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
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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.

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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

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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

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Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish.   TEX. R. APP. P. 47.2(b).




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