in the Matter of R.F. ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00345-CV
IN THE MATTER OF R.F.
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. JV13-0006
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MEMORANDUM OPINION1
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I. Introduction
In a single issue, appellant R.F. complains that he received ineffective
assistance of counsel at his juvenile probation revocation hearing. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
R.F. was twelve years old when he committed two counts of aggravated
sexual assault of a child. After pleading “True” to the charges, R.F. was found to
have engaged in delinquent conduct in violation of penal code section 22.021,
and the trial court sentenced him to a period of two years’ probation with
placement in a residential sexual offender treatment facility and boot camp
program. See Tex. Penal Code Ann. §22.021 (West Supp. 2014); Tex. Fam.
Code Ann. §51.03(a)(1) (West 2014). R.F. began the Cooke, Fannin, and
Grayson County Boot Camp (the Boot Camp) and sexual offender treatment
program but was discharged after nine months because he exposed his genitals
to other residents.
On June 23, 2014, the State petitioned to modify R.F.’s disposition on the
grounds that he had violated his conditions of probation by (1) committing the
further offense of recklessly exposing his genitals with the intent to arouse or
gratify his sexual desire; (2) failing to complete the Boot Camp’s programs, follow
all of the facility’s rules, and not leave the facility without permission; and (3)
failing to attend, participate in, and successfully complete a sex offender
counseling program and an aftercare program with a registered sex offender
treatment therapist.
At the modification hearing, the state called three witnesses: Karla Doster,
Jonathan Neece and Scott Gieger. Doster, R.F.’s case manager, testified that
almost immediately after R.F. began the Boot Camp program on September 6,
2
2013, he started accumulating behavior citations for breaking the rules.2
According to Doster, R.F. exhibited defiance toward staff and authority figures,
cursed at and threatened staff, and refused to participate in the program. During
his nine-month stay at the Boot Camp, R.F. received 113 violations for
misbehavior, ranging from using profanity, disrupting group therapy sessions,
making inappropriate sexual comments, gestures, and overtures toward peers
and staff, and making false allegations towards staff, to exposing his genitals.
Doster also testified generally about R.F.’s disrespect for authority and refusal to
take personal responsibility for his choices.
Neece, R.F.’s sex offender treatment therapist, testified that the Boot
Camp program consisted of three phases, and that most program participants
completed the first phase within four to five months. After nine months in the
program, R.F. remained in phase one. Neece testified that, while in early 2014
R.F. began to apply himself and succeed in school, R.F.’s defiant and
disrespectful behavior toward the rules and authority never waned.
Both Doster and Neece testified that on June 11, 2014, R.F. exposed his
genitals to another resident. R.F admitted that he did this.
2
The Boot Camp program operates on a points system, wherein each
resident is eligible to receive 20 points per day for good behavior. Points can be
deducted for misbehavior, and if a resident continued to misbehave, he could be
confined to the “Brig,” where he would be required to sit quietly on a bench. In
the 281 days R.F. spent at the Boot Camp, he was confined to the “Brig”
approximately 30 times, and while he could have earned as many as 5,620
points during that time, he earned only 758.
3
Gieger, R.F.’s juvenile probation officer, testified that the June 11 incident,
in combination with his ongoing concerns regarding R.F.’s overall lack of
progress in the program, was the last straw. R.F. was discharged from the Boot
Camp two days later.
The trial court found that R.F.’s act of exposing himself to other program
participants on June 11 and his subsequent discharge from Boot Camp
constituted violations of the conditions of his probation and ordered that R.F. be
committed to Texas Juvenile Justice Department (TJJD) for a period of time “not
to exceed the time when he shall be 19 years of age.” See Tex. Fam. Code Ann.
§ 54.05 (West 2014); Tex. Hum. Res. Code Ann. § 245.151 (West 2013).
III. Ineffective Assistance of Counsel
R.F. complains in one issue of ineffective assistance of counsel. His
complaint focuses on Gieger’s testimony that in reviewing R.F.’s progress and
making the decision to remove R.F. from the program, “the fact that there was
another offense that basically was a sexual act,” was “kind of [the] straw that
broke the camel’s back.” He also complains about Doster’s testimony that
“several other recruits were providing statements that [R.F.] was touching them,
rubbing against them, et cetera, during the POD and in class,” that “other
inmates wrote statements” and that “there ‘were allegations made by the other
residents that he was engaged in . . . sexual impropriety’.” R.F. contends that by
failing to object to the testimony regarding these extraneous offenses under the
Confrontation Clause, his counsel provided ineffective assistance of counsel.
4
Juveniles have a constitutional and statutory right to effective assistance of
counsel. In re R.D.B., 102 S.W.3d 798, 800 (Tex. App.—Fort Worth 2003, no
pet.); In re F.D., 245 S.W.3d 110, 114 (Tex. App.—Dallas 2008, no pet.). The
effectiveness of counsel’s representation in a juvenile proceeding is to be
reviewed under the two prong Strickland v. Washington standard. 466 U.S. 668,
687–88, 104 S. Ct. 2052, 2064 (1984). To establish ineffective assistance of
counsel, the appellant must show by a preponderance of the evidence that his
counsel’s representation was deficient and that the deficiency prejudiced the
defense. Id. at 687; Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013);
Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999). An
ineffective-assistance claim must be “firmly founded in the record,” and “the
record must affirmatively demonstrate” the meritorious nature of the claim.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
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 591, 592–93 (Tex. Crim. App. 2012); Thompson,
9 S.W.3d at 813–14. In evaluating the effectiveness of counsel under the
deficient-performance prong, we look to the totality of the representation and the
particular circumstances of each case. Thompson, 9 S.W.3d at 813. 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. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of
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counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d
at 307–08.
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. Menefield, 363 S.W.3d at
593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). 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, we should not conclude that counsel’s performance was
deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava, 415 S.W.3d at 308.
The prejudice 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,
the appellant must show there is a reasonable probability that, without the
deficient performance, the result of the proceeding would have been different. Id.
at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A reasonable probability is
a probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. The ultimate focus of
our inquiry must be on the fundamental fairness of the proceeding in which the
result is being challenged. Strickland, 466 U.S. at 697, 104 S. Ct. at 2070.
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No record was developed of counsel’s reasons for failing to lodge a
Confrontation Clause objection to the testimony regarding these extraneous
offenses. Our scrutiny of his performance “must be highly deferential, and every
effort must be made to eliminate the distorting effects of hindsight.” Lopez v.
State, 80 S.W.3d 624, 630 (Tex. App.—Fort Worth 2002), aff’d, 108 S.W.3d 293
(Tex. Crim. App. 2003). Because the record is silent, R.F. has failed to rebut the
presumption that his counsel acted reasonably. See, id. (“Where the record is
silent as to counsel’s reasons for failing to object, the appellant fails to rebut the
presumption that counsel acted reasonably.”).3
3
Because the record is silent as to counsel’s reasoning, we do not reach
the issue of whether the Confrontation Clause applies in probation revocation
hearings. Some of our sister courts have held that it does not, although at least
one court has assumed without deciding that a defendant can raise a
Confrontation Clause objection in a community supervision revocation
proceeding. Compare Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—
Houston [14th Dist.] 2007, no pet.) (holding the Sixth Amendment right to
confrontation as set out in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004) does not apply to probation revocation hearings), Diaz v. State, 172
S.W.3d 668, 672 (Tex. App.—San Antonio 2005, no pet.) (holding Crawford does
not apply to community supervision revocation hearings), and Smart v. State,
153 S.W.3d 118, 121 (Tex. App.—Beaumont 2005, pet ref’d), cert. denied, 546
U.S. 1016, 126 S. Ct. 663, 163 L. Ed. 2d 527 (2005) (same), with Blackman v.
State, No. 01-12-00525-CR, 2014 WL 50804, at *2 (Tex. App.—Houston [1st
Dist.] pet. ref’d) (assuming without deciding that Crawford does apply to
community supervision revocation hearings on the basis of the Court of Criminal
Appeals’ holding in Ex Parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012), that
such hearings are judicial, not administrative, hearings). See also, Cantu v.
State, 339 S.W.3d 688, 690–91 (Tex. App.—Fort Worth 2011, no pet.)
(discussing state and federal court holdings that the Confrontation Clause does
not extend to probation revocation hearings).
7
Even if the Confrontation Clause would render the statements by Doster
and Neece inadmissible, the second prong of Strickland requires that the failure
to object be so serious that it deprived R.F. of a fair trial, i.e., a trial with a reliable
result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Doster and Neece testified that R.F. admitted to them that he had exposed
his genitals to another resident, and as a result, he was expelled from the
program. Doster listed in her summary of his placement stay that this occurred
on June 11, 2014, and the trial court admitted her summary as part of Gieger’s
supplemental case history at the hearing. Notwithstanding whether R.F.
engaged in any other extraneous offenses, proof by a preponderance of the
evidence of any one of the alleged violations of the probation conditions is
sufficient to support the revocation order. Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. [Panel Op.] 1980) (proof by a preponderance of the evidence of
any one of the alleged violations of the conditions of community supervision is
sufficient to support a revocation order).
Therefore, this evidence of the June 11 incident, standing alone, was
sufficient to support the revocation of R.F.’s probation. See, e.g., In re R.L.R. III,
No. 14-06-00926-CV, 2008 WL 323758, at *4 (Tex. App.—Houston [14th Dist.]
Feb. 7, 2008, no pet.) (counsel was not ineffective when appellant had admitted
to his probation officer that he violated the conditions of his probation); Bennett v.
State, 705 S.W.2d 806, 807 (Tex. App.—San Antonio 1986, no writ) (“In the light
of appellant’s admission [to violating three conditions of his probation], it is
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difficult to see how his attorney’s conduct could effect a different result.”); Herrera
v. State, 656 S.W.2d 148, 149 (Tex. App.—Waco 1983, no writ) (“[A]n oral
admission of a violation of the probation terms, made by probationer to his
probation officer, is sufficient to revoke probation.”).
Therefore, there is no reasonable probability that the proceeding’s result
would have been different even without the evidence regarding extraneous
offenses. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d
at 308. Thus, counsel’s failure to object to this testimony did not deprive R.F. of
a fair trial. We overrule R.F.’s sole issue.
IV. Conclusion
Having overruled R.F.’s sole issue, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: DAUPHINOT, GARDNER, and SUDDERTH, JJ.
DELIVERED: October 8, 2015
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