                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00455-CV


IN THE MATTER OF D.W.


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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION1

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      The State filed a petition alleging that Appellant D.W. engaged in

delinquent conduct on or about September 29, 2011, by committing burglary of a

building and evading arrest or detention.2        At a subsequent hearing on the

matter, D.W. stipulated that he had burglarized a Tetco convenience store in

Arlington and that he had fled from a police officer when the officer attempted to

stop D.W. later the same day. The juvenile court referee found the charges true


      1
         See Tex. R. App. P. 47.4.
      2
         See Tex Penal Code Ann. § 30.02 (West 2011), § 38.04 (West Supp.
2012).
and proceeded to a disposition hearing, during which the trial court admitted a

Social History containing the following references:

      D.W. had a “Full Scale IQ [of] 77 (Borderline Range)” and a “Performance
      IQ of 70”;

      “[T]hose working with [D.W.] should be made aware of his cognitive
      limitation”;

      D.W. “needs to be evaluated for psychotropic medications based on
      recommendation in psychological evaluation in March 2011. If JJAEP
      can’t arrange this[,] then [D.W.] should be eligible for services through
      MHMR”; and

      “In home therapist will also inquire with mother as to why [D.W.] is on SSI
      and try to align needed services. [D.W] has a lower Performance [IQ]
      which requires extra supervision and teaching.”

The juvenile court referee adjudicated D.W. guilty of the alleged delinquent

conduct and ordered him committed to the Texas Youth Commission for an

indeterminate period.3

      In a single point, D.W. argues that his trial counsel rendered ineffective

assistance by failing “to investigate and . . . to seek mental health expert

assistance in order to fully develop Appellant’s mental health issues as mitigation

that reduced his moral culpability.” D.W. describes the references in his Social

History set out above as “red flags . . . that should have caused reasonably

competent counsel to more fully investigate,” and he contends that trial counsel

never consulted with an expert, acquired mental health records, or sought out a


      3
      The district court approved both the judgment of delinquency and order of
commitment.


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mental health expert to assist “in developing mitigating or diminished capacity

evidence.”

      To establish ineffective assistance of counsel, the appellant 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); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).

      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 v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).           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 v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will

rarely be in a position on direct appeal to fairly evaluate the merits of an

ineffective assistance claim. Salinas, 163 S.W.3d at 740; 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


                                        3
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).

      This case demonstrates the “inadequacies inherent in evaluating

ineffective assistance claims on direct appeal.”       See Patterson v. State, 46

S.W.3d 294, 306 (Tex. App.—Fort Worth 2001, no pet.).             Regarding D.W.’s

general contention that trial counsel was ineffective for not investigating D.W.’s

“mental health issues,” the record is silent as to the extent of trial counsel’s

investigation, if any.   D.W. did not file a motion for new trial raising and

developing this issue, nor is there any evidence contained in any other part of the

record illuminating the extent to which trial counsel investigated D.W.’s mental

health. See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)

(declining to assume that counsel made no investigation into insanity defense

simply because record was silent regarding counsel’s investigation into insanity

defense).   Likewise, as for D.W.’s specific argument that trial counsel was

ineffective for not seeking the appointment of a defense mental health expert,

assuming without deciding that D.W. would have been entitled to such an

expert,4 the record is silent regarding trial counsel’s strategy in not requesting an


      4
       A defendant is entitled to the assistance of a mental health expert when
the defendant’s sanity is likely to be a significant factor at trial. Ake v. Oklahoma,
470 U.S. 68, 74, 105 S. Ct. 1087, 1091–92 (1985).


                                          4
expert. See Birdow v. State, No. 14-07-01098-CR, 2009 WL 62950, at *2 (Tex.

App.—Houston [14th Dist.] Jan. 13, 2009, pet. ref’d) (mem. op., not designated

for publication) (reasoning similarly); 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) (same). And considering the

references contained in the Social History relating to D.W.’s mental health, we

cannot conclude that this is one of those rare cases in which trial counsel’s

alleged conduct was “so outrageous that no competent attorney would have

engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005).

         Accordingly, in light of the strong presumption of reasonable professional

assistance by trial counsel, and in the absence of any opportunity for trial counsel

to explain her motives, we cannot conclude that D.W. 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. D.W. has thus failed to satisfy the first Strickland

prong. We overrule D.W.’s sole issue and affirm the trial court’s judgment and

order.


                                                    BILL MEIER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: October 4, 2012


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