in Re Bobby Dale Barina ( 2008 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00759-CV
In the Matter of R.M.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-24,521, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
MEMORANDUM OPINION
R.M., a juvenile, was adjudicated delinquent for possession of less than one gram of
cocaine and, in a separate disposition order, was committed to the Texas Youth Commission for an
indeterminate period of time. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007). On
appeal, R.M. contends that the trial court abused its discretion in committing him to TYC. We
affirm the trial court’s disposition order.
A trial court may not commit a juvenile to TYC unless it finds that commitment is
in the child’s best interest, all reasonable efforts were taken to avoid the need to remove the child
from his home, and the child could not get the care, support, and supervision he needs to meet
probation conditions in his home. Id. § 54.04(i)(1); In re C.C., 13 S.W.3d 854, 858
(Tex. App.—Austin 2000, no pet.) (op. on reh’g). A juvenile court has broad discretion in
determining the suitable disposition of a juvenile who has engaged in delinquent conduct. In re A.I.,
82 S.W.3d 377, 379 (Tex. App.—Austin 2002, pet. denied). In reviewing the court’s decision on
disposition, we ask whether the court acted in an unreasonable or arbitrary manner. Id. at 379-80.
A trial court does not abuse its discretion if some substantive and probative evidence supports its
decision. In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.—Fort Worth 2002, no pet.). Legal and
factual sufficiency may be relevant in assessing the trial court’s exercise of its discretion, and we
review evidentiary sufficiency under the standards applied in criminal cases. Id. at 702-04; see
In re C.C., 13 S.W.3d at 858-59.
R.M. was almost seventeen on August 3, 2005, the date of the subject offense, and
was seen out after curfew by a police officer. The officer spoke to R.M., who appeared agitated and
fidgety, and saw R.M. drop a “white rock-like substance” into one of his pockets. The officer asked
if R.M. had “weapons or anything” in his pockets, and when R.M. “plunged his hands down to his
pockets,” the officer decided to frisk him for weapons. During that search, the officer found the
white object, which turned out to be crack cocaine, in R.M.’s pocket. R.M. testified that at the time
of the search he was wearing his cousin’s shorts because he had gotten dirty while visiting his aunt.
He said the shorts were too big for him, so he “grabbed them and started holding them above [his]
watch pocket.” R.M. denied knowing that the cocaine was in the pocket or what it was and said he
initially thought it was some kind of pill.
The trial court found that R.M. had possessed cocaine, adjudicated him delinquent
for the offense, and immediately proceeded to disposition. R.M.’s mother testified that arrangements
had been made for him to begin in an all-day work program immediately and that if he completed
the program, he would graduate in two semesters. R.M.’s mother asked the court to place him on
probation, saying that she would “[b]e more involved” and “start doing things with him more and
making sure that he stay[s] away from negative peers and become more involved in his schooling.”
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According to R.M.’s probation department report and Jarrett Boykin, his probation
officer, R.M. began his involvement with the department in October 2004, when he was taken into
custody and charged with failing to identify himself. R.M. was adjudicated delinquent for that
charge and placed on formal probation in March 2005. Boykin said that while R.M. was in custody
for the subject offense, he was released on furlough to attend his father’s funeral. While on furlough,
he was involved in two altercations, including one at his former high school, where he “got loud”
and belligerent until the school’s police officer had to escort him off campus. Boykin said that
before R.M. was taken into custody for the present offense, the department had planned to
recommend that R.M.’s probation be terminated early so that he could go into the Job Corps. Boykin
now recommended TYC custody, however, because he believed R.M. needed behavior modification
due to an “extensive history” of combative and uncooperative behavior at school and with services
offered by school and the department. Boykin believed R.M. might also need drug treatment but felt
behavior modification was a more pressing need. Finally, Boykin said TYC would benefit R.M.
because he “could use the supervision, some independent living skills.” Boykin said R.M. was “very
bright” but had a “defiant” attitude.
The trial court reviewed R.M.’s probation records, which reflect repeated outbursts
at school and violations of school and probation conditions. Although his behavior improved for
some time starting in mid-April 2005, when he was faced with placement in a more intensive
program, the department reported that R.M. “did not perform well academically in the three classes”
in which he was enrolled under a work-study program through which he was on campus for three
hours and was supposed to work the rest of the day in exchange for school credit. R.M. did not
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maintain employment during that semester of work-study. The report said that “[d]uring most of last
school year, [R.M.] created constant disruption while [on campus] for three hours.” R.M. was
“sought out” by Children’s Partnership, a service that matches juveniles with mentors in an attempt
to improve their behavior, but he “spent his time cursing out teachers and staff as well as verbally
abusing his mentor.” R.M. was dropped from the Children’s Partnership and the mentor program
due to his refusal to participate. R.M. also failed to attend an anger management class that had been
scheduled for March 2005. The report stated that R.M.’s mother was inconsistent, sometimes
minimizing R.M.’s behavior problems and other times asking that R.M. be detained or placed in boot
camp. R.M. had been detained six times for a total of fifty-six days from March 2005 through
August 2005, and the report reflected that R.M. had been considered for three programs short of
TYC commitment but was rejected from two because of “his age and a prognosis of success with
peer redirection” and from one other “due to extensive history of non-compliance and refusal to work
with programs.” Although R.M. had been adjudicated delinquent only once before for misdemeanor
failure-to-identify, the probation department recommended that he be committed to TYC, which was
a deviation from the department’s “progressive sanction level.” Under the usual progression, R.M.
would be at level four on the sanction levels, but the department recommended “a deviation to level
six,” which would call for TYC commitment. The department recommended that R.M. be
committed to TYC “due to his consistent involvement in delinquent activities, and his refusal to
participate in various services offered by multiple agencies within Travis County.”
After hearing testimony and reviewing R.M.’s probation report, the court said that
R.M.’s behavior shows “a pattern of pushing the envelope” and “not taking this seriously.” The
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court stated that “the behavior never changes. You never learn. It’s never gotten better at school.
It’s never gotten better at home. Your mom is trying to do her part to help out. Things get better,
and then they go south.” The court said that R.M. was a “smart kid” who needed “more structure”
and that his behavior had shown that placing him on probation at home was “not going to make a
difference.” The court ordered R.M. into TYC custody “to protect you from becoming an adult
criminal, to get your attention—you can get your education, you can get your training, you can
get drug treatment.”
The evidence supports the trial court’s observation that R.M. has a pattern of
temporarily improving his behavior when faced with serious consequences, only to slip back into
trouble. He was extremely disruptive at school, even though he was only on campus for a few hours
a day, and in the spring of 2005, he stopped working despite being enrolled in a work-study program.
R.M. was taken into custody six times in about five months time, from early March 2005 until the
subject offense in early August, he had been recommended for the Job Corps or a GED program
because of his poor performance in school, and the department believed his mother was inconsistent
and tended to minimize R.M.’s problems. When released on furlough while in custody due to this
charge, R.M. was involved in two different altercations. The court believed that R.M. needed more
intensive supervision to give him support and to help him learn to control himself and made the
findings required by section 54.04(i)(1) of the family code. When viewed in the light most favorable
to the court’s findings, the evidence is sufficient to show that TYC commitment is in R.M.’s best
interest, that the department made all reasonable efforts to avoid removing him from his home, and
that he cannot receive in his home the support, care, and supervision he needs. See In re C.C.,
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13 S.W.3d at 858. The same is true when all the evidence is viewed in a neutral light. See id. at 859.
Although R.M. has shown that he is able to control his behavior when faced with serious
consequences, he seems to slip back into misbehavior soon after. He and his family made
arrangements for a full-day work program that would put him on track for graduation the following
spring, but he had been enrolled in a similar program in the spring of 2005 and did not complete
those requirements. We cannot hold that the trial court abused its discretion in determining that
R.M. would be best served by being committed to TYC custody. See In re A.I., 82 S.W.3d at 379-
80. We affirm the trial court’s order of disposition.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Affirmed
Filed: May 1, 2008
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