The State of Texas for the Best Interest and Protection of D.T.--Appeal from County Court at Law of Cherokee County

NO. 12-02-00358-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
APPEAL FROM THE

THE STATE OF TEXAS FOR THE

BEST INTEREST AND PROTECTION

 
COUNTY COURT AT LAW OF

OF D.T.

 
CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION

An Application for Court-Appointed Temporary Mental Health Services was filed with the court asserting that D.T. was mentally ill and met the criteria as set out in Section 574.034 of the Texas Mental Health Code for temporary civil commitment. The trial court held an evidentiary hearing, at which time D.T. and her physician testified. The trial court granted the Application and this appeal followed. In five issues, D.T. argues that her constitutional rights were violated and that her trial attorney failed to provide her with effective assistance of counsel. We affirm.

 

Constitutional Claims

In her first four issues, D.T. asserts that when the trial court rendered judgment ordering temporary court-ordered in-patient mental health services, it violated her state and federal guarantees of due process of law and equal protection. To preserve a complaint for review on appeal, the action or omission alleged as error by the trial court must have been the basis of a timely request, objection, or motion specifying the action the trial court was requested to take, or to forbear from taking, and an adverse ruling must have been obtained. Tex. R. App. P. 33.1(a). This rule also applies to the preservation of constitutional claims. Tex. Dep't of Protective & Regulatory Svcs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001). Because the record does not show that D.T.'s constitutional claims were timely made to the trial court, we have been presented nothing for review. Accordingly, we overrule issues one through four.

 

Ineffective Assistance of Counsel

In her fifth issue, D.T. argues that her trial counsel was ineffective by failing to argue that her due process and equal protection rights were violated by the trial court's order of involuntary commitment. We agree with D.T. that the subject of an involuntary civil commitment proceeding has the right to effective assistance of counsel at all significant stages of the commitment process. Lanett v. State, 750 S.W.2d 302, 306 (Tex. App.-Dallas 1988, writ denied). The standard of review for ineffective assistance of counsel in a civil commitment proceeding is that articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re H.W., 85 S.W.3d 348, 355-56 (Tex. App.-Tyler 2002, no pet.).

Under the first prong of Strickland's two-prong test, D.T. must demonstrate that counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In order to satisfy that prong, D.T. must show that counsel's performance fell below an objective standard of reasonableness, as judged on the facts of her particular case and viewed at the time of counsel's conduct. Id., 466 U.S. at 688-90, 104 S. Ct. at 2064-66. Further, counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

Once she satisfies the first prong of the Strickland test, D.T. must then show that counsel's performance prejudiced her defense at trial. Strickland, 466 U.S. at 692, 104 S. Ct. at 2067. "It is not enough for the Appellant to show that the errors had some conceivable effect on the outcome of the proceeding." Id., 466 U.S. at 693, 104 S. Ct. at 2067. Rather, she must show there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Id., 466 U.S. at 694, 104 S. Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

"An allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland, 928 S.W.2d at 500. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id.

Analysis

In the case before us, we have no evidence from trial counsel's perspective concerning whether she considered challenging the constitutionality of the civil commitment proceedings and, if so, the basis for her decision. Generally, when the record contains no evidence of the reasoning behind counsel's conduct, we cannot conclude that counsel's performance was deficient. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When confronted with a silent record, we are not required to speculate as to counsel's rationale for her actions. Id.; McCoy v. State, 996 S.W.2d 896, 900 (Tex. App.-Houston [14th Dist.] 1999, no pet.). If there is any plausible basis for trial counsel's actions, further inquiry is improper. Id. However, if a silent record demonstrates that no reasonable trial attorney could have made the challenged trial decisions, to hold counsel ineffective is not speculation. See Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex. Crim. App. 1992).

D.T. argues that "had trial counsel objected to the constitutionality of the referenced statutes, and presented arguments in support thereof, the trial court would have had the opportunity to rule on same. . . ." But she is unable to show why trial counsel did not assert D.T.'s constitutional rights, nor is she able to demonstrate that the trial court would have ruled in her favor if she had raised those issues. Because the record contains no evidence relating to counsel's consideration of the constitutional issues D.T. seeks to assert on appeal, we are unable to determine that the failure to raise the issues in the trial court constitutes ineffective assistance of counsel. We hold, therefore, that D.T. failed to demonstrate that her counsel's performance fell below an objective standard of reasonableness, as judged on the facts of her particular case and viewed at the time of counsel's conduct, making it unnecessary for us to analyze the second prong of the Strickland test. Accordingly, we overrule issue five.

The judgment of the trial court is affirmed.

 

JAMES T. WORTHEN

Chief Justice

Opinion delivered July 9, 2003.

Panel consisted of Worthen, C.J. and Griffith, J.

 
(PUBLISH)