By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

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Failure to assert mental illness defense at revocation hearing not ineffective assistance of counsel [In re T.T.G.] (03-3-23).

On July 16, 2003, the Tyler Court of Appeals held that failure to assert a mental illness defense at revocation proceedings was not ineffective assistance since respondent failed to show that the outcome probably would have been different.

03-3-23. In the Matter of T.T.G., UNPUBLISHED, No. 12-02-00268-CV, 2003 WL 21688120, 2003 Tex.App.Lexis ____ (Tex.App.-Tyler 7/16/03) Texas Juvenile Law (5th Ed. 2000).

Facts: T.T.G. appeals the modification of her probation, following which she was committed to the Texas Youth Commission for an indeterminate period. T.T.G. raises one issue on appeal.

On February 14, 2002, T.T.G. was found to have engaged in delinquent conduct by committing the offenses of theft and assault and was placed on probation with the Wichita County Juvenile Probation Department. On July 29, 2002, the State filed a petition to modify and extend T.T.G.'s disposition, alleging that T.T.G. had violated certain terms of her probation. Specifically, the State alleged in four separate counts that T.T.G. (1) failed to attend school, (2) left Wichita County without court approval, (3) failed to be inside her residence at the designated curfew time, and (4) tampered with or removed her electronic ankle monitor.

On August 8, 2002, a hearing was held on the State's motion. T.T.G. pleaded true to the four allegations in the State's petition. The trial court found that T.T.G. had violated the terms of her probation and ordered that T.T.G. be committed to the Texas Youth Commission for an indeterminate period.

Held: Affirmed.

Opinion Text: In her sole issue, T.T.G. contends that her trial counsel was ineffective. Among the reasons cited by T.T.G. are that her attorney (1) failed to make adequate inquiries into T.T.G.'s documented mental health history and diagnoses by failing to have T.T.G. reevaluated for disposition purposes, (2) failed to call the mental health professionals who had previously evaluated T.T.G. to give expert testimony about appropriate disposition, (3) failed to have T.T.G. evaluated for fitness, and (4) failed to move that the court hold fitness proceedings as provided in the Texas Family Code. [FN1]

FN1. See Tex. Fam.Code Ann. § 55.31 (Vernon 2002).

The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). The test set forth in Strickland requires a two step analysis:

1. Did the attorney's performance fail to constitute "reasonably effective assistance," i.e., did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms?
2. If so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings could have been different?

See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The test in Strickland applies to juvenile cases as well. See, e.g., In the Matter of R.D.B., 20 S.W.3d 255, 258 (Tex.App. Texarkana 2000, no pet.).

A "reasonable probability" was defined by the Supreme Court as a "probability sufficient to undermine confidence in the outcome." Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App . Texarkana 2000, pet. ref'd). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id.

After proving error, the appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney's errors, the jury would have had a reasonable doubt about his guilt. Id.

In the case at hand, T.T.G. argues at length as to why certain actions on her trial counsel's behalf fell below the professional norm. However, even assuming arguendo that T.T.G.'s trial counsel's actions, as noted in T.T.G.'s brief, satisfied the first prong of the Strickland test, T.T.G. must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. It is not enough for the appellant to merely show that the errors had some conceivable effect on the outcome of the proceedings. Id.

In her brief, after noting her burden under the second prong of the Strickland test, T.T.G. states, "Appellant argues in the case at bar that if Defense counsel had either obtained a more current evaluation of Appellant, at least subpoenaed Dr. Sabine to testify about his prior evaluation and report, or had Appellant evaluated for fitness, a 'reasonable probability' exists that the result would have been different and that disposition would not have been commitment to TYC." Such a conclusory statement is not an adequate means by which T.T.G. can satisfy her burden of proof. Despite repeated readings of T.T.G.'s brief, we can uncover no argument specifically addressing the second prong of the Strickland test.

We iterate that the burden of proof as to this issue rests squarely upon T.T.G.. See Burruss, 20 S.W.3d at 186. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on T.T.G.'s behalf that but for her counsel's alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different.

Since T.T.G. has failed to satisfy her burden under Strickland, we hold that she was not denied her right to effective assistance of counsel. T.T.G.'s sole issue is overruled and the judgment of the trial court is affirmed.

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