Opinion issued July 12, 2012.

In The

Court of Appeals 

For The

First District of Texas 

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NOS. 01-07-00332-CR

 01-07-00333-CR

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JOHN RAINEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Case Nos. 1077995 & 1077996

MEMORANDUM OPINION

After the juvenile court waived jurisdiction1

 1 See TEX. FAM. CODE ANN. § 54.02 (Vernon 2009).
and appellant was certified to stand trial as an adult, appellant, John Rainey, 

pleaded guilty to aggravated robbery2 and aggravated kidnapping.3

 After a 

presentence investigation, the trial court found appellant guilty and assessed 

punishment at 25 years’ confinement. In his sole point of error, appellant 

contends that he received ineffective assistance of counsel at the juvenile 

certification hearing. We affirm.

BACKGROUND

After appellant was charged with aggravated robbery and aggravated 

kidnapping, the State filed a motion in the juvenile court requesting that it waive 

its jurisdiction and certify appellant to stand trial in criminal district court as an 

adult. See TEX. FAM. CODE ANN. § 54.02.

The juvenile court held a hearing on the state’s motion, at which a 

Certification Investigation Report was entered into evidence. Relevant to the 

issues presented in this appeal, a section of the report provided as follows:

PSYCHIATRIC EVALUATION:

On June 22, 2006, John’s defense attorney, Mr. Oliver Sprott, 

specifically requested that no psychiatric testing be conducted.

PSYCHOLOGICAL EVALUATION:

On June 22, 2006, John’s defense attorney, Mr. Oliver Sprott, 

specifically requested that no psychological testing be conducted.

 2 See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011).

3 See TEX. PENAL CODE ANN. § 20.04 (Vernon 2011)
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After the hearing, the juvenile court granted the State’s motion and signed 

an Order to Waive Jurisdiction, in which the court stated that “Prior [to the 

certification hearing] the Court had ordered and obtained a diagnostic study, social 

evaluation, a full investigation of the child, his circumstances, and the 

circumstances of the alleged offense[.]”

INEFFECTIVE ASSISTANCE OF COUNSEL AT CERTIFICATION 

HEARING

In his sole issue on appeal, appellant contends that his juvenile counsel 

rendered ineffective assistance of counsel at the certification hearing. 

Specifically, appellant argues that by waiving the psychiatric and psychological 

examinations, juvenile counsel prevented the trial court from obtaining the 

information required for a “complete diagnostic study” as required by section 

54.02(d) of the Family Code. Appellant argues that the presentence investigation 

shows that appellant “has a long history of mental illness,”4 which should have 

 4 The presentence investigation contains the following paragraph regarding 

appellant’s mental health:

The defendant reported good physical health. The 

defendant has been diagnosed through MRMRA in the jail 

with Major Depressive Disorder, recurrent, with Psychotic 

Features. The defendant is currently taking 20 mg of 

Lexapro, 150 mg of Elavil and 200 mg of Seroquel. The 

defendant reported he went to a psychiatrist when he was ten 

or eleven and he was put on Seroquel. The defendant 
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been presented to the juvenile court before the certification hearing.

Law Applicable to Certification Hearings

A juvenile court may waive its exclusive original jurisdiction and transfer a 

juvenile to a criminal district court for criminal proceedings if (1) the child is 

alleged to have committed a felony; (2) the child meets one of two age 

requirements; and (3) after a full investigation and hearing, the juvenile court 

determines that probable cause exists to believe the juvenile committed the alleged 

offense and that the community’s welfare requires criminal proceedings because of 

the serious nature of the offense or the child’s background. See TEX. FAM. CODE 

ANN. § 54.02(a) (Vernon 2009). Section 54.02(d) of the Texas Family Code 

requires that prior to a transfer hearing, a “juvenile court shall order and obtain a 

complete diagnostic study, social evaluation, and full investigation of the child, his 

circumstances, and the circumstances of the alleged offense.” Id. §54.02(d). 

 A “complete diagnostic study,” as required under section 54.02(d), has not 

been defined. See In re B.T., 323 S.W.3d 158, 161–62 (Tex. 2010). “Typically, the 

certification report includes a psychiatric report, a psychological report, and a 

report by a probation department caseworker.” In re J.S.C., 875 S.W.2d 325, 

 

advised when he is under pressure he has auditory and visual 

hallucinations. The defendant’s mother stated she took him 

to a psychiatrist and he was treated for depression.
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326–27 (Tex. App.—Corpus Christi 1994, writ dism’d). However, section 

54.02(d) does not necessarily require a psychological or psychiatric evaluation to 

render a diagnostic

study complete. See L.M. v. State, 618 S.W.2d 808, 811 (Tex. 

App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (involving a diagnostic report in 

which psychological tests of a juvenile were not attached to diagnostic report and 

no psychiatric examination was conducted); I—L— v. State, 577 S.W.2d 375, 376 

(Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.) (upholding judgment ordering 

transfer of juvenile to stand trial as adult even though no psychological 

examination was made). Instead, a court considers the qualitative content of a 

diagnostic study rather than a “mere quantitative ‘check-list’” of included items. 

B.T., 323 S.W.3d at 161–62 (quoting L.M., 618 S.W.2d at 811–12).

Here, appellant did not object to absence of any psychiatric or psychological 

examination; thus, that issue is waived. See Pipkin v. State, 329 S.W.3d 65, 69 

(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding error not preserved 

when appellant’s juvenile counsel waived psychological and psychiatric 

examinations). However, appellant does not argue that the trial court erred by 

certifying him to stand trial without first conducting a psychiatric or psychological 

examination as part of its complete diagnostic study; instead, he argues that his 
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juvenile counsel was ineffective for waiving the psychological and psychiatric 

examinations. We also note that juvenile counsel can waive psychological and 

psychiatric examinations without complying with the waiver requirements set 

forth in TEX. FAM. CODE ANN. § 51.09 (Vernon 2009). See id. at 70. In this 

case, we address whether juvenile counsel’s decision to do so in this case resulted 

in ineffective assistance of counsel.

Standard of Review

In order to prove an ineffective assistance of counsel claim, appellant must 

show that his trial counsel’s performance fell below an objective standard of 

reasonableness and, but for counsel’s unprofessional error, there is a reasonable 

probability that the result of the proceeding would have been different. Strickland 

v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); 

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A reasonable 

probability is a “probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s 

performance, we look to the totality of the representation to determine the 

effectiveness of counsel, indulging a strong presumption that his performance falls 

within the wide range of reasonable professional assistance or trial strategy. 
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Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Thompson v. 

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A failure to make a showing 

under either prong defeats a claim of ineffective assistance. Rylander v. State, 101 

S.W.3d 107, 110 (Tex. Crim. App. 2003).

Allegations of ineffectiveness must be firmly founded in the record. See 

Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). When the 

record is silent, we may not speculate to find trial counsel ineffective. Gamble v. 

State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In the 

absence of evidence of counsel’s reasons for the challenged conduct, an appellate 

court commonly will assume a strategic motivation, if any can possibly be 

imagined, and will not conclude the challenged conduct constituted deficient 

performance unless the conduct was so outrageous that no competent attorney 

would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 

2001).

Analysis

Here, appellant did not file a motion for new trial, and there is nothing in the 

record to show why juvenile counsel decided to waive psychological and 

psychiatric testing. The State points out that “this Court may reasonably assume 

[that] juvenile counsel had legitimate strategic purposes in avoiding the testing 
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such as keeping appellant from confessing the specifics of his participation in the 

offense, showing some propensity to commit further violence, having him caught 

in additional inaccuracies or inconsistencies, or evidence that his claims of a 

predating mental illness would not be validated or verified.” The record also 

shows that appellant’s co-defendant, who was represented by a different attorney 

at the certification hearing, also chose to waive psychological and psychiatric 

testing.

On this record, appellant has failed to meet his burden to rebut the 

presumption that counsel’s actions were reasonably professional and were 

motivated by sound trial strategy. See Garcia, 57 S.W.3d at 440; Rylander, 101 

S.W.3d at 110.

Because appellant has failed to meet the first prong of the Strickland test, 

we need not address the issue of prejudice under prong two. Rylander, 101 S.W.3d 

at 110. Accordingly, we overrule appellant’s sole point of error.

CONCLUSION

We affirm the judgments of the trial court.

Sherry Radack

Chief Justice 
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Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).