim. App. 1983), is consistent with his argument. In Blain, the court held that the evidence was insufficient to show that a table knife was a deadly weapon. Id. at 294. Because a knife is not a deadly weapon per se, the court determined that the State was required to show some evidence of the knife's size, sharpness, brandishing motion by the accused, or testimony regarding the victim's fear of serious bodily injury or death. Id.

Unlike Blain, the State provided evidence regarding the knife's physical characteristics, the brandishing motions made by R.S., and the testimony concerning Sevilla's fear of serious injury or death. An officer's report documented Sevilla's description of the "small, green hunting knife with many relatively small teeth." Not only did the officer testify that such a knife is capable of causing death, Sevilla testified numerous times concerning his fear of being stabbed, feeling "terrified," and worrying about his parents "los[ing] their son." Furthermore, evidence was provided which documented the manner in which R.S. brandished the knife while cursing at Sevilla and demanding his car keys. See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (concluding that merely carrying a butcher knife during an attack was legally sufficient to support a finding that the knife was a deadly weapon). A rational trier of fact could have found beyond a reasonable doubt that R.S. committed aggravated robbery.

Factual Sufficiency

The only question to consider in a factual sufficiency review is whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Rather than considering the evidence in a light most favorable to the verdict, all of the evidence is considered in a neutral light. Id. There are two ways in which evidence may be insufficient to support a verdict. Id.

First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.

Id. at 484-85.

R.S. complains that the evidence was factually insufficient; however he addresses his complaint along with his legal sufficiency argument. "Generally, in order to preserve one's right to challenge both the legal and factual sufficiency of evidence, the appellant must argue each claim separately." In re C.D., No. 04-99-00092-CV, 2000 WL 924628, at *5 (Tex. App.-San Antonio July 5, 2000, no pet.) (not designated for publication). Regardless, we will consider R.S.'s argument in the interest of justice. See id.

R.S. admits that "some evidence was presented that a robbery occurred and that [R.S.] brandished a knife while committing the robbery." As decided in the legal sufficiency analysis, the supporting evidence is not so weak that a finding of guilt could not have been made. In addition, the evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt standard could not have been met. The only contrary evidence R.S. introduced was his own testimony that he did not commit the crime. Such an argument involves weighing of R.S.'s credibility; however, we afford due deference to the fact finder's determination here. See Johnson v. State, 23 S.W.3d at 11-12. Because the jury chose to discredit R.S.'s denial and the record does not indicate that this verdict is manifestly unjust, we overrule R.S.'s factual sufficiency argument.

Juvenile Commitment

A juvenile judge has broad discretion to determine the proper disposition of a child who has been adjudicated as engaging in delinquent behavior. In re K.L.C., 972 S.W.2d 203, 206 (Tex. App.-Beaumont 1998, no pet.). "We review a trial court's disposition order under the criminal abuse of discretion standard divorced from evidentiary standards of legal and factual sufficiency." In re E.T., No. 04-03-00796-CV, 2004 WL 2533552, at *1 (Tex. App.-San Antonio Nov. 10, 2004, no pet.) (mem. op.) (citing In re K.T., 107 S.W.3d 65, 74 (Tex. App.-San Antonio 2003, no pet.)). This standard requires that we view the evidence in a light most favorable to the trial court's judgment. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Thus, we will afford almost total deference to the trial court's findings of fact which are supported by the record. In re K.T., 107 S.W.3d at 74. On the other hand, when the trial court's resolution of a factual issue is not dependant upon an evaluation of credibility or demeanor, "we review the trial court's determination of the applicable law, as well as its application of the appropriate law to the facts it has found, de novo." Id.

The guiding rules and principles in juvenile cases involving commitment outside the child's home are found in the Family Code. The Family Code permits a trial judge to commit a child to TYC if: 1) it is in the child's best interest to be placed outside the home; 2) reasonable efforts have been taken to prevent or eliminate the need for the child's removal from home; and 3) while in the home, the child cannot receive the quality of care and level of support and supervision needed to meet the conditions of probation. Tex. Fam. Code Ann. 54.04(i) (Vernon Supp. 2006). In his final issue, R.S. contends the State failed to prove the three conditions of Section 54.04(i) required to commit a juvenile to TYC; thus, he claims the trial court abused its discretion when it ordered commitment to TYC. We disagree.

At the disposition hearing Cross testified about his recommendation that R.S. be committed to TYC. Although he stated that R.S. and his mother cooperated, he testified about R.S.'s unstable family environment, previous marijuana use, prior criminal history, and current living situation. As a child, R.S. has lived with his mother or other family members. Evidence was provided that R.S.'s mother did not discipline R.S., she was previously convicted of embezzlement, people claimed she had a drug problem, and she is currently living with a convicted felon in the felon's brother's house. (3) Furthermore, R.S. had a prior offense for shoplifting. Parole Officer Cross expressed his concerns that this offense was a far more serious crime and a major jump from R.S.'s shoplifting incident the previous year. Cross testified that he and the juvenile committee considered alternatives other than TYC; nevertheless, they believed that commitment was the correct option. Additionally, Eric Barrera, a parole officer with TYC, provided testimony regarding the counseling, education opportunities, and other specialized services that would be provided to R.S. at TYC.

After reviewing the evidence in the light most favorable to the trial court's judgment, we cannot conclude that the trial court abused its discretion when it ordered R.S.'s commitment to TYC.

Conclusion

Each of R.S.'s arguments are overruled; thus, the trial court's judgment is affirmed.

Catherine Stone , Justice

Do Not Publish

1. Section 51.11 of the Texas Family Code provides:

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 that...the child's parent or guardian is incapable or unwilling to make decisions in the best interest of the child..., the court may appoint a guardian ad litem to protect the interests of the child in the proceedings.

Tex. Fam. Code Ann. 51.11(a)-(b) (Vernon 2002).

2. Aggravated robbery is committed "if, in the course of committing theft...and with intent to obtain or maintain control of the property, [a person]...intentionally or knowingly threatens or places another in fear of imminent bodily injury or death...and [said person]...uses or exhibits a deadly weapon...." Tex. Pen. Code Ann. 29.02(a), 29.03(a)(2) (Vernon 2003).

3. At the disposition hearing, R.S.'s mother was asked what her boyfriend's felony conviction was for, but she refused to provide this information.