in the Matter of R.F.

• Court: Court of Appeals of Texas
• Decided: October 8, 2015
• Docket: 02-14-00345-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00345-CV

IN THE MATTER OF R.F.

----------

FROM THE 43RD DISTRICT COURT OF PARKER COUNTY TRIAL COURT NO. JV13-0006

MEMORANDUM OPINION1

I. Introduction

In a single issue, appellant R.F. complains that he received ineffective

assistance of counsel at his juvenile probation revocation hearing. We affirm.

1 See Tex. R. App. P. 47.4. II. Factual and Procedural Background

R.F. was twelve years old when he committed two counts of aggravated

sexual assault of a child. After pleading “True” to the charges, R.F. was found to

have engaged in delinquent conduct in violation of penal code section 22.021,

and the trial court sentenced him to a period of two years’ probation with

placement in a residential sexual offender treatment facility and boot camp

program. See Tex. Penal Code Ann. §22.021 (West Supp. 2014); Tex. Fam.

Code Ann. §51.03(a)(1) (West 2014). R.F. began the Cooke, Fannin, and

Grayson County Boot Camp (the Boot Camp) and sexual offender treatment

program but was discharged after nine months because he exposed his genitals

to other residents.

On June 23, 2014, the State petitioned to modify R.F.’s disposition on the

grounds that he had violated his conditions of probation by (1) committing the

further offense of recklessly exposing his genitals with the intent to arouse or

gratify his sexual desire; (2) failing to complete the Boot Camp’s programs, follow

all of the facility’s rules, and not leave the facility without permission; and (3)

failing to attend, participate in, and successfully complete a sex offender

counseling program and an aftercare program with a registered sex offender

treatment therapist.

At the modification hearing, the state called three witnesses: Karla Doster,

Jonathan Neece and Scott Gieger. Doster, R.F.’s case manager, testified that

almost immediately after R.F. began the Boot Camp program on September 6,

2 2013, he started accumulating behavior citations for breaking the rules.2

According to Doster, R.F. exhibited defiance toward staff and authority figures,

cursed at and threatened staff, and refused to participate in the program. During

his nine-month stay at the Boot Camp, R.F. received 113 violations for

misbehavior, ranging from using profanity, disrupting group therapy sessions,

making inappropriate sexual comments, gestures, and overtures toward peers

and staff, and making false allegations towards staff, to exposing his genitals.

Doster also testified generally about R.F.’s disrespect for authority and refusal to

take personal responsibility for his choices.

Neece, R.F.’s sex offender treatment therapist, testified that the Boot

Camp program consisted of three phases, and that most program participants

completed the first phase within four to five months. After nine months in the

program, R.F. remained in phase one. Neece testified that, while in early 2014

R.F. began to apply himself and succeed in school, R.F.’s defiant and

disrespectful behavior toward the rules and authority never waned.

Both Doster and Neece testified that on June 11, 2014, R.F. exposed his

genitals to another resident. R.F admitted that he did this.

2 The Boot Camp program operates on a points system, wherein each resident is eligible to receive 20 points per day for good behavior. Points can be deducted for misbehavior, and if a resident continued to misbehave, he could be confined to the “Brig,” where he would be required to sit quietly on a bench. In the 281 days R.F. spent at the Boot Camp, he was confined to the “Brig” approximately 30 times, and while he could have earned as many as 5,620 points during that time, he earned only 758.

3 Gieger, R.F.’s juvenile probation officer, testified that the June 11 incident,

in combination with his ongoing concerns regarding R.F.’s overall lack of

progress in the program, was the last straw. R.F. was discharged from the Boot

Camp two days later.

The trial court found that R.F.’s act of exposing himself to other program

participants on June 11 and his subsequent discharge from Boot Camp

constituted violations of the conditions of his probation and ordered that R.F. be

committed to Texas Juvenile Justice Department (TJJD) for a period of time “not

to exceed the time when he shall be 19 years of age.” See Tex. Fam. Code Ann.

§ 54.05 (West 2014); Tex. Hum. Res. Code Ann. § 245.151 (West 2013).

III. Ineffective Assistance of Counsel

R.F. complains in one issue of ineffective assistance of counsel. His

complaint focuses on Gieger’s testimony that in reviewing R.F.’s progress and

making the decision to remove R.F. from the program, “the fact that there was

another offense that basically was a sexual act,” was “kind of [the] straw that

broke the camel’s back.” He also complains about Doster’s testimony that

“several other recruits were providing statements that [R.F.] was touching them,

rubbing against them, et cetera, during the POD and in class,” that “other

inmates wrote statements” and that “there ‘were allegations made by the other

residents that he was engaged in . . . sexual impropriety’.” R.F. contends that by

failing to object to the testimony regarding these extraneous offenses under the

Confrontation Clause, his counsel provided ineffective assistance of counsel.

4 Juveniles have a constitutional and statutory right to effective assistance of

counsel. In re R.D.B., 102 S.W.3d 798, 800 (Tex. App.—Fort Worth 2003, no

pet.); In re F.D., 245 S.W.3d 110, 114 (Tex. App.—Dallas 2008, no pet.). The

effectiveness of counsel’s representation in a juvenile proceeding is to be

reviewed under the two prong Strickland v. Washington standard. 466 U.S. 668,

687–88, 104 S. Ct. 2052, 2064 (1984). To establish ineffective assistance of

counsel, the appellant must show by a preponderance of the evidence that his

counsel’s representation was deficient and that the deficiency prejudiced the

defense. Id. at 687; Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013);

Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999). 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).

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 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; Nava, 415 S.W.3d at 307. Review of

5 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.

The prejudice 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,

the appellant must show there is a reasonable probability that, without the

deficient performance, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A reasonable probability is

a probability sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. The ultimate focus of

our inquiry must be on the fundamental fairness of the proceeding in which the

result is being challenged. Strickland, 466 U.S. at 697, 104 S. Ct. at 2070.

6 No record was developed of counsel’s reasons for failing to lodge a

Confrontation Clause objection to the testimony regarding these extraneous

offenses. Our scrutiny of his performance “must be highly deferential, and every

effort must be made to eliminate the distorting effects of hindsight.” Lopez v.

State, 80 S.W.3d 624, 630 (Tex. App.—Fort Worth 2002), aff’d, 108 S.W.3d 293

(Tex. Crim. App. 2003). Because the record is silent, R.F. has failed to rebut the

presumption that his counsel acted reasonably. See, id. (“Where the record is

silent as to counsel’s reasons for failing to object, the appellant fails to rebut the

presumption that counsel acted reasonably.”).3

3 Because the record is silent as to counsel’s reasoning, we do not reach the issue of whether the Confrontation Clause applies in probation revocation hearings. Some of our sister courts have held that it does not, although at least one court has assumed without deciding that a defendant can raise a Confrontation Clause objection in a community supervision revocation proceeding. Compare Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.— Houston [14th Dist.] 2007, no pet.) (holding the Sixth Amendment right to confrontation as set out in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004) does not apply to probation revocation hearings), Diaz v. State, 172 S.W.3d 668, 672 (Tex. App.—San Antonio 2005, no pet.) (holding Crawford does not apply to community supervision revocation hearings), and Smart v. State, 153 S.W.3d 118, 121 (Tex. App.—Beaumont 2005, pet ref’d), cert. denied, 546 U.S. 1016, 126 S.Ct. 663, 163 L.Ed.2d 527 (2005) (same), with Blackman v. State, No. 01-12-00525-CR, 2014 WL 50804, at *2 (Tex. App.—Houston [1st Dist.] pet. ref’d) (assuming without deciding that Crawford does apply to community supervision revocation hearings on the basis of the Court of Criminal Appeals’ holding in Ex Parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012), that such hearings are judicial, not administrative, hearings). See also, Cantu v. State, 339 S.W.3d 688, 690–91 (Tex. App.—Fort Worth 2011, no pet.) (discussing state and federal court holdings that the Confrontation Clause does not extend to probation revocation hearings).

7 Even if the Confrontation Clause would render the statements by Doster

and Neece inadmissible, the second prong of Strickland requires that the failure

to object be so serious that it deprived R.F. of a fair trial, i.e., a trial with a reliable

result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Doster and Neece testified that R.F. admitted to them that he had exposed

his genitals to another resident, and as a result, he was expelled from the

program. Doster listed in her summary of his placement stay that this occurred

on June 11, 2014, and the trial court admitted her summary as part of Gieger’s

supplemental case history at the hearing. Notwithstanding whether R.F.

engaged in any other extraneous offenses, proof by a preponderance of the

evidence of any one of the alleged violations of the probation conditions is

sufficient to support the revocation order. Moore v. State, 605 S.W.2d 924, 926

(Tex. Crim. App. [Panel Op.] 1980) (proof by a preponderance of the evidence of

any one of the alleged violations of the conditions of community supervision is

sufficient to support a revocation order).

Therefore, this evidence of the June 11 incident, standing alone, was

sufficient to support the revocation of R.F.’s probation. See, e.g., In re R.L.R. III,

No. 14-06-00926-CV, 2008 WL 323758, at *4 (Tex. App.—Houston [14th Dist.]

Feb. 7, 2008, no pet.) (counsel was not ineffective when appellant had admitted

to his probation officer that he violated the conditions of his probation); Bennett v.

State, 705 S.W.2d 806, 807 (Tex. App.—San Antonio 1986, no writ) (“In the light

of appellant’s admission [to violating three conditions of his probation], it is

8 difficult to see how his attorney’s conduct could effect a different result.”); Herrera

v. State, 656 S.W.2d 148, 149 (Tex. App.—Waco 1983, no writ) (“[A]n oral

admission of a violation of the probation terms, made by probationer to his

probation officer, is sufficient to revoke probation.”).

Therefore, there is no reasonable probability that the proceeding’s result

would have been different even without the evidence regarding extraneous

offenses. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d

at 308. Thus, counsel’s failure to object to this testimony did not deprive R.F. of

a fair trial. We overrule R.F.’s sole issue.

IV. Conclusion

Having overruled R.F.’s sole issue, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth BONNIE SUDDERTH JUSTICE

PANEL: DAUPHINOT, GARDNER, and SUDDERTH, JJ.

DELIVERED: October 8, 2015