in the Matter of J.A.L.

Opinion issued October 30, 2008

Opinion issued October 30,

2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00896-CV

IN THE MATTER OF J.A.L.

On Appeal from the 306th District Court

Galveston County , Texas

Trial Court Cause No. 98JV0499

MEMORANDUM OPINION

Pursuant to a plea agreement, the

trial court adjudicated J.A.L. as having engaged in delinquent conduct by

committing capital murder and robbery, and sentenced him to forty years’

confinement. J.A.L. attacked the constitutionality of his conviction in an

application for habeas corpus relief, contending that his trial counsel

rendered constitutionally ineffective assistance by failing to request a

hearing on whether J.A.L. was mentally fit to proceed before J.A.L. agreed to the

plea. The trial court denied relief. We affirm.

Background

In 1999,

J.A.L., then sixteen years of age, was arrested and charged with delinquent

conduct by committing capital murder, specifically, by robbing and repeatedly

stabbing a man to death. Before proceeding with the adjudication, the county

court, sitting as a juvenile court, ordered that J.A.L. be evaluated by a

psychiatrist to determine whether he should be certified to stand trial as an

adult.

The psychiatrist who

examined J.A.L. determined that “he is a moderately retarded individual,” but

“does not show signs of mental illness.” The psychiatrist further opined that

he

seem[ed] to have an

elementary concept of what’s right and what’s wrong, in terms of

behavior. . . . He is not so retarded that he is not slightly

educable and he could learn how to perform some simple jobs.

At the psychiatrist’s direction,

J.A.L. also underwent I.Q. testing, which showed that J.A.L. had an I.Q. of 57

and thus confirmed the psychiatrist’s clinical impression. Based on this

evaluation, the psychiatrist concluded that she could “not possibly recommend

he be certified to stand trial as an adult.” Both the court and J.A.L.’s

court-appointed counsel received copies of the psychiatrist’s report.

Next, the State

petitioned the state family district court (the “trial court”) to find that

J.A.L. engaged in delinquent conduct by committing capital murder and robbery.

A few days later, J.A.L. appeared with counsel before the trial court to

execute a plea agreement with the State. J.A.L. signed a stipulation

confessing to the allegations of the petition. He also wrote his initials next

to each of the admonishments given by the trial court, thereby confirming that

he understood the contents of each admonishment, including the rights he waived

and the nature and possible consequences of his adjudication hearing. In

accord with these admonishments and the plea agreement, the trial court entered

judgment and sentenced J.A.L. to a forty-year term, with a possible transfer to

the institutional division or the pardons and paroles division of the Texas

Department of Criminal Justice. The trial court’s disposition order further

declared that J.A.L. would become eligible to apply for parole after serving

ten years of the sentence.

Nearly nine

years later, the same trial court that presided over J.A.L.’s juvenile

proceeding and entry of plea agreement presided over the evidentiary hearing

held on J.A.L.’s application for habeas relief. The trial court heard

testimony from J.A.L., his trial counsel, the assistant district attorney who

brought the petition against J.A.L., and J.A.L.’s father, stepmother, and

grandmother. Relying on the testimony, the evidence, and her personal

recollection, the trial judge denied the writ.

Discussion

In his sole ground for appeal, J.A.L.

contends that the trial court erred in denying his application for habeas

corpus relief because the undisputed evidence shows that his trial counsel

failed to procure an adjudication of J.A.L.’s mental fitness before J.A.L.

entered into the plea agreement. This failure, J.A.L. claims, constitutes

ineffective assistance of counsel in violation of his rights under the Sixth

Amendment of the United States Constitution and Article 1, Section 10, of the

Texas Constitution. See U. S. Const. amend. VI; Tex. Const . art. 1, § 10.

Ineffective assistance of counsel

To prevail on

a claim of ineffective assistance of counsel, the habeas applicant must show

that (1) his counsel’s performance was deficient and (2) a reasonable

probability exists that the result of the proceeding would have been different.

Strickland v. Washington , 466 U.S. 668, 687 , 104 S. Ct. 2052, 2064

(1984). The first prong of Strickland requires the applicant to show

that counsel’s performance fell below an objective standard of reasonableness. Thompson

v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the applicant

must prove objectively, by a preponderance of the evidence, that his counsel’s

representation fell below professional standards. Mitchell v. State , 68

S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires the applicant

to show a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. See Strickland , 466 U.S. at 694 , 104 S. Ct. at 2068 ; see

also Thompson , 9 S.W.3d at 812 . “A [reviewing] court [should] indulge a

strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the [applicant] must [also] overcome

the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Strickland , 466 U.S. at 689 , 104 S. Ct. at 2065 . “Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.”

Thompson , 9 S.W.3d at 813 (citing McFarland v. State , 928 S.W.2d

482, 500 (Tex. Crim. App. 1996)).

In a habeas

challenge based on the voluntariness of a plea entered on the advice of

counsel, we specifically examine (1) whether counsel’s advice was within the

range of competence demanded of attorneys in juvenile cases and if not, (2)

whether there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on proceeding to trial. See

Hill v. Lockhart , 474 U.S. 52, 59 , 106 S. Ct. 366, 370 (1985); Ex parte

Morrow , 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).

In reviewing

the trial court’s decision, we are mindful that the judge presiding over the

habeas hearing is in the best position to make credibility determinations. We thus

defer to the trial court’s factual findings that are supported by the record. See

Ex parte Brown , 205 S.W.3d 538 , 544–46 (Tex. Crim. App. 2006); Ex parte

Wheeler , 203 S.W.3d 317 (Tex. Crim. App. 2006). Further, if the same trial

judge presides over the trial court adjudication and the habeas proceeding, that

judge is entitled to take judicial notice of the relevant facts and

circumstances in the trial proceedings. See Ex parte Turner , 612 S.W.2d

611, 612 (Tex. Crim. App. 1981).

Mental

fitness to proceed

J.A.L. contends that his trial

counsel’s failure to request a hearing to determine whether J.A.L. was mentally

fit to proceed amounts to ineffective assistance. Under the Texas Family Code,

[a] child

alleged by petition or found to have engaged in delinquent conduct or conduct

indicating a need for supervision who as a result of mental illness or mental

retardation lacks capacity to understand the proceedings in juvenile court or

to assist in the child’s own defense is unfit to proceed and shall not be

subjected to discretionary transfer to criminal court, adjudication,

disposition, or modification of disposition as long as such incapacity endures.

Tex. Fam.

Code Ann . § 55.31(a)

(Vernon 2002). The trial court may hold a separate hearing to allow the

defense to prove, by a preponderance of the evidence, that the child is unfit

to proceed. Id. § 55.31(c). If the child is not mentally fit to

proceed, the trial court must stay the proceeding until the child becomes fit

to proceed. Id. § 55.31(d).

This statutory standard differs from

those used in psychiatry and the mental health professions to determine whether

a person has a severe mental disability. See ex parte Briseño , 135

S.W.3d 1 , 8 n.28 (Tex. Crim. App. 2004). In Briseño , the Court of

Criminal Appeals considered the difficulty in identifying the level and degree

of mental retardation at which the community would find that a person should be

exempted from the death penalty, following Atkins v. Virginia , 536 U.S. 304 , 122 S. Ct. 2242 (2002). 135 S.W.3d at 6 . The court noted that the definition of mental

retardation itself has been in flux, and whether or the degree to which a

person is mentally retarded can change over time. Id. at 8 n.29.

Excerpting from learned treatises on the issue, the court further observed that

[s]ignificantly

subaverage intellectual functioning is defined as an IQ of about 70 or below .

. . . Psychologists and other mental health professionals are flexible in

their assessment of mental retardation; thus, sometimes a person whose IQ has

tested above 70 may be diagnosed as mentally retarded while a person whose IQ

tests below 70 may not be mentally retarded. Furthermore, IQ tests differ in

content and accuracy.

Id. at 7 n.24 (quoting Am.

Psychiatric Ass’n Diagnostic & Statistical Manual of Mental Disorders

39 (Text Rev., 4th ed. 2000), and Am.

Ass’n on Mental Deficiency, Classification in Mental Retardation 1, 23,

56–57 (Grossman ed. 1983)). We therefore consider whether the evidence shows

that J.A.L.’s mental retardation rendered him unable to understand the

proceedings or assist in his own defense such that his trial counsel rendered

ineffective assistance by failing to request a hearing as to J.A.L.’s mental

fitness to understand the proceedings and assist in his defense before a

hearing on J.A.L.’s guilty plea.

The record contains

conflicting evidence on this issue. J.A.L. testified that he either

misunderstood counsel’s explanation of the effects of his guilty plea or that

counsel misinformed J.A.L. concerning his options. According to J.A.L., he did

not understand the consequences of his plea. Specifically, J.A.L. testified,

he believed, incorrectly, (1) that he could have been subject to the death

penalty if he did not accept the plea offer, and (2) that he would be paroled

in five years, at age 21, if he did accept it. [1]

In contrast, J.A.L.’s trial counsel testified that, while he suspected that

J.A.L. had some intellectual impairment, J.A.L.’s questions were forthright and

relevant to the matters they discussed. Trial counsel recalled explaining the

plea bargain to J.A.L., reviewing it “so many times that he got it.” Trial

counsel specifically denied ever telling J.A.L. that he could be subject to the

death penalty, and further told J.A.L. that his chances of receiving parole at

age 21 were “one in a million,” given the nature of the offense and his prior

criminal record. After explaining J.A.L.’s options to him and answering his

questions, trial counsel continued, J.A.L. appeared to understand the options

presented, and at no time indicated that he did not. The record also contains

lengthy letters handwritten in legible cursive by J.A.L. near the time of his

plea. The letters, two addressed to his girlfriend and one to the trial judge,

contain complete sentences and express coherent thoughts. The letters also

demonstrate that J.A.L. understood why he was in confinement and that he could

receive a life sentence. J.A.L. testified at his habeas hearing that he had

help writing the letters, but the trial court was entitled to discount this

vague explanation for their relative lucidity. [2]

In reaching her decision,

the trial judge, noting trial counsel’s years of experience in handling

juvenile proceedings, recalled that, when she inadvertently misinformed J.A.L.

on a legal issue regarding J.A.L.’s determinate sentence at the plea hearing,

trial counsel corrected her, explaining the new change in the law for the court

and his client. She noted that this specific incident was in keeping with her

personal experience and general opinion of trial counsel as a thorough and

capable attorney, and that, as a result, she did not find credible J.A.L.’s

allegation that trial counsel misinformed him that he was subject to the death

penalty. In deference to the trial court’s credibility findings, and because

the trial court’s factual findings are supported by the record, we hold that

J.A.L. has not met his burden to establish that his counsel was ineffective.

The trial thus court did not abuse its discretion in denying J.A.L.’s

application for habeas corpus relief.

Conclusion

We hold that the trial

court did not abuse its discretion in denying habeas corpus relief. We

therefore affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Judges Jennings,

Hanks, and Bland.

[1]

The trial court properly admonished J.A.L. as to

the effect of his plea, including the punishment range and the possibility of

parole. We analyze J.A.L.’s argument, however, in the context of his claim

that his misapprehension is evidence that trial counsel was ineffective in

failing to request a hearing on his mental fitness.

[2]

The record also contains conflicting evidence

concerning whether J.A.L.’s parents received adequate notice of the plea

hearing, and accordingly, we decline to disturb the trial court’s ruling based

on that issue.