Texas Judiciary Online - HTML Opinion

In The

Court of=20 Appeals

For The

First District=20 of Texas

NO. 01-06-00717-CV

IN THE INTEREST OF J.A.G.,=20 Appellant

On Appeal from Cause No. = JV-04-55

In the County Court at Law, Walker = County,=20 Texas

MEMORANDUM OPINION

Following a bench = trial, the=20 trial court adjudicated J.A.G. as having engaged in delinquent = conduct by=20 committing aggravated sexual assault of a disabled individual, and = committed J.A.G. to the custody of the Texas Youth Commission for = a=20 determinate period of ten years. See Tex. Pen. Code Ann. =A7 = 22.021=20 (Vernon Supp. 2006); Tex. Fam.=20 Code Ann. =A7 51.03 (Vernon Supp. 2006). On appeal, = J.A.G.=20 asserts that (1) the evidence was legally and factually = insufficient to=20 support the adjudication of delinquency, (2) the trial court = abused its=20 discretion in excluding the results of a polygraph examination = proffered=20 in his defense, (3) the trial court violated J.A.G.=92s = constitutional right=20 to due process by refusing to hear evidence of prosecutorial = misconduct,=20 (4) the trial court erred in considering an incompetent report = addressing=20 dispositional alternatives, and (5) J.A.G. received ineffective = assistance=20 of counsel at trial, all of which require reversal of his=20 conviction. Finding no error, we affirm.

Background

J.A.G. first met = A.K.D. when he=20 was about three years old and she was approximately four. = They=20 became cousins when A.K.D.=92s father married her stepmother, who = is also=20 the sister of J.A.G.=92s father. For much of their lives, = J.A.G. and=20 A.K.D. lived next door to each other on property owned by their=20 grandparents. A.K.D.=92s family lived in a mobile home, and = J.A.G.=20 lived with his parents in a house that stood approximately 400 = feet=20 away. Their parents took turns carpooling them to school, = and the=20 families spent quite a bit of time together. A.K.D. also = spent time=20 with J.A.G. at school, sometimes eating lunch with him in the=20 cafeteria.

A.K.D. has mental = retardation=20 and suffers from seizures and dystonia. Dystonia is a = neurological=20 disorder that impairs the ability to control movement. The = dystonia=20 causes A.K.D. to have difficulty controlling the movements of her = tongue,=20 mouth, arms and legs. Dr. Robert Zeller, a pediatric = neurologist=20 with forty years of experience, and A.K.D.=92s treating physician = from 1995=20 until 2005, stated that A.K.D. developed dystonia in approximately = 2000. As A.K.D.=92s father testified, dystonia is a = progressive=20 disorder associated with A.K.D.=92s mental retardation. =

Normal activities and = communication are challenges for A.K.D. Even with effort, = her speech=20 is very garbled. Dr. Zeller explained that A.K.D. had = =93difficulty=20 controlling her movements of her tongue and mouth and her arms and = legs,=94=20 which impaired her ability to walk and talk. A.K.D.=92s high = school=20 special education teacher, Judith Walker, testified that she = considered=20 A.K.D. to be a =93nonverbal=94 student, by which she meant that = A.K.D. =93cannot=20 talk like, you know, like have a conversation like we=92re doing = right=20 now. It=92s=97she can kind of say certain things, but you = have to ask a=20 bunch of questions before you can get to, you know, whatever = she=92s trying=20 to say to you.=94

Because of A.K.D.=92s = impairment,=20 Dr. Zeller testified, she would not be able to protect herself = from harm=20 or be able to speak or scream if she were frightened. Dr. = Zeller=20 also opined that A.K.D. was =93mentally slow=94 and was physically = and=20 mentally incapable of caring for herself. While admitting = that he=20 was not a psychologist and had not studied A.K.D.=92s mental = abilities in=20 depth, Dr. Zeller testified that, based on his experience and his=20 observation of A.K.D. over a ten-year period as her treating = neurologist,=20 he considered A.K.D. to be mentally incapable of appraising the = nature of=20 sexual activity.

A.K.D.=92s father = testified that=20 A.K.D. was first diagnosed with mental retardation shortly after = age=20 three, when she was enrolled in a special school for the learning=20 disabled. A.K.D. attended special education classes from = first grade=20 through her high school graduation. A.K.D.=92s father did = not know the=20 exact extent of her disability, but recalled that I.Q. testing=20 administered when A.K.D. was in seventh grade placed her at about = the I.Q.=20 level of a third-grader. A.K.D.=92s father explained that, = because of=20 A.K.D.=92s difficulty in controlling movement, it took her nearly = an hour to=20 shower and another hour and a half to dress herself. He also = noted=20 that A.K.D. had difficulty opening the front door to the = family=92s mobile=20 home. A.K.D. also occasionally loses bowel and bladder = control, and=20 her stepmother keeps track of her menstrual cycle because A.K.D. = is unable=20 to do so.

Late one Saturday = night in=20 October 2004, J.A.G. crept into the mobile home, entered = A.K.D.=92s room,=20 awoke her, took off her pajama pants and underwear, and made = penile=20 penetration with A.K.D.=92s vagina and anus. A.K.D.=92s = father testified=20 that A.K.D. tried to tell him about the encounter the next = morning. =20 He said that she had a hard time expressing herself due to her=20 disabilities and that he dismissed her because he understood that = J.A.G.=20 was at his sister=92s house in Conroe at the time. Later = that day,=20 however, A.K.D.=92s parents noted that J.A.G.=92s car was in the = driveway of=20 his home and went to speak with J.A.G. about the incident. = J.A.G.=20 denied having been in A.K.D.=92s room.

A.K.D.=92s family = also celebrated=20 her eighteenth birthday with a barbecue dinner the Sunday = following the=20 incident. Family members, including J.A.G. and his parents,=20 attended. A.K.D.=92s step-grandmother, who is also = J.A.G.=92s=20 grandmother, testified that she saw A.K.D. seated at the kitchen = table=20 with J.A.G and did not perceive anything different about = A.K.D.=92s behavior=20 that day. A.K.D.=92s father, however, recalled that A.K.D. = retreated=20 to her room for most of the party, which is something that she = does when=20 she is upset.

When she returned to = school on=20 Monday, A.K.D.=92s special education teacher, Judith Walker, asked = A.K.D.=20 about her birthday party. In response, A.K.D. told her that = during=20 the weekend, a boy had entered her room in the middle of the night = and=20 that she didn=92t get any sleep. When Walker asked A.K.D. = what the boy=20 was doing in her room, A.K.D. began to cry. After much = questioning=20 by Walker, A.K.D. told Walker that the boy, whom she identified as = J.A.G.,=20 had touched her in her vaginal, anal, and breast areas. = According to=20 Walker, A.K.D.=92s demeanor during their discussion was normal at = first, but=20 A.K.D. became very upset when Walker began to question her about = what the=20 boy did to her.

When Walker realized = that=20 A.K.D. was describing a sexual assault, she brought her to the = school=20 counselor and contacted A.K.D.=92s parents, who brought A.K.D. to = the=20 hospital emergency room. There, A.K.D. was seen by a = physician and=20 nurse Elizabeth Windham, who administered a rape kit. Nurse = Windham=20 testified that A.K.D. was very upset and that she had a hard time = taking a=20 statement from A.K.D. because she was crying very hard. She = also=20 stated that she noticed A.K.D. =93[h]ad some very obvious = developmental=20 delays.=94[1]

With some difficulty, = Nurse=20 Windham followed the rape kit protocol and obtained evidence and a = statement from A.K.D. According to A.K.D.=92s statement, as = recorded=20 in A.K.D.=92s own words by Windham, J.A.G. went into A.K.D.=92s = room, woke her=20 up, took off her night shorts and panties, put his penis in her = =93tee tee=94=20 and in her =93back part,=94 then in the =93front part=94 again, = and left. =20 Pelvic examination revealed a small tear at the vaginal=20 opening.

Discussion

A. =20 Appellate Jurisdiction

=20 1. Timeliness of J.A.G.=92s = Appeal

As a threshold = matter, we=20 address the State=92s challenge to our jurisdiction over this = appeal,=20 specifically, the assertion that J.A.G. did not timely move for = new trial=20 and, consequently, did not timely notice his appeal. As the = State=20 notes, a motion for new trial was filed on J.A.G.=92s behalf by = new counsel=20 within the thirty days following the dispositional order, but, = implying=20 that the motion was not effective when filed, the State claims = that it was=20 untimely because the trial court did not sign the order = substituting new=20 counsel until after the thirty-day deadline. We reject the = notion=20 that actions previously undertaken by new counsel in furtherance = of a=20 client=92s interest are invalid if they occur before the court = signs an=20 order of substitution. Cf. Austin Nursing Ctr., = Inc. v.=20 Lovato, 171 S.W.3d 845, 852 (Tex. 2005) (holding that = plaintiff had=20 capacity to sue as estate=92s personal representative as of date = suit was=20 filed even though she was not appointed personal representative = until=20 after limitations had run because appointment within reasonable = time=20 related back to timely filing of suit); Lorentz v. Dunn, = 171 S.W.3d=20 854, 856 (Tex. 2005) (same). The State points to the rule = that trial=20 counsel presumptively continues to represent a defendant if = counsel does=20 not move to withdraw or for substitution, but fails to note that = the=20 presumption is rebuttable. Oldham v. State, 977 S.W.2d 354, = 363=20 (Tex. Crim. App. 1998); Benson v. State, 224 S.W.3d 485, = 491 (Tex.=20 App.=97Houston [1st Dist.] 2007, no pet.) (en banc). If, as = these=20 cases observe, a defendant is entitled to appear pro se during the = post-disposition period, nothing precludes new counsel from = appearing for=20 him. To conclude otherwise would conflict with the Supreme = Court=92s=20 directive that we construe the appellate rules =93reasonably, yet = liberally,=20 so that the right to appeal is not lost by imposing requirements = not=20 absolutely necessary to effect the purpose of a rule.=94 = Verburgt=20 v. Dorner, 959 S.W.2d 615, 616=9617 (Tex. 1997). = Accordingly, we=20 hold that the motion for new trial was effective when timely filed = and,=20 therefore, the notice of appeal was also timely filed, supplying = the=20 jurisdictional basis to review the merits of this = appeal.

2. =20 Perfection of appeal

The State also = contends that=20 the appeal was not perfected because neither security for costs = nor an=20 affidavit of inability to pay the costs of appeal appears in the=20 record. At the same time, the State notes, the docket sheet = in the=20 clerk=92s record lists an affidavit of inability to pay = costs. The=20 State appears to have neither attempted to ascertain whether this=20 affidavit exists or, if it does, to supplement the appellate = record with a=20 copy of it. Based on the listing in the clerk=92s record and = the fact=20 that a reporter=92s record has been prepared and filed, and absent = any=20 showing to the contrary, we presume that proper procedures have = been=20 followed to secure the appellate record, and proceed to address = the merits=20 of J.A.G.=92s appeal.

B. =20 Sufficiency of the evidence

J.A.G. does not = dispute that=20 the sexual contact that A.K.D. described occurred. He = contends that=20 the trial court=92s adjudication of delinquency by reason of = aggravated=20 assault of a disabled individual should be reversed because the = evidence=20 was legally and factually insufficient to support a finding that = A.K.D.=20 was a =93disabled individual=94 for purposes of the statute. = Specifically, J.A.G. challenges the legal sufficiency of the = evidence=20 concerning A.K.D.=92s mental capacity, her ability to consent and = to resist,=20 and her knowledge of sex. See Rider v. State, 735 = S.W.2d 291,=20 292=9693 (Tex. App.=97Dallas 1987, no pet.). He also claims = that the=20 evidence was factually insufficient for the same reason. =

1. =20 Applicable Standards of Review

In a juvenile=20 proceeding, the trial court must conduct an adjudication=20 hearing for the trier of fact to determine whether the juvenile engaged in delinquent conduct. Tex. Fam. Code = Ann. =A7 54.03=20 (Vernon Supp. 2007). If the trier of fact determines that = the juvenile engaged in delinquent conduct, the trial = court must=20 then conduct a disposition hearing. Tex. Fam. Code Ann. =A7 = 54.03(h), =A7=20 54.04 (Vernon Supp. 2006). Here, J.A.G. waived his right to = trial by=20 jury, placing the trial court in the role of trier of = fact. =20

Juvenile cases are civil = proceedings,=20 but are considered =93quasi-criminal=94 in nature. In re = M.A.F.,=20 966 S.W.2d 448, 450 (Tex. 1998); In re K.H., 169 S.W.3d = 459, 461-62=20 (Tex. App.=97Texarkana 2005, no pet.). Civil and criminal rules = apply at=20 different stages of the same proceeding. In re K.H., = 169=20 S.W.3d at 462; see Tex.=20 Fam. Code Ann. =A7=20 51.17 (Vernon Supp. 2006). The trier of fact adjudicates a = juvenile=20 as delinquent only if it finds beyond a reasonable doubt that the = juvenile=20 committed the offense charged. Tex.=20 Fam. Code Ann. =A7=20 54.03(f). Thus, we review the sufficiency of the evidence to = support=20 a finding that a juvenile engaged in = delinquent conduct=20 using the same standards applicable to criminal cases. In = re=20 K.H., 169 S.W.3d at 462; In re G.A.T., 16 S.W.3d 818, = 828 (Tex.=20 App.=97Houston [14th Dist.] 2000, pet. = denied).

When conducting a = legal=20 sufficiency review, we view the evidence in the light most = favorable to=20 the verdict and determine whether any rational trier of fact could = have=20 found the essential elements of the offense beyond a reasonable=20 doubt. Jackson v. Virginia, 443 U.S. 307, 319, = 99 S.=20 Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, = 798 (Tex.=20 Crim. App. 2005). We do not resolve any conflict of fact, = weigh any=20 evidence, or evaluate the credibility of any witnesses, as this is = the=20 function of the trier of fact. See Dewberry v. State, = 4=20 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, = 828=20 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, = 819 S.W.2d=20 839, 843 (Tex. Crim. App. 1991). Instead, we determine = whether both=20 the explicit and implicit findings of the trier of fact are = rational by=20 viewing all the evidence admitted at trial in the light most = favorable to=20 the adjudication. Adelman, 828 S.W.2d at 422. = In so=20 doing, we resolve any inconsistencies in the evidence in favor of = the=20 adjudication. Matson, 819 S.W.2d at 843. =

=20 When conducting a factual sufficiency review, we view all of the = evidence=20 in a neutral light. We will set the verdict aside only if = (1) the=20 evidence is so weak that the adjudication is clearly wrong and = manifestly=20 unjust or (2) the findings are against the great weight and = preponderance=20 of the evidence. See Johnson v. State, 23 S.W.3d 1, = 11 (Tex.=20 Crim. App. 2000). Under the first prong of Johnson, = we cannot=20 conclude that an adjudication of delinquency is =93clearly = wrong=94 or=20 =93manifestly unjust=94 simply because, on the quantum of evidence = admitted,=20 we disagree with the trial court=92s findings. Watson v. = State,=20 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second = prong=20 of Johnson, we cannot declare that a conflict in the = evidence=20 justifies a new trial simply because we disagree with the = factfinder=92s=20 resolution of that conflict. Id. Before = determining=20 that evidence is factually insufficient to support an adjudication = under=20 the second prong of Johnson, we must conclude, with some = objective=20 basis in the record, that the great weight and preponderance of = the=20 evidence contradicts the finding made by the trier of fact. =20 Id. In conducting a factual sufficiency review, we = must also=20 discuss the evidence which, according to the appellant, most = undermines=20 that finding. See Sims v. State, 99 S.W. 3d 600, 603 = (Tex.=20 Crim. App. 2003).

2. =20 Aggravated sexual assault of a disabled = individual

J.A.G. was = adjudicated=20 delinquent under section 22.021 of the Texas Penal Code, which = provides=20 that a person commits aggravated sexual assault if the person=20 intentionally or knowingly causes the penetration of the anus or = sexual=20 organ of another person by any means, without that person=92s = consent,=20

and the victim is a = disabled=20 individual. Tex. = Pen. Code=20 Ann. =A7 22.021 (Vernon 2006).

&nbs= p; =20 =93=91Disabled = individual=92=20 means a person older than 14 years of age who by reason of age or = physical=20 or mental disease, defect, or injury is substantially unable to = protect=20 himself from harm or to provide food, shelter, or medical care for = himself.=94 Id. =A7 22.04(c)(3); see = id. =A7=20 22.021(b)(2). The Penal Code also creates an irrebuttable=20 presumption that the complainant did not consent when either =

=B7 =20 the=20 complainant does not give actual consent and the defendant knows = the=20 complainant is physically unable to resist, or

=B7 =20 the=20 defendant knows that as a result of mental impairment the = complainant is=20 at the time of the sexual assault incapable either of appraising = the=20 nature of the act or of resisting it.

Id. =A7 22.011(b)(3),=20 (4). Appellate courts = examine=20 evidence of both cognitive and physical elements in determining = whether it=20 is sufficient to show a lack of effective consent due to mental=20 impairment, focusing on the complainant=92s ability to appraise = the nature=20 of the sexual act or the ability to resist it. Rider, = 735=20 S.W.2d at 292; Martinez v. State, 634 S.W.2d 929, 934 (Tex. = App.=97San Antonio 1982, pet. ref=92d).

3. =20 Sufficiency of evidence that A.K.D. could not effectively=20 consent

The testimony of = A.K.D.=92s=20 physician, her teacher, her parents, and the emergency room nurse=20 uniformly indicates that A.K.D.=92s mental impairment is = longstanding and=20 readily apparent to anyone who interacts with her. She has = been=20 specially educated since age three. The adjudication of = delinquency=20 based on aggravated assault of a disabled person also finds = support in the=20 trial court=92s opportunity to observe A.K.D. during her = testimony, which=20 reflects her mental disability. For example, she testified = that her=20 age was sixteen, although other witnesses, including her parents, = stated=20 that she is nineteen. She answered =93yes=94 or =93no=94 to = questions when=20 that response was inappropriate, and would sometimes give = conflicting=20 answers when asked the same question twice. A.K.D.=92s = laughter at the=20 doll she used to show the court where J.A.G. had touched her, = which J.A.G.=20 views as showing that she did not take the trial seriously, is = more=20 reasonably viewed in the context of all the evidence as showing = that she=20 did not have the mental capacity to understand the purpose of the = trial=20 and her testimony.

The trial court, as = factfinder,=20 could also properly consider her use of childlike terms to the = emergency=20 room nurse in describing the incident as evidence of mental=20 impairment. See Wootton v. State, 799 S.W.2d 499, = 501=9602=20 (Tex. App.=97Corpus Christi 1991, pet. ref=92d) (jury finding that = complainants were mentally disabled supported in part by = opportunity to=20 observe complainants on the witness stand, where they described in = childlike language that appellant had sex with them). =

In asserting that = A.K.D. was=20 able to appraise the nature of the sexual act, J.A.G. points to = evidence=20 that A.K.D. wrote him notes, wanted to sit next to him in the car = on the=20 way to school, and appeared to flirt with him, as well as = testimony from=20 A.K.D.=92s father that A.K.D. could express preferences for = certain food and=20 clothing and once told him that she liked a boy she met at = epilepsy camp=20 the previous summer, as well as her stepmother=92s testimony that = she had=20 indicated her affection for J.A.G. and other boys and that she had = crushes=20 on some boys.[2] This = conduct,=20 however, is no more reflective of an understanding of the nature = of the=20 sexual act than similar behavior frequently seen in = preschoolers. =20 See also Green v. State, No. 14-06-00535-CR, 2007 WL 2265787, = *3 (Tex. App.=97Houston = [14th=20 Dist.] Aug. 9, 2007, no pet. h.) (mem. op.) (concluding that jury, = in=20 finding that victim was mentally disabled, could have determined = that=20 victim=92s use of coarse language and opinions regarding sexuality = were=20 product of mimicking behavior rather than indication he could = appraise=20 nature of sexual act).

Furthermore, the = notes written=20 by A.K.D. to J.A.G., some of which are in evidence, weigh in favor = of the=20 trial court=92s finding, not against it; they indicate that A.K.D. = is unable=20 to construct a simple sentence. The testimony concerning = A.K.D.=92s=20 discussion with her special education teacher also supports a = reasonable=20 inference that A.K.D. did not fully understand what had happened = but felt=20 anxious and upset about it.

          The =
evidence also supports the conclusion that J.A.G. would have known about =
A.K.D.=92s obvious mental and physical impairments, as he had known her =
nearly all of his life, lived near her, and spent a significant amount =
of time with her.  Accordingly, we hold that the evidence is =
legally and factually sufficient to support the trial court=92s =
adjudication of delinquency for aggravated sexual assault of a disabled =
person based on J.A.G.=92s knowledge that A.K.D. was a mentally impaired =
person who was =93substantially unable to protect [her]self from harm or =
to provide food, shelter, or medical care for [her]self.=94  =
See Tex. Pen. Code =
Ann. =A7 22.04(b)(3) (Vernon Supp. 2006).

4. =20 Sufficiency of evidence that A.K.D. did not actually=20 consent

J.A.G. also = challenges the=20 legal and factual sufficiency of the evidence that A.K.D. did not = actually=20 consent to the encounter. Because the evidence is legally = and=20 factually sufficient to support a finding that A.K.D. could not=20 effectively consent because of her mental impairment, which was = known to=20 J.A.G., whether she actually consented is immaterial. Even = so, the=20 record contains ample evidence to support findings that A.K.D. did = not=20 invite or consent to J.A.G.=92s assault and that her physical = limitations=20 impaired her ability to resist the assault.

=20 J.A.G. asserts that, because there was no evidence as to what had = caused=20 the vaginal tear and no evidence of any physical sign that A.K.D. = had been=20 involved in a struggle, there was insufficient evidence that she = did not=20 actually consent to the encounter. This assertion is not = borne out=20 by the record. A.K.D. testified that J.A.G. hurt her vagina = and=20 anus. Her testimony also indicates that J.A.G. initiated and = was the=20 aggressor during the incident. In light of A.K.D.=92s = apparent mental=20 and physical deficiencies, the trier of fact could reasonably = construe=20 this testimony as proof that A.K.D. did not consent to the sexual=20 encounter.

=20 J.A.G. also suggests that A.K.D.=92s failure to mention any = opposition or=20 describe any effort to resist J.A.G.=92s sexual advances = undermines any=20 finding that she did not actually consent to his conduct. = J.A.G.=20 neglects to mention, however, that when the prosecution questioned = A.K.D.=20 about whether she wanted J.A.G. to have sex with her, A.K.D. = answered=20 =93no.=94 Furthermore, A.K.D. testified that she did not = like the=20 defendant and that J.A.G. hurt her when he came into her = room. =20

Moreover, what A.K.D. = might not=20 have said about the encounter is not evidence in J.A.G.=92s = favor. The=20 fact that A.K.D.=92s speech is extremely limited is apparent from = reviewing=20 the record. She was frequently reminded to answer verbally = as best=20 she could rather than rely on nonverbal signals, and the trial = court and=20 counsel engaged in discussions concerning the difficulty in = hearing her=20 well enough and understanding her testimony. When A.K.D. did = respond=20 verbally, the brevity of those answers, the court=92s many = requests that=20 A.K.D. repeat herself and the repetition of her answers by the = attorneys=20 asking her to confirm what she said show that she has tremendous=20 difficulty speaking and is extremely difficult to understand, even = though=20 she had recently begun taking a new muscle relaxant medication = that=20 markedly improved her ability to speak and move. In this = case, the=20 trial court, sitting as the trier of fact, had the opportunity to = observe=20 A.K.D. and hear her testimony. After observing A.K.D. in the = courtroom and hearing evidence about the effects of her dystonia, = the=20 trial court could reasonably have concluded that A.K.D. did not = consent to=20 the conduct and was not capable of effectively resisting = J.A.G. =20

C. =20 Exclusion of polygraph results

J.A.G. contends that = the trial=20 court abused its discretion in excluding testimony relating to the = results=20 of a polygraph examination administered to him. The = existence and=20 results of a polygraph examination are inadmissible in a criminal=20 proceeding for all purposes on proper objection. Tennard v. = State,=20 802 S.W.2d 678, 683 (Tex. Crim. App. 1990). The = reporter=92s=20 record indicates that the State invoked this per se rule in its = response=20 to J.A.G.=92s motion before the trial court denied the = motion. The=20 trial court therefore did not err in excluding the polygraph=20 results.

D. = ; =20 Prosecutorial = misconduct=20 claim

Next, J.A.G. contends = that the=20 trial court abused his constitutional right to due process by = failing to=20 consider his motions to dismiss and for sanctions based on = allegations of=20 prosecutorial misconduct during the grand jury proceedings, but = failed to=20 secure a ruling or refusal to rule from the trial court on = them. =20 When a party does not obtain a ruling = on a=20 motion, request that the court document its refusal to rule, or = otherwise=20 object to the court=92s refusal, that party may not later complain = about the=20 lack of any such ruling. See Tex. R. App. P. = 33.1(a); see Retzlaff v. Tex. Dep=92t = of Crim.=20 Justice, 135 S.W.3d 731, 745 (Tex. App.=97Houston [1st Dist.] = 2003, no=20 pet.); see also Martin v. Commercial Metals Co., 138 S.W.3d = 619,=20 623 (Tex. App.=97Dallas 2004, no pet.) (motion for sanction); = Jones v.=20 Smith, 157 S.W.3d 517, 523=9624 (Tex. App.=97Texarkana 2005, = pet. denied)=20 (motions for summary judgment and sanction). J.A.G. = waived=20 this claim. We therefore overrule this issue.

E. = Admission of=20 psychologist=92s report

J.A.G. further = asserts that the=20 trial court erred in admitting the psychological report and = testimony by=20 Dr. Kevin Schloneger during the disposition hearing. Dr. = Schloneger,=20 whom the trial court had ordered to conduct a psychosexual = evaluation of=20 J.A.G., prepared a psychological evaluation rather than a = psychosexual=20 evaluation. J.A.G. complains that Dr. Schloneger was not qualified = to=20 issue the report, and that the report should not have been = admitted=20 because it was not the evaluation ordered and contained numerous=20 grammatical errors and unverified assertions of fact. =

The Texas Family Code = authorizes the juvenile court to consider reports from probation = officers,=20 court employees, and professional consultants, as well as lay = witness=20 testimony, at the disposition stage. Tex. Fam. Code Ann. =A7 = 54.04=20 (Vernon Supp. 2006). Dr. Schloneger holds a Ph.D. in = clinical=20 psychology and has a general clinical practice, including = psychological=20 testing, family therapy, adolescent treatment and treatment of = young=20 children. In his clinical practice, Dr. Schloneger spends=20 approximately forty percent of his time treating juveniles. = He is=20 also a licensed sex offender treatment provider with the State of=20 Texas. We find no merit in J.A.G.=92s assertion Dr. = Schloneger lacked=20 the credentials and experience to issue a report in keeping with = section=20 54.04.

J.A.G.=92s criticism = of Dr.=20 Schloneger=92s reliance on unverified assertions of fact is = likewise without=20 merit. As the Supreme Court has observed,

expert witnesses=20 may testify about facts or data not personally perceived but = =93reviewed by,=20 or made known=94 to them. If the facts or data are of a type upon = which=20 experts in the field reasonably rely in forming opinions on the = subject,=20 the facts or data need not even be admissible in evidence. Thus, = in many=20 instances, experts may rely on inadmissible hearsay, privileged=20 communications, and other information that the ordinary witness = may=20 not.

In=20 re Christus Spohn Hosp. Kleberg, 222 = S.W.3d 434,=20 440 (Tex. 2007) (quoting Tex. R.=20 Evid. 703). The = medical,=20 school, and other institutional records provided by the District=20 Attorney=92s office to Dr. Schloneger for his review fall within = the realm=20 of data reasonably relied on by experts in the field.

=20 Although Dr. Schloneger did not study J.A.G.=92s psychosexual = history in=20 depth, he did consider J.A.G.=92s sexual history predating the = incident and=20 did not find that it indicated he had any specific propensity = toward=20 becoming a repeat sexual offender. Rather, Dr. Schloneger = was more=20 concerned with J.A.G.=92s propensity for aggression toward society = in=20 general. In determining the appropriate disposition, the = trial court=20 had the opportunity to weigh the fact that Dr. Schloneger provided = a=20 psychological, rather than a psychosexual, evaluation along with = the=20 grammatical errors and alleged misstatements in the evaluation = brought out=20 by counsel on cross-examination. We conclude that the trial = court=20 acted within its discretion in considering Dr. Schloneger=92s = testimony and=20 report.

F. = Ineffective=20 assistance of counsel claim

=20 J.A.G. contends that his trial counsel provided constitutionally=20 ineffective assistance, pointing to counsel=92s (1) failure to = resubmit a=20 proposed order to the court for mental examination of A.K.D., = which the=20 court probably would have signed; (2) failure to object to the = hearsay=20 testimony of A.K.D.=92s teacher and the emergency room nurse; (4)=20 questioning of A.K.D. which elicited proof of an element necessary = to the=20 State=92s case; (4) failure to accept the trial court=92s offer to = recess the=20 proceedings to allow for preparation of a psychosexual report in=20 compliance with its section 54.04 order.

We use the same = analysis for=20 ineffective assistance of counsel claims in juvenile proceedings = that we=20 do in criminal proceedings. See=20 In re R.D.B.,=20 102=20 S.W.3d 798, 800 (Tex. App.=97Fort Worth 2003, no pet.); = In=20 re E.J.L., 01-02-00472-CV, 2003 = WL = 1995454,=20 *7 (Tex. App.=97Houston [1st Dist.] May 1, 2003, = pet. denied)=20 (mem. op.). To prevail on a claim of ineffective = assistance=20 of counsel, the defendant must show that (1) his counsel=92s = performance was=20 deficient and (2) a reasonable probability exists that the result = of the=20 proceeding would have been different. Strickland v.=20 Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). = The first=20 prong of Strickland requires the defendant to show that = counsel=92s=20 performance fell below an objective standard of reasonableness.=20 Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. = 1999).=20 Thus, the defendant must prove objectively, by a preponderance of = the=20 evidence, that his counsel=92s representation fell below = professional=20 standards. Mitchell v. State, 68 S.W.3d 640, 642 = (Tex. Crim.=20 App. 2002). The second prong requires the defendant to show = a=20 reasonable probability that, but for counsel=92s unprofessional = errors, the=20 result of the proceeding would have been different. See Strickland, 466 U.S. at 693=9694, 109 S. = Ct. at 2067;=20 see also Thompson, 9 S.W.3d at 812. A reviewing court = should=20 indulge a strong presumption that counsel=92s conduct falls within = the wide=20 range of reasonable professional assistance; that is, the = defendant must=20 also overcome the presumption that, under the circumstances, the=20 challenged action =93might be considered sound trial strategy.=94=20 Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. =93Any = allegation of=20 ineffectiveness must be firmly founded in the record, and the = record must=20 affirmatively demonstrate the alleged ineffectiveness.=94 = Thompson, 9=20 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, = 500 (Tex.=20 Crim. App. 1996)). Under normal circumstances, the record on = direct appeal=20 will not be sufficient to show that counsel=92s representation was = so=20 deficient and lacking in tactical or strategic decision making as = to=20 overcome the presumption that counsel=92s conduct was reasonable = and=20 professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. = Crim.=20 App. 2002).

The record in this = case does=20 not show any conduct outside the wide range of reasonable = professional=20 assistance, and none of counsel=92s alleged errors, if corrected, = would have=20 probably resulted in a different outcome. The testimony = appellate=20 counsel identifies as objectionable goes only to whether A.K.D = actually=20 consented to the contact and does not undermine the legally and = factually=20 sufficient evidence supporting a finding that A.K.D. could not = effectively=20 consent to it. The record also contains other evidence that = would=20 support the trial court=92s finding even if the evidentiary errors = asserted=20 by J.A.G. had not occurred. We also must presume that = counsel had=20 tactical reasons for deciding not to request a mental examination = of=20 A.K.D. or a psychosexual evaluation of J.A.G. For these = reasons, we=20 overrule this issue as well.

Conclusion

=20 We conclude that legally and factually sufficient evidence = supports the=20 adjudication of delinquency; J.A.G. waived his prosecutorial = misconduct=20 claim; the trial court did not err in declining to consider the = results of=20 J.A.G.=92s polygraph testing or in considering the psychological = report and=20 testimony from Dr. Schloneger; and the record does not reveal that = J.A.G.=20 received ineffective assistance of counsel. Accordingly, we = affirm=20 the adjudication and disposition of the trial court.

Jane Bland

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Alcala and Bland.