GEORGE WARRINER v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION--Appeal from 343rd District Court of Bee County

  NUMBER 13-01-678-CV

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTIBEDINBURG

GEORGE WARRINER, Appellant,

v.

TEXAS DEPARTMENT OF

CRIMINAL JUSTICE -

INSTITUTIONAL DIVISION, Appellee.

On appeal from the 343rd District Court of Bee County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Ya ez

By five points of error, George Warriner appeals from the trial court's judgment affirming an administrative action against him by appellee, Texas Department of Criminal JusticeBInstitutional Division ("TDCJBID"). We affirm.

Background

It is undisputed that a riot occurred at approximately 4:00 p.m. on December 20, 1999, in the administrative segregation area of the McConnell Unit of the TDCJ-ID in Beeville. On January 6, 2000, appellant was found to have participated in the riot. He was fined $534.97 for property damage sustained in the riot, and a charge in that amount was assessed against his inmate trust account. After he exhausted his administrative remedies through the TDCJ-ID grievance system, appellant filed suit in the District Court of Bee County against TDCJ-ID and its director, Gary Johnson. Johnson's plea to the jurisdiction was granted, and he was dismissed from the case. Following a pre-trial hearing and review of the administrative record, the trial court signed a final judgment on September 7, 2001, affirming appellant's disciplinary conviction and fine. This appeal ensued.

Applicable Law

A TDCJ-ID inmate is liable for his intentional damage to state property. Tex. Gov't Code Ann. ' 500.002(a) (Vernon 1998). If more than one inmate is involved in the property damage, each inmate is jointly and severally liable for the damage. Id. The state's claims for property damages shall be adjudicated through an administrative procedure. Tex. Gov't Code Ann. ' 500.002(b) (Vernon 1998). Damages may be assessed only after a hearing and may not exceed the value of the property damaged. Id. An inmate's trust account may be seized to satisfy the inmate's liability for property damage. Tex. Gov't Code Ann. ' 500.002(c) (Vernon 1998).

After exhausting all administrative remedies, an inmate may petition a district court for judicial review of the adjudication of liability for property damage. Tex. Gov't Code Ann. ' 500.002(e) (Vernon 1998). Upon judicial review, the district court shall follow the rules governing judicial review of contested cases provided in chapter 2001 of the Texas Government Code. Tex. Gov't Code Ann. ' 500.002(d) (Vernon 1998); See Tex. Gov't Code Ann. ' 2001.171 (Vernon 2000).

Standard of Review

If the law authorizes review of a decision in a contested case under the substantial evidence rule, or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but:

(1) may affirm the agency decision in whole or in part; and

(2) shall reverse and remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of a constitutional or statutory provision; (b) in excess of the agency's statutory authority; (c) made through unlawful procedure; (d) affected by other error of law; (e) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov't Code Ann. ' 2001.174 (Vernon 2000). Section 500.002 does not specify the scope of judicial review. Tex. Gov't Code Ann. ' 500.002(a) (Vernon 1998). Therefore, the "substantial evidence" standard specified in section 2001.174 applies in this case. Tex. Gov't Code Ann. ' 2001.174 (Vernon 2000); Covarrubia v. Texas Dep=t of Criminal Justice BInstitutional Div., 52 S.W.3d 318, 321 (Tex.App.BCorpus Christi 2001, no pet.). Substantial evidence review is a limited standard of review, requiring "only more than a mere scintilla" to support an agency's determination. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000); R.R. Comm'n v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex. 1995). The determination of whether an agency's determination meets that standard is a question of law. Firemen's & Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984); Bd. of Firemen's Relief & Ret. Fund Trs. v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183 (Tex. 1951). A court applying the substantial evidence standard of review may not substitute its judgment for that of the agency. Tex. Gov't Code Ann. ' 2001.174 (Vernon 2000); Tex. Health Facilities Comm'n v. Charter Med.BDallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). The issue for the reviewing court is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for the agency's action. City of El Paso v. Pub. Util. Comm'n, 883 S.W.2d 179, 185 (Tex. 1994). In fact, an administrative decision may be sustained even if the evidence preponderates against it. Torch Operating, 912 S.W.2d at 793.

  Application

A. Sufficiency of the Evidence

By his first point of error, appellant argues that the TDCJ-ID disciplinary action assessing a property damage charge against his inmate trust account was made without substantial supporting evidence. We must determine whether the record demonstrates some reasonable basis for the TDCJ-ID decision. See City of El Paso, 883 S.W.2d at 185.

The sole evidence used at the hearing and at the trial court to find appellant liable was the eye-witness testimony of Sergeant Michael Esparza. The day of the riot, Esparza completed an AOffense Report,@ which included his eye-witness description of Warriner's involvement in the property damage. In the report, Esparza stated that Warriner exited his cell and caused damage to cell doors and windows during the prison riot. The "TDCJ-ID Hearing Worksheet," dated January 7, 2000, shows that at the disciplinary hearing, Esparza verified that he saw appellant participate in the riot and destroy property. At the hearing, appellant testified that he did not exit his cell during the riot because he was on crutches and could not walk. To corroborate his contention, appellant introduced the medical statement of Ms. Wright, a medical records clerk, who stated that appellant was issued crutches for a two-week period that ended on December 17, 1999, three days prior to the riot. Also, appellant presented a statement signed by four inmate witnesses corroborating that he did not exit his cell or participate in Awhat went on.@

Appellant argues that the evidence presented in his defense far outweighed the evidence supporting his guilt. This argument fails because the test is not whether one party presented more evidence than another, but whether the agency based its decision Aon more than a mere scintilla@ and whether the record demonstrates some reasonable basis for the TDCJ-ID decision. See Montgomery Indep. Sch. Dist., 34 S.W.3d at 566; City of El Paso, 883 S.W.2d at 185. Also, an administrative decision may be sustained even if the evidence preponderates against it. Torch Operating, 912 S.W.2d at 793. We hold this evidence to be more than a scintilla and find that there is substantial evidence supporting the disciplinary action. See Covarrubias, 52 S.W.3d at 322-23 (eye-witness officer's testimony constituted substantial evidence to support determination of liability). The trial court properly upheld the agency=s ruling. Appellant's first point of error is overruled.

  B. Was the Hearing Captain=s Decision Arbitrary and Capricious?

By his third point of error, appellant complains TDCJ-ID acted maliciously against him by allowing the allegedly false testimony of Esparza to be used against him at the disciplinary hearing. Appellant complains that Esparza gave conflicting statements regarding who participated in the riot. Although the record shows that Esparza completed an "Offense Report" the day of the riot, explaining appellant=s involvement in the riot, and verified the accuracy of this report during the hearing, the record also shows on a "Service Investigation Work Sheet," dated January 1, 2000, that via telephone, Esparza told appellant=s counsel substitute, "I could not specifically say which inmate was in his cell or out of his cell."

The hearing captain was free to assign weight to Esparza=s testimony. In doing so, the hearing captain opted to give sufficient weight to his testimony so as to find appellant guilty. The trial court, upon review of the agency=s decision, was not free to substitute its judgment for the judgment of the state agency on the weight of the evidence. Tex. Gov't Code Ann. ' 2001.174 (Vernon 2000). The trial court is given greater authority to reverse and remand the case if substantial rights of the appellant have been prejudiced because the administrative finding was: (a) in violation of a constitutional or statutory provision; (b) in excess of the agency's statutory authority; (c) made through unlawful procedure; (d) affected by other error of law;

(e) not reasonably supported by substantial evidence considering the

reliable and probative evidence in the record as a whole; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion.

See id. We do not address subsections (a) - (d) because appellant=s challenge is based on subsections (e) and (f). We already determined that the administrative finding was supported by substantial evidence. Accordingly, we address appellant=s challenge in the context of subsection (f).

Appellant argues that because the agency=s decision was based on the conflicting statements of the charging officer, the decision was arbitrary and capricious, and therefore warrants a reversal and remand. The fact that Esparza made a conflicting statement a few days prior to the hearing does not disprove the fact that his initial statement the day of the riot and his testimony the day of the hearing are substantial for a finding of guilt. The agency was free to balance Esparza=s testimony against his prior statements and collectively assign weight to his testimony.

If there is evidence to support either an affirmative or negative finding on a specific matter, the decision of the agency must be upheld. Gerst v. Goldsbury, 434 S.W.2d 665, 667 (Tex. 1968); see also Lewis v. Jacksonville Bldg. and Loan Ass=n, 540 S.W.2d 307, 311 (Tex. 1976). It is undisputed that the agency based its decision on the eye-witness testimony of the charging officer. Appellant fails to provide any evidence to show that the agency acted arbitrarily or capriciously. Accordingly, we find that the trial court properly upheld the agency=s decision and find no grounds for remanding or reversing the same. Point of error three is overruled.

C. Was Appellant Deprived of His Right to Due Process?

By his second point of error, appellant contends he was denied his due process rights under the Fourteenth Amendment of the United States Constitution. The gist of appellant=s argument on this point is that he received ineffective assistance of counsel. In Wolff v. McDonnell, the Supreme Court considered whether or not counsel must be provided in the prison disciplinary hearing setting. See Wolff v. McDonnell, 418 U.S. 539, 569-70 (1974). The Wolff court stated:

The insertion of counsel into the disciplinary process would inevitably give the proceedings a more adversary cast and tend to reduce their utility as a means to further correctional goals. There would also be delay and very practical problems in providing counsel in sufficient numbers at the time and place where hearings are to be held. At this stage of the development of these procedures we are not prepared to hold that inmates have a right to either retained or appointed counsel in disciplinary proceedings.

Id. at 570.

In this case, appellant was represented by a counsel substitute. Such a provision seems to exceed the minimum requirements of due process afforded to prisoners. It appears that ineffective assistance cannot be the basis of a due process claim for someone in appellant=s position. However, if a prisoner has a right to effective assistance from such a counsel substitute, we would look to the well recognized two-prong rule set out in Strickland v. Washington, 466 U.S. 668 (1984) and Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).

In its simplest terms, this rule requires that in order for alleged ineffective assistance to require reversal, an appellant must show both (1) that counsel=s performance fell below the standard of prevailing professional norms, and (2) but for counsel=s deficient performance, the result of the proceeding would have been different. McFarland v.State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

Appellant argues that counsel substitute failed to present the AInvestigation Worksheet,@containing Esparza=s statement which was in conflict with his statement in the offense report. Second, appellant alleges that counsel substitute refused to ask Esparza questions, as directed by appellant.

According to the record, counsel substitute, R. Simon, conducted an investigation, which included speaking to Esparza via telephone on January 6, 2000. The AService Investigation Worksheet@shows that Simon presented Esparza with a summary of the investigation, including appellant=s statement, and asked whether he wanted to make any additional statements not included in the report. The AService Investigation Worksheet@shows that Esparza stated, AI could not specifically say which inmate was in his cell or out of his cell.@ Appellant argues that counsel substitute failed to bring this statement to the attention of the hearing captain, thus depriving appellant of critical evidence to discredit Esparza=s testimony.

Appellant also contends that before the hearing was recorded, he directed counsel substitute to ask Esparza nineteen questions and counsel substitute refused on the basis of irrelevancy, to ask questions eleven and fifteen. Question eleven asked, ADo you have a video of me destroying a cell door or windows?@ Question two asked, ADid anything in the pickett control have my fingerprint on it?@ The set of questions was submitted into evidence. Appellant alleges he attempted to object to counsel substitute=s refusal to ask the two questions but that counsel substitute said he could not ask them. Appellant argues the actions of his counsel substitute demonstrate that counsel was representing the interests of the agency rather than appellant=s. He claims that this amounts to a violation of his due process rights.

From the record in this case, we can not discern whether the hearing captain was presented with the conflicting statement of Esparza, whether appellant objected to his failure to do so, or objected to counsel substitute having refused to ask the two questions.

The court of criminal appeals recently referred to the difficulty in substantiating a claim of ineffective assistance to be the lack of an adequately developed record. The court said:

A substantial risk of failure accompanies an appellant=s claim of ineffective assistance on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. In the majority of instances, the record on direct appeal is simply underdeveloped and cannot adequately reflect the failings of trial counsel.

Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). A claim of ineffective assistance must be firmly rooted in the record. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). The reason an adequate record is so important in these cases is because, in the absence of a record, the court will indulge strong presumptions that counsel=s performance was a part of trial strategy, and typically will not second-guess a matter of trial strategy. See Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999).

Having carefully examined all the allegations of ineffective assistance raised in appellant=s brief, we cannot say that counsel substitute=s performance fell below the standard and that the result would have been different. Moreover, it is not clear whether a counsel substitute in a prison disciplinary hearing should even be held to such standards. Hence, we overrule appellant=s second point of error.

D. Was Appellant Deprived of Evidence Essential to Prove his Claim?

Appellant complains that an affidavit was ordered to be made part of the record, but was not available to him until the day of his trial. The affidavit in question is a statement by an assistant warden as to the custody and maintenance of inmate files. An examination of the record reveals that this affidavit was made on June 8, 2000, but not filed until trial dateBAugust 16, 2001. Appellant argues that this delay deprived him of much needed evidence to prove his claim. However, appellant cites no authority in support of this argument. The Texas Rules of Appellate Procedure require that the appellant=s brief Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.@ Tex. R. App. P. 38.1(h). In addition to appellant=s failure to provide precedential support for his argument, appellant does not explain why or how this document was necessary to his case and why or how the delay hurt his case. For these reasons, we hold appellant preserved nothing for review and overrule appellant=s fourth point of error.

  E. Did the Trial Court in Denying Appellant=s Discovery Request?

Appellant complains that the court erred in not granting discovery of a video. Appellant alleges that discovery of the video could prove appellant=s innocence. Again, appellant cites no authority for the argument that the discovery was warranted or that the denial was error, as is required by the Texas Rules of Appellate Procedure. Tex. R. App. P. 38.1(h). Furthermore, since the trial court is limited to a review of the administrative record to determine whether substantial evidence supports the agency decision, no discovery is necessary because the administrative record is all the court is to review. Tex. Gov=t Code Ann. ''500.002(d), 20001.174 (Vernon 1998, 2000) (emphasis added). As such, appellant=s fifth point of error is overruled.

We have considered all of appellant=s arguments, and they are all overruled. The trial court=s judgment is affirmed.

LINDA REYNA YA EZ Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

29th day of August, 2002.