COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00007-CV

IN THE MATTER OF T.C., A 

JUVENILE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. J00378

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MEMORANDUM OPINION1

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On October 23, 2014, the trial court adjudicated then fifteen-year-old 

Appellant T.C. as having engaged in delinquent conduct by committing the 

offense of indecency with a child by contact. See Tex. Penal Code 

Ann. § 21.11(a)(1) (West Supp. 2017). A jury heard evidence concerning what 

 

1See Tex. R. App. P. 47.4.
2

disposition should be made and sentenced him to twenty years in the Texas

Juvenile Justice Department (TJJD). The trial court, accordingly, committed him 

to the TJJD’s care, custody, and control for a determinate sentence of twenty 

years, with a possible transfer to the Institutional Division of the Texas 

Department of Criminal Justice (TDCJ). A little more than two years later, on 

November 2, 2016, the TJJD’s executive director sent a referral to the trial court

requesting it to conduct a hearing under family code section 54.11 to determine 

whether T.C. should be transferred to the TDCJ. See Tex. Fam. Code Ann. 

§ 54.11 (West Supp. 2017) (governing juvenile court’s decision to transfer 

juvenile offender); Tex. Hum. Res. Code Ann. § 244.014 (West Supp. 2017) 

(authorizing the TJJD to refer juvenile offender between age 16 and 19 for 

transfer to the TDCJ). After conducting a section-54.11 hearing on December 

29, 2016, the trial court ordered T.C. transferred to the TDCJ to serve the 

remainder of his twenty-year sentence.

In a single issue, T.C. contends he received ineffective assistance of 

counsel at the transfer hearing in violation of the federal and state constitutions 

because his appointed trial counsel failed to request an independent medical 

examination to determine the nature of the underlying psychological and 

psychiatric issues that caused his problematic behavior at the TJJD prior to the 

hearing. We affirm.
3

I. STANDARD OF REVIEW

We review a claim of ineffective assistance of counsel under the standard

set forth in Strickland v. Washington, 466 U.S. 668, 687–88 (1984). See 

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (applying 

Strickland standard to claim of ineffective assistance at noncapital sentencing 

proceedings); see also In re K.H., No. 12-01-00342-CV, 2003 WL 744067, at *4–

5 (Tex. App.—Tyler Mar. 5, 2003, no pet.) (mem. op.) (applying Strickland 

standard to claim of ineffective assistance during section-54.11 transfer 

proceeding); In re R.D.B., 20 S.W.3d 255, 256, 258 (Tex. App.—Texarkana 

2000, no pet.) (same). To establish ineffective assistance of counsel, T.C. must 

show by a preponderance of the evidence that his counsel’s representation was 

deficient and that the deficiency prejudiced the defense. See Strickland,

466 U.S. at 687; Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). 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). An appellant’s 

failure to satisfy one prong of the Strickland test negates a court’s need to 

consider the other prong. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. 

App. 2009). 

Direct appeal is usually an inadequate vehicle for raising an ineffectiveassistance-of-counsel claim because the record is generally undeveloped. 

Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson, 
4

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 of the circumstances 

and the prevailing professional norms at the time of the alleged error. See 

Strickland, 466 U.S. at 688–89; Nava, 415 S.W.3d at 307. Review of 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.

II. TRANSFER HEARING

T.C.’s transfer hearing took place on December 29, 2016, and the

evidence presented at the hearing consisted of (1) the testimony of the TJJD’s 

court liaison, Leonard Cucolo; (2) Cucolo’s written report recommending that the 
5

court transfer T.C. to the TDCJ; (3) the testimony of T.C.; and (4) a stipulation to 

a summary of the testimony that T.C.’s mother, grandmother, and grandfather—

all of whom were in the courtroom—would give if they were called to testify. 

A. CUCOLO’S TESTIMONY

Cucolo testified that he had worked in various roles for the TJJD for 

twenty-seven years. He stated that in his current position as the TJJD’s court 

liaison, he represents the TJJD in a yearly average of sixty to seventy hearings 

that involve juvenile offenders who have been sentenced and subsequently 

referred back to the sentencing court for a disposition of adult parole or transfer

to adult prison, and he further said that at those hearings, he provides the TJJD’s 

recommended disposition to the court. Cucolo confirmed he was familiar with 

T.C., as well as with the TJJD’s efforts to rehabilitate him from the time he was 

placed into its custody on October 23, 2014. 

Cucolo testified that upon entering the TJJD’s custody, T.C. was placed in 

an orientation and assessment unit to undergo a battery of evaluations, including 

medical, psychiatric, and educational to determine what T.C.’s particular 

treatment needs were. Cucolo stated that based on those evaluations, it was 

determined that T.C. had a high need for the TJJD’s sexual-behavior treatment 

program, and T.C. was thus placed in that program. Cucolo averred that the 

TJJD provided T.C. with a variety of services, including the sexual-behavior 

treatment program, psychiatric services, and an anger-management program. 

Cucolo further testified that T.C. had been with the TJJD for more than twenty-
6

four months and that over that time, T.C. had done poorly in most of the areas in 

which he had been involved. Specifically, Cucolo stated that T.C. had more than 

200 documented incidents of misconduct and that many of those constituted 

major rule violations.

2

 Cucolo also said that T.C. had failed his angermanagement program and had refused to participate in, and accept his 

medication during, his sexual-behavior treatment program. 

In addition, Cucolo testified that T.C. continued to have difficulty accepting 

responsibility for his offense. Cucolo indicated that the TJJD had performed a 

psychological examination of T.C. for the purpose of the hearing and to help the 

TJJD in forming a recommendation to the court. That examination, according to 

Cucolo, showed that there had not been any significant change in T.C.’s risk of 

committing another sexual offense. Cucolo also said that in addition, T.C.’s 

problematic behavior while confined in the TJJD’s highly structured setting during 

the prior twenty-four months demonstrated that he was not amenable to the 

treatments the TJJD had offered and provided to him. Cucolo stated that when a 

juvenile who has been committed to the TJJD repeatedly violates the rules and 

does not participate in the treatment programs offered to him, that behavior has a 

negative impact on other juveniles who are in the TJJD’s treatment programs and 

 

2Cucolo stated that major rule violations “are basically new offenses that a 

youth can engage in while confined within our facility” and that minor rule 

violations were “violations such as refusing to follow staff instructions, not 

participating in the program, things like that.” 
7

reduces their chance at a positive outcome. Ultimately, Cucolo testified that the 

TJJD’s recommendation was that the trial court transfer T.C. to the TDCJ

B. CUCOLO’S WRITTEN REPORT

Cucolo’s written report indicated that a juvenile’s rehabilitative treatment 

progress while in the TJJD is assessed monthly in what are called “stage 

assessments.” Those assessments, according to Cucolo’s report, “evaluate[] a 

youth’s progress in reducing risk factors for recidivism and increasing protective 

factors related to positive community reintegration.” The stages rank from the 

lowest, entry-level stage called “Stage 1,” to what is called the “Youth 

Empowerment Status,” where a juvenile is actively preparing to be released back 

into the community. The report stated that T.C. had entered the TJJD at a Stage 

1 level and had never promoted to a higher stage during his two years at the 

TJJD. The report further stated that the primary reason why T.C. had not been 

able to achieve a higher stage was due to his behavior, which had resulted in his

being removed from his treatment programs. With respect to T.C.’s behavior, the 

report indicated that T.C. had 248 incidents on his record, ranging from loud and 

disruptive behaviors and horse playing to refusing to follow staff instructions and

using profanity or being disrespectful. The report further stated that T.C. had 

numerous major violations ranging from property destruction and tattooing to 

sexual misconduct and physical aggression. 

Cucolo’s report also stated that Amanda Richter, a Doctor of Psychology, 

had completed a psychological evaluation of T.C. on July 15, 2016. Cucolo 
8

quoted Dr. Richter’s assessment as stating that T.C. had not been able to attain 

any assessment stage beyond Stage 1. He further quoted Dr. Richter’s 

assessment as stating that T.C. “ha[d] received psychiatric services, sexual 

behavior treatment, and aggression replacement training in addition to 

counseling with his case manager.” According to Dr. Richter, despite these 

interventions, T.C. had “continued to show resistance in treatment and significant 

behavioral concerns.” Additionally, Dr. Richter stated that T.C. had “made no 

improvement in reducing his risk for sexual re-offending while in [the] TJJD.” 

Cucolo’s report further stated that T.C.’s medications, Strattera and Sertraline, 

had been discontinued due to his “refusing his medication again.” 

C. T.C.’S TESTIMONY

T.C. testified that he had attended educational classes while in the TJJD. 

Specifically, he had attended science, algebra, reading, and world geography 

classes; he had completed a welding class; and he had taken photo-shop and 

“GD-prep” classes. T.C. agreed with Cucolo’s assessment in his written report 

that T.C. was at a sixth-grade reading level. T.C. also stated that he was 

improving in his math classes. 

T.C. also stated that he “get[s] to meet with a psychiatrist or psychologist” 

while in the TJJD and that they teach him ways to control his emotions and 

prescribe him medications, including Trazadone, Geodon, melatonin, and Zoloft. 

T.C. said, however, that those medications made him sick, so he stopped taking 

them. T.C. averred that he had had problems with depression while in the TJJD 
9

and that he had to be placed on suicide watch. With regard to his being placed 

on suicide watch, T.C. testified that he got “tired of dealing with the same thing 

every day,” so he would say something to somebody about suicide. T.C. stated

that when that happened, somebody had to watch him and that every ten 

minutes, that person had to write down what T.C. was feeling. T.C. said that he 

had been on that kind of watch on and off about ten times during the prior twentyfour months. 

With regard to his anger-management program, T.C. stated that he had to 

take that program several times. The first time he took it, he was kicked out 

because he got in a fight. He failed to complete the anger-management program 

the second time he took it because he got kicked out of his sex-offender 

treatment program and was consequently removed out of the dorm where the 

anger-management classes were given. T.C. said he passed his angermanagement program the third time he took it. T.C. stated that he was the 

smallest person in his unit and that he did not want to be transferred to an adult 

facility. He said he believed that if he were given more time in the TJJD, he 

could do better than he had previously and that he could successfully complete 

more of the treatment programs. 

On cross-examination, T.C. stated that he would act differently if returned 

to the TJJD by listening to staff, doing his best in completing his treatment 

programs, and not trying to handle his problems on his own. However, he 

acknowledged that as recently as December 12, 2016—only a little more than 
10

two weeks prior to the hearing—he had assaulted a female guard at the TJJD. 

He stated that he had been sent to security and a guard attempted to handcuff 

him, but he did not allow her to do so. T.C. acknowledged that it was the guard’s 

job to decide whether to handcuff him and that it was his place to comply with her 

decision. He also acknowledged that he had had two years to figure out that he 

was supposed to comply with the guards’ instructions and that the December 12, 

2016 incident showed that he still had not learned to do so. T.C. stated that his 

two-week stay in the county jail pending his transfer hearing had changed his 

attitude about who is in charge and what he is supposed to do at the TJJD. 

T.C. also acknowledged that he had 248 disciplinary infractions during his 

twenty-four months at the TJJD. He stated that due to his behavior, he was 

unable to complete his sex-offender treatment program. T.C. said that he had 

known the consequences of not completing his treatment program at the TJJD, 

but he did not realize how serious it was until his transfer hearing. Yet he also 

stated that there were other juveniles in the TJJD who, like him, were serving 

determinate sentences; that he had talked with them and they with him; and that 

everyone knew that if they did not comply with the TJJD’s requirements, then 

they would be transferred to the TDCJ. 

In addition, T.C. testified that his mother, grandmother, and grandfather 

were in the courtroom to support him. He stated that he was able to talk to his 

family on the phone and that they were able to visit him in the TJJD. T.C. also 
11

testified that if he was transferred to the TDCJ, it would be more difficult for his 

family to visit him. T.C. stated that he wanted to be returned to the TJJD. 

D. STIPULATED SUMMARY OF T.C.’S FAMILY’S TESTIMONY

Following T.C.’s testimony, his attorney told the trial court that he would 

call T.C.’s family to testify but that “they would just say that they think he’s too 

immature to be sent to the adult facility. That’s a summary of their testimony.” 

T.C.’s counsel further stated that his family’s preference is that T.C. “stay in the 

Waco area.”3 The trial court accepted counsel’s statements as a summary of 

what T.C.’s family would otherwise testify to. 

III. APPLICATION

In arguing that his trial counsel’s failure to request an independent medical 

examination amounted to ineffective assistance, T.C. principally relies upon the 

Texarkana court of appeals’ decision in R.D.B., in which it held, under the facts of

that case, that the failure of the appellant’s trial counsel to seek the courtappointed assistance of a mental-health professional in connection with the 

appellant’s section-54.11 transfer hearing constituted ineffective assistance of 

counsel. See 20 S.W.3d at 261. T.C. argues that the facts of this case are so 

similar to the facts in R.D.B. as to compel the same result here. We conclude, 

however, that T.C.’s reliance on R.D.B. is misplaced.

 

3The record reflects that the TJJD facility in which T.C. had been placed 

was in McLennan County. 
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A. IN RE R.D.B.

R.D.B. involved a section-54.11 transfer hearing of R.D.B., a juvenile who 

had previously been adjudicated delinquent and sentenced to a determinate 

sentence of fifteen years in the Texas Youth Commission (TYC). Id. at 256. As 

in T.C.’s case here, the State’s only witness in R.D.B. was Cucolo. Id. Cucolo

testified that R.D.B. had participated in some treatment programs while in the 

TYC but nevertheless continued to be disruptive and assaultive, which resulted in 

his referral to the trial court to be transferred to the TDCJ. Id. Importantly, 

Cucolo also testified that R.D.B. “ha[d] a brain injury as a result of a self-inflicted 

gunshot wound”; that R.D.B. had been given medication to control his seizure 

activity; that a psychological evaluation of R.D.B. had been conducted by Larry 

Reue (a person whose qualifications, title, experience, and occupation did not 

appear in the record); and that Reue indicated that R.D.B.’s brain injury “may be 

contributing to [his] delinquent behavior.” Id. at 256–57. Cucolo stated, however, 

that Reue’s ultimate conclusion was that “most of R.D.B.’s behavior was the 

result of anti-social values and characteristics rather than the result of an organic 

disorder.” Id. at 257.

R.D.B.’s mother also testified, and she stated that following his brain injury 

and operation, he had to learn to speak again and was placed in multiple 

rehabilitation programs. Id. She also testified that R.D.B. had a grand mal 

seizure and several petit mal seizures and had short-term memory loss, thoughtprocess dysfunction, and a loss of balance. Id. She further testified that R.D.B. 
13

suffered from a seizure disorder from his brain injury. Id. Additionally, a written 

report from Reue acknowledged that “R.D.B.’s difficulty in implementing cognitive 

skills into daily behavior may be affected by his traumatic head injury.” Id. at 258.

R.D.B. argued that his counsel’s failure to seek an independent psychiatric 

examination constituted ineffective assistance of counsel. Id. at 256. Our sister 

court began its analysis by concluding that the Supreme Court’s holding in Ake v. 

Oklahoma, 470 U.S. 68, 83 (1985), applies to a section-54.11 transfer hearing. 

R.D.B., 20 S.W.3d at 258–59. Under Ake, 

when a defendant demonstrates to the trial judge that his sanity at 

the time of the offense is to be a significant factor at trial, the State 

must, at a minimum, assure the defendant access to a competent 

psychiatrist who will conduct an appropriate examination and assist 

in the evaluation, preparation, and presentation of the defense.

Ake, 470 U.S. at 83. The court of appeals then examined the record and 

concluded that R.D.B.’s counsel had

a duty to investigate such plainly evident background of mental 

health problems of [R.D.B.]. In the face of such an unfavorable 

report, counsel was clearly under a duty to seek, in conjunction with 

his obligation to provide the best defense possible for his client, the 

court-appointed assistance of a mental health professional, to which 

he was entitled. His failure to do so clearly prejudiced R.D.B. and 

undermines this Court’s confidence in the outcome of the 

proceedings.

R.D.B., 20 S.W.3d at 261.

B. T.C. FAILED TO ESTABLISH HE WAS ENTITLED TO AN APPOINTED 

MENTAL-HEALTH EXPERT

The State observes that T.C.’s argument that his trial counsel rendered 

ineffective assistance by failing to request an independent medical examination
14

assumes that Ake is applicable to a section-54.11 transfer proceeding. And the 

State further asserts that unlike our sister court in R.D.B., this court has never

held that Ake applies to a section-54.11 transfer proceeding. For purposes of our 

analysis here, we assume, without deciding, that Ake applies to a section-54.11 

transfer proceeding. See In re A.A.L., No. 14-06-00027-CV, 2007 WL 704958, at 

*1 (Tex. App.—Houston [14th Dist.] Mar. 8, 2007, no pet.) (mem. op.) (“For the 

purposes of our analysis, we presume, without deciding, that the Ake analysis 

applies to a transfer hearing under section 54.11 of the Texas Family Code.”).

Under Ake, to be entitled to the appointment of an expert, a defendant 

must make a threshold showing that he has a particularized need for such an 

expert to address a significant issue at trial. See Griffith v. State, 983 S.W.2d 

282, 286–87 (Tex. Crim. App. 1998); A.A.L., 2007 WL 704958, at *2; see also 

Maldonado v. State, No. 14-03-00074-CR, 2004 WL 234377, at *2 (Tex. App.—

Houston [14th Dist.] Feb. 10, 2004, pet. ref’d) (mem. op., not designated for 

publication) (holding appellant was not entitled to appointment of mental-health 

expert under Ake because he failed to demonstrate his sanity “was likely to be a 

significant factor at trial”). That showing was made in R.D.B., where there was 

evidence indicating that R.D.B.’s mental health was likely to be a significant 

factor at trial: (1) R.D.B. had suffered an organic brain injury resulting from a selfinflicted gunshot wound; (2) R.D.B. had been placed on medication to control a 

seizure disorder that resulted from the brain injury; and (3) a psychological 

evaluation of R.D.B. had indicated that R.D.B.’s underlying brain injury may have 
15

contributed to his delinquent behavior. R.D.B., 20 S.W.3d at 256–58; see 

Maldonado, 2004 WL 234377, at *2. Based on the record before us, none of 

these things is true of T.C.’s case.

Having reviewed the record, we conclude that, assuming Ake applies to a 

section-54.11 transfer hearing, T.C. did not meet his threshold burden under Ake 

to show that his mental health was likely to be a significant issue at his transfer 

hearing such that he was entitled to the appointment of a mental-health expert to 

perform an independent psychological or psychiatric examination on him. See 

Maldonado, 2004 WL 234377, at *2 (concluding appellant was not entitled to 

appointment of mental health expert where he failed to demonstrate “his sanity 

was likely to be a significant factor at trial”). There was no evidence and no 

contention at trial that any mental-health condition caused T.C.’s behavioral 

problems or repeated failures in the TJJD. Consequently, on the record before 

us, T.C. has failed to overcome the strong presumption that his trial counsel’s

conduct was not deficient. See Nava, 415 S.W.3d at 307–08; Maldonado, 

2004 WL 234377, at *2 (holding counsel’s performance was not deficient for 

failing to request the appointment of a mental health expert where appellant was 

not entitled such an expert under Ake). Additionally, we note that our record 

does not show T.C.’s trial counsel was ever afforded an opportunity to explain his 

trial strategy or his reasons for not requesting an expert to perform an 

independent psychological or psychiatric examination. See Menefield, 

363 S.W.3d at 593; Mata, 226 S.W.3d at 432. 
16

Because T.C. has not shown that his trial counsel’s representation was 

deficient, we overrule his sole issue. See Strickland, 466 U.S. at 687; Nava, 

415 S.W.3d at 307; Williams, 301 S.W.3d at 687.

IV. CONCLUSION

Having overruled T.C.’s sole issue, we affirm the trial court’s transfer order. 

See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: January 4, 2018