in the Matter of C.C.B. ( 2009 )

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
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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.
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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.
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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
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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
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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
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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).
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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
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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
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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.
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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.
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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
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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).
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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
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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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