in the Matter of A.S. ( 2013 )


Menu:
  • MODIFY and AFFIRM; and Opinion Filed December 5, 2013.
    Court of Appeals
    S     In The
    Fifth District of Texas at Dallas
    No. 05-13-01022-CV
    IN THE MATTER OF A.S., A Child
    On Appeal from the 305th Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. JD-76883-X
    MEMORANDUM OPINION
    Before Justices FitzGerald, Francis, and Fillmore
    Opinion by Justice Fillmore
    A.S., a juvenile, appeals the trial court’s order modifying disposition and committing him
    to the Texas Juvenile Justice Department (TJJD). 1 In his first two issues, A.J. asserts the trial
    court abused its discretion by committing him to the TJJD, rather than to a less restrictive
    placement, and failed to comply with the family code by not specifying in the order the reasons
    for the modification. In his third issue, A.S. requests we modify the trial court’s order to correct
    clerical errors and to remove duplicative entries. As modified, we affirm the trial court’s
    judgment. We issue this memorandum opinion because the law to be applied in this case is well
    settled. See TEX. R. APP. P. 47.4.
    1
    Effective December 1, 2011, the Texas Youth Commission was renamed the Texas Juvenile Justice Department. See TEX. HUM RES.
    CODE ANN. § 201.001(a)(4), (b)(2) (West 2013). Accordingly, throughout this opinion, the former Texas Youth Commission will be referred to
    as the Texas Juvenile Justice Department or the TJJD.
    Background
    On May 2, 2012, the trial court found that A.S. was a child engaged in delinquent
    conduct by committing the offense of robbery, a violation of section 29.02 of the penal code.
    The trial court placed A.S. on probation for two years, with an initial placement at the Medlock
    facility to receive therapeutic treatment. A.S. was successfully discharged from Medlock and, on
    October 18, 2012, his conditions of probation were modified to release him into the custody of
    his mother and to allow for home detention with electronic monitoring.
    The State subsequently filed a motion to modify disposition alleging A.S. violated the
    conditions of his probation by failing to comply with his curfew restrictions, failing to attend
    every class on every school day, and testing positive for illegal drug usage on two different
    occasions. A.S. pleaded true to the allegations he violated his probation by failing to comply with
    his curfew restrictions on May 13, 2013 and by testing positive for illegal drug usage on April
    29, 2013. The State nonsuited the other allegations.
    At the hearing on the State’s motion to modify, the trial court admitted into evidence
    several evaluations of A.S., including a predisposition report prepared on May 22, 2013, an
    addendum to the report prepared on June 5, 2013, a substance abuse evaluation prepared on
    April 9, 2013, and a psychological evaluation prepared on May 21, 2013. During the substance
    abuse evaluation, A.S. admitted to the use of opiates and marijuana after his release from
    Medlock. A.S. also indicated he had been using marijuana since he was eleven years old. He
    thought he “has a problem” with marijuana and could see “a slight need for drug treatment.” The
    examiner believed A.S. was in need of supportive outpatient services.
    During the psychological evaluation, A.S. admitted to violating his 7:00 p.m. curfew and
    to using illegal drugs. The examiner noted that A.S. was extremely intelligent and would likely
    excel in school if he attended regularly. The examiner was concerned that A.S.’s use of illegal
    –2–
    drugs was continuing despite the fact he was currently in a drug treatment program. The
    examiner concluded A.S. was “in need of a highly-structured environment which can better treat
    his difficulties from abstaining from illegal behaviors.”       In the predisposition report, the
    probation department concluded:
    Due to the subject’s continuous non-compliance with probation, referral history,
    and previously being placed outside of his home, it appears that the subject is in
    need of a more structured environment than what his home can be [sic] provide at
    this time. The Juvenile Department has exhausted all means of rehabilitating the
    subject in the community. Therefore, it is recommended that the subject be
    committed to the care and custody of the Texas Juvenile Justice Department
    (TJJD).
    The trial court also admitted into evidence a placement match notification indicating A.S. had
    been accepted at Shamar Hope Haven and Gulf Coast Trade Center.
    Elizabeth Ramos, A.S.’s probation officer, testified that A.S. was released from Medlock
    in October 2012 and was placed on an electronic monitor. A.S. was unsuccessfully discharged
    from the electronic monitoring program because he did not charge the monitor. A.S. also did not
    successfully complete the home detention required by the conditions of his probation.
    According to Ramos, A.S. violated his curfew and would stay away from his home until
    3:00 a.m. Further, beginning in November 2012, A.S. had positive tests for marijuana use. In
    addition to marijuana, A.S. was taking “t-bars” and, after testing positive for opiates, admitted he
    took hydrocodone on one occasion.
    A.S. failed to attend school and had eighty-six unexcused absences. Ramos testified that
    she “kept sanctioning” A.S. and she had “22 written violations on him of responses he did not
    complete.” At a supervisory hearing, A.S. was instructed to “go back to school.” A.S. said that
    he would, but failed to do so.
    Ramos received information from A.S.’s school that A.S. attacked another student and
    attempted to steal the student’s gold chain. Ramos was told by the Dallas Police Department that
    –3–
    there was an assault charge pending against A.S. Although A.S. was suspended from school, he
    returned to the school and received a criminal trespassing ticket. Ramos also learned that A.S.’s
    mother returned home from work and found A.S. attempting to take her television set “to sell for
    drugs.” Ramos noted that A.S. had previously been placed on probation in Hays County for the
    manufacture or delivery of a controlled substance. In Ramos’s opinion, one of A.S.’s main
    problems was drugs.
    Ramos testified she had “counseled and counseled” A.S. and had exhausted all available
    services to keep A.S. in his home. Ramos believed A.S. needed more supervision than his
    mother could provide and needed a “high secure facility.” Ramos was aware that A.S. did not
    have a history of running away or of gang involvement. She was also aware that A.S. had been
    accepted by two different facilities, Shamar Hope Haven and Gulf Coast Trade Center, and that,
    at Gulf Coast Trade Center, A.S. could pursue a trade and receive assistance in obtaining his
    general education diploma. However, Ramos did not believe either of these facilities was secure.
    In Ramos’s opinion, A.S. is a child in need of rehabilitation. Ramos recommended that,
    for the protection of the public and of A.S., A.S. should be committed to the TJJD. According to
    Ramos, A.S. could obtain supportive outpatient services at TJJD to address his use of illegal
    substances. Ramos recognized that, while in detention pending the hearing on the motion to
    modify, A.S. had been “in honors” and was “currently a Level 4.” However, in the ten days
    prior to the hearing, A.S. had lost points for being slow to respond to staff, cursing, and “keeping
    peer conflict going.” Ramos believed that, even though A.S had sustained good behavior in
    detention, his level of needs and his prior history on probation showed that he needed to be
    committed to the TJJD and that it was in A.S.’s best interest to be committed to the TJJD.
    The trial court found that A.S. had violated the terms of his probation “in the following
    manner: CONDITION ‘3’ (VIOLATING CURFEW RESTRICTIONS) ON 05/13/13 AND
    –4–
    CONDITION ‘7’ (TESTING POSITIVE FOR ILLEGAL DRUG USAGE) ON 4/29/13”
    and ordered A.S. committed to the TJJD.
    Commitment to TJJD
    In his first issue, A.S. complains the trial court abused its discretion by committing him to
    TJJD when less restrictive placements capable of meeting his needs were available. Relying on
    evidence that he did not have a history of running away or of gang involvement and that he had
    behaved well while in detention, A.S. asserts the trial court should have committed him to the
    Gulf Coast Trade Center.
    We review a trial court’s determination of a suitable disposition for a child engaged in
    delinquent conduct under an abuse of discretion standard. In re J.P., 
    136 S.W.3d 629
    , 632 (Tex.
    2004); In re J.G., No. 03-11-00892-CV, 
    2013 WL 490941
    , at *2 (Tex. App.—Austin Feb. 7,
    2013, no pet.) (mem. op.). Juvenile courts are vested with broad discretion in determining
    whether to modify the disposition of children found to have engaged in delinquent conduct. In
    re D.R., 
    193 S.W.3d 924
    , 924 (Tex. App.—Dallas 2006, no pet.); In re G.W., 
    396 S.W.3d 202
    ,
    204 (Tex. App.—El Paso 2013, no pet.). We review the entire record to determine if the trial
    court abused its discretion by modifying a disposition. In re A.R.D., 
    100 S.W.3d 649
    , 650 (Tex.
    App.—Dallas 2003, no pet.). A trial court abuses its discretion when it acts arbitrarily or
    unreasonably or without reference to guiding rules or principles. In re 
    D.R., 193 S.W.3d at 924
    .
    A trial court does not abuse its discretion when it bases its decision on conflicting evidence or if
    some evidence of substantive and probative character exists to support the trial court’s decision.
    In re 
    G.W., 396 S.W.3d at 204
    .
    A.S. pleaded true to the allegations he violated the conditions of his probation by failing
    to comply with his curfew restrictions and by testing positive for the use of illegal drugs.
    Further, the trial court heard evidence that A.S. had been abusing illegal drugs for a number of
    –5–
    years and had previously been placed on probation for the manufacture or delivery of a
    controlled substance. After being released from Medlock, A.S. failed to charge his electronic
    monitor, failed to comply with his curfew, did not regularly attend school, tested positive for the
    use of illegal drugs, assaulted another student and attempted to steal his gold chain, and
    attempted to steal his mother’s television set. Ramos testified she had repeatedly counseled A.S.
    about his failure to comply with his conditions of probation. Both Ramos and the examiner who
    performed the psychological evaluation of A.S. thought A.S. needed a highly structured
    environment. Although Ramos was aware that A.S. did not have a history of running away or of
    gang involvement, she was concerned the Gulf Coast Trade Center was not a secure facility. In
    Ramos’s opinion, A.S. needed to be committed to the TJJD.            The trial court found A.S.
    committed robbery, a second degree felony, and that A.S. violated a reasonable and lawful order
    of the court by failing to comply with two conditions of his probation.
    A trial court’s modification of disposition is governed by section 54.05 of the Texas
    Family Code. See TEX. FAM. CODE ANN. § 54.05 (West Supp. 2013). When a juvenile’s prior
    disposition is based on a finding that the juvenile engaged in a felony offense, as here, the trial
    court may modify the disposition and commit the juvenile to the TJJD if the court finds by a
    preponderance of the evidence that the juvenile violated a reasonable and lawful order of the
    court. See 
    id. § 54.05(f).
    The violation of one condition of probation is sufficient to support a
    trial court’s order modifying a juvenile’s disposition. In re J.T.B., No. 06-09-00006-CV, 
    2009 WL 1459610
    , at *5 (Tex. App.—Texarkana May 27, 2009, no pet.) (mem. op.); In re S.A.G., No.
    04-06-00503-CV, 
    2007 WL 748674
    , at *3 (Tex. App.—San Antonio Mar. 17, 2007, no pet.)
    (mem. op.). The trial court is not required to consider alternative dispositions in a modification
    hearing. TEX. FAM. CODE ANN. § 54.05(f); In re A.T.M., 
    281 S.W.3d 67
    , 72 (Tex. App.—El
    Paso 2008, no pet.).
    –6–
    We conclude it was within the trial court’s discretion to commit A.S. to the TJJD. See
    TEX. FAM. CODE ANN. § 54.05(f); In re 
    J.P., 136 S.W.3d at 633
    (commitment to the TJJD by
    modification order is proper if juvenile originally committed felony and subsequently violated
    one or more conditions of probation and “[i]n such circumstances, the statute allows a trial court
    to decline third and fourth chances to a juvenile who has abused a second one.”); In re J.O., 
    247 S.W.3d 422
    , 424 (Tex. App.—Dallas 2008, no pet). Accordingly, we resolve A.S.’s first issue
    against him.
    Specificity of Order
    In his second issue, A.S. contends the trial court’s order does not satisfy the requirements
    of section 54.05(i) of the family code and, therefore, this case should be remanded to the trial
    court for reformation. Section 54.05(i) provides that the “court shall specifically state in the
    order its reasons for modifying the disposition and shall furnish a copy of the order to the child.”
    TEX. FAM. CODE ANN. § 54.05(i). Specificity in the order is required to give the child notice of
    the trial court’s reasons for the disposition and to allow the appellate court to determine whether
    the evidence supports those reasons. In re 
    A.R.D., 100 S.W.3d at 650
    ; see also In re K.E., 
    316 S.W.3d 776
    , 781 (Tex. App.—Dallas 2010, no pet.) (referring to similar language in section
    54.04(f) of the family code).      When a trial court does not comply with the specificity
    requirements of section 54.05(i), the appellate court does not reverse for a new trial, but
    generally remands the case with instructions to the trial court to render a proper disposition order
    specifically stating the reasons for the disposition. In re J.M., 
    287 S.W.3d 481
    , 489 (Tex.
    App.—Texarkana 2009, no pet.) (citing K.K.H. v. State, 
    612 S.W.2d 657
    , 658 (Tex. Civ. App.—
    Dallas 1981, no writ)).
    An order modifying a disposition must specifically recite the conduct that prompted the
    trial court to modify its prior order of disposition. Id.; In re L.T.H., No. 03-06-00433-CV, 2007
    –7–
    WL 2509843, at *2 (Tex. App.—Austin Sept. 6, 2007, no pet.) (mem. op.). Merely reciting
    statutory language is insufficient. In re 
    J.M., 287 S.W.3d at 489
    ; In re L.T.H., 
    2007 WL 2509843
    , at *2. However, statutory language supplemented by additional findings is sufficient
    to meet the requirements of the family code. In re P.L., 
    106 S.W.3d 334
    , 338 (Tex. App.—
    Dallas 2003, no pet.) (order tracking language of section 54.05 and explaining trial court’s
    reasons for modification was sufficient); In re 
    J.M., 287 S.W.3d at 489
    . “The inclusion of the
    offense and its surrounding circumstances in an order consisting of mainly statutory language is
    sufficient.” In re 
    J.M., 287 S.W.3d at 490
    .
    In this case, the trial court found in the order that A.S. (1) was previously adjudged to be
    a child engaged in delinquent conduct, was placed on probation, and received a copy of the terms
    and conditions of probation, and (2) violated specific conditions of probation. The order further
    provided:
    The Court further finds that the Respondent Child is eligible for a commitment to
    the Texas Juvenile Justice Department pursuant to Section 54.04(f) of the Juvenile
    Justice Code for engaging in conduct that violates a penal law of this State or of
    the United States of the grade of a felony to wit: ON APRIL 3, 2012, THE
    RESPONDENT CHILD COMMITTED THE FELONY OFFENSE OF
    ROBERY [sic] 29.02 OF THE PENAL CODE.
    Section 54.05(f) of the family codes provides that, in a disposition based on a finding that
    a child engaged in delinquent conduct that violates a felony law, the trial court can modify
    disposition to commit the child to the TJJD if, after a hearing, it finds by a preponderance of the
    evidence that the child violated a reasonable and lawful order of the court. The written order in
    this case tracks the language of section 54.05(f). Although the trial court mistakenly referred to
    section 54.04(f) of the family code in its finding relating to the reason A.S. was eligible for
    commitment to the TJJD, it specifically explained the reasons for the trial court’s action, and the
    order clearly gave A.S. notice of the trial court’s reasons for modifying the disposition. See In re
    
    P.L., 106 S.W.3d at 337
    –38.       We conclude the trial court’s order is sufficiently specific to
    –8–
    comply with section 54.05(i) of the family code. See id.; In re 
    A.R.D., 100 S.W.3d at 651
    ; In re
    
    J.M., 287 S.W.3d at 490
    . We resolve A.S.’s second issue against him.
    Modification of Order
    In his third issue, A.S. contends the order modifying disposition should be modified to
    correct clerical errors and to delete duplicate entries. We have the authority to modify incorrect
    judgments when the necessary information is available to do so. See TEX. R. APP. P. 43.2(b);
    Bigley v. State, 
    865 S.W.2d 26
    , 27–28 (Tex. Crim. App. 1993); Asberry v. State, 
    813 S.W.2d 526
    , 529 (Tex. App.—Dallas 1991, pet. ref’d); In re 
    J.O., 247 S.W.3d at 425
    .
    Accordingly, we modify the order in the following respects. First, we modify the order to
    reflect that the trial court, rather than counsel, informed A.S. and his parent of the right to appeal
    as required by section 56.01(e) of the family code. Second, we modify the order to reflect A.S.
    was commited to the TJJD pursuant to section 54.05(f) rather than section 54.04(f) of the family
    code. Finally, we modify the order to delete the second occurrence of the following two
    sentences: (a) “The Court further finds that a material and substantial change in the
    circumstances necessitates a modification of the disposition and such is in the best interest of the
    Respondent Child;” and (b) “The Court further finds that all reasonable efforts have been made
    to prevent or eliminate the need for the child's removal from the home and make it possible for
    the child to return to the home.” See In re 
    J.O., 247 S.W.3d at 425
    ; In re 
    D.R., 193 S.W.3d at 926
    –27.
    As modified, we affirm the trial court’s order modifying disposition.
    /Robert M. Fillmore/
    ROBERT M. FILLMORE
    JUSTICE
    131022F.P05
    –9–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    IN THE MATTER OF A.S., A CHILD                       On Appeal from the 305th Judicial District
    Court, Dallas County, Texas,
    No. 05-13-01022-CV                                   Trial Court Cause No. JD-76883-X.
    Opinion delivered by Justice Fillmore,
    Justices FitzGerald and Francis participating.
    In accordance with this Court’s opinion of this date, the judgment of the trial court is
    MODIFIED as follows:
    1. The sentence on page 2 of the order that states: “The Attorney for the
    Respondent Child was instructed to inform the child and the parent(s) or
    guardian of the right to appeal as required by Section 56.01(e) of the Juvenile
    Justice Code” is modified to state “The Court informed the child and the
    parent(s) or guardian of the right to appeal as required by Section 56.01(e) of
    the Juvenile Justice Code.”
    2. The paragraph on page 2 of the order that states: “The Court further finds that
    the Respondent Child is eligible for a commitment to the Texas Juvenile
    Justice Department pursuant to Section 54.04(f) of the Juvenile Justice Code
    for engaging in conduct that violates a penal law of this State or of the United
    States of the grade of a felony to wit: ON APRIL 3, 2012, THE
    RESPONDENT CHILD COMMITTED THE FELONY OFFENSE OF
    ROBERY [sic] 29.02 OF THE PENAL CODE” is modified to state: “The
    Court further finds that the Respondent Child is eligible for a commitment to
    the Texas Juvenile Justice Department pursuant to Section 54.05(f) of the
    Juvenile Justice Code for engaging in conduct that violates a penal law of this
    State or of the United States of the grade of a felony to wit: ON APRIL 3,
    2012, THE RESPONDENT CHILD COMMITTED THE FELONY
    OFFENSE OF ROBBERY 29.02 OF THE PENAL CODE.”
    3. The second occurrence of the sentences “The Court further finds that a
    material and substantial change of circumstances necessitates a modification
    of the Disposition and such is in the best interest of the Respondent Child”
    –10–
    and “The Court further finds that all reasonable efforts have been made to
    prevent or eliminate the need for the child’s removal from the home and to
    make it possible for the child to return to the home” are deleted.
    It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.
    Judgment entered this 5th day of December, 2013.
    /Robert M. Fillmore/
    ROBERT M. FILLMORE
    JUSTICE
    –11–