in Re I. G. ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00765-CV
In re I. G.
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 265,220-E, HONORABLE FANCY JEZEK, JUDGE PRESIDING
MEMORANDUM OPINION
I.G., appearing pro se, appeals from the denial of his bill of review in which he asked
the trial court to set aside an adjudication of delinquency and an order denying his petition for writ
of habeas corpus. We will affirm.
BACKGROUND
On October 2, 1998, I.G., then eight days shy of his sixteenth birthday, was arrested
for the murder of a gun shop owner during a robbery I.G. participated in with three other people.
After a magistrate advised him of his rights, I.G. gave a statement to police admitting his
involvement in the incident. Shortly thereafter, I.G. retained counsel to represent him. According
to the State, the prosecuting attorney and I.G., represented by counsel, reached an agreement that the
State would forego seeking to have I.G. transferred to criminal court to be tried as an adult in
exchange for I.G.’s agreement to plead true to the allegations in a Determinate Sentence Petition and
testify for the prosecution in proceedings against the other three individuals involved in the robbery
and murder. On January 7, 1999, I.G. was formally charged by a Determinate Sentence Petition with
the offense of capital murder. On January 30, 1999, I.G., his attorney, and the Bell County Attorney
executed an “Agreement for Testimony” memorializing I.G.’s agreement to enter a plea of true and
judicially confess to the offense of capital murder and to appear at any proceedings involving the
three other people involved in the gun-shop murder and provide truthful testimony regarding the
incident. On February 2, 1999, I.G. appeared in juvenile court with his mother and his attorney and
pleaded true to the allegations in the Determinate Sentence Petition. At the disposition hearing, I.G.
and his attorney signed a “Waiver of Right to Appeal” in which each acknowledged that they
knowingly, voluntarily, and intelligently waived the right to appeal. The court followed the county
attorney’s recommendation that I.G. be given a 40-year determinate sentence. I.G. was then committed
to the care, custody, and control of the Texas Youth Commission until his 21st birthday, when he
was transferred to the Texas Department of Criminal Justice-Institutional Division.
In July 2012, I.G. filed a petition for writ of habeas corpus in Bell County district
court. See M.B. v. State, 905 S.W.2d 344, 346 (Tex. App.—El Paso 1995, no pet.) (“A juvenile, just
as any other person, may challenge a restraint upon his or her liberty by filing an application for writ
of habeas corpus in the proper court.”); Ex parte Hargett, 819 S.W.2d 866, 857 (Tex. Crim. App.
1991) (Article V, section 8 of Texas Constitution gives district court plenary power to issue writ of
habeas corpus); see also Tex. Fam. Code § 56.01(o) (appeal procedures in Juvenile Justice Code do
“not limit a child’s right to obtain writ of habeas corpus”). The district court denied the petition in
August 2012. In April 2013, I.G. filed a notice of appeal from the trial court’s order denying
his petition. This Court dismissed the appeal for lack of subject-matter jurisdiction due to I.G.’s
failure to timely file a notice of appeal. See Griffin v. State, No. 03-13-00263-CR, 2013 WL 2631617,
2
at * 1 (Tex. App.—Austin June 6, 2013, no pet.) (mem. op., not designated for publication). I.G.
then filed a bill of review in the Bell County district court. In his bill of review, I.G. challenged both
the 1999 adjudication of delinquency and the 2012 denial of his writ of habeas corpus. The trial
court denied the bill of review by order dated November 4, 2013. I.G. timely perfected this appeal.
DISCUSSION
Challenge to Adjudication of Delinquency by Bill of Review
A bill of review is an equitable proceeding brought by a party seeking to set aside a
prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Caldwell
v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Although a bill of review is an equitable proceeding, “the
fact that an injustice has occurred is not sufficient to justify relief by bill of review.” Wembley
Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). A bill of review, when properly brought, is
a direct attack on a judgment. Fender v. Moss, 696 S.W.2d 410, 412 (Tex. App.—Dallas 1985, writ
ref’d, n.r.e.). A direct attack is a proceeding brought to correct a former judgment and to secure
rendition of a single, proper judgment. Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881
(Tex. 1973).
Because I.G. waived his right to appeal, a direct attack seeking to alter or correct the
adjudication of delinquency is unavailable, whether by regular appeal or by bill of review. See Tex.
Fam. Code § 56.01 (if court makes disposition in accordance with agreement between state and
child, child may not appeal unless court gives child permission to appeal or appeal is based on
matter raised by written motion filed before proceeding in which child entered plea). However, in
his bill of review, I.G. contends that because he was not properly served with a summons the juvenile
3
court did not have jurisdiction over the case and, as a consequence, the adjudication of delinquency
is void. Thus, I.G. does not seek to alter or correct the prior adjudication of delinquency but rather
to set it aside as void. We will therefore review the merits of I.G.’s bill of review.
A direct attack on a judgment by bill of review must be brought within a definite
time period—i.e., within four years of rendition of the judgment complained of. PNS Stores, Inc.
v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012); see also Caldwell v. Barnes, 975 S.W.2d 535, 538
(Tex. 1998) (“The residual four-year statute of limitations applies to bills of review.”). The only
exception to the statute of limitations is when the petitioner proves extrinsic fraud. Defee v. Defee,
966 S.W.2d 719, 722 (Tex. App.—San Antonio 1998, no pet.); Law v. Law, 792 S.W.2d 150, 153
(Tex. App.—Houston [1st Dist.] 1990, writ denied). Extrinsic fraud is fraud that denied a party the
opportunity to fully litigate at trial all the rights or defenses that the party was entitled to assert. Tice
v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989). It is fraud that occurs in the procurement
of a judgment. Lambert v. Coachmen Indus. of Tex., Inc., 761 S.W.2d 82, 87 (Tex. App.—Houston
[14th Dist.] 1988, writ denied). The Texas Supreme Court has described extrinsic fraud as occurring
when a party “has been misled by his adversary by fraud or deception, did not know of the suit, or
was betrayed by his attorney.” Alexander v. Hagedorn, 226 S.W.2d 996, 1001 (Tex. 1950).
Because he has filed his bill of review outside the four-year limitations period, I.G.
must establish extrinsic fraud. The extrinsic fraud I.G. identified in his petition for bill of review
of the adjudication of delinquency was that, in his view, the return of service filed in Juvenile Court
to reflect service of the summons and the Determinate Sentence Petition was “incomplete.”
Specifically, I.G. complains of the Officer’s Return, which recites:
4
Came to hand on 13 Jan 99 at 8:55 o’clock a.m. Executed by delivering a copy of
this summons to the within-named ___________ in person at Juvenile Center in Bell
County, Texas, on the 13 day of Jan 1999 at 3:30 o’clock p.m.
The body of the summons commands the sheriff to “summon [I.G.]” to appear in Juvenile Court on
a date and time certain. I.G. contends that the return of service is “incomplete” because his name
is not written in the blank space in the Officer’s Return. I.G. argues that “because of the incomplete
officer’s return of service and the non-completion of the service itself, the juvenile court has failed
to establish its jurisdiction over the appellant—rendering his entire proceedings, including the charge
and its punishment, void for lack of jurisdiction.” I.G. asserts that this alleged defect in service
amounts to “extrinsic fraud” that tolled the four-year statute of limitations for filing his bill of
review. We are not persuaded that an incomplete return of service, without more, constitutes extrinsic
fraud that tolls commencement of the time period for I.G. to file a bill of review. Cf. Lambert,
761 S.W.2d at 87 (observing that fraudulent failure to serve defendant with personal service, in order
to obtain judgment against him without actual notice, has been held to be extrinsic fraud). I.G. has
failed to demonstrate any other “extrinsic fraud” that would toll the limitations period for filing his
bill of review. The trial court properly denied I.G.’s request to vacate the adjudication of delinquency
by bill of review. We overrule I.G.’s first issue.
Challenge to Denial of Petition for Writ of Habeas Corpus by Bill of Review
In his second issue, I.G. complains that he was “extrinsically defrauded in the review
of his petition for habeas corpus” because the trial court incorrectly handled the petition as though
it were a post-conviction petition for writ of habeas corpus filed pursuant to article 11.07 of the
5
Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art 11.07 (establishing procedures
for application for writ of habeas corpus in which applicant seeks relief from felony judgment). I.G.
argues that his petition was a “pre-trial petition” as opposed to a “post-conviction application” and
that it should have been handled in accordance with articles 11.10, 11.11, and 11.15. See id. arts.
11.10 (judge shall appoint time when he will examine applicant’s cause and issue writ returnable at
that time), 11.11 (time for hearing shall be earliest day judge can devote to hearing), 11.15 (writ shall
be granted without delay unless it is manifest from petition itself or from attached documents that
party is entitled to no relief). Instead, I.G. complains, the court permitted the State to file a response
and then denied relief without a hearing or considering his reply to the State’s response.
I.G. maintains that the petition for writ of habeas corpus was meritorious because it
was a collateral attack on a void adjudication of delinquency. Specifically, I.G. contends that the
adjudication of delinquency is void because the service of the summons ordering him to appear was
“incomplete” and consequently the record does not contain evidence demonstrating that he was
served. The record in this case includes a summons with an officer’s return. A return of service has
long been considered prima facie evidence of the facts recited regarding service. See, e.g., Pleasant
Homes, Inc. v. Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989) (per curiam). We do not
agree that the officer’s return ceases to be prima facie evidence of service on I.G. because of the
officer’s failure to write I.G.’s name in the blank after the words “within-named.” The summons is
plainly directed to I.G., and it is apparent that I.G. is the “within-named” person. The officer’s return
thus sufficiently recites that the summons was served on I.G. At most, the failure to write I.G.’s
name in the blank after “within-named” might constitute a defect in the officer’s return.
6
Texas courts have determined that certain defects in the notice process may be waived.
See e.g., Hildalgo v. State, 945 S.W.2d 313, 318 (Tex. App.—San Antonio 1997), aff’d, 983 S.W.2d
746 (Tex. Crim. App. 1999) (order authorizing service of summons to juvenile directed summons
to incorrect name, and summons itself failed to (1) state date petition was filed, or (2) name attorney
for petitioner); R.A.G. v. State, 870 S.W.2d 79, 82-83 (Tex. App.—Dallas) (record indicated that
clerk, not juvenile court, directed issuance of summons), rev’d on other grounds, 866 S.W.2d 199
(Tex. 1993); In the Matter of K.P.S., 840 S.W.2d 706, 709 (Tex. App.—Corpus Christi 1992, no
writ) (trial judge’s oral summons and in-court service of petition on juvenile sufficient to satisfy
section 53.06); Sauve v. State, 638 S.W.2d 608, 610 (Tex. App.—Dallas 1982, pet. ref’d) (no written
order directing issuance of summons to juvenile). Thus, a juvenile may waive the right to complain
about defects in the summons by appearing voluntarily at the hearing, indicating that he was aware
of the nature of the proceedings, and failing to object to defects in the summons. See D.A.W. v.
State, 535 S.W.2d 21, 22 (Tex. Civ. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.); see also
Sauve, 638 S.W.2d at 610 (defects in officer’s return must be attacked in juvenile court).
Here, the record shows that summons was issued to I.G. directing him to appear at
the date, time, and place set for the adjudication hearing. Although the officer’s return did not include
I.G.’s name in the blank, the officer signed the return indicating it had been delivered to the person
named in the summons. I.G. appeared at the hearing and was admonished regarding the nature and
consequences of the proceedings. The juvenile court made a specific finding in its adjudication order
that I.G. was summoned in accordance with Family Code section 53.06. Therefore, we conclude that
the juvenile court record, as a whole, affirmatively shows appellant was served with summons.
7
See In re C.C.G., 805 S.W.2d 10, 12-13 (Tex. App.—Tyler 1991, writ denied). Further, we conclude
that by voluntarily appearing at the hearing and failing to challenge the return, I.G. waived the right
to complain about the defects, if any, in the officer’s return.
As set forth above, we disagree that the alleged defect in service identified by I.G.
meant that he was not served with a summons to appear in the Juvenile Court and, consequently, that
the adjudication of delinquency is void. Moreover, articles 11.10, 11.11, and 11.15 govern petitions
for writ of habeas corpus filed pursuant to articles 11.08 and 11.09. See Tex. Code Crim. Proc.
arts. 11.08 (writ of habeas corpus available to person confined after indictment on charge of felony);
11.09 (writ of habeas corpus available to person confined on charge of misdemeanor). These writs
apply to persons confined on charges of criminal offenses, not to a person who has been adjudicated
delinquent. I.G.’s right to petition for a writ of habeas corpus arises out of article V, section 8 of
the Texas Constitution, not from the Texas Code of Criminal Procedure. See In re Brian Dwayne
Dorsey, No. WR-80,357-04, slip op. ¶¶ 3-5 (Tex. Crim. App. July 1, 2015) (Richardson, J.,
concurring statement) (explaining manner in which juvenile offender who has been transferred to
TDCJ may seek writ of habeas corpus); M.B. v. State, 905 S.W.2d 344, 346 (Tex. App.—El Paso
1995, no writ) (juvenile may challenge restraint on liberty by filing application for writ of habeas
corpus in proper court); In re Torres, 476 S.W.2d 883, 884 (Tex. Civ. App.—El Paso 1972, no writ)
(article V, section 8 of Texas Constitution grants Texas district courts plenary power to grant writs
of habeas corpus). Proceedings instituted under the Juvenile Justice Code are governed by the Texas
Rules of Civil Procedure, not the Texas Code of Criminal Procedure. In re M.R., 858 S.W.2d 365,
366 (Tex. 1993) (except when in conflict with provision of Family Code, Texas Rules of Civil
8
Procedure govern juvenile proceedings). Consequently, the trial court did not, as I.G. maintains,
abuse its discretion by not setting an early hearing to consider his petition for writ of habeas corpus
or by permitting the State to file a response. I.G.’s bill of review challenging the denial of the
petition for writ of habeas corpus was properly denied. We overrule I.G.’s second appellate issue.
CONCLUSION
Having overruled I.G.’s two appellate issues, we affirm the trial court’s order
denying his bill of review.
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: July 17, 2015
9