Opinion issued July 12, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NOS. 01-07-00332-CR 01-07-00333-CR ——————————— JOHN RAINEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court Harris County, Texas Trial Court Case Nos. 1077995 & 1077996
MEMORANDUM OPINION
After the juvenile court waived jurisdiction 1
1 See TEX. FAM. CODE ANN. § 54.02 (Vernon 2009). and appellant was certified to stand trial as an adult, appellant, John Rainey,
pleaded guilty to aggravated robbery2 and aggravated kidnapping. 3 After a
presentence investigation, the trial court found appellant guilty and assessed
punishment at 25 years’ confinement. In his sole point of error, appellant
contends that he received ineffective assistance of counsel at the juvenile
certification hearing. We affirm.
BACKGROUND
After appellant was charged with aggravated robbery and aggravated
kidnapping, the State filed a motion in the juvenile court requesting that it waive
its jurisdiction and certify appellant to stand trial in criminal district court as an
adult. See TEX. FAM. CODE ANN. § 54.02.
The juvenile court held a hearing on the state’s motion, at which a
Certification Investigation Report was entered into evidence. Relevant to the
issues presented in this appeal, a section of the report provided as follows:
PSYCHIATRIC EVALUATION: On June 22, 2006, John’s defense attorney, Mr. Oliver Sprott, specifically requested that no psychiatric testing be conducted.
PSYCHOLOGICAL EVALUATION: On June 22, 2006, John’s defense attorney, Mr. Oliver Sprott, specifically requested that no psychological testing be conducted. 2 See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011). 3 See TEX. PENAL CODE ANN. § 20.04 (Vernon 2011) After the hearing, the juvenile court granted the State’s motion and signed
an Order to Waive Jurisdiction, in which the court stated that “Prior [to the
certification hearing] the Court had ordered and obtained a diagnostic study, social
evaluation, a full investigation of the child, his circumstances, and the
circumstances of the alleged offense[.]”
INEFFECTIVE ASSISTANCE OF COUNSEL AT CERTIFICATION HEARING
In his sole issue on appeal, appellant contends that his juvenile counsel
rendered ineffective assistance of counsel at the certification hearing.
Specifically, appellant argues that by waiving the psychiatric and psychological
examinations, juvenile counsel prevented the trial court from obtaining the
information required for a “complete diagnostic study” as required by section
54.02(d) of the Family Code. Appellant argues that the presentence investigation
shows that appellant “has a long history of mental illness,” 4 which should have
4 The presentence investigation contains the following paragraph regarding appellant’s mental health:
The defendant reported good physical health. The defendant has been diagnosed through MRMRA in the jail with Major Depressive Disorder, recurrent, with Psychotic Features. The defendant is currently taking 20 mg of Lexapro, 150 mg of Elavil and 200 mg of Seroquel. The defendant reported he went to a psychiatrist when he was ten or eleven and he was put on Seroquel. The defendant 3 been presented to the juvenile court before the certification hearing.
Law Applicable to Certification Hearings
A juvenile court may waive its exclusive original jurisdiction and transfer a
juvenile to a criminal district court for criminal proceedings if (1) the child is
alleged to have committed a felony; (2) the child meets one of two age
requirements; and (3) after a full investigation and hearing, the juvenile court
determines that probable cause exists to believe the juvenile committed the alleged
offense and that the community’s welfare requires criminal proceedings because of
the serious nature of the offense or the child’s background. See TEX. FAM. CODE
ANN. § 54.02(a) (Vernon 2009). Section 54.02(d) of the Texas Family Code
requires that prior to a transfer hearing, a “juvenile court shall order and obtain a
complete diagnostic study, social evaluation, and full investigation of the child, his
circumstances, and the circumstances of the alleged offense.” Id. §54.02(d).
A “complete diagnostic study,” as required under section 54.02(d), has not
been defined. See In re B.T., 323 S.W.3d 158, 161–62 (Tex. 2010). “Typically, the
certification report includes a psychiatric report, a psychological report, and a
report by a probation department caseworker.” In re J.S.C., 875 S.W.2d 325,
advised when he is under pressure he has auditory and visual hallucinations. The defendant’s mother stated she took him to a psychiatrist and he was treated for depression.
4 326–27 (Tex. App.—Corpus Christi 1994, writ dism’d). However, section
54.02(d) does not necessarily require a psychological or psychiatric evaluation to
render a diagnostic
study complete. See L.M. v. State, 618 S.W.2d 808, 811 (Tex.
App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (involving a diagnostic report in
which psychological tests of a juvenile were not attached to diagnostic report and
no psychiatric examination was conducted); I—L— v. State, 577 S.W.2d 375, 376
(Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.) (upholding judgment ordering
transfer of juvenile to stand trial as adult even though no psychological
examination was made). Instead, a court considers the qualitative content of a
diagnostic study rather than a “mere quantitative ‘check-list’” of included items.
B.T., 323 S.W.3d at 161–62 (quoting L.M., 618 S.W.2d at 811–12).
Here, appellant did not object to absence of any psychiatric or psychological
examination; thus, that issue is waived. See Pipkin v. State, 329 S.W.3d 65, 69
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding error not preserved
when appellant’s juvenile counsel waived psychological and psychiatric
examinations). However, appellant does not argue that the trial court erred by
certifying him to stand trial without first conducting a psychiatric or psychological
examination as part of its complete diagnostic study; instead, he argues that his
5 juvenile counsel was ineffective for waiving the psychological and psychiatric
examinations. We also note that juvenile counsel can waive psychological and
psychiatric examinations without complying with the waiver requirements set
forth in TEX. FAM. CODE ANN. § 51.09 (Vernon 2009). See id. at 70. In this
case, we address whether juvenile counsel’s decision to do so in this case resulted
in ineffective assistance of counsel.
Standard of Review
In order to prove an ineffective assistance of counsel claim, appellant must
show that his trial counsel’s performance fell below an objective standard of
reasonableness and, but for counsel’s unprofessional error, there is a reasonable
probability that the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984);
Andrews v. State,
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Opinion issued July 12, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NOS. 01-07-00332-CR 01-07-00333-CR ——————————— JOHN RAINEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court Harris County, Texas Trial Court Case Nos. 1077995 & 1077996
MEMORANDUM OPINION
After the juvenile court waived jurisdiction 1
1 See TEX. FAM. CODE ANN. § 54.02 (Vernon 2009). and appellant was certified to stand trial as an adult, appellant, John Rainey,
pleaded guilty to aggravated robbery2 and aggravated kidnapping. 3 After a
presentence investigation, the trial court found appellant guilty and assessed
punishment at 25 years’ confinement. In his sole point of error, appellant
contends that he received ineffective assistance of counsel at the juvenile
certification hearing. We affirm.
BACKGROUND
After appellant was charged with aggravated robbery and aggravated
kidnapping, the State filed a motion in the juvenile court requesting that it waive
its jurisdiction and certify appellant to stand trial in criminal district court as an
adult. See TEX. FAM. CODE ANN. § 54.02.
The juvenile court held a hearing on the state’s motion, at which a
Certification Investigation Report was entered into evidence. Relevant to the
issues presented in this appeal, a section of the report provided as follows:
PSYCHIATRIC EVALUATION: On June 22, 2006, John’s defense attorney, Mr. Oliver Sprott, specifically requested that no psychiatric testing be conducted.
PSYCHOLOGICAL EVALUATION: On June 22, 2006, John’s defense attorney, Mr. Oliver Sprott, specifically requested that no psychological testing be conducted. 2 See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011). 3 See TEX. PENAL CODE ANN. § 20.04 (Vernon 2011) After the hearing, the juvenile court granted the State’s motion and signed
an Order to Waive Jurisdiction, in which the court stated that “Prior [to the
certification hearing] the Court had ordered and obtained a diagnostic study, social
evaluation, a full investigation of the child, his circumstances, and the
circumstances of the alleged offense[.]”
INEFFECTIVE ASSISTANCE OF COUNSEL AT CERTIFICATION HEARING
In his sole issue on appeal, appellant contends that his juvenile counsel
rendered ineffective assistance of counsel at the certification hearing.
Specifically, appellant argues that by waiving the psychiatric and psychological
examinations, juvenile counsel prevented the trial court from obtaining the
information required for a “complete diagnostic study” as required by section
54.02(d) of the Family Code. Appellant argues that the presentence investigation
shows that appellant “has a long history of mental illness,” 4 which should have
4 The presentence investigation contains the following paragraph regarding appellant’s mental health:
The defendant reported good physical health. The defendant has been diagnosed through MRMRA in the jail with Major Depressive Disorder, recurrent, with Psychotic Features. The defendant is currently taking 20 mg of Lexapro, 150 mg of Elavil and 200 mg of Seroquel. The defendant reported he went to a psychiatrist when he was ten or eleven and he was put on Seroquel. The defendant 3 been presented to the juvenile court before the certification hearing.
Law Applicable to Certification Hearings
A juvenile court may waive its exclusive original jurisdiction and transfer a
juvenile to a criminal district court for criminal proceedings if (1) the child is
alleged to have committed a felony; (2) the child meets one of two age
requirements; and (3) after a full investigation and hearing, the juvenile court
determines that probable cause exists to believe the juvenile committed the alleged
offense and that the community’s welfare requires criminal proceedings because of
the serious nature of the offense or the child’s background. See TEX. FAM. CODE
ANN. § 54.02(a) (Vernon 2009). Section 54.02(d) of the Texas Family Code
requires that prior to a transfer hearing, a “juvenile court shall order and obtain a
complete diagnostic study, social evaluation, and full investigation of the child, his
circumstances, and the circumstances of the alleged offense.” Id. §54.02(d).
A “complete diagnostic study,” as required under section 54.02(d), has not
been defined. See In re B.T., 323 S.W.3d 158, 161–62 (Tex. 2010). “Typically, the
certification report includes a psychiatric report, a psychological report, and a
report by a probation department caseworker.” In re J.S.C., 875 S.W.2d 325,
advised when he is under pressure he has auditory and visual hallucinations. The defendant’s mother stated she took him to a psychiatrist and he was treated for depression.
4 326–27 (Tex. App.—Corpus Christi 1994, writ dism’d). However, section
54.02(d) does not necessarily require a psychological or psychiatric evaluation to
render a diagnostic
study complete. See L.M. v. State, 618 S.W.2d 808, 811 (Tex.
App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (involving a diagnostic report in
which psychological tests of a juvenile were not attached to diagnostic report and
no psychiatric examination was conducted); I—L— v. State, 577 S.W.2d 375, 376
(Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.) (upholding judgment ordering
transfer of juvenile to stand trial as adult even though no psychological
examination was made). Instead, a court considers the qualitative content of a
diagnostic study rather than a “mere quantitative ‘check-list’” of included items.
B.T., 323 S.W.3d at 161–62 (quoting L.M., 618 S.W.2d at 811–12).
Here, appellant did not object to absence of any psychiatric or psychological
examination; thus, that issue is waived. See Pipkin v. State, 329 S.W.3d 65, 69
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding error not preserved
when appellant’s juvenile counsel waived psychological and psychiatric
examinations). However, appellant does not argue that the trial court erred by
certifying him to stand trial without first conducting a psychiatric or psychological
examination as part of its complete diagnostic study; instead, he argues that his
5 juvenile counsel was ineffective for waiving the psychological and psychiatric
examinations. We also note that juvenile counsel can waive psychological and
psychiatric examinations without complying with the waiver requirements set
forth in TEX. FAM. CODE ANN. § 51.09 (Vernon 2009). See id. at 70. In this
case, we address whether juvenile counsel’s decision to do so in this case resulted
in ineffective assistance of counsel.
Standard of Review
In order to prove an ineffective assistance of counsel claim, appellant must
show that his trial counsel’s performance fell below an objective standard of
reasonableness and, but for counsel’s unprofessional error, there is a reasonable
probability that the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984);
Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A reasonable
probability is a “probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s
performance, we look to the totality of the representation to determine the
effectiveness of counsel, indulging a strong presumption that his performance falls
within the wide range of reasonable professional assistance or trial strategy.
6 Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A failure to make a showing
under either prong defeats a claim of ineffective assistance. Rylander v. State, 101
S.W.3d 107, 110 (Tex. Crim. App. 2003).
Allegations of ineffectiveness must be firmly founded in the record. See
Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). When the
record is silent, we may not speculate to find trial counsel ineffective. Gamble v.
State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In the
absence of evidence of counsel’s reasons for the challenged conduct, an appellate
court commonly will assume a strategic motivation, if any can possibly be
imagined, and will not conclude the challenged conduct constituted deficient
performance unless the conduct was so outrageous that no competent attorney
would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001).
Analysis
Here, appellant did not file a motion for new trial, and there is nothing in the
record to show why juvenile counsel decided to waive psychological and
psychiatric testing. The State points out that “this Court may reasonably assume
[that] juvenile counsel had legitimate strategic purposes in avoiding the testing
7 such as keeping appellant from confessing the specifics of his participation in the
offense, showing some propensity to commit further violence, having him caught
in additional inaccuracies or inconsistencies, or evidence that his claims of a
predating mental illness would not be validated or verified.” The record also
shows that appellant’s co-defendant, who was represented by a different attorney
at the certification hearing, also chose to waive psychological and psychiatric
testing.
On this record, appellant has failed to meet his burden to rebut the
presumption that counsel’s actions were reasonably professional and were
motivated by sound trial strategy. See Garcia, 57 S.W.3d at 440; Rylander, 101
S.W.3d at 110.
Because appellant has failed to meet the first prong of the Strickland test,
we need not address the issue of prejudice under prong two. Rylander, 101 S.W.3d
at 110. Accordingly, we overrule appellant’s sole point of error.
CONCLUSION
We affirm the judgments of the trial court.
Sherry Radack Chief Justice
8 Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).