author: MEYERS, J., MANSFIELD, J.,

text:
    Dontae ROBINSON, Appellant, v. The STATE of Texas.
    No. 1701-99.
    Court of Criminal Appeals of Texas.
    April 12, 2000.
    Richard E. Langlois, San Antonio, for appellant.
    Scott Roberts, Asst. Dist. Atty., San Antonio, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court in which

McCORMICK, P.J., and KELLER, PRICE, HOLLAND, WOMACK, JOHNSON and KEASLER, J.J., joined.

A jury convicted appellant of felony possession with intent to deliver cocaine and assessed punishment at seventy-five years confinement. See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon Supp. 1998). In his sole point of error on appeal, appellant argued that he was denied the effective assistance of counsel at his trial in violation of both the Sixth Amendment to the United States Constitution and Article I, section 10 of the Texas Constitution. The Court of Appeals held that, by failing to make a timely request, objection, or motion to the trial court raising the ineffective assistance claim, appellant’s complaint was barred by Rule 38.1(a) of the Texas Rules of Appellate Procedure. Robinson v. State, No. 10-98-194-CR, slip op. at 5 (Tex.App. — Waco August 25, 1999) (not designated for publication). We granted appellant’s Petition for Discretionary Review to determine whether the Court of Appeals erred in deciding that a claim of ineffective assistance of counsel could be forfeited pursuant to Rule 33.1(a).

In reaching its conclusion that appellant’s ineffectiveness claim was barred by the general rule of procedural default, the appellate court relied on its previous decision in Gonzalez v. State, 994 S.W.2d 369 (Tex.App. — Waco 1999, no pet.). In that case, the Waco court determined that the “clear language” of Rule 33.1(a) prevented a similarly situated appellant from raising an ineffective assistance of counsel claim for the first time on appeal. See id. at 373. The Gonzalez court noted the general axiom that, “ ‘[i]n most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim.’ ” Id. (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997)). It then concluded that the proper mechanism to develop the record in the ineffective assistance of counsel context was to present the argument to the trial court in a motion for new trial under Texas Rule of Appellate Procedure 21. Id. at 373-74. The Gonzalez court held that by failing to present the claim to the trial court in such a manner, the appellant was procedurally barred from raising the issue on appeal. Id. at 374. Relying on Gonzalez, the Court of Appeals overruled appellant’s point of error. Robinson, slip op. at 5.

Rule 33.1(a) generally requires that a complaint be presented to the trial court “by a timely request, objection, or motion” as a prerequisite to presenting the complaint for appellate review. However, this Court has suggested in dicta that an ineffective assistance of counsel claim will generally not be foreclosed because of an appellant’s inaction at trial. See Randle v. State, 847 S.W.2d 576, 580 (Tex.Crim.App. 1993). We have expressed two separate rationales that support an exception to the general rule of procedural default in the ineffective assistance of counsel context. First, we have noted the many practical difficulties with requiring an appellant to claim ineffective assistance at the time of trial or immediately post-trial. For example, in Randle, we rejected the Court of Appeals’ suggestion that the appellant’s ineffective assistance claim had been waived by a failure to object with sufficient specificity to preserve the complaint. Id. at 580. We held that the claim had been adequately preserved by means of a pretrial Motion for Protective Order and post-trial Motion for New Trial. Id. at 579-80. We then continued:

Even if appellant and defense counsel had chosen to do nothing before or at the time of trial to bring to the trial court’s attention the particulars [that underlay appellant’s Sixth Amendment claim], there is no reason for appellant to have been required to specifically claim ineffective assistance of counsel at the time of trial. We do not require any defendant to risk alienating his trial lawyer by requiring the defendant to claim ineffective assistance of counsel at the time of trial. Further, because many errors by defense counsel are of a technical nature, the defendant may not even know errors by their trial lawyer are occurring, and cannot possibly object. Many times it is in the review of the record by the appellate attorney that errors of an ineffective assistance of counsel nature are discovered. The timely filed appeal to the court of appeals by appellant is a proper procedure for seeking relief.

Id. at 580 (emphasis added). Thus, a defendant could not, by inaction at trial, waive the right to make an ineffective assistance of counsel claim on appeal. Id.

The second reason we have given for not enforcing a procedural bar in this context is because there is not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions. In this regard, we have noted that a post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate such a Sixth Amendment challenge:

While expansion of the record may be accomplished in a motion for new trial, that vehicle is often inadequate because of time constraints and because the trial record has generally not been transcribed at this point. Further, mounting an ineffective assistance attack in a motion for new trial is inherently unlikely if the trial counsel remains counsel during the time required to file such a motion. Hence, in most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts necessary to adequately evaluate such claims.

Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim.App.1997) (internal citation omitted). Indeed, we have increasingly noted that, in most cases, the pursuit of such a claim on direct appeal may be fruitless. See id. (“In most cases, the record on direct appeal is inadequate to develop an ineffective assistance claim”); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999) (“Rarely will a reviewing court be provided with the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation”) (footnote omitted); see also Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim.App.1998) (noting that because record on direct appeal usually insufficient to adequately reflect failings of trial counsel, appellate court will not apply general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal). In the instant case, many of the practical concerns cited above militate against enforcing a procedural bar to appellant’s ineffective assistance claim on appeal. Appellant’s sentence was imposed on April 22, 1998. Trial counsel filed a timely notice of appeal on May 6, 1998. On the same day, trial counsel withdrew as attorney of record, citing a possible conflict of interest if the appeal required him to argue his own ineffectiveness. Appellate counsel Jay Brandon was appointed on the same date. On May 28, 1998, the clerk’s record shows that appellant retained Richard Langlois (“Langlois”) to represent him in his appeal. On June, 1, the court reporter received a request from Langlois for a transcribed statement of facts. The transcribed record was completed on July 16.

The time requirements for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court. See Tex.R.App. P. 21.4 (requiring motion for new trial to be filed no later than 30 days after trial court imposes sentence); Tex.R.App. P. 21.6 (requiring defendant to present motion for new trial to trial court within 10 days of filing it unless trial court, in its discretion, allows additional time). The transcription of the record alone took the court reporter a full month and a half. Moreover, it would be absurd to require trial counsel to litigate his own ineffectiveness in a motion for new trial in order to preserve the claim for appeal. See, e.g., Johnston v. Mizell, 912 F.2d 172, 176 (7 th Cir.1990) (“It is too much to expect counsel to argue post-trial his own ineffectiveness at trial, so if the issue is not raised post-trial it is excusable”); State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982) (allowing exception to general rale of error preservation in ineffective assistance context “[b]ecause these claims (realistically) are not made by attorneys against their own actions”). First, it is unrealistic to expect that the attorney charged with ineffectiveness will subsequently realize all of his mistakes and be able to adequately prosecute the claim. This is especially true in a case like the one at bar, where the errors alleged are acts of omission. Had counsel realized that some action on his part was required, he almost certainly would have taken it in the first instance. Second, the potential exists for a conflict of interest were we to require counsel to argue his own ineffectiveness at trial. Appellant’s own counsel realized this possibility and correctly sought to withdraw as attorney of record.

In addition to the practical reasons expressed by this Court in Randle and Torres for recognizing an exception to the rule of procedural default in the ineffective assistance context, we have also suggested that, as a fundamental constitutional right, such a Sixth Amendment challenge is not subject to the requirements of Rule 33.1(a). In Ex parte Gonzalez, this Court reinforced the well-established proposition that “the Sixth Amendment right to counsel is not forfeitable, but may only be waived by the conscious and intelligent decision of the person who holds the right.” 945 S.W.2d 830, 835 (Tex.Crim. App.1997) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)); see also Marin v. State, 851 S.W.2d 275, 278-79 (Tex.Crim.App.1993) (suggesting in dicta that “right[] to the assistance of counsel” need not be preserved in trial court in order to be raised on appeal), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex.Crim.

App.1997). Moreover, the Supreme Court has emphasized that the Sixth Amendment “right to counsel” necessarily means the right to the effective assistance of counsel:

The special value of the right to the assistance of counsel explains why “[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). The text of the Sixth Amendment itself suggests as much. The Amendment requires not merely the provision of counsel for the accused, but “Assistance,” which is to be “for his defence.” Thus, “the core purpose of the counsel guarantee was to assure ‘Assistance’ at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.” United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619 (1973). If no actual “Assistance” “for” the accused’s “defence” is provided, then the constitutional guarantee has been violated.

United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984) (footnote omitted). Indeed, when the Court established the constitutional standard for evaluating counsel’s performance, it required that a defendant show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

Thus, when the Supreme Court speaks of a Sixth Amendment “right to counsel,” it necessarily means the right to the “reasonably effective assistance” of counsel. See id. For this reason, the standards for waiver should not be any less stringent in the context of an ineffee-tive assistance claim than when we are speaking of a “right to counsel” claim. Functionally, they are synonymous.

There is no evidence in the record that appellant waived his right to the effective assistance of counsel. There was also no meaningful or realistic opportunity for appellant to present his ineffective assistance of counsel claim to the trial court either at trial or in a motion for new trial. For these reasons, the Court of Appeals erred in concluding that appellant forfeited his right to complain that his attorney rendered ineffective assistance of counsel by fading to comply with Rule 33.1(a). The judgment of the appellate court is therefore vacated and the cause remanded for the Court to consider appellant’s Sixth Amendment claim on the merits.

MANSFIELD, J., delivered a dissenting opinion.

MANSFIELD, J.,

delivered the dissenting opinion.

Because I believe the Court of Appeals concluded correctly that claims of ineffective assistance of counsel may be forfeited and thus not be subject to review on appeal pursuant to Texas Rule of Appellate Procedure 33.1, I respectfully dissent. The majority describes five instances that occurred during appellant’s trial which are averred by appellant to constitute ineffective assistance of counsel. The right to the effective assistance of counsel is a right of constitutional dimensions being a right granted by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.App.1994). In order to prevail, an appellant alleging a claim of ineffective assistance of counsel must show:

(1) That counsel’s performance fell below the level considered to constitute reasonably effective professional assistance, with the strong presumption being that counsel’s performance was reasonably effective; and
’(2) But for counsel’s errors, there is a reasonable probability the outcome of appellant’s trial would have been different.

Strickland, 104 S.Ct. at 2066, 2068.

Texas Rule of Appellate Procedure 33.1(a) generally requires that, in order to preserve a complaint for appellate review, the complaining party must have made the complaint known to the trial court by means of a timely request, objection or motion. Furthermore, the trial record must show the trial court ruled explicitly or implicitly on the request, motion or objection or refused, over the complaining party’s objection, to rule on the request, motion or objection. There is no doubt, in the present case, appellant failed to raise the issue of ineffective assistance of counsel at trial and, given the circumstances, could not have been expected to do so.

I agree with the majority that an ineffective assistance of counsel claim will generally not be foreclosed because of an appellant’s inaction at trial. I agree with the rationale of the Supreme Court of Mississippi (see majority op. at footnote 4) that because the effective assistance of counsel is a “fundamental right requiring a meaningful and realistic opportunity to assert the right” and, because it is unreasonable for the trial lawyer to raise the issue of his own effectiveness at trial, the defendant must be provided a means to raise this issue post-trial. Read v. State, 430 So.2d 882, 837 (Miss.1983). In Read, the court held ineffective assistance claims could not be foreclosed by the general rule requiring claims to be raised at trial in order for them to be preserved for appellant review.

However, in the present case, application' of Rule 33.1 does not foreclose the appellant from meaningful post-trial review of his claim that trial counsel’s assistance was ineffective. Appellant may advance his claim by filing a post-conviction writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.07. Indeed, article 11.07 is by far the preferable means by which a claim of ineffective assistance of counsel can be fully and fairly developed. Appellant’s claims in the present case amount to an allegation of acts of omission by trial counsel that, due to their very nature, are outside the trial record and are thus not amenable to meaningful appellate review.

An article 11.07, section 3 proceeding will allow appellant an opportunity to litigate his claim his counsel was constitutionally ineffective. The habeas court is given considerable power to decide whether the claim is valid, and may require that trial counsel file an affidavit — on the record— explaining why he did what he did (or did not do) or may order a hearing and make findings of fact and recommend that relief be granted or not be granted. The findings of the habeas court are then, of course, subject to review by this Court pursuant to article 11.07, section 5.

We recently held in Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997) that a writ of habeas corpus is the preferred method for evaluation of claims of ineffective assistance of counsel. Indeed it may well be, in most cases, the only means by which a record can be developed to determine the validity of such claims, a record that is rarely available for the appellate court to evaluate.

Accordingly, because article 11.07 provides a practical means by which claims of ineffective assistance of counsel can be fully and effectively litigated, I would affirm the court of appeals and hold that claims of ineffective assistance of counsel, though of constitutional dimension, are subject to the general rule of procedural default as set forth in rule 33.1.

I respectfully dissent.

      . In the Court of Appeals, appellant alleged five instances where trial counsel rendered ineffective assistance. Specifically, he argued that (1) trial counsel failed to timely request notice of the State's intention to introduce evidence of prior crimes or bad acts; (2) trial counsel failed to present a motion to suppress evidence based on an allegedly illegal traffic stop; (3) trial counsel failed to request a limiting instruction requiring the jury to disregard illegally seized evidence; (4) trial counsel failed to conduct a sufficient factual investigation to enable counsel to defend against the murder allegation presented at the punishment phase; and (5) trial counsel failed to adequately explain the extent to which prior unadjudicated bad acts could be used to impeach him.

      . Tex.R.App. P. 33.1 provides, in relevant part:
      (a) In general. As a prerequisite to presenting a complaint for appellate review, the record must show that:
      (1) the complaint was made to the trial court by a timely request, objection, or motion ... and
      (2) the trial court:
      (A) ruled on the request, objection, or motion, either explicitly or implicitly; or
      (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

      . The State argues that, despite our language in Randle and Torres, our opinion in Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim.App.1997), controls the instant case. In Henderson, the appellant argued that her counsel rendered ineffective assistance when he revealed to law enforcement that the appellant had drawn a map to the location of the victim’s body. Id. at 557. On appeal, she maintained that this action fell below an objective standard of reasonableness for two reasons: (1) that counsel had no legitimate trial strategy for revealing the information, and (2) revealing the information violated the attorney-client privilege. Id. at 557-58. The appellant chose to litigate the issue in the trial court in a pre-trial motion to suppress, but raised only the second rationale to support her claim. Id. We held that the appellant had procedurally defaulted her first argument by failing to present that argument to the trial court as well. Id. Henderson is readily distinguishable from the case at bar. First, unlike the instant case, Henderson chose to litigate her ineffectiveness claim in the trial court rather than wait and develop her argument post-trial. When an appellant chooses this path, she must be cautious to fully develop the claim in the first instance. Second, the counsel whose effectiveness was challenged in Henderson was a Missouri attorney assigned during extradition only. His formal responsibilities therefore ended when the defendant was moved to Texas, giving trial counsel in that case a greater opportunity to investigate the predicate for the claim.

      . Faced with an identical argument that an appellant’s ineffective assistance of counsel claim was procedurally barred by his failure to raise it before the trial court, the Supreme Court of Mississippi expressly held that "[t]he procedural bar rule has no application to the issue of ineffective assistance of counsel....” Read v. State, 430 So.2d 832, 837 (Miss. 1983). The Read court held that although the record in the case before it was insufficient to sustain the appellant’s Sixth Amendment argument on direct appeal, the court’s affirmance was without prejudice to the defendant’s right to fully litigate his claim via proper post-conviction proceedings. Id. The Mississippi court enumerated several reasons for its refusal to enforce its own rule of procedural default in the ineffective assistance of counsel context: (1) the right to effective assistance of counsel is a fundamental right requiring a "meaningful and realistic opportunity to assert the right”; (2) it is unrealistic to expect that the lawyer charged with ineffectiveness will raise and preserve the issue in the trial court and a new appellate attorney is not in a position to raise the issue until after it has been finally and forever waived; (3) it would be unfair to place the burden on the individual defendant to raise the issue at trial; (4) because ineffective assistance of counsel is generally a cumulative inquiry, the earliest sensible time to raise the issue is after the jury’s verdict; (5) "[pjractical reality being as it is ... on the ineffective assistance of counsel issue, there is no meaningful opportunity to present the issue to the trial court”; (6) the adoption of a procedural bar in this context is particularly inappropriate because, in the rare instances where the claim is meritorious, the denial of the right "is far less likely to be harmless error than almost any other denial of a right at trial that can be imagined”; and (7) the State’s interest in having a claim first presented to the trial court does not override a defendant's right to the effective assistance of counsel. Id. at 837-41.

      . Rule 33.1(a) is not an act of the Legislature, but rather was promulgated by this Court pursuant to the rulemaking authority granted it in Tex. Gov’t Code Ann. § 22.108 (Vernon Supp.2000). That provision expressly provides that those rules "may not abridge, enlarge, or modify the substantive rights of a litigant.” Id. at § 22.108(a).

      . For instance, it is axiomatic that a defendant who chooses to forgo the assistance of counsel and represent himself at his trial also necessarily waives his right to complain on appeal that he was rendered ineffective assistance. The waiver of the former necessarily includes the latter. See generally Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541,45 L.Ed.2d 562 (1975) ("When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently’ forgo those relinquished benefits”) (citations omitted). But in order to waive the Sixth Amendment right to counsel, the constitution requires that a defendant do so competently, voluntarily, knowingly and intelligently. Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App. 1997) (citations omitted). Simple inaction at trial is generally not sufficient to constitute a waiver. See Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962) ("Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which must show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver”).

      . In remanding the case to the Court of Appeals, we are mindful that only in rare cases will the record on direct appeal be sufficient for an appellate court to fairly evaluate the claim. See Thompson, 9 S.W.3d at 814. Thus, in many cases where an appellant does not litigate the ineffective assistance claim before the trial court, the proper procedure will be for the appellate court to overrule an appellant’s Sixth Amendment claim without prejudice to appellant’s ability to dispute counsel’s effectiveness collaterally. Id. However, in the rare case where the record on direct appeal is sufficient to prove that counsel’s performance was deficient, an appellate court should obviously address the claim in the first instance. Id.

      . Whether appellant’s ineffective assistance of counsel claim is meritorious is not for us to decide.

      . In some cases, a claim of ineffective assistance of counsel may be preserved for appellate review by the timely filing of a Motion for New Trial. It is uncertain whether this was possible in the present case.


source: Caselaw Access Project

author: JOHN CAYCE, Chief Justice.

license: Public Domain

text:
    AUTOFLEX LEASING, INC., Appellant, v. MANUFACTURERS AUTO LEASING, INC., Appellee.
    No. 2-99-037-CV.
    Court of Appeals of Texas, Fort Worth,
    March 30, 2000.
    Rehearing Overruled May 4, 2000.
    Law Office of Keith M. Jensen, P.C., Keith M. Jensen, Fort Worth, for Appellant.
    Odeneal & Odeneal, William C. Odeneal, Logan Odeneal, Dallas, James K. Johnson, Dallas, Weil, Gotshal & Manges, L.L.P., Dean D. Hunt, Houston, for Appellee.
    PANELA: CAYCE, C.J.; LIVINGSTON and RICHARDS, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

Autoflex Leasing, Inc. (Autoflex) brought suit against Manufacturers Auto Leasing, Inc. (Manufacturers) under the Telephone Consumer Protection Act (TCPA), a federal statute that permits a person to seek monetary or injunctive relief for unsolicited facsimile advertisements “if otherwise permitted by the laws or rules of court of a State.” The trial court granted Manufacturers’ motion for summary judgment and dismissed Autoflex’s suit. Because we determine that neither the laws nor the rules of court of the State of Texas expressly permitted Autoflex to recover in state court under the TCPA for intrastate facsimile transmissions at the time the alleged violations occurred, we will affirm.

Background Facts

Autoflex and Manufacturers are local competitors in the auto leasing business. The TCPA authorizes a private right of action for anyone who receives an unsolicited facsimile advertisement and permits recovery in the amount of $500 for each violation of the Act, plus injunctive relief. The pertinent part of the TCPA provides as follows:

(3) Private right of action
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.

The TCPA also provides treble damages for willing or knowing violations of the Act.

Autoflex filed suit against Manufacturers on May 6, 1998, seeking damages and an injunction under the TCPA in state court after Manufacturers allegedly transmitted twenty-two unsolicited facsimile advertisements to Autoflex between an unspecified date and April 28, 1998, and an additional fifteen unsolicited facsimile advertisements between April 28, 1998 and July 15, 1998. Manufacturers filed a motion for summary judgment based on two theories: (1) the TCPA does not apply to intrastate transmissions; and (2) Texas had not authorized private enforcement of the TCPA when the violations occurred. The trial court granted summary judgment on November 14, 1998, dismissing Autoflex’s suit without stating specific grounds for its decision.

Standard of Review

A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiffs cause of action cannot be established. To accomplish this, the defendant-movant must present summary judgment evidence that negates an element of the plaintiffs claim. Once this evidence is presented, the burden shifts to the plaintiff to put on competent controverting evidence that proves the existence of a genuine issue of material fact with regard to the element challenged by the defendant-movant. When a trial court’s order granting summary judgment does not specify the grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious.

Issue on Appeal

Manufacturers contends that the language of the TCPA authorizing a private cause of action for violation of the federal statute in state court “if otherwise permitted by the laws or rules of court of a State,” requires the Texas Legislature to pass enabling legislation before suit may be brought in Texas courts under the TCPA. Autoflex would, on the other hand, have us interpret the same language to mean that a person is permitted to bring suit under the TCPA in state court unless legislation prohibits such a suit. The parties also disagree on whether the TCPA applies to both intrastate and interstate transmissions.

Discussion

In construing a statute, our primary objective is to give effect to the legislature’s intent by considering the plain meaning of the enactment. If the language of the statute does not dispose of the question of the legislature’s intent, we must look to other factors, including the history and purpose of the legislative scheme. Furthermore, we must construe the statute in a way that gives effect to all provisions, while ensuring that the statute can withstand constitutional scrutiny.

Applying these rules of statutory construction to the TCPA, we give the language in section 227(b)(3) that grants a private right of action for violations of the TCPA, “if otherwise permitted by the laws or rules of court of a State,” its plain and ordinary meaning. In doing so, we interpret this language to mean suit may be brought for TCPA violations in state court only if permitted by state law or state court rule. This construction is consistent with the comments of the TCPA’s author, Senator Hollings, when he introduced the statute in Congress, and the meaning given the statute by the majority of federal courts that have addressed the issue. Therefore, we hold that Congress intended the states to pass legislation or promulgate court rules consenting to state court actions based on the TCPA before such suits under the TCPA may be brought in state courts.

Effective September 1, 1999, the Texas Legislature amended section 35.47 of the business and commerce code to authorize a private right of action in state court under the TCPA for the transmission of unsolicited facsimile advertisements. This statute, however, applies only to violations occurring after the statute’s effective date. Because Manufacturers’ alleged violations occurred prior to the statute’s September 1, 1999 effective date, Autoflex has no actionable claim against Manufacturers in state court. We, therefore, need not reach Autoflex’s argument that the TCPA regulates both interstate and intrastate communications.

We overrule Autoflex’s points on appeal and affirm the trial court’s judgment.

      . 47 U.S.C.A. § 227 (West Supp.1999).

      . Id. § 227(b)(3).

      . Id.; see abo Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 509 (5 th Cir. 1997).

      . 47 U.S.C.A. § 227(b)(3) (emphasis supplied).

      . Id.

      . See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

      . See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

      . See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995).

      . See also International Science & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1157-58 (4⅛ Cir.1997).

      . See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex.1997).

      . See id.

      . See University of Tex. at Arlington v. Bishop, 997 S.W.2d 350, 353 (Tex.App. — Fort Worth 1999, pet. filed).

      . See Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990) (op. on reh’g) ("Statutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with [the Constitution].”); see also Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982) (presumption that statutes are constitutional); United States v. Haines, 855 F.2d 199, 201 (5 ⅛ Cir.1988) (interpret statutes to avoid violation of Constitution).

      . Addressing the need for the right of action provided to states under the TCPA, Senator Hollings said, "I thus expect that the [s]tates will act reasonably in permitting their citizens to go to court to enforce this bill.” 137 Cong. Rec. S16,205-06 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings).

      . See Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1288 (11th Cir.1998) (approving trial court's ruling that "if otherwise permitted” language authorizes private right of action only if state law specifically authorizes such an action); Chair King, 131 F.3d at 511 (stating that Congress granted exclusive jurisdiction to state courts over TCPA claims "if permitted by state law”); Murphey v. Lanier, 204 F.3d 911, 914 (9th Cir.2000) (interpreting "if otherwise permitted” language to mean suit may be had "if the state consents”). But see Inacom, 106 F.3d at 1156 (noting that "if otherwise permitted” language means that states may refuse to exercise jurisdiction authorized by TCPA).

      . Tex Bus. & Com.Code Ann. § 35.47(g) (Vernon Supp.2000).

      . See Act of May 26, 1999, 76 ⅛ Leg., R.S., ch. 635, § 2, 1999 Tex. Gen. Laws 3203, 3203.

      . The complained of violations occurred during 1998.


author: HUTSON-DUNN, Justice (Assigned).

text:
    In The Matter of G.A.T.
    No. 14-99-00252-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 30, 2000.
    Rehearing Overruled May 18, 2000.

      William B. Connolly, Houston, for appellant.
    Dan McCrory, Houston, for appellee.
    Panel consists of Justices ANDERSON, FROST, and HUTSON-DUNN.

       Senior Justice D. Camille Hutson-Dunn sitting by assignment.

   OPINION

HUTSON-DUNN, Justice (Assigned).

The State filed a petition alleging that G.A.T., a juvenile, had engaged in delinquent conduct by committing the offense of aggravated robbery. See Tex. Pen.Code Ann. §§ 29.03 (Vernon 1994). The jury found appellant delinquent and the trial court committed him to the Texas Youth Commission for six years with a possible transfer to the Institutional Division of the Texas Department of Criminal Justice. Appellant asserts the following four points of error: (1) the trial court never obtained jurisdiction to adjudicate appellant under the determinate sentencing provisions of the Texas Family Code; (2) the identification of appellant was illegally obtained and used in violation of the Texas Family Code, Texas Code of Criminal Procedure, and the Texas and United States Constitutions; (3) the evidence is legally insufficient; and (4) the evidence is factually insufficient.

BACKGROUND

The complainant, Benito Castro, was walking home from a bar one evening when two youths, later identified as appellant and L.L., approached him. L.L. asked Castro for a quarter. When Castro reached into his pocket to retrieve a quarter, L.L. pulled out a knife and waved it in front of Castro. When Castro attempted to back up, two other individuals approached and threw Castro to the ground. All four individuals then began to hit and kick Castro. The assailants put their hands in Castro’s pockets and took a $100 lottery ticket for the World Series.

Delores Torres witnessed the robbery from the porch of a nearby home. Torres saw a group of small boys, one of whom she later identified as appellant, kicking and hitting Castro. Torres testified that she had seen appellant and his companions in the neighborhood on several prior occasions. According to Torres, the area in which the beating took place was well lit and she clearly saw the individuals involved in the attack. Right after the offense occurred, Torres flagged down Officer Richard Cano and provided him with a description of the attackers and indicated the direction in which they had fled.

Officer Cano saw four males who matched Torres’ description about four blocks in the direction indicated by Torres. He detained the group, which consisted of appellant, L.L., and two other juveniles. Officer Cano then found a knife on the ground several feet from L.L. Cano and the suspects returned to the scene of the offense. At that time, approximately ten or fifteen minutes had passed since the offense occurred. Both Torres and Castro identified the juveniles as participants in the robbery.

L.L., who pled guilty to the robbery, testified that appellant participated in the robbery with him.

POINT OF ERROR ONE

By point of error one, appellant contends that the trial court never obtained jurisdiction to adjudicate him under the determinate sentencing provisions of the Texas Family Code because he was not served with a summons on the determinate petition. See Tex. Fam.Code Ann. § 53.06(a)(1) (Vernon 1996). The State filed its original petition on October 14, 1998, and appellant was served with a summons and a copy of the petition on October 19, 1998. The State filed an amended determinate petition on November 1, 1998. Because appellant’s parents could not be located, the State served the amended petition on appellant’s grandmother. Nothing in the record indicates that the State ever personally served appellant with a summons for the amended petition, even though he was in custody.

The State properly served appellant with a summons, and the trial court acquired jurisdiction over him at that time. See Matter of S.D.W., 811 S.W.2d 739, 746 (Tex.App.-Houston [1st Dist.] 1991, no writ.); B.R.D. v. State, 575 S.W.2d 126, 130 (Tex.Civ.App.-Corpus Christi 1978, writ ref d n.r.e.). A copy of the petition accompanied the summons as required by § 58.06(b) of the Texas Family Code. When jurisdiction attaches by virtue of a properly served original petition, the court does not lose jurisdiction because the State may have failed to serve appellant with an amended petition. See McBride v. State, 655 S.W.2d 280 (Tex.App.-Houston [14 th Dist.] 1983, no writ); B.R.D., 575 S.W.2d at 130. While certain aspects of juvenile delinquency adjudication proceedings are criminal in nature, the proceedings are primarily civil in nature. See Tex. Fam. Code Ann. § 51.17 (Vernon 1996); Matter of G.M.P., 909 S.W.2d 198, 201 (Tex.App.Houston [14th Dist.] 1995, no writ). Therefore, we follow the ruling in Carrillo v. State that the strict prohibition against amendment of pleadings in criminal cases is not applicable in juvenile proceedings. See Carrillo v. State, 480 S.W.2d 612, 615 (Tex.1972). However, the State may only amend its petition at “such time, and under such circumstances, as to be basically fair to the minor.” Id.; R.X.F. v. State, 921 S.W.2d 888, 893 (Tex.App.-Waco 1996, no writ). Otherwise, there is a denial of due process. See id.

Appellant contends that § 53.06 of the Texas Family Code required the court to direct a second summons to him when the State amended its original petition. However, none of the provisions relating to the filing of a petition or the issuance and service of a summons expressly require the court to direct a summons to a juvenile when the original petition is amended. See R.X.F., 921 S.W.2d at 893; see also B.R.D., 575 S.W.2d at 130. As such, we cannot infer that the legislature intended such a requirement. See R.X.F., 921 S.W.2d at 893. Rather, whether the juvenile received a copy of an amended petition is a relevant consideration in evaluating the “basically fair to the minor” requirement. See id. at 894; B.R.D., 575 S.W.2d at 130.

In analyzing whether the lack of service on the child of the amended petition amounted to a denial of due process, it is helpful to compare the two petitions. The original petition provided two alternate ways of proving the charged offense of aggravated robbery: (1) by charging appellant with exhibiting a deadly weapon while in the course of committing robbery, and (2) by charging him with causing serious bodily injury to the complainant while in the course of committing robbery. See Tex. Pen.Code Ann. §§ 29.03(a)(1), (a)(2) (Vernon 1994). The amended petition abandoned the theory based on serious bodily injury and charged appellant only with aggravated robbery based on the exhibition of a deadly weapon. The amended petition was then approved by a grand jury so that the State could proceed under determinate sentencing guidelines.

First, we need to consider whether the deletion of one of the charging paragraphs violated appellant’s due process rights. The deletion of an alternate means of committing a charged offense is an “abandonment,” not an “amendment” of the charging instrument. See Eastep v. State, 941 S.W.2d 130, 133 (Tex.Crim.App.1997). When a statute provides multiple means for the commission of an offense and those means are subject to the same punishment, the State may plead them conjunc-tively. See id. However, the State is required to prove only one of the alleged means in order to support the conviction. See id. (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991)). Therefore, the State may abandon one or more of the alleged means. See Eastep, 941 S.W.2d at 133. The abandonment of an alternate means does not change the alleged offense, it merely limits the State to the remaining means. See id. Because appellant was already on notice of all of the alleged means of committing the offense, the deletion of one did not affect his notice or his ability to prepare his defense. See id. Thus, appellant’s due process rights were not violated when the State abandoned one of two alternate ways of proving the charged offense.

Next, we must consider whether appellant’s due process rights were violated when he did not receive a copy of the petition after the grand jury approved the petition for determinate sentencing. The steps for initiating proceedings under the determinate sentencing statute are:

(1) A delinquency petition is filed in the juvenile court.

(2) Ordinary Family Code standards for such a petition and the requirements of notice must be observed.

(3) The delinquency petition must allege at least one of the covered offenses.

(4) The prosecuting attorney in the juvenile court decides whether to pursue the case as an ordinary delinquency case or to invoke the determinate sentencing statute.

(5) If the prosecutor decides to invoke the statute, he does so by presenting the delinquency petition “to the grand jury of the county in which the court in which the petition is filed presides.”

(6) If the grand jury votes to approve the petition, the fact of the approval is certified to the juvenile court, and the certification is entered in the record of the case.

(7) Once the certification is received and filed by the juvenile court, the determinate sentencing proceedings have been initiated.

See Robert O. Dawson, The Third Justice System: The New Juvenile-Criminal System of Determinate Sentencing for the Youthful Violent Offender in Texas, 19 St. Mary’s L.J. 943, 985-88 (1988). Nothing in this procedure would require appellant to be personally served with another petition outlining the State’s decision to invoke determinate sentencing proceedings. The State makes the choice to seek determinate sentencing only after it has already complied with the notice requirements as outlined in the Family Code. See id. Thus, had the State sought grand jury approval on the original petition, appellant would have been entitled to no greater notice than he received here.

Further, appellant does not argue that he was in any way surprised when the case proceeded under the determinate sentencing provisions. The State complied with the guidelines of the Texas Family Code by filing the approval of the grand jury with the juvenile court and entering it in the record of the case. See Tex. Fam.Code Ann. § 53.045(d) (Vernon Supp.2000). Appellant’s grandmother received a copy of the amended petition, including a statement evidencing the grand jury’s approval. When the trial judge inquired at the commencement of the trial whether the lawyers were proceeding on the amended petition, defense counsel uttered no objections. Due process was satisfied when appellant was put on fair notice that he was being charged with delinquent conduct, i.e., aggravated robbery, and that his liberty was at stake. The fact that appellant did not receive personal notice that the State sought a determinate sentence does not violate appellant’s due process rights. See Matter of S.B.C., 805 S.W.2d 1, 7 (Tex.App.-Tyler 1991, pet. denied).

Because appellant was properly served with a summons containing the original petition, the trial court acquired jurisdiction over him at that time. The State’s failure to serve appellant with the amended petition did not violate his due process rights and did not deprive the trial court of jurisdiction to impose determinate sentencing. Point of error one is overruled.

POINT OF ERROR TWO

In his second point of error, appellant asserts that the identification of respondent was illegally obtained and used in violation of the Texas Family Code, Texas Code of Criminal Procedure, and the Texas and United States Constitutions. Appellant cites three instances of conduct which he claims render the identification evidence inadmissible. We will address each of these points separately.

Section 52.02 of the Texas Family Code

First, appellant contends that the testimony of Castro’s and Torres’ out-of-court identification of him was tainted and inadmissible because Officer Cano did not comply with § 52.02 of the Texas Family Code. Section 52.02(a) provides that an officer taking a child into custody must take the child to a designated juvenile processing office without unnecessary delay. See Tex. Fam.Code Ann. § 52.02(a) (Vernon Supp.2000). The record shows that after taking the four juveniles into custody, Officer Cano took them back to the scene of the crime for identification rather than taking them directly to a designated juvenile processing office. An officer detaining a juvenile must comply with each of the provisions of the Family Code, including § 52.02. See Anthony v. State, 954 S.W.2d 132, 134-5 (Tex.App.-San Antonio 1997, no pet.) (citing Comer v. State, 776 S.W.2d 191, 196 (Tex.Crim.App.1989)). Violation of this statute renders illegally obtained evidence inadmissible. See id. Therefore, an out-of-court identification may be suppressed when the State does not comply with the mandatory provisions of § 52.02. See Rodriguez v. State, 975 S.W.2d 667, 682 (Tex.App.-Texarkana 1998, pet. refd).

However, in the instant case, we need not examine whether Officer Cano’s detour to the crime scene amounted to an unnecessary delay. Appellant did not object at trial to the testimony concerning the out-of-court identification. A defendant must make a timely objection in order to preserve error in the admission of evidence. See Tex.R.App. P. 33.1; Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim. App.1997). Following this procedure allows the trial court an opportunity to rule on the objectionable matter and affords opposing counsel an opportunity to remove the objection or supply other testimony. See Maynard v. State, 685 S.W.2d 60, 65 (Tex.Crim.App.1985); Gains v. State, 966 S.W.2d 838, 842 (Tex.App.-Houston [14 th Dist.] 1998, pet. ref d). By failing to object to such testimony at trial, appellant waived any error with regard to the out-of-court identification procedures. See Perry v. State, 703 S.W.2d 668, 671 (Tex.Crim.App. 1986); Rodriguez, 975 S.W.2d at 673.

Appellant cites to In re C.O.S. for the proposition that no objection was necessary because taking the juvenile to a juvenile processing center was a statutory directive. See In re C.O.S., 988 S.W.2d 760 (Tex.1999). In re C.O.S. holds that there are three categories of rights and requirements used in determining whether error may be raised for the first time on appeal. See id. at 765-67. The first set of rights are those that are considered so fundamental that implementation of these requirements is not optional and cannot, therefore, be waived or forfeited by the parties. See id. at 765; Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim.App.1993). The second category of rights are those that must be implemented by the system unless expressly waived. See In re C.O.S., 988 S.W.2d at 766; Marin v. State, 851 S.W.2d at 278-79. The third set of rights are those that the trial court has no duty to enforce unless requested. See In re C.O.S., 988 S.W.2d at 765; Marin v. State, 851 S.W.2d at 279. The law of procedural default applies to this last category. See In re C.O.S., 988 S.W.2d at 767 (quoting Marin v. State, 851 S.W.2d at 279). Thus, the litigant’s failure to speak waives these forfeitable rights.

Appellant claims that his right to object to the out-of-court identification testimony falls into the second category. This second category includes rights or requirements embodied in a statute that directs a trial court in a specific manner. See id. at 766. Because § 52.02 of the Texas Family Code is a statute, appellant argues that his rights to object to testimony elicited as a result of the violation of the statute could not be waived by mere inaction. However, § 52.02 directs the arresting officers, not the trial court, to act in a particular manner. Thus, appellant’s inaction did not waive his right to be taken to a juvenile processing office, but the same does not hold true for his right to suppress an improper identification procedure. Texas courts have consistently held that failure to object to testimony regarding an improper identification procedure waives the error. See Rodríguez, 975 S.W.2d at 673. Even though the identification procedure in the instant case may have been tainted by the officer’s disregard for the requirements of § 52.02, it is still appellant’s burden to raise the issue in court. See id. at 682. Holding otherwise would only lead to the absurd result of forcing the trial judge to examine the procedural background of the case and then sua sponte suppress identification evidence. Such is not the role of the trial judge. Appellant did not file a motion to suppress and did not object to the testimony at trial. Because the trial court has no independent duty in this regard, its failure to suppress identification evidence is not error about which complaint may be made for the first time on appeal. See Tex. R.App. P. 33.1; Marin, 851 S.W.2d at 278.

Even assuming, arguendo, that the trial court committed error and that error was preserved, we believe that any such error was harmless. Both Castro and Torres made in-court identifications of appellant, thus making harmless any testimony concerning the out-of-court identification. See Townsend v. State, 853 S.W.2d 718, 720 (Tex.App.-Houston [1st Dist.] 1993, no pet.).

Showup Identification Procedures

Next, appellant complains that the trial court erroneously allowed the witnesses to identify appellant before the jury because the in-court identification had been tainted by an impermissibly suggestive pretrial identification procedure. After Officer Cano apprehended appellant along with the other three suspects, he returned them to the scene of the offense for identification. Appellant now asserts that the witnesses’ in-court identification was tainted by the suggestive manner of the showup procedure, and that this procedure violated the Fourth, Fifth, and Sixth Amendments of the United States Constitution as well as Article 1 of the Texas Constitution.

Once again, appellant has waived this contention because he did not raise it in the trial court. See Tex.R.App. P. 33.1(a). Appellant never moved to exclude Castro’s and Torres’ identification of him based on the showup identification procedure. Texas courts stringently apply the contemporaneous objection rule in the context of suggestive identification procedures. See Perry, 703 S.W.2d at 670; Harris v. State, 670 S.W.2d 284, 285 (Tex. App.-Houston [1st Dist.] 1983, no pet.). We find that the failure of the appellant to complain or object in the trial court about the out-of-court identification procedure or the in-court identifications constituted a procedural default under our law, and, by failing to complain or object, he waived the error.

Even if appellant had preserved this issue for review, his contention would be without merit because the show-up was not impermissibly suggestive. A defendant who contends on appeal that a trial court erred in allowing an in-court identification of him by a witness has a difficult and heavy burden to sustain, for unless it is shown by clear and convincing evidence that the witness’ in-court identification of the defendant as the suspect was tainted by improper pretrial procedure and confrontations, the in-court identification is always admissible. See Jackson v. State, 628 S.W.2d 446, 448 (Tex.Crim.App. 1982). In determining the admissibility of an in-court identification, we employ a two-step inquiry: 1) whether the out-of-court identification procedure was impermissibly suggestive; and 2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); see also Madden v. State, 799 S.W.2d 683, 695 (Tex.Crim.App.1990). An analysis under these steps requires an examination of the “totality of the circumstances” surrounding the particular case and a determination of the reliability of the identification. See Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App.1988); Harvey v. State, 3 S.W.3d 170, 174 (Tex. App.-Houston [14th Dist.] 1999, pet. ref d).

Turning to the first prong of this analysis, it is important to note at the outset that a pretrial procedure may be suggestive, but that does not necessarily mean it is impermissibly so. See Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). Here, Officer Cano brought appellant back to the scene of the offense minutes after the offense occurred so that the witnesses could confirm whether or not appellant was one of the individuals who robbed Castro. Such a procedure is not impermissibly suggestive. See Garza v. State, 633 S.W.2d 508, 513 (Tex.Crim.App. 1982) (opinion on reh’g). Having determined that no impermissibly suggestive procedure was utilized, we need not evaluate whether the procedure created a substantial likelihood of misidentifieation. See Barley, 906 S.W.2d at 34.

Holdover Cell Identification Procedure

Finally, appellant claims that Torres’ identification of him was tainted. Prior to the start of testimony on the second day of trial, the prosecutor had Torres view appellant in the holdover cell. This was done outside the presence of appellant’s counsel. Subsequently, Torres made an in-court identification of appellant. To preserve error for appellate review, the complaining party must make a timely, specific objection. See Armstrong v. State, 718 S.W.2d 686, 699 (Tex.Crim. App.1985). The objection must be made at the earliest possible opportunity. See Marini v. State, 593 S.W.2d 709 (Tex. Crim.App.1980). The complaining party must obtain an adverse ruling from the trial court on the objection. See DeRusse v. State, 579 S.W.2d 224 (Tex.Crim.App. 1979). Finally, the point of error on appeal must correspond to the objection made at trial. See Thomas v. State, 723 S.W.2d 696 (Tex.Crim.App.1986). The record in the case before us shows that appellant never obtained an adverse ruling from the trial court. Therefore, appellant’s contention of error has not been preserved for appellate review.

Appellant also contends that the prosecutor’s actions violated his Sixth Amendment right to counsel. Because appellant did not raise this claim before the trial court, he waived it for purposes of appeal. See Tex.R.App. P. 33.1; Wilkens v. State, 847 S.W.2d 547, 550 (Tex.Crim.App. 1992).

For the reasons stated above, we overrule appellant’s point of error two.

POINT OF ERROR THREE

By point of error three, appellant asserts that the evidence is legally insufficient to support his adjudication. In juvenile cases, the criminal legal sufficiency standard of review is employed. See Matter of E.P., 963 S.W.2d 191, 193 (Tex. App.-Austin 1998, no writ). When reviewing the legal sufficiency of the evidence, the appellate court will look at all of the evidence in a fight most favorable to the verdict. See Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993). In so doing, the appellate court is to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ransom v. State, 789 S.W.2d 572, 577 (Tex.Crim.App. 1989). This standard is applied to both direct and circumstantial evidence cases. See Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App.1986). The appellate court is not to reevaluate the weight and credibility of the evidence, but only ensures that the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

Appellant claims that because the identification procedures were tainted, the remaining evidence presented was insufficient to show that he participated in the robbery. This claim lacks merit because an appellate court must look at all the evidence, whether properly or improperly admitted, when evaluating the sufficiency of the evidence. See Bobo v. State, 843 S.W.2d 572, 575-76 (Tex.Crim.App.1992). Therefore, the legal admissibility of evidence does not affect the sufficiency of the evidence. See id.

Taking the evidence in the fight most favorable to the verdict, both Castro and Torres identified appellant as one of the four individuals who beat and robbed Castro. L.L. testified that he threatened Castro with a knife. L.L. further testified that appellant participated in the robbery and knew about the knife. In viewing the evidence in the fight most favorable to the jury’s verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of aggravated robbery. Point of error three is overruled.

POINT OF ERROR FOUR

By point of error four, appellant asserts that the evidence is factually insufficient to support his adjudication. In reviewing the factual sufficiency of the evidence to support a conviction, we must look to all of the evidence “without the prism of ‘in the fight most favorable to the verdict.’ ” See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). However, our review is not unfettered, for we must give “appropriate deference” to the fact finder. See id. at 136. We may not impinge upon the fact finder’s role as the sole judge of the weight and credibility of witness testimony. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997); Dimas v. State, 987 S.W.2d 152, 155 (Tex. App.-Fort Worth 1999, pet. refd). The jury, as fact finder, was the judge of the facts proved and of reasonable inferences to be drawn therefrom. See Kirby v. Chapman, 917 S.W.2d 902, 914 (Tex.App.Fort Worth 1996, no pet.). We may set aside a verdict for factual insufficiency only when that verdict is so against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 134-35. This standard affords the appropriate deference to the jury’s verdict and prevents the reviewing court from substituting its judgment for that of the jury. See Santel-lan, 939 S.W.2d at 164. If there is sufficient competent evidence of probative force to support the trial court’s finding, a factual sufficiency challenge cannot succeed. See D.R.H. v. State, 966 S.W.2d 618, 622 (Tex.App.-Houston [14 th Dist.] 1998, no pet.).

We have summarized the relevant testimony under point of error three. The evidence shows that the verdict was not contrary to the great weight of the credible evidence. We find that the evidence supporting the judgment was not so weak as to be manifestly unjust and clearly wrong. Therefore, we hold that the evidence is factually sufficient to support the judgment.

We overrule appellant’s fourth point of error and affirm the judgment of the trial court.

      . § 53.06. Summons
      (a) The juvenile court shall direct issuance of a summons to:
      (1) the child named in the petition;
      (2) the child's parent, guardian, or custodi-
      an;
      (3) the child’s guardian ad litem; and
      (4) any other person who appears to the court to be a proper or necessary party to the proceeding.
      (b) The summons must require the persons served to appear before the court at the time set to answer the allegations of the petition. A copy of the petition must accompany the summons.
      (c) The court may endorse on the summons an order directing the person having the physical custody or control of the child to bring the child to the hearing. A person who violates an order entered under this subsection may be proceeded against under Section 53.08 or 54.07 of this code.
      (d) If it appears from an affidavit filed or from sworn testimony before the court that immediate detention of the child is warranted under Section 53.02(b) of this code, the court may endorse on the summons an order that a law-enforcement officer shall serve the summons and shall immediately take the child into custody and bring him before the court.
      (e)A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.

      . B.R.D. v. State held that even though § 53.06 of the Texas Family Code requires service on the parents, nothing in the Family Code or the Texas Rules of Civil Procedure requires parents to be served with an amended petition. Based on the facts of the case, the court held that the State’s failure to serve parents with an amended petition did not violate either the juvenile’s or the parents’ due process rights. The original summons accompanied by the original petition was sufficient to confer jurisdiction. See B.R.D., 575 S.W.2d at 129-30.

      . See Tex. Fam.Code Ann. §§ 53.04(a) (Vernon 1996), 53.045(a) (Vernon Supp.2000).

      . See id. § 53.04(d) (Vernon 1996).

      . See id. §§ 53.06, .07.

      . See id. § 53.045(a) (Vernon Supp.2000).

      . Id.

      . See id. § 53.045(d)

      . See id.

      . In reviewing a claim for ineffective assistance of counsel, the Rodriguez court stated that defense counsel should have moved to suppress, and should have objected to, an out-of-court identification when the arresting officer did not comply with § 52.02 of the Family Code. See Rodriguez, 975 S.W.2d at 682. The Rodriguez court also held that failure to object to out-of-court identification procedures waives error. See id. at 673.