Opinion
No. 10-05-00015-CV
Opinion delivered and filed February 22, 2006.
Appeal fromthe 323rd District Court, Tarrant County, Texas, Trial Court No. 323-73219J-02.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Appellant T.D.B. appeals the trial court's order to transfer him from the Texas Youth Commission (TYC) to the Texas Department of Corrections (TDC). We will affirm.
BACKGROUND
In January 2003, a jury found that T.D.B. had engaged in delinquent conduct by committing aggravated robbery with a deadly weapon. The trial court sentenced him to a determinate sentence of eight years in the custody of TYC with the possibility of transfer to TDC. In October 2004, TYC requested the transfer of the juvenile to TDC. The court held a hearing pursuant to Texas Family Code section 54.11. At the hearing, the court admitted TYC records and Leonard Cuculo's, a TYC court liaison, summary report which contained multiple allegations from other TYC staff. These records documented 270 incidents of misconduct involving T.D.B. Further, Cuculo described the juvenile's behavior as disruptive to the TYC program and his overall performance as poor.
In his sole issue, T.D.B. argues that he was deprived of his constitutional right to effective assistance of counsel because trial counsel failed to object on Confrontation Clause grounds to the TYC records and Cuculo's testimony.
STANDARD OF REVIEW
The standard set out in Strickland applies to T.D.B.'s claim for ineffective assistance of counsel. In re R.D.B., 20 S.W.3d 255, 258 (Tex.App.-Texarkana 2000, no pet.) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To prevail on his claims, T.D.B. must show that his counsel's performance was deficient. See id. Specifically, T.D.B. must prove by a preponderance of the evidence that his counsel's representation fell below the objective standard of professional norms. See id.
Second, T.D.B. must show that this deficient performance prejudiced his defense. See id. This means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. See id. A "reasonable probability" is one sufficient to undermine confidence in the outcome. See id.
INEFFECTIVE ASSISTANCE OF COUNSEL AT TRANSFER HEARING
The release or transfer hearing is a "second chance hearing" after the juvenile has been sentenced to a determinate number of years, it is not part of the guilt-innocence determination. Matter of D.S., 921 S.W.2d 383, 388 (Tex.App.-Corpus Christi 1996, writ dism'd w.o.j.) During this hearing, the trial court may consider "written reports from probation officers, professional court employees, professional consultants, or employees of the Texas Youth Commission, in addition to the testimony of witnesses." TEX. FAM. CODE ANN. § 54.11(d) (Vernon Supp. 2005). However, a juvenile has no right of confrontation at a discretionary transfer hearing. In re C.D.T., 98 S.W.3d 280, 283 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).
T.D.B. is unable to meet the Strickland standard. He is unable to show that failing to object on confrontation grounds to the evidence presented against him was deficient because he did not have a right to confrontation at the section 54.11 release or transfer hearing. Accordingly, we overrule his sole issue.
CONCLUSION
Having overruled T.D.B.'s sole issue, we affirm the judgment.