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In re T.C.

Court of Appeals of Texas, Second District, Fort Worth

January 4, 2018






         On October 23, 2014, the trial court adjudicated then fifteen-year-old Appellant T.C. as having engaged in delinquent conduct by committing the offense of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2017). A jury heard evidence concerning what disposition should be made and sentenced him to twenty years in the Texas Juvenile Justice Department (TJJD). The trial court, accordingly, committed him to the TJJD's care, custody, and control for a determinate sentence of twenty years, with a possible transfer to the Institutional Division of the Texas Department of Criminal Justice (TDCJ). A little more than two years later, on November 2, 2016, the TJJD's executive director sent a referral to the trial court requesting it to conduct a hearing under family code section 54.11 to determine whether T.C. should be transferred to the TDCJ. See Tex. Fam. Code Ann. § 54.11 (West Supp. 2017) (governing juvenile court's decision to transfer juvenile offender); Tex. Hum. Res. Code Ann. § 244.014 (West Supp. 2017) (authorizing the TJJD to refer juvenile offender between age 16 and 19 for transfer to the TDCJ). After conducting a section-54.11 hearing on December 29, 2016, the trial court ordered T.C. transferred to the TDCJ to serve the remainder of his twenty-year sentence.

         In a single issue, T.C. contends he received ineffective assistance of counsel at the transfer hearing in violation of the federal and state constitutions because his appointed trial counsel failed to request an independent medical examination to determine the nature of the underlying psychological and psychiatric issues that caused his problematic behavior at the TJJD prior to the hearing. We affirm.


         We review a claim of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (applying Strickland standard to claim of ineffective assistance at noncapital sentencing proceedings); see also In re K.H., No. 12-01-00342-CV, 2003 WL 744067, at *4- 5 (Tex. App.-Tyler Mar. 5, 2003, no pet.) (mem. op.) (applying Strickland standard to claim of ineffective assistance during section-54.11 transfer proceeding); In re R.D.B., 20 S.W.3d 255, 256, 258 (Tex. App.-Texarkana 2000, no pet.) (same). To establish ineffective assistance of counsel, T.C. must show by a preponderance of the evidence that his counsel's representation was deficient and that the deficiency prejudiced the defense. See Strickland, 466 U.S. at 687; Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An ineffective-assistance claim must be "firmly founded in the record, " and "the record must affirmatively demonstrate" the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

         Direct appeal is usually an inadequate vehicle for raising an ineffective-assistance-of-counsel claim because the record is generally undeveloped. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012); Thompson, 9 S.W.3d at 813-14. In evaluating the effectiveness of counsel under the deficient-performance prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel's assistance was reasonable under all of the circumstances and the prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89; Nava, 415 S.W.3d at 307. Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct was not deficient. Nava, 415 S.W.3d at 307- 08.

         It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record or when counsel's reasons for failing to do something do not appear in the record. Menefield, 363 S.W.3d at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel "should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield, 363 S.W.3d at 593. If trial counsel is not given that opportunity, we should not conclude that counsel's performance was deficient unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Nava, 415 S.W.3d at 308.


         T.C.'s transfer hearing took place on December 29, 2016, and the evidence presented at the hearing consisted of (1) the testimony of the TJJD's court liaison, Leonard Cucolo; (2) Cucolo's written report recommending that the court transfer T.C. to the TDCJ; (3) the testimony of T.C.; and (4) a stipulation to a summary of the testimony that T.C.'s mother, grandmother, and grandfather- all of whom were in the courtroom-would give if they were called to testify.

         A. Cucolo's Testimony

         Cucolo testified that he had worked in various roles for the TJJD for twenty-seven years. He stated that in his current position as the TJJD's court liaison, he represents the TJJD in a yearly average of sixty to seventy hearings that involve juvenile offenders who have been sentenced and subsequently referred back to the sentencing court for a disposition of adult parole or transfer to adult prison, and he further said that at those hearings, he provides the TJJD's recommended disposition to the court. Cucolo confirmed he was familiar with T.C., as well as with the TJJD's efforts to rehabilitate him from the time he was placed into its custody on October 23, 2014.

         Cucolo testified that upon entering the TJJD's custody, T.C. was placed in an orientation and assessment unit to undergo a battery of evaluations, including medical, psychiatric, and educational to determine what T.C.'s particular treatment needs were. Cucolo stated that based on those evaluations, it was determined that T.C. had a high need for the TJJD's sexual-behavior treatment program, and T.C. was thus placed in that program. Cucolo averred that the TJJD provided T.C. with a variety of services, including the sexual-behavior treatment program, psychiatric services, and an anger-management program. Cucolo further testified that T.C. had been with the TJJD for more than twenty- four months and that over that time, T.C. had done poorly in most of the areas in which he had been involved. Specifically, Cucolo stated that T.C. had more than 200 documented incidents of misconduct ...

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