                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-198-CV


IN THE MATTER OF J.A.G.

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           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      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.




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           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.


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      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


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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


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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


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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




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