                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00007-CV


IN THE MATTER OF T.C., A
JUVENILE




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         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. J00378



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                       MEMORANDUM OPINION1

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     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
     1
      See Tex. R. App. P. 47.4.
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.




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                             I. STANDARD OF REVIEW

      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,

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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.

                           II. TRANSFER HEARING

      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

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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-

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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 and that many of those constituted

major rule violations.2    Cucolo also said that T.C. had failed his anger-

management program and had refused to participate in, and accept his

medication during, his sexual-behavior treatment program.

      In addition, Cucolo testified that T.C. continued to have difficulty accepting

responsibility for his offense. Cucolo indicated that the TJJD had performed a

psychological examination of T.C. for the purpose of the hearing and to help the

TJJD in forming a recommendation to the court. That examination, according to

Cucolo, showed that there had not been any significant change in T.C.’s risk of

committing another sexual offense.      Cucolo also said that in addition, T.C.’s

problematic behavior while confined in the TJJD’s highly structured setting during

the prior twenty-four months demonstrated that he was not amenable to the

treatments the TJJD had offered and provided to him. Cucolo stated that when a

juvenile who has been committed to the TJJD repeatedly violates the rules and

does not participate in the treatment programs offered to him, that behavior has a

negative impact on other juveniles who are in the TJJD’s treatment programs and



      2
        Cucolo stated that major rule violations “are basically new offenses that a
youth can engage in while confined within our facility” and that minor rule
violations were “violations such as refusing to follow staff instructions, not
participating in the program, things like that.”

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reduces their chance at a positive outcome. Ultimately, Cucolo testified that the

TJJD’s recommendation was that the trial court transfer T.C. to the TDCJ

                         B. CUCOLO’S WRITTEN REPORT

      Cucolo’s written report indicated that a juvenile’s rehabilitative treatment

progress while in the TJJD is assessed monthly in what are called “stage

assessments.” Those assessments, according to Cucolo’s report, “evaluate[] a

youth’s progress in reducing risk factors for recidivism and increasing protective

factors related to positive community reintegration.” The stages rank from the

lowest, entry-level stage called “Stage 1,” to what is called the “Youth

Empowerment Status,” where a juvenile is actively preparing to be released back

into the community. The report stated that T.C. had entered the TJJD at a Stage

1 level and had never promoted to a higher stage during his two years at the

TJJD. The report further stated that the primary reason why T.C. had not been

able to achieve a higher stage was due to his behavior, which had resulted in his

being removed from his treatment programs. With respect to T.C.’s behavior, the

report indicated that T.C. had 248 incidents on his record, ranging from loud and

disruptive behaviors and horse playing to refusing to follow staff instructions and

using profanity or being disrespectful. The report further stated that T.C. had

numerous major violations ranging from property destruction and tattooing to

sexual misconduct and physical aggression.

      Cucolo’s report also stated that Amanda Richter, a Doctor of Psychology,

had completed a psychological evaluation of T.C. on July 15, 2016.         Cucolo

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quoted Dr. Richter’s assessment as stating that T.C. had not been able to attain

any assessment stage beyond Stage 1.            He further quoted Dr. Richter’s

assessment as stating that T.C. “ha[d] received psychiatric services, sexual

behavior treatment, and aggression replacement training in addition to

counseling with his case manager.”       According to Dr. Richter, despite these

interventions, T.C. had “continued to show resistance in treatment and significant

behavioral concerns.” Additionally, Dr. Richter stated that T.C. had “made no

improvement in reducing his risk for sexual re-offending while in [the] TJJD.”

Cucolo’s report further stated that T.C.’s medications, Strattera and Sertraline,

had been discontinued due to his “refusing his medication again.”

                                 C. T.C.’S TESTIMONY

      T.C. testified that he had attended educational classes while in the TJJD.

Specifically, he had attended science, algebra, reading, and world geography

classes; he had completed a welding class; and he had taken photo-shop and

“GD-prep” classes. T.C. agreed with Cucolo’s assessment in his written report

that T.C. was at a sixth-grade reading level.      T.C. also stated that he was

improving in his math classes.

      T.C. also stated that he “get[s] to meet with a psychiatrist or psychologist”

while in the TJJD and that they teach him ways to control his emotions and

prescribe him medications, including Trazadone, Geodon, melatonin, and Zoloft.

T.C. said, however, that those medications made him sick, so he stopped taking

them. T.C. averred that he had had problems with depression while in the TJJD

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and that he had to be placed on suicide watch. With regard to his being placed

on suicide watch, T.C. testified that he got “tired of dealing with the same thing

every day,” so he would say something to somebody about suicide. T.C. stated

that when that happened, somebody had to watch him and that every ten

minutes, that person had to write down what T.C. was feeling. T.C. said that he

had been on that kind of watch on and off about ten times during the prior twenty-

four months.

      With regard to his anger-management program, T.C. stated that he had to

take that program several times. The first time he took it, he was kicked out

because he got in a fight. He failed to complete the anger-management program

the second time he took it because he got kicked out of his sex-offender

treatment program and was consequently removed out of the dorm where the

anger-management classes were given.          T.C. said he passed his anger-

management program the third time he took it.       T.C. stated that he was the

smallest person in his unit and that he did not want to be transferred to an adult

facility. He said he believed that if he were given more time in the TJJD, he

could do better than he had previously and that he could successfully complete

more of the treatment programs.

      On cross-examination, T.C. stated that he would act differently if returned

to the TJJD by listening to staff, doing his best in completing his treatment

programs, and not trying to handle his problems on his own.         However, he

acknowledged that as recently as December 12, 2016—only a little more than

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two weeks prior to the hearing—he had assaulted a female guard at the TJJD.

He stated that he had been sent to security and a guard attempted to handcuff

him, but he did not allow her to do so. T.C. acknowledged that it was the guard’s

job to decide whether to handcuff him and that it was his place to comply with her

decision. He also acknowledged that he had had two years to figure out that he

was supposed to comply with the guards’ instructions and that the December 12,

2016 incident showed that he still had not learned to do so. T.C. stated that his

two-week stay in the county jail pending his transfer hearing had changed his

attitude about who is in charge and what he is supposed to do at the TJJD.

      T.C. also acknowledged that he had 248 disciplinary infractions during his

twenty-four months at the TJJD. He stated that due to his behavior, he was

unable to complete his sex-offender treatment program. T.C. said that he had

known the consequences of not completing his treatment program at the TJJD,

but he did not realize how serious it was until his transfer hearing. Yet he also

stated that there were other juveniles in the TJJD who, like him, were serving

determinate sentences; that he had talked with them and they with him; and that

everyone knew that if they did not comply with the TJJD’s requirements, then

they would be transferred to the TDCJ.

      In addition, T.C. testified that his mother, grandmother, and grandfather

were in the courtroom to support him. He stated that he was able to talk to his

family on the phone and that they were able to visit him in the TJJD. T.C. also



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testified that if he was transferred to the TDCJ, it would be more difficult for his

family to visit him. T.C. stated that he wanted to be returned to the TJJD.

             D. STIPULATED SUMMARY OF T.C.’S FAMILY’S TESTIMONY

      Following T.C.’s testimony, his attorney told the trial court that he would

call T.C.’s family to testify but that “they would just say that they think he’s too

immature to be sent to the adult facility. That’s a summary of their testimony.”

T.C.’s counsel further stated that his family’s preference is that T.C. “stay in the

Waco area.”3 The trial court accepted counsel’s statements as a summary of

what T.C.’s family would otherwise testify to.

                                III. APPLICATION

      In arguing that his trial counsel’s failure to request an independent medical

examination amounted to ineffective assistance, T.C. principally relies upon the

Texarkana court of appeals’ decision in R.D.B., in which it held, under the facts of

that case, that the failure of the appellant’s trial counsel to seek the court-

appointed assistance of a mental-health professional in connection with the

appellant’s section-54.11 transfer hearing constituted ineffective assistance of

counsel. See 20 S.W.3d at 261. T.C. argues that the facts of this case are so

similar to the facts in R.D.B. as to compel the same result here. We conclude,

however, that T.C.’s reliance on R.D.B. is misplaced.



      3
       The record reflects that the TJJD facility in which T.C. had been placed
was in McLennan County.

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                                   A. IN RE R.D.B.

      R.D.B. involved a section-54.11 transfer hearing of R.D.B., a juvenile who

had previously been adjudicated delinquent and sentenced to a determinate

sentence of fifteen years in the Texas Youth Commission (TYC). Id. at 256. As

in T.C.’s case here, the State’s only witness in R.D.B. was Cucolo. Id. Cucolo

testified that R.D.B. had participated in some treatment programs while in the

TYC but nevertheless continued to be disruptive and assaultive, which resulted in

his referral to the trial court to be transferred to the TDCJ.       Id. Importantly,

Cucolo also testified that R.D.B. “ha[d] a brain injury as a result of a self-inflicted

gunshot wound”; that R.D.B. had been given medication to control his seizure

activity; that a psychological evaluation of R.D.B. had been conducted by Larry

Reue (a person whose qualifications, title, experience, and occupation did not

appear in the record); and that Reue indicated that R.D.B.’s brain injury “may be

contributing to [his] delinquent behavior.” Id. at 256–57. Cucolo stated, however,

that Reue’s ultimate conclusion was that “most of R.D.B.’s behavior was the

result of anti-social values and characteristics rather than the result of an organic

disorder.” Id. at 257.

      R.D.B.’s mother also testified, and she stated that following his brain injury

and operation, he had to learn to speak again and was placed in multiple

rehabilitation programs.    Id.   She also testified that R.D.B. had a grand mal

seizure and several petit mal seizures and had short-term memory loss, thought-

process dysfunction, and a loss of balance. Id. She further testified that R.D.B.

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suffered from a seizure disorder from his brain injury. Id. Additionally, a written

report from Reue acknowledged that “R.D.B.’s difficulty in implementing cognitive

skills into daily behavior may be affected by his traumatic head injury.” Id. at 258.

      R.D.B. argued that his counsel’s failure to seek an independent psychiatric

examination constituted ineffective assistance of counsel. Id. at 256. Our sister

court began its analysis by concluding that the Supreme Court’s holding in Ake v.

Oklahoma, 470 U.S. 68, 83 (1985), applies to a section-54.11 transfer hearing.

R.D.B., 20 S.W.3d at 258–59. Under Ake,

      when a defendant demonstrates to the trial judge that his sanity at
      the time of the offense is to be a significant factor at trial, the State
      must, at a minimum, assure the defendant access to a competent
      psychiatrist who will conduct an appropriate examination and assist
      in the evaluation, preparation, and presentation of the defense.

Ake, 470 U.S. at 83.      The court of appeals then examined the record and

concluded that R.D.B.’s counsel had

      a duty to investigate such plainly evident background of mental
      health problems of [R.D.B.]. In the face of such an unfavorable
      report, counsel was clearly under a duty to seek, in conjunction with
      his obligation to provide the best defense possible for his client, the
      court-appointed assistance of a mental health professional, to which
      he was entitled. His failure to do so clearly prejudiced R.D.B. and
      undermines this Court’s confidence in the outcome of the
      proceedings.

R.D.B., 20 S.W.3d at 261.

        B. T.C. FAILED TO ESTABLISH HE WAS ENTITLED TO AN APPOINTED
                           MENTAL-HEALTH EXPERT

      The State observes that T.C.’s argument that his trial counsel rendered

ineffective assistance by failing to request an independent medical examination

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assumes that Ake is applicable to a section-54.11 transfer proceeding. And the

State further asserts that unlike our sister court in R.D.B., this court has never

held that Ake applies to a section-54.11 transfer proceeding. For purposes of our

analysis here, we assume, without deciding, that Ake applies to a section-54.11

transfer proceeding. See In re A.A.L., No. 14-06-00027-CV, 2007 WL 704958, at

*1 (Tex. App.—Houston [14th Dist.] Mar. 8, 2007, no pet.) (mem. op.) (“For the

purposes of our analysis, we presume, without deciding, that the Ake analysis

applies to a transfer hearing under section 54.11 of the Texas Family Code.”).

      Under Ake, to be entitled to the appointment of an expert, a defendant

must make a threshold showing that he has a particularized need for such an

expert to address a significant issue at trial. See Griffith v. State, 983 S.W.2d

282, 286–87 (Tex. Crim. App. 1998); A.A.L., 2007 WL 704958, at *2; see also

Maldonado v. State, No. 14-03-00074-CR, 2004 WL 234377, at *2 (Tex. App.—

Houston [14th Dist.] Feb. 10, 2004, pet. ref’d) (mem. op., not designated for

publication) (holding appellant was not entitled to appointment of mental-health

expert under Ake because he failed to demonstrate his sanity “was likely to be a

significant factor at trial”). That showing was made in R.D.B., where there was

evidence indicating that R.D.B.’s mental health was likely to be a significant

factor at trial: (1) R.D.B. had suffered an organic brain injury resulting from a self-

inflicted gunshot wound; (2) R.D.B. had been placed on medication to control a

seizure disorder that resulted from the brain injury; and (3) a psychological

evaluation of R.D.B. had indicated that R.D.B.’s underlying brain injury may have

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contributed to his delinquent behavior.      R.D.B., 20 S.W.3d at 256–58; see

Maldonado, 2004 WL 234377, at *2. Based on the record before us, none of

these things is true of T.C.’s case.

      Having reviewed the record, we conclude that, assuming Ake applies to a

section-54.11 transfer hearing, T.C. did not meet his threshold burden under Ake

to show that his mental health was likely to be a significant issue at his transfer

hearing such that he was entitled to the appointment of a mental-health expert to

perform an independent psychological or psychiatric examination on him. See

Maldonado, 2004 WL 234377, at *2 (concluding appellant was not entitled to

appointment of mental health expert where he failed to demonstrate “his sanity

was likely to be a significant factor at trial”). There was no evidence and no

contention at trial that any mental-health condition caused T.C.’s behavioral

problems or repeated failures in the TJJD. Consequently, on the record before

us, T.C. has failed to overcome the strong presumption that his trial counsel’s

conduct was not deficient.      See Nava, 415 S.W.3d at 307–08; Maldonado,

2004 WL 234377, at *2 (holding counsel’s performance was not deficient for

failing to request the appointment of a mental health expert where appellant was

not entitled such an expert under Ake). Additionally, we note that our record

does not show T.C.’s trial counsel was ever afforded an opportunity to explain his

trial strategy or his reasons for not requesting an expert to perform an

independent psychological or psychiatric examination.             See Menefield,

363 S.W.3d at 593; Mata, 226 S.W.3d at 432.

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      Because T.C. has not shown that his trial counsel’s representation was

deficient, we overrule his sole issue. See Strickland, 466 U.S. at 687; Nava,

415 S.W.3d at 307; Williams, 301 S.W.3d at 687.

                                IV. CONCLUSION

      Having overruled T.C.’s sole issue, we affirm the trial court’s transfer order.

See Tex. R. App. P. 43.2(a).


                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: January 4, 2018




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