Opinion issued December 11, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00844-CV
                           ———————————
                          IN THE MATTER OF J.B.



                   On Appeal from the 314th District Court
                           Harris County, Texas
                     Trial Court Case No. 2013-02490J


                         MEMORANDUM OPINION

      J.B., a juvenile, was charged with aggravated robbery with a deadly weapon.

See TEX. PENAL CODE ANN. § 29.03 (West 2011). Pursuant to a plea agreement

with the State, J.B. stipulated to evidence of his guilt and pleaded “true” to the

State’s charge.    The trial court accepted the stipulation, adjudicated J.B.

delinquent, and in accordance with J.B.’s agreement with the State, entered a
disposition of 18 months’ probation. On appeal, J.B. argues that his plea was

involuntary and that the trial court erred in accepting it based on an erroneous

belief that aggravated robbery could be committed with a toy gun. J.B. also argues

that the trial court erred in making findings pursuant to Section 54.04 of the Family

Code when no evidence in the record supports the findings. We affirm.

                                    Background

      J.B. stipulated that, while committing theft of property from the

complainant, he exhibited a firearm. The following exchange occurred after the

trial court admonished J.B. and before the trial court accepted the stipulation:

      The Court: I’m going to show you your stipulation of evidence. Is
      this your signature?

      J.B.: Yes, ma’am.

      The Court: Did you sign it because it’s true?

      J.B.: No, ma’am.

      (Speaking simultaneously.)

      The Court: Is it true?

      Defense counsel: Tell her what you’re—

      J.B.: Yes, ma’am.

      The Court: This charge is true?

      J.B.: Yes, ma’am.

      The Court: You signed it because it’s true?


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      J.B.: Yes, ma’am.

The trial court then accepted the signed stipulation, in which J.B. waived his right

to a jury trial, and adjudicated J.B. delinquent.

      Following the adjudication of delinquency, the trial court considered

disposition. The probation report was admitted without objection. The trial court

confirmed that J.B.’s agreement with the State was for 18 months’ probation. The

trial court then asked whether a weapon was used and whether there were coactors.

      Defense counsel: No.

      The Court: No?

      The State: No coactors, Your Honor.

      The Court: But he had a gun? Where’d he get the gun from?

      J.B.: I didn’t have a gun, ma’am.

      Defense counsel: It wasn’t a real gun, but it was—

      The Court: No bullets?

      Defense counsel: The complainant thought it was a gun.

      The Court: Blanks? No bullets in it?

      Defense counsel: Toy.

      J.B.: No, ma’am.

      The Court: Well, you scared somebody. The fact that you scared them is
      enough. Whether it was real or not is another issue; but the fact that you
      scared somebody and you’re charged with a felony is pretty serious.



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The parties then discussed the terms of probation, and the trial court accepted the

recommendation of 18 months’ probation.

                                        Plea

      In his first issue, J.B. contends that his plea was not voluntary, knowing, or

intelligent because it was premised on his, his attorney’s, and the trial court’s

erroneous belief that aggravated robbery could be committed with a toy gun.

A.    Standard of Review and Juvenile Pleas

      To satisfy due process, a guilty plea “must be entered knowingly,

intelligently, and voluntarily.” Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.

App. 2006); see also TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West Supp.

2014) (requiring that guilty plea be made voluntarily and freely). In examining the

voluntariness of a guilty plea, we examine the record as a whole. Martinez v.

State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). When the record reflects that

a defendant was duly admonished by the trial court before entering a guilty plea, it

constitutes a prima facie showing that the plea was both knowing and voluntary.

Id. Section 54.03(b) of the Family Code sets forth the admonishments required in

juvenile proceedings:

      (1) the allegations made against the child;

      (2) the nature and possible consequences of the proceedings, including the
      law relating to the admissibility of the record of a juvenile court adjudication
      in a criminal proceeding;



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      (3) the child’s privilege against self-incrimination;

      (4) the child’s right to trial and to confrontation of witnesses;

      (5) the child’s right to representation by an attorney if he is not already
      represented; and

      (6) the child’s right to trial by jury.

TEX. FAM. CODE ANN. § 54.03(b) (West 2014). When the record demonstrates that

the defendant was properly admonished, the burden then shifts to the defendant to

show that he entered the plea without understanding the consequences of his

actions and was harmed as a result. Martinez, 981 S.W.2d at 197. “The trial court

is not required to withdraw a plea of guilty sua sponte and enter a plea of not guilty

for a defendant when the defendant enters a plea of guilty before the court after

waiving a jury, even if evidence is adduced that reasonably and fairly raises an

issue as to his guilt.” Rivera v. State, 123 S.W.3d 21, 32–33 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref’d) (citing Thomas v. State, 599 S.W.2d 823, 824 (Tex.

Crim. App. 1980)).

B.    Robbery with a Toy Gun versus a Real Gun

      Whether the defendant used a real gun or a toy gun in committing a robbery

affects the type of crime committed. If the defendant uses a real gun in robbing the

complainant, he is guilty of aggravated robbery. See TEX. PENAL CODE ANN.

§ 29.03(a)(2). If the gun is a toy, however, the defendant is guilty of robbery only.

See TEX. PENAL CODE ANN. § 29.02(a)(2) (West 2011); Payne v. State, 790 S.W.2d


                                            5
649, 652 n.3 (Tex. Crim. App. 1990). In Payne, the defendant moved to withdraw

his guilty pleas after he testified in open court during sentencing that he used a toy

gun, and not a real gun, when committing four robberies. 790 S.W.2d at 651–52.

He testified that he did not tell his lawyer that the gun was a toy because he did not

know that it mattered and that he signed his pleas without knowing that he could

not be convicted for aggravated robbery if he used a toy gun. Id. at 651. The trial

court refused the defendant’s motion to withdraw his pleas, but the Court of

Criminal Appeals reversed, holding the defendant’s testimony raised an issue

regarding the voluntariness of his confessions. Id. at 652.

C.    Analysis

      Here, the record reflects that the trial court admonished J.B., who was

represented by counsel, regarding the allegations against him, the consequences of

the proceeding, including the admissibility of his juvenile record in criminal

proceedings, his right to remain silent, and his right to trial, a trial by jury, and to

confront witnesses. See TEX. FAM. CODE ANN. § 54.03(b). Thus, J.B. bears the

burden to show that he entered his plea without understanding the consequences of

his actions and was harmed as a result. See Martinez, 981 S.W.2d at 197.

      In support of his claim that his plea was involuntary, J.B. points to the

portion of the record in which he told the trial court that the gun he used was a toy.

But this occurred after he waived a jury and the trial court accepted his plea and



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adjudicated him delinquent. Thus, the question we consider is not whether the trial

court erred in accepting the plea, but, rather, whether it erred in failing to withdraw

the plea after J.B. asserted during the disposition inquiry that the gun he used in the

robbery was a toy. See Rivera, 123 S.W.3d at 32–33.

      The record does not reflect that J.B. requested that he be allowed to

withdraw his plea.      See Thomas, 599 S.W.2d at 824 (where defendant is

admonished and does not request to withdraw plea, court reviews only whether

trial court should have withdrawn plea). And “[t]he trial court is not required to

withdraw a plea of guilty sua sponte and enter a plea of not guilty for a defendant

when the defendant enters a plea of guilty before the court after waiving a jury,

even if evidence is adduced that reasonably and fairly raises an issue as to his

guilt.” Rivera, 123 S.W.3d at 32–33.

      The primary case upon which J.B. relies, Payne, involves a defendant who

affirmatively requested that the trial court permit him to withdraw his plea. 790

S.W.2d at 651–52. Payne thus does not support J.B.’s argument that the trial court

erred because J.B. never asked the trial court to allow him to withdraw his plea,

and the trial court was not required to withdraw J.B.’s plea sua sponte. See

Thomas, 599 S.W.2d at 824; Rivera, 123 S.W.3d at 32–33; see also Lawal v. State,

368 S.W.3d 876, 882 n.1 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (Payne

is distinguishable from cases where no timely motion to withdraw plea was made



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because in Payne a timely motion to withdraw plea was raised during plea

hearing).

      Moreover, in the other cases relied upon by J.B., In re T.W.C., 258 S.W.3d

218 (Tex. App.—Houston [1st Dist.] 2008, no pet.), In re S.F., 2 S.W.3d 389 (Tex.

App.—San Antonio 1999, no pet.), and In re E.Q., 839 S.W.2d 144 (Tex. App.—

Austin 1992, no writ), the record affirmatively showed that the juvenile was

misadvised and would not have entered a guilty plea but for the faulty advice.

Here, the record does not affirmatively show that J.B. was misadvised. To the

extent that J.B. argues that his plea or his failure to withdraw the plea was the

result of faulty advice amounting to ineffective assistance of counsel, it is J.B’s

burden to prove ineffective assistance by showing that (1) counsel’s performance

was so deficient that counsel was not functioning as acceptable counsel under the

Sixth Amendment, and (2) but for counsel’s error, the result of the proceedings

would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064 (1984).

      J.B.’s appellate counsel filed a motion for new trial, but did not allege that

his trial counsel was ineffective, and no hearing was held on the motion. The

motion sought only a new trial or in the alternative, a modified judgment striking

the deadly weapon finding, and did not seek to withdraw J.B.’s plea. Nothing in

the record demonstrates why J.B.’s trial counsel did not seek to withdraw his guilty



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plea or what advice J.B.’s trial counsel gave him. Moreover, the probation report

indicates that the complainant stated that J.B. pointed a black semi-automatic pistol

at him and told the complainant that he would shoot him if he followed J.B. On

this record, we cannot determine what, if any, conflicting evidence may have

informed counsel’s recommendations or J.B.’s decision to plead guilty.

Accordingly, we must presume that counsel acted reasonably. See Rylander v.

State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (ordinarily, courts will not find

counsel ineffective where counsel has not been afforded an opportunity to explain

actions because presumption that counsel acted reasonably has not been rebutted);

Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (where record is

silent regarding reasons for counsel’s actions, presumption of reasonableness is not

rebutted). We note, however, that the appeal procedures in the Family Code do

“not limit a child’s right to obtain a writ of habeas corpus.” TEX. FAM. CODE ANN.

§ 56.01(o) (West 2014); see In re Hall, 286 S.W.3d 925, 926–27 (Tex. 2009)

(juvenile court had jurisdiction to hear writ of habeas corpus); In re R.G., 388

S.W.3d 820, 824 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (juvenile court

had jurisdiction to entertain application for writ of habeas corpus). The Court of

Criminal Appeals has recognized that a defendant who shows that he pleaded

guilty to aggravated robbery because his counsel did not inform him that

aggravated robbery cannot be proven if a toy gun was used may be entitled to



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habeas relief. See Ex Parte Carriker, No. WR-77916-01, 2012 WL 3600313, at *1

(Tex. Crim. App. Aug. 22, 2012).

      Accordingly, we hold that, on this record, J.B. has not met his burden to

show that his plea was involuntary, the trial court did not err in failing to withdraw

J.B.’s plea, and J.B. is not entitled to reversal based upon his ineffective assistance

claim. See Thomas, 599 S.W.2d at 824 (following acceptance of possession of

controlled substance plea, defendant’s testimony that she did not buy drug or know

she had it did not require trial court to sua sponte withdraw guilty plea); Rivera,

123 S.W.3d at 32–33 (where defendant argued on appeal that he involuntarily

pleaded guilty due to ineffective assistance of counsel, trial court did not err in

failing to sua sponte withdraw guilty plea); see also Quintanilla v. State, No. 01-

02-00722-CR, 2003 WL 1938224, at *2 (Tex. App.—Houston [1st Dist.] Apr. 24,

2003, pet. ref’d) (where appellant never requested to withdraw guilty plea but

claimed during sentencing that he committed offense because family’s safety was

threatened, trial court did not err in failing to sua sponte withdraw plea).

      We overrule J.B.’s first issue.

                               Section 54.04 Findings

      In his second issue, J.B. contends that the trial court abused its discretion in

making findings pursuant to Section 54.04 of the Family Code when there was no

evidence admitted to support the findings.



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A.    Standard of Review

      Absent an abuse of discretion, a juvenile court’s findings should not be

disturbed. In re E.J.L, No. 01-02-00472-CV, 2003 WL 1995454, at *4 (Tex.

App.—Houston [1st Dist.] May, 1, 2003, pet. denied) (mem. op., not designated

for publication) (citing In re M.S., 940 S.W.2d 789, 791 (Tex. App.—Austin 1997,

no pet.)). The legal and factual sufficiency of the evidence to support the trial

court’s findings under Section 54.04 are not independent grounds of error, but are

relevant factors in determining whether the trial court abused its discretion. Id.

(citing In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.—Fort Worth 2002, no pet.).

“An appellate court must uphold the trial court’s evidentiary ruling if there is any

legitimate basis in the record for the ruling.” In re C.J.H., 79 S.W.3d at 705.

B.    Analysis

      J.B. contends that the trial court’s findings that “Disposition should be made

for the child’s protection and the protection of the public,” and “Disposition is in

the best interests of said child’s health, safety, morals and education,” are

unsupported by the record. J.B.’s contention is based on his claim that no written

reports from probation officers, professional court employees, or professional

consultants were included in the record. However, Exhibit P-2, the probation

report, was admitted at the hearing. The court reporter originally failed to file the




                                         11
exhibit volume in this appeal, but after J.B. filed his brief, the State requested that

the court reporter supplement the record with the admitted exhibits, and she did so.

      The probation report addresses J.B.’s home life and his school record. J.B.

has been suspended for tardiness and fighting. The report states that J.B. does not

get along with his stepfather. He reported that he was once homeless for four or

five months, and his mother reported he ran away once, but was only gone for one

day. The report states that J.B. tested positive for marijuana use. The report

provides information about J.B.’s mental and emotional condition and

recommendations from a reviewing psychologist.            Among other things, the

psychologist states that J.B. would benefit from services “that would allow his

behavior to be more closely monitored.”

      This evidence is sufficient to support the trial court’s findings that the

disposition “should be made for the child’s protection and the protection of the

public,” and “is in the best interests of said child’s health, safety, morals and

education.”    See TEX. FAM. CODE ANN. § 54.04(b) (West 2014) (“At the

disposition hearing, the juvenile court . . . may consider written reports from

probation officers, professional court employees, or professional consultants . . .

.”). On this record, we hold that the trial court did not abuse its discretion in

making the complained-of findings. See id.

      We overrule J.B.’s second issue.



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                                   Conclusion

      We affirm the trial court’s judgment.




                                              Rebeca Huddle
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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