in the Matter of Z.Q. ( 2013 )

Affirmed and Memorandum Opinion filed January 17, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00129-CV
IN THE MATTER OF Z.Q.
On Appeal from the 315th District Court
Harris County
Trial Court Cause No. 86707
MEMORANDUM OPINION
Pro se appellant Z.Q. appeals the trial court’s denial of his application for
writ of habeas corpus from his adjudication of delinquency and subsequent
transfer, upon reaching the age of eighteen, to the Institutional Division of the
Texas Department of Criminal Justice (TDCJ). On appeal, Z.Q. raises two issues:
(1) the trial court abused its discretion by concluding that Z.Q.’s habeas petition
was without merit; and (2) the trial court abused its discretion by refusing to unseal
Z.Q.’s trial records. We affirm.
I
In1994, a jury found that Z.Q. engaged in delinquent conduct by committing
the offenses of capital murder, attempted capital murder, two counts of aggravated
robbery, and two counts of aggravated assault. At disposition, the jury assessed a
determinate sentence of forty years on the special issues of capital murder and
attempted capital murder, and placed Z.Q. in the custody of the Texas Youth
Commission. In 1997, Z.Q. reached the age of majority and, after a transfer
hearing, the trial court ordered Z.Q. transferred to TDCJ to serve the remainder of
his forty-year sentence.
In January 2011, Z.Q. filed an application for writ of habeas corpus in the
trial court, which he later amended. Z.Q. contended that trial court error and
ineffective assistance of counsel denied him the right to appeal his adjudication
and transfer, and he requested leave to file an out-of-time appeal. On November
17, 2011, the trial court denied Z.Q.’s application for writ of habeas corpus without
a hearing, finding “no merit” to his claims. The trial court did not file findings of
fact or conclusions of law.
II
In his first issue, Z.Q. contends that the trial court abused its discretion by
denying his application for habeas relief on the merits. Z.Q. argues that he was
denied his right to appeal and his right to counsel on appeal in violation of the
Sixth Amendment to the United States Constitution and the Due Process and Equal
Protection clauses of the Fourteenth Amendment. Specifically, Z.Q. maintains that
his trial counsel “denied and misinformed” him concerning his right to appeal the
adjudication of delinquency and his appellate counsel failed to pursue an appeal of
the transfer order after timely filing a notice of appeal. In support of his
constitutional arguments, Z.Q. cites generally to Evitts v. Lucey, 469 U.S. 387
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(1985), and Griffin v. Illinois, 351 U.S. 12 (1956).
A
Delinquency proceedings for juveniles in Texas are not handled in the
criminal system. The Family Code, which governs juvenile delinquency
proceedings, requires that they be conducted under the Texas Rules of Civil
Procedure, except as to discovery, and under the Texas Rules of Evidence
applicable to criminal proceedings. In re R.J.H., 79 S.W.3d 1, 6 (Tex. 2002). Thus,
although delinquency proceedings are civil proceedings, they are quasi-criminal in
nature. In re M.P.A., 364 S.W.3d 277, 282 n.2 (Tex. 2012); In re M.A.F., 966
S.W.2d 448, 450 (Tex. 1998); see also Tex. Fam. Code § 51.17.
A juvenile is entitled to effective assistance of counsel in adjudication
proceedings. See M.P.A., 364 S.W.3d at 290; In re R.D.B., 102 S.W.3d 798, 800
(Tex. App.—Fort Worth 2003, no pet.) (per curiam); see also Tex. Fam. Code
§ 56.01. We review the effectiveness of counsel’s representation in a juvenile
proceeding under the two-prong Strickland standard. M.P.A., 364 S.W.3d at 290;
R.D.B., 102 S.W.3d at 800. First, the appellant must show that his counsel’s
performance was deficient; second, he 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.
M.P.A., 364 S.W.3d at 290 (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999)). In doing so, we strongly presume that counsel’s conduct fell
within the wide range of reasonable professional assistance. 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. Id. That another attorney, including
appellant’s counsel on appeal, might have pursued a different course of action does
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not necessarily indicate ineffective assistance. See Hudson v. State, 128 S.W.3d
367, 380 (Tex. App.—Texarkana 2004, no pet.).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial. Strickland, 466 U.S.
at 687. In other words, an appellant must show a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694; Thompson, 9 S.W.3d at 812.
B
In support of his claim that he was effectively denied the right to appeal,
Z.Q. argues that he “annexed exhibits to the petition validating his claims with
evidence.” Z.Q. specifically points to one of the exhibits, consisting of documents
filed on Z.Q.’s behalf by his appellate counsel, including a notice of appearance, a
motion for reconsideration or reduction of sentence, a motion for new trial, and a
notice of appeal “from the judgment of conviction and sentence.” Z.Q. does not
explain how these documents support his claim of ineffective assistance of
counsel.1 Z.Q. also contends there are “facts” in his habeas petition to support his
claim. But he fails to specify which “facts” or to explain what makes them
relevant.
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 814. The presumption of a sound trial strategy cannot be
overcome absent evidence in the record of the attorney’s reasons for his conduct.
Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex. Crim. App. 2011). Moreover, it is
not appropriate for an appellate court to simply infer ineffective assistance based
1
There are additional exhibits attached to Z.Q.’s habeas petition, but he does not refer to
any of them specifically in his brief, much less explain how they support his claim.
4
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007). Z.Q. has presented no evidence from his former attorneys
concerning their communications with their client during Z.Q.’s delinquency
adjudication and transfer proceeding or the reasons for their actions or inactions
relating to those proceedings. On this record, we cannot say that the trial court
would have abused its discretion in concluding that Z.Q failed to satisfy the first
prong of the Strickland test. See Strickland, 466 U.S. at 688–89.
In his reply brief, Z.Q. cites Ex parte Crow for the proposition that when an
attorney’s deficient conduct results in the deprivation of an entire judicial
proceeding such as an appeal, the required showing of prejudice is more limited.
See 180 S.W.3d 135, 137–38 (Tex. Crim. App. 2005). The showing of prejudice,
however, goes to the second prong of the Strickland test. An appellant’s failure to
make either of the required showings of deficient performance and sufficient
prejudice defeats the claim of ineffective assistance. Thompson, 9 S.W.3d at 813.
Because we have determined that the trial court could have concluded that Z.Q.
failed to demonstrate that his counsels’ performance was deficient, we need not
reach Strickland’s prejudice prong. We overrule Z.Q.’s first issue.
III
In his second issue, Z.Q. contends that the trial court “had the authority and
the duty to unseal [Z.Q.’s] records.” Z.Q. maintains that he needs the trial records
to prove his entitlement to relief. In support, Z.Q. cites Family Code section
58.003(h), which provides that inspection of sealed records may be permitted by an
order of the juvenile court on the petition of the person who is the subject of the
records. Tex. Fam. Code § 58.003(h). The State contends that, assuming Z.Q.’s
claim is cognizable in an application for a writ of habeas corpus, the record
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contains no order of the trial court denying Z.Q. access to sealed records and
therefore the issue should be overruled.
As a general rule, juvenile appeals proceed under the rules governing civil
cases. Tex. Fam. Code § 56.01(b) (“The requirements governing an appeal are as
in civil cases generally.”); see also In re M.R., 858 S.W.2d 365, 366 (Tex. 1993)
(holding that civil procedural rule requiring motion for new trial as a prerequisite
to assert certain evidentiary and procedural errors on appeal applies to juvenile
delinquency actions); In re J.C.H., 12 S.W.3d 561, 562 (Tex. App.—San Antonio
1999, no pet.) (applying rules of appellate procedure governing civil cases in
juvenile case).
As a prerequisite to presenting a complaint for appellate review, Rule
33.1(a) of the Texas Rules of Appellate Procedure requires, among other things,
that a complaint was made to the trial court by a timely request, objection, or
motion that stated the grounds for the ruling that the complaining party sought
from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context. Tex. R.
App. P. 33.1(a)(1). Further, the record must show that the trial court either ruled on
the request, objection, or motion expressly or implicitly, or refused to rule and the
complaining party objected to the refusal. Id. 33.1(a)(2).
Z.Q. contends he alerted the trial court to his need for the trial records to
establish supporting facts in his response to the State’s answer to his application
for writ of habeas corpus. In the response, Z.Q. states “Relator will take this
oppertunity (sic) to humbly ask that this Honorable Judge enter an Order ordering
the Harris County District Clerk to ‘UNSEAL’ these records, and to furnish a copy
upon all parties.” Z.Q. also points to a federal court filing in the record reflecting
appellate counsel’s representation in a footnote that Z.Q.’s records are sealed.
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We conclude, however, that Z.Q.’s statement in a response to his original
application for writ of habeas corpus failed to adequately alert the trial court to the
ruling he sought with sufficient specificity to make the trial court aware of the
complaint. In the response, Z.Q. cited no rule or authority to support his purported
request or show his entitlement to such relief, and he did not request that his trial
records be unsealed in his prayer for relief. Moreover, in his amended application
for writ of habeas corpus—filed two months after his response to the State’s
answer—Z.Q. made no mention of unsealing his trial records and did not request
such relief anywhere in the amended application, effectively abandoning any
earlier request.2 Finally, the record does not reflect that Z.Q. ever brought his
request to the trial court’s attention by motion or request for a hearing, and there is
no order of the trial court denying any request to unseal records. We therefore
conclude Z.Q. has failed to preserve this issue for appeal and accordingly overrule
his second issue.
***
We therefore overrule Z.Q.’s issues and affirm the trial court’s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
2
In the prayer for relief in his amended habeas petition, Z.Q. requested just two things:
(1) leave to file an out-of-time-appeal; and (2) the appointment of counsel to handle his appeal.
Because we have determined that the trial court did not abuse its discretion in denying the
habeas, we express no opinion concerning whether such relief is available to Z.Q.
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