                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-379-CV


IN THE MATTER OF C.C.B.


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           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                         MEMORANDUM OPINION 1

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I.    Introduction

      Appellant C.C.B. (“Calvin”)2 appeals the trial court’s modified order of

disposition committing him to the Texas Youth Commission (“TYC”). In two

issues, Calvin argues that the trial court abused its discretion by failing to order

further medical evaluations to determine the extent of the harm caused by his




      1
          … See Tex. R. App. P. 47.4.
      2
      … To protect the privacy of the child, we refer to him by pseudonym.
Tex. R. App. P. 9.8(c).
concussions and that he received ineffective assistance of counsel by virtue of

his attorney’s failure to request further testing and investigate a possible “post-

concussion syndrome” diagnosis. We affirm the disposition of the trial court.

II.   Factual and procedural background

      In his initial appearance in court, Calvin was adjudicated delinquent for

unauthorized use of a motor vehicle, a state jail felony offense. Tex. Penal

Code Ann. § 31.07 (Vernon 2003). The trial court placed Calvin on probation

for one year, starting November 2, 2007. Calvin additionally had an aggravated

assault offense, dating back to October 2007, reduced and probated as a

misdemeanor on January 14, 2008.

      On the night of July 18, 2008, officers caught Calvin and some of his

friends attempting to break into a vehicle. Calvin managed to break free from

the officer arresting him. Two days later on July 20, 2008, officers stopped

Calvin and two other boys; Calvin told the officers his name was “Terry

Willbanks.” Calvin then fled from the officers and led a chase through yards

and over fences. Officers used pepper spray to finally take Calvin into custody,

and the chase resulted in an injury to an officer.

      On August 8, 2008, the State filed a first amended motion to modify

disposition, alleging that Calvin’s conduct had violated his court-ordered

probation.   The motion stated that Calvin’s actions violated several laws,

                                        2
specifically his conduct in (1) fleeing Officer C.D. Riley during an arrest, (2)

fleeing Officer J. Parham during an arrest, and (3) intentionally giving a false or

fictitious name to a peace officer.3 Tex. Penal Code Ann. §§ 38.02 (Vernon

Supp. 2008), 38.04 (Vernon 2003). This conduct constituted Calvin’s seventh

referral to Juvenile Probation Services.

      At the adjudication phase of his hearing, Calvin admitted to violating the

terms of his probation and committing the offenses asserted by the State.

Calvin stipulated to evidence supporting the allegations in the State’s petition.

At the disposition phase of his hearing, the State offered Calvin’s social history,

psychological evaluation, and resource staffing report without objection. The

social history report gave various facts about Calvin’s juvenile history, including

his history with alcohol and his completion of the Family Partnership Program

(“FPP”) two weeks prior to the July 2008 offenses. The social history included

a brief psychiatric evaluation section detailing Calvin’s transfer to Millwood, a

psychiatric facility, in April 2007 due to an incident where Calvin threw a knife

at his sister and “[tore] up the house.”     The report stated that while being

treated at Millwood, Calvin was diagnosed with “bipolar [disorder], disruptive




      3
       … The motion also contained four paragraphs asserting that Calvin
attempted to commit or committed two burglaries, but the State waived those
cases.

                                        3
behavior [disorder], and depression.” The social history also stated that Calvin

“refused to take his prescribed Lexapro, Respridol, and Cogentin” medications,

and that his mother refused to return for further doctor’s visits.

      The social history stated that Calvin’s mother was “overwhelmed by her

parenting responsibilities” and had been “unsuccessful” in using what she had

learned with the assigned counselor and juvenile probation officer. At the end

of the social history, the report stated that Calvin had demonstrated that he

was “a threat to his home and this community” and that TYC was a “much

more secure environment” to serve Calvin’s needs.

      Dr. Sheree Gallagher, a clinical psychologist, authored the psychological

report offered by the State.    Calvin’s probation officer had requested the

evaluation to determine Calvin’s treatment options. Dr. Gallagher’s report gave

an overview of Calvin’s background and mental status based on his interview

and psychological tests. Her report stated that his thought processes were

“lucid, logical, and concrete” and that his short- and long-term memory was

intact. Calvin’s scores for verbal tasks were “average to below average,” and

his scores for non-verbal tasks were consistently average; both tests revealed

impulsive behavior that hindered his social judgment. Dr. Gallagher expressed

concern about Calvin’s history of six concussions between 2005 and 2007, but




                                       4
indicated she did not have medical records to understand the extent of his

injuries.

       Dr. Gallagher did not come to a definitive conclusion on the source of

Calvin’s “acting-out” behavior; rather, she stated in her summary that, if brain

damage was found, the diagnosis could be a “Personality Change due to

Multiple Head Injuries.”   Dr. Gallagher then stated that if “no neurological

impairment is found, the diagnosis may more accurately be Conduct Disorder,

Adolescent Onset Type.” 4      Dr. Gallagher gave several recommendations,

including “a comprehensive neurological evaluation” for his previous head

traumas, a “neuropsychological evaluation” to determine if a possible

impairment may have affected his ability to control his impulses and anger, and

“residential treatment including intensive psychotherapy” for his issues of loss

and abandonment.

       During the hearing, Calvin’s attorney asked him why he was not taking

his prescribed medications, and Calvin testified that he did not like the way they

made him feel “like a zombie.”      The trial court asked Calvin about his six




       4
       … “Conduct disorder” is defined as “a behavior disorder of childhood or
adolescence characterized by a pattern of conduct in which either the basic
rights of others or the societal norms or rules appropriate for a certain age are
violated.” American Heritage Stedman’s Medical Dictionary (2002), available
at http://dictionary.reference.com/browse/conduct%20disorder.

                                        5
concussions, and he stated that he had several head injuries from “messing

around, . . . playing tag, jumping over a tennis net . . . riding [his] bike and

being hit and getting head injuries there.” Calvin confirmed that the hospital

treated him after each concussion and explained his injuries to him.

      Calvin’s attorney asked Calvin if he felt “sometimes as though there

might be something wrong with [his] brain” or if he thought that he was not

“thinking clearly” or understanding what was going on around him. Calvin

testified, “No, I understand what is going on around me. Most of the time, I

can’t really concentrate on most things, though.” Calvin then clarified this

statement by stating that he “can’t keep focused” and that this started to occur

after the concussions.

      Calvin’s attorney addressed Calvin’s history of head injuries in his closing

argument, stating

      [i]f in fact the psychological report is accurate, it would seem
      important before the Court to make a decision about what to do to
      have the neurological testing done to see if some of these law
      violations may have something to do with his mental status which
      has disintegrated perhaps because of these concussions, so I would
      urge the Court to think about doing that.

      The State asked for commitment to TYC in its closing argument, citing

Calvin’s previous opportunities for rehabilitation and his continued threat to the

community. The trial court found that it was in the child’s best interest to



                                        6
revoke his probation and commit him to TYC until he reached the age of

nineteen. Calvin appeals this disposition.

III.   Order of further neurological testing by trial court

       In his first issue, Calvin argues that the trial court abused its discretion by

committing him to TYC “without further testing” despite his “history of blunt

trauma injuries to the head.” Calvin argues that a residential in-patient program

would have been a viable alternative, if a neurological examination had revealed

“pathological damage to various areas of the brain.”

       A.    Standard of Review

       A juvenile court has broad discretion to determine a suitable disposition

for a child who has been adjudicated as having engaged in delinquent conduct.

In re H.G., 993 S.W.2d 211, 213 (Tex. App.—San Antonio 1999, no pet.). An

abuse of discretion occurs when the juvenile court acts unreasonably or

arbitrarily without reference to any guiding rules or principles. In re K.J.N., 103

S.W.3d 465, 465–66 (Tex. App.—San Antonio 2003, no pet.). In appropriate

cases, legal and factual sufficiency are relevant factors in assessing whether

the trial court abused its discretion. In re C.J.H., 79 S.W.3d 698, 702 (Tex.

App.—Fort Worth 2002, no pet.). Merely because a trial court may decide a

matter within its discretion in a different manner than an appellate court would




                                          7
in a similar circumstance does not demonstrate that an abuse of discretion has

occurred. Id. at 702.

      An abuse of discretion does not occur where the trial court bases its

decision on conflicting evidence. In re B.N.F., 120 S.W.3d 873, 877 (Tex.

App.—Fort Worth 2003, no pet.). Further, an abuse of discretion does not

occur as long as some evidence of substantive and probative character exists

to support the trial court’s decision.       In re C.J.H., 79 S.W.3d at 702.   In

conducting the review, we engage in a two-pronged analysis, (1) did the trial

court have sufficient information upon which to exercise its discretion, and (2)

did the trial court err in its application of discretion?   See In re A.D., 287

S.W.3d 356, 366 (Tex. App.—Texarkana 2009, pet. filed.); In re M.A.C., 999

S.W.2d 442, 446 (Tex. App.—El Paso 1999, no pet.).

      B.    Applicable Law

      A trial court may modify a juvenile’s disposition 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.

§ 54.05(f) (Vernon 2008). The trial court has broad discretion to modify the

disposition of a delinquency adjudication if the child has been adjudicated

delinquent for committing a felony or misdemeanor on at least one previous

occasion and the conduct which is the basis of the current adjudication

                                         8
occurred after the date of the previous adjudication. Tex. Fam. Code Ann.

§ 54.05(f); In re C.J.H., 79 S.W.3d at 702. The violation of any one condition

of probation is sufficient for a trial court to enter an order modifying the

juvenile’s prior disposition. See In re S.G.V., No. 04-05-00605-CV, 2006 WL

923576, at *3 (Tex. App.—San Antonio April 5, 2006, no pet.) (mem. op.).

      The Texas Family Code permits a trial court to commit a child to TYC in

a modification of a disposition if it makes the required findings that: (A) it is in

the child’s best interest to be placed outside the home; (B) reasonable efforts

were made to prevent or eliminate the need for the child’s removal from the

home and to make it possible for the child to return to the child’s home; and (C)

the child, in the child’s home, cannot be provided the quality of care and level

of support and supervision that the child needs to meet the conditions of

probation. Tex. Fam. Code Ann. § 54.05(m)(1).

      C.    Analysis

      Calvin does not dispute that he violated his probation order or that the

trial court had the authority to modify his disposition. Because he asserts error

in the trial court’s discretion by committing him to TYC, we will briefly review

the sufficiency of the evidence supporting the trial court’s findings under

section 54.04(m)(1).




                                         9
      Considering Calvin’s best interests, the trial court heard ample evidence

about Calvin’s lack of structure and supervision at home, including his mother’s

testimony that Calvin ran away from home in October and December of 2007

and Calvin’s testimony about non-compliance at school, throwing parties, and

drinking two bottles of vodka over two days prior to his detention. The court

also heard about his history of referrals for theft, assault, and running away and

also his probation violations including failing to report in January and his three

offenses in July. See In re J.L.C., No. 02-06-00252-CV, 2007 WL 1168474,

at *5 (Tex. App.—Fort Worth 2007, no pet.) (mem. op.) (stating that the best

interests of children who engage in serious and repeated delinquent conduct are

superseded to the extent they conflict with public safety).

      Examining the reasonable efforts to prevent Calvin’s removal from home,

the trial court heard evidence of Calvin’s newest violations occurring shortly

after his completion of FPP and evidence of the failed attempts to enroll Calvin

in Tarrant County Advocate Program (“TCAP”). The trial court also received

evidence that Calvin’s mother refused other services and did not pursue

Calvin’s prescription drug treatment with his doctor because she did not “want

to waste their time.”

      The trial court heard ample evidence that Calvin could not have been

provided the care, support, and supervision required for his probation while at

                                       10
home.    The psychological evaluation stated that the home structure is

“chaotic,” and Calvin described his home life by saying “there is always

screaming and cleaning” and his siblings are “always making a mess.” Calvin’s

mother is a single parent and gives Calvin adult responsibilities, such as being

a care giver to his disabled brother and being a “father figure” to his other

siblings. The social history stated that his mother was unsuccessful at using

what she had learned from FPP counselors and Calvin’s probation officer.

Though Calvin’s mother is unemployed and spends time at home, she testified

that she often must leave Calvin unsupervised to attend doctor’s visits for her

youngest son’s spina bifida condition. Calvin’s mother stated that she was

attempting to move the family away from Calvin’s trouble-making friends, but

was not currently able to secure housing. There was sufficient evidence for the

trial court’s decision to commit Calvin to TYC rather than to place him in an

alternative treatment program. See In re D.W., 02-08-00243-CV, 2009 WL

1815779, at *2 (Tex. App.—Fort Worth June 25, 2009, no pet. h.) (mem. op.)

(holding that evidence of improper supervision and juvenile’s need for structure

supported trial court’s action in committing D.W. to TYC rather than residential

program for juvenile sex offenders).

      Furthermore, with respect to Calvin’s argument that the trial court should

have ordered further testing, the trial court had the power to order a mental

                                       11
examination on its own motion at any stage of the juvenile proceedings, but

was not statutorily required to do so.      See In re J.K.N., 115 S.W.3d 166,

168–69 (Tex. App.—Fort Worth 2003, no pet.) (holding that trial court was not

required to sua sponte order examination of juvenile’s mental state); In re

E.M.R., 55 S.W.3d 712, 719 (Tex. App.—Corpus Christi 2001, no pet.) (same).

The psychological evaluation in the State’s exhibit suggested that Calvin would

benefit from a comprehensive neurological evaluation; however, a possible

diagnosis of neurological impairment would not necessarily have altered the trial

court’s findings that commitment to TYC was in Calvin’s best interest, that

reasonable efforts had been made to prevent removal from his home, and that

he could not have been provided care and support in his home. See Tex. Fam.

Code Ann. § 54.05(m)(1)(A)–(C). Further, the trial court’s decision did not

deny Calvin mental health services with his placement at TYC.           See In re

J.D.P.,149 S.W.3d 790, 794–95 (Tex. App.—Fort Worth 2004, no pet.)

(discussing extensive psychiatric services the juvenile received at TYC). The

trial court had ample evidence of Calvin’s missed opportunities for rehabilitation

and his continued threat to his community to support its decision to commit

Calvin to TYC, and the trial court did not abuse its discretion. In re M.A.C.,

999 S.W.2d at 446. Therefore, we overrule Calvin’s first issue.




                                       12
IV.   Ineffective Assistance of Counsel

      In his second issue, Calvin argues that he received ineffective assistance

of counsel because his attorney did not investigate Calvin’s potential

neurological condition or request further evaluation.

      A.    Applicable law

      A juvenile has a constitutional and statutory right to effective assistance

of counsel in a juvenile adjudication proceeding. See In re S.C., 229 S.W.3d

837, 842–43 (Tex. App.—Texarkana 2007, pet. denied).                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, 104 S. Ct. 2052, 2064 (1984);

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); In re S.C., 229

S.W.3d at 843.

      Under the first Strickland 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).           The issue is whether

counsel’s assistance was reasonable under all the circumstances and prevailing

professional norms at the time of the alleged error. See Strickland, 466 U.S.

                                       13
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; Mallet 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.       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

                                        14
different.   Id. at 694, 104 S. Ct. at 2068.      A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. 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.

      B.     Analysis

      In this case, Calvin argues that his attorney failed to investigate Calvin’s

head injuries as potential mitigating evidence, despite having knowledge of

Calvin’s neurological concerns from Dr. Gallagher’s psychological evaluation

submitted two weeks prior to the hearing.5       Calvin argues that his counsel

should have followed through on Dr. Gallagher’s recommendations for

neurological testing and should have prepared for the questioning of his own

client about his neurological status.

      Calvin has presented no evidence rebutting the presumption that

counsel’s failure to investigate further was trial strategy. See Jones v. State,

170 S.W.3d 772, 775–76 (Tex. App.—Waco 2005, pet. ref’d) (holding that

appellant must demonstrate that counsel’s failure to request jury instruction

was not trial strategy). Calvin’s motion for a new trial did not directly address



      5
       … Citing Wiggins v. Smith , Calvin argues that counsel had a duty to
make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. 539 U.S. 510, 521–22, 123 S. Ct.
2527, 2535 (2003).

                                        15
his trial counsel’s ineffectiveness; rather, the motion alleged legal and factual

insufficiency and merely described the mother’s assertion of a breakdown in the

attorney-client relationship. See Martin v. State, No. 06-08-00190-CR, 2009

WL 2340665, at *4 (Tex. App.—Texarkana July 31, 2009, no pet. h.) (mem.

op., not designated for publication) (holding that appellant failed to make an

ineffective counsel complaint in her motion for new trial; thus, there was no

record of a hearing conducted to explain the acts or omissions of trial counsel);

see also Chavarri v. State, Nos. 02-08-00099-CR, 02-08-00100-CR, 2009 WL

885954, at *2 (Tex. App.—Fort Worth April 2, 2009, no pet. h.) (mem. op.,

not designated for publication) (stating that the appellant failed to develop the

record by filing a motion for new trial to establish why his counsel did not hire

a mitigation specialist and whether his counsel investigated the possibility of

any mitigation evidence). Additionally, the record contains no statement or

testimony from defense counsel regarding what he did. Without a record of

why trial counsel failed to act, Calvin cannot carry his burden to overcome the

presumption that failure to investigate further was trial strategy. Jones, 170

S.W.3d at 775–76; see also Maldonado v. State, No. 14-03-00074-CR, 2004

WL 234377, at *3 (Tex. App.—Houston [14th Dist.] Feb. 10, 2004, pet. ref’d)

(mem. op., not designated for publication) (stating that a reviewing court

cannot denounce counsel as ineffective absent some evidence of his strategy).

                                       16
      Strickland does not establish that an attorney must investigate “every

conceivable line of mitigating evidence,” but neither does it establish that a

cursory investigation is sufficient where a reasonable attorney would make

further inquiry. See Wiggins, 539 U.S. at 528, 533, 123 S. Ct. at 2538, 2541.

The trial record only reveals that evidence that Calvin’s potential brain damage

was offered to the court through Dr. Gallagher’s recommendations in the

psychological evaluation and through questioning of Calvin himself about his

concussions and understanding of the proceedings.        The record does not

affirmatively show his attorney’s ineffectiveness in regards to this inquiry.

Considering evidence of Calvin’s known medical conditions, including bipolar

disorder, disruptive behavior disorder, and depression, his attorney may have

not pursued the neurological testing recommendation as a reasonable trial

strategy because Calvin’s impulsive “acting out” behavior could have been

attributed to any or all of his diagnosed conditions. The record shows Calvin’s

attorney elicited testimony from Calvin about his concussions and discussed the

potential brain damage in his closing argument; we cannot infer from the record

that the attorney’s treatment of this evidence was unreasonable. See Mata,

226 S.W.3d at 432. Considering all of the circumstances in this case and the

undeveloped record, Calvin’s attorney’s decision to not pursue neurological

testing fell within the range of reasonable and professional assistance. See

                                      17
Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (overruling

ineffectiveness claim and stating that it must not be built on retrospective

speculation, but must be firmly founded in the record); see also Scheanette v.

State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (concluding that it must

presume counsel acted pursuant to reasonable trial strategy because it could

only speculate as to why counsel acted or failed to act), cert. denied, 543 U.S.

1059 (2005).

         Calvin’s ineffectiveness claim fails under the first Strickland prong; thus,

we do not address the second prong. Accordingly, we overrule Calvin’s second

issue.

V.       Conclusion

         Having overruled both of Calvin’s issues, we affirm the judgment of the

trial court.

                                               PER CURIAM

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DELIVERED: September 17, 2009




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