COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-09-198-CV
IN THE MATTER OF J.A.G.
------------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION 1
Appellant J.A.G., a juvenile, appeals the trial court’s judgment revoking his
probation and committing him to the Texas Youth Commission (“TYC”). In a single
point, J.A.G. argues that his trial counsel rendered constitutionally ineffective
assistance. W e will affirm.
On March 30, 2007, the trial court adjudicated J.A.G. delinquent for the felony
offense of indecency with a child and placed him on probation for two years. The
trial court ordered that J.A.G. attend sex offender counseling as a condition of
probation.
1 See Tex. R. App. P. 47.4. The State filed a motion to modify disposition in March 2008. In May 2008,
the trial court extended J.A.G.’s probation for a period not to exceed October 18,
2010, and ordered that J.A.G. successfully complete the Specialized Treatment for
Offenders Program (“STOP”). J.A.G. successfully completed STOP in February
2009 and, thereafter, began counseling in the Professional Associates Counseling
and Consultation (“PACC”) center’s program. In April 2009, before the expiration of
his probation, the State filed a motion to modify disposition, alleging that J.A.G. had
violated his probation for being unsuccessfully discharged from sex offender
counseling (PACC) in March 2009.
At a hearing on the State’s motion, the parties stipulated that J.A.G. had
violated his probation due to his unsuccessful discharge from sex offender
counseling. During the disposition phase of the hearing, the trial court admitted
without objection Petitioner’s Exhibit 1, which included, among other things, a social
history report and a statement signed by J.A.G. indicating that since he has been out
of STOP, he has had sexual contact with eight females, has sold marihuana, has
sold twenty dollars’ worth of crack cocaine, has bought three ounces of “weed,” has
held an SK assault rifle and two handguns, was “jumped in with the CRIPS” at age
eleven, and has “been with other CRIPS.” The trial court found that J.A.G. had
violated the terms and conditions of his probation, and it revoked his probation and
committed him to the TYC for an indeterminate sentence not to exceed his
nineteenth birthday.
2 In his only point, J.A.G. argues that his trial counsel was ineffective because
(1) counsel did not object to the admission of Petitioner’s Exhibit 1, which contains
a social history report and J.A.G.’s signed statement that he has had sexual contact
with females, purchased drugs, and handled firearms since completing STOP and
(2) counsel did not file a motion or otherwise request notice of extraneous offenses
under rule of evidence 404(b). J.A.G. contends that the signed statement included
in Petitioner’s Exhibit 1 identified multiple extrinsic bad acts that were not relevant
to the issue before the trial court of whether he had violated his probation for being
unsuccessfully discharged from sex offender counseling and that he was prejudiced
by the evidence.
To establish ineffective assistance of counsel, J.A.G. must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable probability
that, but for counsel’s deficiency, the result of the trial would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas
v. State, 163 S.W .3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W .3d
59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W .3d 808, 812 (Tex.
Crim. App. 1999).
In evaluating the effectiveness of counsel under the first 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
3 reasonable under all the circumstances and prevailing professional norms at the
time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Review of counsel’s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel’s conduct fell within a wide range of
reasonable representation. Salinas, 163 S.W .3d at 740; Mallett, 65 S.W .3d at 63.
A reviewing court will rarely be in a position on direct appeal to fairly evaluate the
merits of an ineffective assistance claim. Thompson, 9 S.W .3d at 813–14. “In the
majority of cases, the record on direct appeal is undeveloped and cannot adequately
reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W .3d at 740
(quoting Mallett, 65 S.W .3d at 63). To overcome the presumption of reasonable
professional assistance, “any allegation of ineffectiveness must be firmly founded in
the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W .3d at 813). It is not appropriate for
an appellate court to simply infer ineffective assistance based upon unclear portions
of the record. Mata v. State, 226 S.W .3d 425, 432 (Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors were
so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable
result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant
must show there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct.
at 2068. A reasonable probability is a probability sufficient to undermine confidence
4 in the outcome. Id., 104 S. Ct. at 2068. The ultimate focus of our inquiry must be
on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
This case demonstrates the “inadequacies inherent in evaluating ineffective
assistance claims on direct appeal.” Patterson v. State, 46 S.W .3d 294, 306 (Tex.
App.—Fort W orth 2001, no pet.). J.A.G. filed a motion for new trial, but he did not
assert that his trial counsel was ineffective. The trial court did not hold a hearing to
determine whether J.A.G.’s complaints of ineffective assistance involved actions that
may or may not have been grounded in sound trial strategy, and the record does not
reflect counsel’s reasons for not doing the things of which J.A.G. complains.
Further, we cannot conclude that this is one of those rare cases in which the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W .3d 390, 392 (Tex. Crim. App. 2005)
(quoting Garcia v. State, 575 S.W .3d 436, 441 (Tex. Crim. App. 2001), cert. denied,
537 U.S. 1195 (2003)); see also Tex. Fam. Code Ann. § 54.04(b) (Vernon Supp.
2009) (providing that at the disposition hearing, the juvenile court, notwithstanding
the rules of evidence and chapter 37 of the code of criminal procedure, may consider
written reports from probation officers, professional court employees, or professional
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-09-198-CV
IN THE MATTER OF J.A.G.
------------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION 1
Appellant J.A.G., a juvenile, appeals the trial court’s judgment revoking his
probation and committing him to the Texas Youth Commission (“TYC”). In a single
point, J.A.G. argues that his trial counsel rendered constitutionally ineffective
assistance. W e will affirm.
On March 30, 2007, the trial court adjudicated J.A.G. delinquent for the felony
offense of indecency with a child and placed him on probation for two years. The
trial court ordered that J.A.G. attend sex offender counseling as a condition of
probation.
1 See Tex. R. App. P. 47.4. The State filed a motion to modify disposition in March 2008. In May 2008,
the trial court extended J.A.G.’s probation for a period not to exceed October 18,
2010, and ordered that J.A.G. successfully complete the Specialized Treatment for
Offenders Program (“STOP”). J.A.G. successfully completed STOP in February
2009 and, thereafter, began counseling in the Professional Associates Counseling
and Consultation (“PACC”) center’s program. In April 2009, before the expiration of
his probation, the State filed a motion to modify disposition, alleging that J.A.G. had
violated his probation for being unsuccessfully discharged from sex offender
counseling (PACC) in March 2009.
At a hearing on the State’s motion, the parties stipulated that J.A.G. had
violated his probation due to his unsuccessful discharge from sex offender
counseling. During the disposition phase of the hearing, the trial court admitted
without objection Petitioner’s Exhibit 1, which included, among other things, a social
history report and a statement signed by J.A.G. indicating that since he has been out
of STOP, he has had sexual contact with eight females, has sold marihuana, has
sold twenty dollars’ worth of crack cocaine, has bought three ounces of “weed,” has
held an SK assault rifle and two handguns, was “jumped in with the CRIPS” at age
eleven, and has “been with other CRIPS.” The trial court found that J.A.G. had
violated the terms and conditions of his probation, and it revoked his probation and
committed him to the TYC for an indeterminate sentence not to exceed his
nineteenth birthday.
2 In his only point, J.A.G. argues that his trial counsel was ineffective because
(1) counsel did not object to the admission of Petitioner’s Exhibit 1, which contains
a social history report and J.A.G.’s signed statement that he has had sexual contact
with females, purchased drugs, and handled firearms since completing STOP and
(2) counsel did not file a motion or otherwise request notice of extraneous offenses
under rule of evidence 404(b). J.A.G. contends that the signed statement included
in Petitioner’s Exhibit 1 identified multiple extrinsic bad acts that were not relevant
to the issue before the trial court of whether he had violated his probation for being
unsuccessfully discharged from sex offender counseling and that he was prejudiced
by the evidence.
To establish ineffective assistance of counsel, J.A.G. must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable probability
that, but for counsel’s deficiency, the result of the trial would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas
v. State, 163 S.W .3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W .3d
59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W .3d 808, 812 (Tex.
Crim. App. 1999).
In evaluating the effectiveness of counsel under the first 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
3 reasonable under all the circumstances and prevailing professional norms at the
time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Review of counsel’s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel’s conduct fell within a wide range of
reasonable representation. Salinas, 163 S.W .3d at 740; Mallett, 65 S.W .3d at 63.
A reviewing court will rarely be in a position on direct appeal to fairly evaluate the
merits of an ineffective assistance claim. Thompson, 9 S.W .3d at 813–14. “In the
majority of cases, the record on direct appeal is undeveloped and cannot adequately
reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W .3d at 740
(quoting Mallett, 65 S.W .3d at 63). To overcome the presumption of reasonable
professional assistance, “any allegation of ineffectiveness must be firmly founded in
the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W .3d at 813). It is not appropriate for
an appellate court to simply infer ineffective assistance based upon unclear portions
of the record. Mata v. State, 226 S.W .3d 425, 432 (Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors were
so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable
result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant
must show there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct.
at 2068. A reasonable probability is a probability sufficient to undermine confidence
4 in the outcome. Id., 104 S. Ct. at 2068. The ultimate focus of our inquiry must be
on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
This case demonstrates the “inadequacies inherent in evaluating ineffective
assistance claims on direct appeal.” Patterson v. State, 46 S.W .3d 294, 306 (Tex.
App.—Fort W orth 2001, no pet.). J.A.G. filed a motion for new trial, but he did not
assert that his trial counsel was ineffective. The trial court did not hold a hearing to
determine whether J.A.G.’s complaints of ineffective assistance involved actions that
may or may not have been grounded in sound trial strategy, and the record does not
reflect counsel’s reasons for not doing the things of which J.A.G. complains.
Further, we cannot conclude that this is one of those rare cases in which the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W .3d 390, 392 (Tex. Crim. App. 2005)
(quoting Garcia v. State, 575 S.W .3d 436, 441 (Tex. Crim. App. 2001), cert. denied,
537 U.S. 1195 (2003)); see also Tex. Fam. Code Ann. § 54.04(b) (Vernon Supp.
2009) (providing that at the disposition hearing, the juvenile court, notwithstanding
the rules of evidence and chapter 37 of the code of criminal procedure, may consider
written reports from probation officers, professional court employees, or professional
consultants at the disposition hearing); In re A.F., 895 S.W .2d 481, 484–85 (Tex.
App.—Austin 1995, no writ) (holding that a social history report is not subject to the
strict application of the rules of civil evidence). In a situation such as this, the issue
5 is better presented within the framework of a post-conviction writ of habeas corpus.
See Patterson, 46 S.W .3d at 306.
Accordingly, based on the record before us, in light of the strong presumption
of reasonable professional assistance by defense counsel, and in the absence of
any opportunity for defense counsel to explain his motives for not objecting to
Petitioner’s Exhibit 1 and for not filing a request for notice of extraneous bad acts,
we cannot say that J.A.G. has met his burden of showing by a preponderance of the
evidence that his trial counsel’s representation fell below the standard of prevailing
professional norms. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065;
Goodspeed, 187 S.W .3d at 392; Salinas, 163 S.W .3d at 740. J.A.G. has thus failed
to satisfy the first prong of the Strickland test. W e overrule J.A.G.’s only point and
affirm the trial court’s judgment.
BILL MEIER JUSTICE
PANEL: GARDNER, W ALKER, and MEIER, JJ.
DELIVERED: April 22, 2010