Mary Louise Rosas v. State

Mary Louise Rosas v. The State of Texas IN THE TENTH COURT OF APPEALS No. 10-97-199-CR      MARY LOUISE ROSAS,                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                               Appellee From the 87th District Court Freestone County, Texas Trial Court # 97-011-CR                                                                                                                 O P I N I O N                                                                                                                       Mary Louise Rosas entered a plea of guilty to the court on the charge of burglary of a habitation. See Tex. Pen. Code Ann. § 30.02 (Vernon 1994). Pursuant to a plea bargain, the court assessed punishment at five years’ deferred adjudication. In her first point of error, Rosas argues that her plea was involuntary. The second point of error urges that her counsel was ineffective because of a conflict of interest at the motion for new trial hearing.       Rosas filed a general notice of appeal and thus, may not appeal nonjurisdictional errors. Tex. R. App. P. 40(b)(1), 49 Tex. B.J. 566 (Tex. Crim. App. 1986). A claim of ineffective assistance of counsel has been held to be a nonjurisdictional error. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994); Williams v. State, 960 S.W.2d 758, 759 (Tex. App.—Houston [1st Dist.] 1997, n.p.h.); McCowan v. State, 961 S.W.2d 24, 26 (Tex. App.—Dallas 1996, n.p.h.). Therefore, we have no jurisdiction to address Rosas’ ineffective assistance of counsel complaint. We dismiss her second point of error for want of jurisdiction.       However, we may address Rosas’ complaint that her plea was involuntary. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996) (voluntariness of a plea is a jurisdictional issue). A voluntary plea is one made with full awareness of the direct consequences. Ex parte Griffin, 679 S.W.2d 15, 17 (Tex. Crim. App. 1984). The entire record must be examined to determine the voluntariness of the plea. Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975).       Rosas contends that her plea was involuntary because the court stated the incorrect range of punishment during admonishments. The reporter’s record reflects that the court stated the range of punishment as two to fifty years. However, the State filed a motion to correct an inaccuracy in the reporter’s record. The motion contained the court reporter’s affidavit which stated that a mistake was made during proofreading and the record should read that the punishment was up to twenty years. We granted the motion to correct the inaccuracy and therefore the reporter’s record shows that Rosas was informed of the correct range of punishment, two to twenty years, for a second degree felony. Thus, Rosas’ plea is not involuntary due to an incorrect range of punishment.       Rosas also contends that her plea was involuntary because her counsel failed to inform her of her right to cross-examine witnesses and her right to a jury trial. When the record shows that the court properly admonished the defendant, it presents a prima facie showing that the guilty plea was knowing and voluntary. Rodriguez v. State, 933 S.W.2d 702, 705 (Tex. App.—San Antonio 1996, pet. ref’d); Miller v. State, 879 S.W.2d 336, 338 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). The burden then shifts to the defendant to show that the plea was entered without knowledge of the circumstances. Rodriguez, 933 S.W.2d at 706; Miller, 879 S.W.2d at 338. Rosas testified at her new trial hearing that she was not informed of these rights but the record of the plea hearing reflects that the court informed her of the right to a jury trial and the right to question witnesses. Rosas said that she understood that she was waiving these rights. Further, her counsel asked her if he had advised her of the right to a jury trial, to which Rosas answered, “Yes, you did.” Thus, we find that the record reflects that Rosas was informed of her rights and that she voluntarily waived them.       Rosas also argues that her state of mind on the day of the plea hearing did not enable her to answer in her best interest. At the hearing on her motion for new trial, Rosas testified that during the plea hearing she was upset and had a lot of emotions and it was “that time of the month.” The following exchange occurred at the plea hearing: [COURT]: And are you pleading guilty because you are guilty and for no other reason?  [ROSAS]: I guess. Yeah.  [COURT]: Before I can accept a plea of guilty, I need to be assured that you’re doing this freely and voluntarily.  [ROSAS]: Yes, I am.  [COURT]: You’re doing this of your own free will?  [ROSAS]: Yeah. After talking with my attorney for the last three months, we just both came to the conclusion this would be in my best interest. * * * *  [COURT]: Okay. So there’s no doubt you’re pleading guilty because you are guilty and for no other reason?  [ROSAS]: (Nods head.) Yes, I guess. (Crying.) At this point, the court takes a ten minute recess so that Rosas can think about her plea. When the court reconvened, the judge asked Rosas, “Are you pleading guilty because you are guilty and for no other reason?” Rosas replied, “Yes, sir.”       While we acknowledge that Rosas appeared hesitant and expressed emotions during the plea hearing, we cannot conclude that her state of mind prevented her from entering a voluntary plea. Thus, we find that Rosas has not overcome the presumption that her plea was entered knowingly and voluntarily. Therefore, we overrule the first point of error.       We affirm the judgment.  REX D. DAVIS Chief Justice Before Chief Justice Davis        Justice Cummings and        Justice Vance Affirmed Opinion delivered and filed May 20, 1998 Do not publish nguage:EN-US;mso-bidi-language:AR-SA'>[2] The trial court granted the motion without specifying the grounds and severed the cause from the remaining defendants. STANDARD OF REVIEW Summary Judgment When a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App.—Waco 2000, pet. denied). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex. App.—Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in her favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. If the movant for summary judgment is a defendant, then the movant must negate at least one of the elements of the non-movant's cause of action, or alternatively, the movant must conclusively establish each element of an affirmative defense. Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex. App.—Waco 2003, pet. denied). The non-movant need not respond to the motion for summary judgment unless the movant meets his burden of proof. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999).  But if the movant meets his burden of proof, the non-movant must present summary-judgment evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). We apply the same standard in reviewing the grant or denial of a no-evidence summary-judgment motion as we would in reviewing a directed verdict. Ash, 54 S.W.3d at 413. We review the summary-judgment evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. A no-evidence motion will be defeated if more than a scintilla of probative evidence exists to raise a genuine issue of material fact on the element challenged by the movant. Id. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003) (business disparagement case). Evidence attached to a no-evidence motion should not be considered unless it creates a fact issue. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). Judicial Immunity Judges are absolutely immune from liability for judicial acts performed in the course of judicial proceedings over which they have jurisdiction. Turner v. Pruitt, 342 S.W.2d 422, 423 (Tex. 1961); Houston v. West Capital Fin. Servs., 961 S.W.2d 687, 689 (Tex. App.—Houston [1st Dist.] 1998, writ dism'd w.o.j.). When judges delegate their authority or appoint others to perform services for the court, the judge’s judicial immunity may follow the delegation or appointment, which is called derived judicial immunity. Clements v. Barnes, 834 S.W.2d 45, 46 (Tex. 1992). DERIVED JUDICIAL IMMUNITY Because Sanders was appointed guardian ad litem in a federal court, we will apply federal law to determine whether Sanders is entitled to derived judicial immunity. Functional Approach The United States Supreme Court adopted a functional approach to determine whether a party is entitled to immunity. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 994-96, 47 L.Ed.2d 128 (1976). In Imbler, the Court stated: [The prosecutor's] activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.  Id. (footnotes omitted); see also Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 563, 98 L.Ed.2d 555 (1988) (“Running through our cases . . . is a ‘functional’ approach to immunity questions . . [under which] we examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.”). The United States Supreme Court has extended absolute immunity to various persons whose involvement with the judicial process has been thought to warrant protection from interference with their ability to engage in impartial decision-making. See Briscoe v. LaHue, 460 U.S. 325, 336, 103 S.Ct. 1108, 1116, 75 L.Ed.2d 96 (1983) (private witnesses in judicial proceedings); Butz v. Economou, 438 U.S. 478, 512-14, 98 S.Ct. 2894, 2913-15, 57 L.Ed.2d 895 (1978) (federal hearing examiner or administrative law judge); Stump v. Sparkman, 435 U.S. 349, 362, 364, 98 S.Ct. 1099, 1107-09, 55 L.Ed.2d 331 (1978) (state trial judge). A number of courts have held various participants in judicial proceedings absolutely immune from liability for their actions taken in performance of their roles as “integral parts of the judicial process.”  See, e.g., Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989) (social worker), cert. denied, 493 U.S. 1072, 110 S.Ct. 1118, 107 L.Ed.2d 1025 (1990); Meyers v. Contra Costa County Dep't of Social Servs., 812 F.2d 1154 (9th Cir.) (same), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987); Moses v. Parwatikar, 813 F.2d 891 (8th Cir.) (court-appointed psychiatrist), cert. denied, 484 U.S. 832, 108 S.Ct. 108, 98 L.Ed.2d 67 (1987); Demoran v. Witt, 781 F.2d 155 (9th Cir. 1985) (probation officer); Lawyer v. Kernodle, 721 F.2d 632 (8th Cir. 1983) (pathologist assisting coroner); Wiggins v. New Mexico State Supreme Court Clerk, 664 F.2d 812 (10th Cir. 1981) (members of state supreme court and clerk), cert. denied, 459 U.S. 840, 103 S.Ct. 90, 74 L.Ed.2d 83 (1982); Boullion v. McClanahan, 639 F.2d 213 (5th Cir. 1981) (bankruptcy trustee); T & W Inv. Co. v. Kurtz, 588 F.2d 801 (10th Cir. 1978) (court-appointed receiver); Kermit Constr. Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1 (1st Cir. 1976) (same); Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970) (probation officer and court-appointed medical examiner), cert. denied, 403 U.S. 908, 91 S.Ct. 2217, 29 L.Ed.2d 685 (1971); Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir. 1980) (partition commissioner); Wagner v. Genesee County Bd. of Comm'rs, 607 F. Supp. 1158 (E.D. Mich. 1985) ("friend of the court" in family court proceedings). The Fifth Circuit adopted the functional approach in decisions denying absolute immunity to social workers.  See Hodorowski v. Ray, 844 F.2d 1210, 1213-15 (5th Cir. 1988) (finding absolute immunity is not essential to the proper functioning of child protective service workers); Austin v. Borel, 830 F.2d 1356, 1361-63 (5th Cir. 1987) (finding child protection workers not entitled to absolute immunity for their conduct in filing an allegedly false verified complaint seeking the removal of two children from a home, which the court analogized to a probation officer’s filing of a probation report that causes arrest of a person on probation).   Guardians Ad Litem The Sixth Circuit held that a guardian ad litem for a child in a dependency and neglect proceeding and a subsequent proceeding to terminate the parents’ parental rights was entitled to absolute immunity. Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984). The court stated that the guardian ad litem: must act in the best interests of the child he represents. Such a position clearly places him squarely within the judicial process to accomplish that goal. A guardian ad litem must also be able to function without the worry of possible later harassment and intimidation from dissatisfied parents.  Id. Other courts have reached similar results that guardian ad litems should be free to operate without the prospect of liability. See Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989) (guardian ad litem for child in divorce proceeding acted as “agent of the court”); Myers v. Morris, 810 F.2d 1437, 1466-67 (8th Cir.) (guardian ad litem for children in investigation of alleged sexual abuse immune from performance of “delegated functions”), cert. denied, 484 U.S. 828 (1987); Short v. Short, 730 F. Supp. 1037, 1039 (D. Colo. 1990) (guardian ad litem for children in custody dispute immune for acts as “agent of the court”). In Ward v. San Diego County Department of Social Services, the guardian ad litem of a child performed factual investigations and made recommendations to the court regarding the placement which was thought to be in the child’s best interests. Ward. v. San Diego County Dep’t of Social Servs., 691 F. Supp. 238, 240 (S.D. Cal. 1988). The court stated: As guardian ad litem, [the guardian] was acting as an extension of the court by performing the quasi-judicial functions of investigating the facts and reporting to the court what placement was in [the child’s] best interests.  A guardian ad litem serves to provide the court with independent information regarding the placement or disposition which is in the best interests of the child. This independent determination is crucial to the court’s decision. The threat of civil liability would seriously impair the ability of the guardian ad litem to independently investigate the facts and to report his or her findings to the court. As a result, the ability of the judge to perform his or her judicial duties would be impaired and the ascertainment of truth obstructed.  Id. Although the Third Circuit did not reach the issue, it provided the following guidance: Under [the functional] approach, a guardian ad litem would be absolutely immune in exercising functions such as testifying in court, prosecuting custody or neglect petitions, and making reports and recommendations to the court in which the guardian acts as an actual functionary or arm of the court, not only in status or denomination but in reality. This does not exhaust the list of functions which would be absolutely immune, and each function would have to be analyzed on a case-by-case basis.  Thus, the district court should, if faced with this issue again, analyze each of the functions performed by [the guardian ad litem] and determine if acts allegedly committed pursuant to those functions warrant immunity under the foregoing analysis.  Gardner v. Parson, 874 F.2d 131, 146 (3d Cir. 1989).  Arguments Among other grounds, Sanders asserted the following traditional summary judgment ground: Sanders is entitled to judgment as a matter of law that Plaintiff take nothing on her claims, because the undisputed summary judgment evidence establishes as a matter of law that Sanders is exempted from liability for his actions as guardian ad litem in the Federal Court Action under the doctrine of derived judicial immunity.  Sanders argues that we should apply the functional approach and affirm the summary judgment because he, as guardian ad litem, is entitled to derived judicial immunity. Wilz argues that a Texas case, Byrd v. Woodruff, controls this court’s analysis. In Byrd, a Texas appellate court found that the guardian ad litem appointed under Rule 173 does not act as an “arm of the court” because the ad litem is acting as a personal representative and advocate for the interest of the minor, which are not duties the court normally performs. Byrd v. Woodruff, 891 S.W.2d 689, 708-10 (Tex. App.—Dallas 1994, writ denied).  She argues that Sanders is not entitled to immunity because he was “appointed to represent the interests of the Ward, displacing Kenneth Flournoy, the Ward’s father, as next friend, in the Federal lawsuit.” She asserts that a guardian ad litem is not an agent of the court, but instead acts to protect the best interests of his ward. Application We agree that a guardian ad litem should be absolutely immune when acting as an “integral part of the judicial process.” See Briscoe, 460 U.S. at 335, 103 S.Ct. at 1116. Following the United States Supreme Court, we will apply the functional approach to determine whether Sanders as a guardian ad litem is absolutely immune. See Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-96; Gardner, 874 F.2d at 146.  To be entitled to summary judgment in this case, Sanders had to prove as a matter of law that his appointment contemplated that he act as an “arm of the court” and that he did not depart from the scope of his appointment. United States District Judge Sam B. Hall, Jr. appointed Sanders as guardian ad litem in an order stating: The Court has been advised by the parties or their attorneys that all matters in the above-styled cause have been settled and compromised, and that the appointment of a Guardian Ad Litem is necessary.  It is, therefore,          . . .          It is further ORDERED that Jack Sanders, Jr., attorney at law in Marshall, Texas, shall be appointed Guardian ad Litem.  The federal court later approved the compromise settlement after a hearing stating in its judgment that: . . ., and the Court being of the opinion that it would be in the best interest of the Plaintiff to appoint an attorney ad litem[3] to represent the interests of Jon Flournoy, and the Court having under separate order appointed attorney Jack Sanders, Jr. to serve in such capacity and it being made known to the Court by the duly appointed attorney ad litem that in his opinion the settlement as announced is in the best interest of the incapacitated adult, Jon Flournoy, the Court does hereby approve the compromise settlement and enters the following judgment.  Sanders testified that he briefly met with Flournoy, not the Ward, the morning of the settlement hearing. In Sander’s summary judgment affidavit, he states: . . .  I was appointed guardian ad litem for the Ward in the Federal Court Action by order dated March 4, 1991. I was never asked to have any involvement in the First Guardianship Proceeding [in Harrison County].  . . .  Pursuant to the Federal Court’s order, I was to investigate and evaluate the fairness and reasonableness of the settlement and report to the court whether the Compromise Settlement Agreement was in the best interests of the Ward to assist the court in its determination of whether the Compromise Settlement Agreement should be approved by the Federal Court.  . . .  My only connection to the Ward was a guardian ad litem in the Federal Court Action. I have never had an attorney-client relationship with the Ward.  . . .  As guardian ad litem for the Ward, I conducted a thorough investigation of the damages suffered by the Ward, the adequacy of the settlement, the proposed distribution of the settlement proceeds among the interested parties, the proposed manner of disbursement of the settlement proceeds, and the amount of the attorney’s fee charged by Mr. Baxter’s firm.[4] In accordance with my normal practice, I would have discussed the case in detail with Mr. Baxter. I would also have reviewed Mr. Baxter’s entire file, including the documentation supporting disbursements to be made from the settlement proceeds. At the March 22, 1991 fairness hearing in the Federal Court Action, I reported to the Federal Court my belief that the Compromise Settlement Agreement was fair and reasonable and in the best interest of the Ward to accept.  We find that the undisputed evidence shows that the federal court appointed Sanders to assist the court by investigating the fairness and reasonableness of the settlement and report to the court whether the settlement was in the best interests of the Ward. See Ward, 691 F. Supp. at 240. Also, there is nothing in the summary judgment evidence to indicate that Sanders acted outside the scope of his appointment or that he departed from his role as a functionary of the court in making a recommendation to the court. Thus, we hold that the summary judgment evidence was sufficient to establish the affirmative defense of derived judicial immunity. See Gardner, 874 F.2d at 146. Sanders, as guardian ad litem, was required to make an independent determination that was crucial to the court’s decision; therefore, any threat of liability would impair his ability to independently investigate the facts, which would impair the judge’s ability to perform his duties. See Kurzawa, 732 F.2d at 1458; Ward, 691 F. Supp. at 240. We distinguish this case from Byrd because Sanders was not appointed under Texas Rule 173 to displace and act in place of Flournoy, the next friend of the Ward; he was appointed by the federal court under Federal Rule 17(c), and Flournoy, as next friend of the Ward, was not replaced by Sanders. See Byrd, 891 S.W.2d at 708-10. Also, the summary judgment evidence indicates that Sanders was not the Ward’s personal representative or advocate. See id. In addition, even if we rely on Texas law, we would reach the same conclusion because the Texas Supreme Court has also adopted the functional approach. Dallas County, Texas v. Halsey, 87 S.W.3d 552, 556-57 (Tex. 2002) (applying the functional approach to find that the court reporter was not entitled to derived judicial immunity because she “did not exercise discretion comparable to that of a judge”). The burden shifted to Wilz to present evidence of a fact issue. See Siegler, 899 S.W.2d at 197. However, Wilz has not presented any summary judgment evidence contraverting the scope of Sanders’ appointment or that he acted within the scope of his appointment. Therefore, we hold that the trial court did not err in granting Sanders’ motion for summary judgment. See id. We overrule issue one. We do not reach issues two and three. See State Farm, 858 S.W.2d at 380. CONCLUSION We affirm the summary judgment.   BILL VANCE Justice  Before Chief Justice Gray, Justice Vance, and Justice Reyna          (Chief Justice Gray concurring) Affirmed Opinion delivered and filed February 23, 2005 [CV06]    [1]      Wilz asserted a fourth issue regarding severance; however, this issue was withdrawn in a letter brief following oral argument.    [2]      This motion contained seven traditional grounds for summary judgment and 19 no-evidence grounds.    [3]      Based on Judge Hall’s order, we assume he means “guardian” and not “attorney” ad litem in this judgment.    [4]      Mr. Baxter represented Flournoy in federal court and in the guardianship proceeding in Harrison County.