                                 NUMBER 13-12-00646-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG

                     IN THE MATTER OF X.T.S.W., A JUVENILE


                        On appeal from the 89th District Court
                             of Wichita County, Texas.


                             MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Perkes
                 Memorandum Opinion by Justice Garza

        Appellant, X.T.S.W., a juvenile, was found to have engaged in delinquent

conduct1 and was sentenced to twelve months’ community supervision. See TEX. FAM.

CODE ANN. § 51.03(a)(1) (West Supp. 2011).                  An agreed modified order was later

rendered extending the term of community supervision to twenty-four months.                           On


        1
          Specifically, X.T.S.W. was found to have committed the criminal offenses of: assault on a public
servant, a third-degree felony, see TEX. PENAL CODE ANN. § 22.01(b)(1) (West 2011); resisting arrest, a
class A misdemeanor, see id. § 38.03(a) (West 2011); and criminal mischief causing loss of between $50
and $500, a class B misdemeanor. See id. § 28.03 (West 2011).
September 26, 2012, the trial court found that X.T.S.W. violated the terms of his

community supervision2 and ordered him committed to the Texas Juvenile Justice

Department. See id. § 54.05(f) (West Supp. 2011). On appeal,3 X.T.S.W. contends

that his counsel at the disposition hearing was ineffective “in that he failed to call

[X.T.S.W.]’s psychiatrist or obtain an expert witness to testify about [X.T.S.W.]’s mental

illness and the effect that newly prescribed medication would have on his behavior.”4

We affirm.

                             I. STANDARD OF REVIEW AND APPLICABLE LAW

        To establish ineffective assistance of counsel, an 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 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim.

App. 2009); see In re F.L.R., 293 S.W.3d 278, 280 (Tex. App.—Waco 2009, no pet.)

(noting that “[a] juvenile has a right to effective assistance of counsel in an adjudication

proceeding”). Review of counsel’s representation is highly deferential, and we indulge 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). 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

        2
          Specifically, the trial court found as true the State’s allegations that X.T.S.W. (1) violated his
curfew, and (2) tampered with an electronic ankle monitor.
        3
           This appeal was transferred from the Second Court of Appeals pursuant to a docket
equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West
2005).
        4
            The State has not filed a brief to assist us in the resolution of this matter.

                                                         2
591, 592–93 (Tex. Crim. App. 2012). This statement is true with regard to the deficient-

performance prong of the inquiry when counsel’s reasons for failing to do something do

not appear in the record. Id. at 593. 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.”

Salinas, 163 S.W.3d at 740.

      The Juvenile Justice Code provides, in relevant part, that:

      a disposition based on a finding that the child engaged in delinquent
      conduct that violates a penal law of this state or the United States of the
      grade of felony may be modified so as to commit the child to the Texas
      Youth Commission[5] if the court after a hearing to modify disposition finds
      by a preponderance of the evidence that the child violated a reasonable
      and lawful order of the court.

TEX. FAM. CODE ANN. § 54.04(f).

                                           II. ANALYSIS

      X.T.S.W.’s grandmother, his guardian, testified at the disposition hearing that

X.T.S.W. “started acting out” while in the fourth grade and began seeing a therapist.

When he was in fifth grade, he was prescribed Concerta, a medication used to treat,

among other things, attention-deficit hyperactivity disorder (“ADHD”).       Because the

Concerta “caused him to act out more for some reason,” he was instead prescribed

Strattera, a similar drug, but that medication “kept him asleep all the time and dozing in

school.” When he was in the sixth grade, he saw a new doctor who diagnosed him with

ADHD and put him back on Concerta.

      In 2011, when X.T.S.W. was fourteen years old, he was examined by two

psychologists who diagnosed him with bipolar disorder.          A psychiatrist, Dr. Butera,


      5
          Now known as the Texas Juvenile Justice Department.

                                                 3
prescribed Abilify, an anti-depressant, and later increased the dosage from two

milligrams to five milligrams daily.           Dr. Butera also prescribed sympatholytic 6

medications Intuniv and Clonidine.         X.T.S.W.’s grandmother testified that the drugs

prescribed by Dr. Butera are “causing [X.T.S.W.] to calm down and think before he

reacts.”   X.T.S.W.’s grandfather testified that the new medications have made him

“calmer.” X.T.S.W.’s probation officer testified that, since he started taking the new

medications, “he’s not as explosive or he hasn’t been in 24-hour detention as much as

he used to be.”

       On appeal, X.T.S.W. faults his trial counsel for failing to call Dr. Butera to testify

regarding: “how mental illnesses can be misdiagnosed for years”; “how some patients

respond to certain medications and some respond to others”; “how dosages have to be

monitored and changed to reach the right therapeutic levels”; “how the change of Abilify

from 2 milligrams to 5 milligrams might [a]ffect [X.T.S.W.]’s behavior and allow him to

control his moods at home so that he could be supervised by his grandparents”; and

whether the new dosage “would allow him to control his mood swings and function

normally in society.” X.T.S.W. claims that, without Dr. Butera’s testimony, the trial court

“had no information from an expert about [X.T.S.W.]’s mental illness, his course of

treatment and his future prognosis with the recent change in dosage.” See Mallet v.

State, 9 S.W.3d 856 (Tex. App.—Fort Worth 2000, no pet.) (“An attorney is ineffective if

the failure to seek out and interview potential witnesses precludes the accused from

advancing a viable defense.”).



       6
          Sympatholytic medications inhibit the activity of the sympathetic nervous system and are
frequently used to treat ADHD. See IDA G. DOX, ET AL., ATTORNEY’S ILLUSTRATED MEDICAL DICTIONARY S89
(West 1997).

                                                 4
        We disagree that the record establishes trial counsel’s ineffectiveness.                         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, then the appellate court should not find deficient performance unless

the challenged conduct was “so outrageous that no competent attorney would have

engaged in it.” Id. Here, there is nothing in the record indicating why X.T.S.W.’s trial

counsel did not subpoena Dr. Butera to appear at trial. Moreover, the trial court heard

several lay witnesses testify regarding X.T.S.W.’s history of mental illness, the various

medications he has been prescribed, and the relative effects of those medications on

his behavior. In particular, the trial court heard unanimous testimony from X.T.S.W.’s

grandparents and his probation officer that X.T.S.W.’s behavior improved at least

slightly after starting the regimen prescribed by Dr. Butera. In light of this fact, we

cannot conclude that counsel’s failure to subpoena Dr. Butera to testify at the

disposition hearing was “so outrageous that no competent attorney would have

engaged in it.” See id. Under these circumstances, we conclude that X.T.S.W. has not

met his burden to overcome the “strong presumption” that his counsel’s conduct was

reasonable.7




        7
           Even if we found counsel’s performance to be deficient, X.T.S.W. has not shown a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have been different. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). That is because counsel’s alleged deficiency does
not involve the issue of whether X.T.S.W. violated conditions of his community supervision. And, under
the applicable statute, the trial court is authorized to modify a juvenile’s disposition to commit the juvenile
to the Texas Juvenile Justice Department “if the court after a hearing to modify disposition finds by a
preponderance of the evidence that the child violated a reasonable and lawful order of the court.” TEX.
FAM. CODE ANN. § 54.04(f) (West Supp. 2011). Accordingly, even if counsel had subpoenaed Dr. Butera
to testify at the disposition hearing, and even if Dr. Butera testified exactly as X.T.S.W. expected him to,
there is no “reasonable probability” that the testimony would have had any effect on the court’s
determination that X.T.S.W. had “violated a reasonable and lawful order of the court.” See id.

                                                      5
                                    III. CONCLUSION

      We affirm the judgment of the trial court.



                                                   ________________________
                                                   DORI CONTRERAS GARZA,
                                                   Justice

Delivered and filed the
15th day of August, 2013.




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