in the Matter of A. G. N. a Child ( 2008 )


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  •                                   NO. 07-07-0312-CV
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL B
    JUNE 24, 2008
    ______________________________
    IN THE MATTER OF A.G.N., A CHILD
    _________________________________
    FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;
    SITTING AS A JUVENILE COURT
    NO. 9084-J#1; HONORABLE W. F. ROBERTS, JUDGE
    _______________________________
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
    MEMORANDUM OPINION
    A.G.N., a juvenile, appeals an order of commitment to the Texas Youth Commission
    (“TYC”). We agree with appointed counsel’s conclusion the record fails to show any
    arguably meritorious issue which would support the appeal, and affirm the juvenile court’s
    judgment.
    On June 22, 2007, A.G.N. was committed to TYC by indeterminate order modifying
    disposition. Tex. Fam. Code Ann. § 54.05 (Vernon Supp. 2006). His trial counsel filed a
    notice of appeal on July 9, 2007, and was thereafter granted leave to withdraw from the
    representation. On August 7, 2007, the juvenile court denied the application of A.G.N.’s
    mother for court-appointed counsel. Finding no indication that A.G.N. subsequently
    received appointed or retained appellate counsel, we abated and remanded this cause to
    the juvenile court, in part, for a determination of whether A.G.N. was entitled to appointed
    counsel.1 Thereafter, counsel was appointed to represent appellant in this appeal.2
    Appellant's appointed appellate counsel has filed a motion to withdraw and a brief
    in support pursuant to Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967) and In re D.A.S., 
    973 S.W.2d 296
    (Tex. 1998) (finding procedures enumerated in
    Anders apply to juvenile matters), in which he certifies that he has diligently reviewed the
    record and, in his professional opinion, under the controlling authorities and facts of the
    cases, there is no reversible error or legitimate grounds on which a non-frivolous appeal
    can arguably be predicated. The brief discusses in detail the procedural history, facts, and
    law applicable to this matter. Counsel also notes a potential issue on which error may lie
    but, with reference to supporting law, concludes the record does not support an appeal.
    Counsel has certified that a copy of the Anders brief and motion to withdraw have been
    served on appellant,3 and that counsel has advised appellant of his right to review the
    record and file a pro se response. Johnson v. State, 
    885 S.W.2d 641
    , 645 (Tex.App.–
    1
    In re A.G.N., No. 07-07-0312-CV, 
    2007 WL 2819671
    (Tex.App.–Amarillo
    September 28, 2007) (mem. op.).
    2
    After conducting a hearing to determine appellant’s indigency, the juvenile court
    determined appellant was not entitled to court-appointed counsel. Thereafter, on October
    2, 2007, the juvenile court determined that appellant’s mother had failed to employ an
    attorney since being ordered to do so on August 6, 2007. To expedite this appeal, the
    juvenile court appointed an attorney to represent appellant in this appeal.
    3
    Counsel has also sent a copy of the motion to withdraw and brief to appellant’s
    mother.
    2
    Waco 1994, pet. ref'd). By letter, this Court also notified appellant’s mother of his
    opportunity to submit a response to the Anders brief and motion to withdraw filed by his
    counsel. Neither appellant nor his mother have filed a response.
    In conformity with the standards set out by the United States Supreme Court, we
    will not rule on the motion to withdraw until we have independently examined the record.
    Nichols v. State, 
    954 S.W.2d 83
    , 86 (Tex.App.–San Antonio 1997, no pet.). If this Court
    determines the appeal has merit, we will remand it to the juvenile court for appointment of
    new counsel. Stafford v. State, 
    813 S.W.2d 503
    , 511 (Tex.Crim.App.1991).
    Appellate counsel points to one ground on which an arguably meritorious argument
    may lie on appeal. Counsel notes potential legal and factual insufficiency of the evidence
    to support the juvenile court’s modification of its original disposition. After a complete
    review of the record, however, we agree with appellate counsel that the grounds identified
    do not arguably support an appeal.
    The evidence in the record demonstrates that appellant was originally adjudicated
    for aggravated sexual assault of a child and was placed on probation, subject to certain
    terms and conditions, including the successful completion of a program at a facility outside
    his home. Appellant was subsequently placed at Pegasus School, Inc. After appellant was
    3
    unsuccessfully discharged4 from this facility, the State moved to modify the disposition.5
    The record reflects that at the time of the disposition hearing, appellant was unable to
    abide by the rules in several facilities, even those of a highly structured nature. The record
    also shows that appellant lacked family support with regard to his treatment needs and
    appellant’s mother was uncooperative with efforts to place appellant in less restrictive
    environments.
    Juvenile courts are vested with broad discretion in determining the suitable
    disposition of children found to have engaged in delinquent conduct. In re E.R.L., 
    109 S.W.3d 123
    , 128 (Tex.App.–El Paso 2003, no pet.); In re T.R.S., 
    115 S.W.3d 318
    , 320
    (Tex.App.–Texarkana 2003, no pet.). This is particularly true in hearings to modify
    disposition. 
    Id. An abuse
    of discretion does not occur as long as some evidence of
    substantive and probative character exists to support the trial court’s decision. In re 
    E.R.L., 109 S.W.3d at 128
    . See also In re J.R.C., 
    236 S.W.3d 870
    , 875 (Tex.App.–Texarkana
    2007, no pet.). Our review of the trial court is informed by the explicit considerations put
    forth in section 54.04(i) of the Family Code. See Tex. Fam. Code Ann. § 54.04(i) (Vernon
    4
    Appellant was placed at Pegasus School, Inc. on February 27, 2007, and was
    discharged unsuccessfully on March 27, 2007. Appellant was discharged because he was
    disruptive, violent, ran away on two occasions, and engaged in physical altercations and
    assaults on staff members and peers.
    5
    The hearing on the State’s motion commenced on April 16, 2007. At the close of
    that hearing, the juvenile court directed further inquiry be made into alternative placements
    for appellant as the juvenile court was concerned about placing him in Texas Youth
    Commission. The hearing continued on June 22, 2007, during which the juvenile court
    found that a modification of the prior disposition was appropriate. Finding placement
    outside his home was necessary and reasonable efforts were made to eliminate or prevent
    that need, the juvenile court placed appellant in TYC for an indeterminate period of time
    not to exceed appellant’s 19th birthday.
    4
    2007). We note also that where the underlying offense was aggravated assault of a child,
    as here, commitment to TYC is authorized.       Tex. Fam. Code Ann. § 54.05(f) (Vernon
    2007). The evidence in the record before us is sufficient to support the juvenile court’s
    modification of the disposition order.
    Our review convinces us that appellate counsel conducted a complete review of the
    record for this cause. We have also made an independent examination of the entire record
    to determine whether there are any arguable grounds which might support the appeal from
    the juvenile court’s order modifying its original disposition. We agree the record presents
    no arguably meritorious grounds for review. Accordingly, we grant counsel's motion to
    withdraw and affirm the judgment of the juvenile court.
    James T. Campbell
    Justice
    5