In the Matter of J.H.D., a Juvenile v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 15, 2024
• Docket: 05-22-00664-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed July 15, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00664-CV

IN THE MATTER OF J.H.D., A JUVENILE

On Appeal from the 417th Judicial District Court Collin County, Texas Trial Court Cause No. 417-70487-2019

MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Goldstein Opinion by Justice Pedersen, III J.H.D., a juvenile, appeals the trial court’s June 22, 2022 TJJD Disposition

Order and its Sex Offender Registration Order after Deferral Order signed the same

date (together, the Orders). Those Orders revoked J.H.D.’s probation, committed

him to the Texas Juvenile Justice Department (TJJD), and required him to register

as a sex offender. J.H.D. raises four issues in this Court. He challenges the

effectiveness of his trial and initial appellate counsel at three different points in their

representation. He also challenges the evidentiary support for the trial court’s finding

that he violated the condition of his probation requiring him to report for a polygraph

examination. For the reasons discussed below, we affirm the trial court’s Orders. BACKGROUND

J.H.D. entered Collin County’s juvenile justice system in 2018 when, at the

age of thirteen, he was accused of assaulting another boy during gym class. The State

petitioned the court to adjudicate him delinquent, but before that charge was resolved

J.H.D. was accused of committing sexual indecency and assault against two young

girls. In October 2019 he entered an agreed plea to the indecency charge; he was

adjudicated delinquent and was placed in the county’s juvenile sex offender’s in-

patient treatment program. He was also placed on two years of probation with terms

that included successful completion of the treatment program, submitting to

polygraph examinations as directed by the Licensed Sex Offender Treatment

Provider (LSOTP), and remaining enrolled in school.

J.H.D. completed the county treatment program, but soon after he was

discharged, he ran away from his grandmother’s home where he lived, and he was

accused of inappropriate conduct toward another juvenile offender. In November

2020, the State filed its First Motion to Modify Disposition, alleging that J.H.D. had

violated terms of his probation. The trial court heard the motion on January 7, 2021.

J.H.D. pleaded true to the violations. The trial court extended his probation two years

and placed him in the in-patient sex offender treatment program at Rockdale Youth

Academy.

Once again, J.H.D. successfully completed the in-patient treatment program;

he was discharged from Rockdale in August 2021, after seven months. However,

–2– according to his juvenile probation officer (JPO), J.H.D. stopped attending

counseling sessions and stopped taking his medication. The JPO testified that, “On

December 7th of 2021 we had a scheduled polygraph for [J.H.D.] at our department,”

but the family called and said they had Covid-like symptoms. The polygraph was

rescheduled to December 27, 2021. But J.H.D. did not attend that session either

because—his grandmother stated—she had received a text message telling her the

test had been cancelled; apparently no one from the probation department sent such

a text. J.H.D. eventually took the polygraph on January 13, 2022.

On January 26, 2022, the State filed its Second Motion to Modify Disposition

(the Second Motion), alleging that J.H.D. violated these five terms of his probation:

(7) Respondent shall submit to periodic polygraph examinations for the purpose of evaluating the child’s treatment progress as directed by the Registered Sex Offender Treatment Provider. The Respondent and parents will pay the cost incurred for polygraph examinations.

(10) Respondent shall not view or access any sexual material or pornography, including but not limited to the Internet. Respondent shall not have access to the Internet except under adult supervision.

(15) Respondent shall reside with parents after release from Post- Adjudication Detention and shall notify the probation officer immediately of any change of address and/or telephone number.

(16) Respondent shall be enrolled in school. If that is not possible (and agreed to by the Court or your Probation Officer), you must seek and maintain suitable employment. Respondent shall inform your probation officer, parents/guardian of your work schedule and notify your probation officer immediately of any change in employment.

(17) Respondent shall be at your residence by 6:00 p.m. daily, unless attending a necessary and approved school event, extracurricular activity, or [another event] if ordered by the Court or approved by the

–3– Juvenile Probation Department, work, or when accompanied by a responsible adult over the age of 21. Respondent shall remain at said residence until 7:00 a.m. the following morning. Your probation officer may raise or lower your curfew time based on your compliance with conditions of your probation.

The Second Motion described the purported violation of each term. The State’s

descriptions of violations numbered (10), (15), (16), and (17) all begin with the

phrases “On 1-13-2022, Respondent disclosed,” or simply “Respondent disclosed.”

For each of those four terms, the only evidence cited was J.H.D.’s January 13

polygraph admission to that violation.

At the juvenile court’s hearing on the Second Motion, J.H.D.—through his

appointed attorney—pleaded true and signed a stipulation of evidence and waivers

admitting each of the alleged probation violations. The court found the allegations

true and then heard testimony concerning appropriate disposition. The court

ultimately granted the Second Motion, revoked J.H.D.’s probation, and committed

him to TJJD. The court also granted the State’s Motion to Enter Judgment for Sex

Offender Registration after Prior Deferral.

This appeal followed, and the juvenile court appointed new counsel for J.H.D.

on appeal. During the thirty days following the trial court’s signing of the Orders,

neither trial nor appellate counsel filed a motion for new trial on J.H.D.’s behalf.

After a series of motions to extend time, the initial appellate counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), averring that there were

no arguable issues in J.H.D.’s appeal. We granted counsel’s motion to withdraw, but

–4– we struck the Anders brief because counsel had represented J.H.D. in the juvenile

court during his initial plea proceeding below. We abated the appeal until the

juvenile court could appoint new appellate counsel. Once that appointment was

made, the appeal proceeded.

DISCUSSION

We address J.H.D.’s issues in turn.

Ineffective Assistance of Counsel: J.H.D.’s Fifth Amendment Rights

In his first issue, J.H.D. contends that his trial counsel’s failure to object to

evidence obtained from his polygraph examination demonstrated ineffective

assistance of counsel, arguing that the polygraph violated his Fifth Amendment right

to counsel and right against self-incrimination and was harmful to him. To prevail

on an ineffective assistance of counsel claim, appellant must prove by a

preponderance of the evidence that counsel’s representation fell below an objective

standard of reasonableness and that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Hart v. State,

667 S.W.3d 774, 781 (Tex. Crim. App. 2023). Since Strickland, we have

acknowledged “a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Strickland, 466 U.S. at 689. We make this

–5– determination in light of all the circumstances to adjudge whether the challenged

actions fall outside “the wide range of professionally competent assistance.” Hart,

667 S.W.3d at 782.

It is undisputed that four of the five grounds on which the trial court revoked

J.H.D.’s probation were based solely upon the responses he gave during the

polygraph examination. And well-settled law acknowledges that compelled self-

incrimination through a polygraph examination can implicate a probationer’s Fifth

Amendment rights. See generally, Dansby v. State, 398 S.W.3d 233, 239–40 (Tex.

Crim. App. 2013); see also Selby v. State, 525 S.W.3d 842, 852 (Tex. App.—

Beaumont 2017, no pet.) (addressing “classic penalty situation” exception to general

rule that criminal defendant must affirmatively invoke his right against self-

incrimination).

However, claims of ineffective assistance must be firmly rooted in the record.

Hart, 667 S.W.3d at 782. “Under most circumstances, the record on direct appeal

will not be sufficient to show that counsel’s representation was so deficient and so

lacking in tactical or strategic decision-making as to overcome the strong

presumption that counsel’s conduct was reasonable and professional.” Scheanette v.

State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). A silent record that provides

no explanation for counsel’s actions will not overcome the strong presumption of

reasonable assistance. Thompson v. State, 9 S.W.3d 808 S.W.3d, 813–14 (Tex. Crim.

App. 1999). From the information available to us, we can only speculate as to why

–6– counsel failed to object to evidence developed solely from J.H.D.’s polygraph

examination; we will not speculate as to some basis for counsel’s decision. See

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.1994); Scheanette, 144

S.W.3d at 510. On this record, we cannot conclude that trial counsel’s performance

was deficient. See Jackson, 877 S.W.2d at 772.

We overrule J.H.D.’s first issue.

The Failure-to-Submit-to-Polygraph Condition

In its Second Motion, the State contended that J.H.D. had violated the

condition of his probation that required him to “submit to periodic polygraph

examinations for the purpose of evaluating [his] treatment progress as directed by

the Registered Sex Offender Treatment Provider” (Term (7)). The State alleged that

J.H.D. had violated the condition in this manner:

Respondent was scheduled to take a polygraph on 12-27-2021 and did not attend. Respondent’s grandmother stated that she received a text from another JPO the night before stating the polygraph was cancelled. Grandmother was unable to provide documentation of the text. On 1- 13-2022, Respondent arrived to take his polygraph and he and his grandmother stated he was very ill, diarrhea, excessive shaking and nausea. JPO met individually with Respondent and advised him that he must take the test today, and he then no longer felt ill, and the test was completed.

J.H.D. attacks the finding that he violated this condition on two grounds, which form

the basis of his second and third appellate issues.1

1 In his briefing J.H.D. points out that this purported violation of Term (7) was the only violation alleged that was not based on his statements in the polygraph examination. Thus, had we concluded that his

–7– Sufficiency of Evidence of Violation

In his second issue, J.H.D. contends that the trial court abused its discretion

when it found there was sufficient evidence to support the allegation that he violated

Term (7) of his probation. A trial court’s modification of disposition is governed by

section 54.05 of the Texas Family Code. See TEX. FAM. CODE ANN. § 54.05. When

a juvenile’s prior disposition is based on a finding that the juvenile engaged in a

felony-level offense, the trial court may modify the disposition and commit the

juvenile to the TJJD if the court finds by a preponderance of the evidence that the

juvenile violated a reasonable and lawful order of the court. See id. § 54.05(f).2 We

review a trial court’s determination of a suitable disposition for a child under section

54.05 employing an abuse of discretion standard. In re A.S., No. 05-13-01022-CV,

2013 WL 6405489, at *3 (Tex. App.—Dallas Dec. 5, 2013, no pet.) (mem. op.).

J.H.D. contends that the evidence is insufficient to support a finding that he

violated Term (7). Legal and factual insufficiency are relevant factors in determining

counsel was ineffective in failing to object to evidence from that examination, Term (7) would have been the only possible basis for revocation of his probation. Because we could not so conclude on this undeveloped record, we could affirm revocation on polygraph-based violations and would not need to address J.H.D.’s challenges to Term (7). Nevertheless, in the interest of judicial efficiency, we address J.H.D.’s second and third issues. 2 J.H.D. initially argued that the probation condition requiring him to submit to polygraph examinations was not a reasonable and lawful order of the court. He contended that the condition represents an impermissible delegation of the court’s authority to the LSOTP, relying, inter alia, on provisions of the code of criminal procedure that provide “only the court” may grant community supervision, impose conditions, discharge the defendant, and revoke the defendant’s community supervision. TEX. CODE CRIM. PROC. ANN. arts. 42A.051, 42A.754. “[A] trial court cannot delegate its duty and responsibility for determining the conditions of probation to the probation officer or anyone else.” DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). However, in his reply brief, J.H.D. has conceded that the trial court may lawfully delegate this authority to a juvenile’s treatment provider, here the LSOTP. See. FAM. § 54.0405. –8– whether the juvenile judge abused its discretion. In re C.G., 162 S.W.3d 448, 452

(Tex. App.—Dallas 2005, no pet.). In our legal sufficiency review, we consider the

evidence tending to support the findings; we will reverse the judgment only if there

is no evidence of probative force to support the relevant finding. Id. And in our

factual sufficiency review, we consider and weigh all the evidence; we will reverse

the judgment only if the finding is so against the great weight and preponderance of

the evidence as to be manifestly unjust. Id.

J.H.D. points specifically to the fact that the polygraph examination was

ordered by the JPO, not the LSOTP as Term (7) set forth. He contends that he was

not under the care of an LSOTP at the time he was ordered to take the polygraph.

The State points to records indicating that Dr. Terri Bauer, an LSOTP and director

of the Collin County Juvenile Sex Offender Treatment Program, participated in

“staffings” in 2019 and 2020 during which J.H.D.’s case was discussed. Dr. Bauer

had also testified in January 2021, before J.H.D.’s placement at Rockdale, that when

that placement was complete, he would return to her oversight. These earlier

examples of Dr. Bauer’s involvement do not persuade us that the State carried its

burden to prove that Dr. Bauer was involved in ordering J.H.D.’s January 2022

polygraph.

However, as we summarized above, J.H.D. pleaded true and stipulated to

violating Term (7), as he did to all violations the State alleged. We have held in a

juvenile case that a plea of true justifies the court’s finding that the violation of

–9– probation was committed by a preponderance of the evidence. See In re K.B., 106

S.W.3d 913, 915 (Tex. App.—Dallas 2003, no pet.). Accordingly, given the record

before us, we must conclude the evidence is legally and factually sufficient to

support the trial court’s finding that J.H.D. violated Term (7) of his probation

conditions.

We overrule J.H.D.’s second issue.

Ineffective Assistance: Failure to Argue Evidence Insufficiency

In his third issue, J.H.D. argues that his trial counsel provided deficient

representation by failing to argue that Term (7) was supported by insufficient

evidence. We have concluded that—based upon this record, which includes J.H.D.’s

plea of true and his stipulation to a violation of that term—the evidence was in fact

sufficient to support the trial court’s finding. Accordingly, we cannot conclude that

trial counsel was deficient for failing to argue that it was not.

We overrule J.H.D.’s third issue.

Ineffective Assistance: Failure to File Motion for New Trial

In his fourth issue, J.H.D. argues that his initial appellate counsel provided

ineffective assistance of counsel by failing to file a motion for new trial that

addressed—at a minimum—violation of his Fifth Amendment rights and the

voluntariness of his plea of true to the State’s allegations. The time for filing a

motion for new trial is a critical stage of the proceedings, and a defendant has a

constitutional right to counsel during that period. Cooks v. State, 240 S.W.3d 906,

–10– 911 (Tex. Crim. App. 2007). However, when a defendant is represented by counsel

during this time period—as J.H.D. was—Texas law includes the rebuttable

presumption that his counsel continued to represent him adequately during this

critical stage. See id. In addition, “[w]hen a motion for new trial is not filed in a case,

the rebuttable presumption is that it was considered by the appellant and rejected.”

Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). Evidence is required

to rebut the presumption of effective representation. Cooks, 240 S.W.3d at 911

(“Even when a defendant can rebut this presumption with evidence that he was

deprived of adequate counsel during this critical stage, this deprivation of counsel is

subject to a harmless error or prejudice analysis.”). In most cases, a motion for new

trial is the single vehicle for bringing evidence of ineffective representation to the

record in a direct appeal. Here, in the absence of a motion for new trial, there is

nothing in the appellate record that rebuts these presumptions.

J.H.D.’s current appellate counsel has identified arguable issues in this appeal.

We know, thus, that the initial appellate counsel’s Anders brief was inappropriate on

two bases: her prior trial court representation and her failure to identify arguable

issues below. Counsel for the State conceded at oral argument that the filing of the

Anders brief “raised a question” as to the effectiveness of the original appellate

representation. But because we must strongly presume counsel’s effectiveness, we

cannot assume, as J.H.D. does, that counsel did not understand the law and the facts.

See Paige v. State, No. 05-17-00660-CR, 2018 WL 2979848, at *3 (Tex. App.—

–11– Dallas June 14, 2018, pet. ref’d) (mem. op., not designated for publication) (citing

Thompson, 9 S.W.3d at 812). The presumption arising from her failure to file a

motion for new trial requires more for rebuttal.

We overrule J.H.D.’s fourth issue.

Concerning a Writ of Habeas Corpus

Our resolution of this appeal is based on and limited by the record as it exists

before us—what is in the record and what is not in it. We are bound by the record as

were the highly professional counsel who ultimately argued both sides of this appeal

to us. In response to the Court’s question at argument, both counsel briefed the

question of whether a juvenile has a right to habeas relief, and they agreed that a

district court does have plenary power to grant that relief through Article V, section

8 of the Texas Constitution. See Ex parte Valle, 104 S.W.3d 888 (Tex. Crim. App.

2003). The Texas Court of Criminal Appeals has stated that, because the

reasonableness of counsel’s choices often involves facts that do not appear in the

appellate record, a petition for writ of habeas corpus usually is the appropriate

vehicle to investigate ineffective assistance claims. Mitchell v. State, 68 S.W.3d 640,

642 (Tex. Crim. App. 2002).

The Texas Code of Criminal Procedure entitles an indigent habeas applicant

to appointed post-conviction counsel whenever the court concludes that the interests

of justice require representation. CRIM. PROC. art. 1.051(d)(3). J.H.D. had a

Constitutional right to effective counsel during trial and during the time that a motion

–12– for new trial could have been filed on his behalf. Counsel for the State in this case

expressed certainty at oral argument that should J.H.D. seek habeas relief, the trial

court would appoint him counsel. We likewise express confidence that such an

appointment would be made. See generally Ex parte Garcia, 486 S.W.3d 565, 570

(Tex. Crim. App. 2016), Alcala, J. dissenting (“[W]hen a habeas applicant has

complained of ineffective assistance of trial counsel, and when it appears to a habeas

court that a colorable claim exists, based either on the substance of the pro se

pleadings or in light of the record, the habeas court should appoint counsel for such

an applicant to pursue that claim in order to ensure that he has been afforded his

constitutional right to the effective assistance of counsel.”).

CONCLUSION

We affirm the trial court’s Orders.

/Bill Pedersen, III/ BILL PEDERSEN, III Do Not Publish JUSTICE TEX. R. APP. P. 47 220664F.U05

–13– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE MATTER OF J.H.D., A On Appeal from the 417th Judicial JUVENILE District Court, Collin County, Texas Trial Court Cause No. 417-70487- 2019. No. 05-22-00664-CV Opinion delivered by Justice Pedersen, III. Justices Molberg and Goldstein participating.

In accordance with this Court’s opinion of this date, the June 22, 2022 Orders of the trial court are AFFIRMED.

Judgment entered July 15, 2024.

–14–