in the Matter of A.G., a Juvenile , 2009 Tex. App. LEXIS 5334 ( 2009 )

Opinion filed July 9, 2009
In The
Eleventh Court of Appeals
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No. 11-08-00025-CV
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IN THE MATTER OF A.G., A JUVENILE
On Appeal from the 279th District Court
Jefferson County, Texas
Trial Court Cause No. F-10591-J
OPINION
In four points, A.G., a juvenile, challenges the trial court’s judgment modifying disposition
and committing him to the Texas Youth Commission (TYC). We reverse and remand.
Factual Background
On July 10, 2007, appellant pleaded “true” to an allegation that he used a vehicle to
intentionally flee from police officers who were attempting to detain him on November 22, 2006.
The incident occurred when appellant was sixteen years old. Had appellant been an adult, the
offense could have constituted a felony. TEX . PENAL CODE ANN . § 38.04 (Vernon 2003). The trial
court placed appellant on community supervision for one year in his father’s custody. The conditions
of appellant’s community supervision included not violating any laws of the State of Texas;
attending school daily; reporting to his community supervision officer; obeying curfew; and not
associating with negative peers.
Approximately six weeks after being placed on community supervision for the felony-level
allegation, Officer Keith Perkins of the Port Arthur Police Department encountered appellant and
three other males walking in the middle of the roadway in the 600 block of San Jacinto.
Officer Perkins was responding to a report of subjects carrying guns in the neighborhood. Officer
Perkins received this report at 7:51 p.m. on August 26, 2007. When Officer Perkins asked the
individuals if they had any weapons, appellant informed him that he had a knife. Appellant removed
a machete from the waistband of his clothing and gave it to Officer Perkins. Officer Perkins arrested
appellant for unlawfully carrying a weapon, to-wit: an illegal knife with a blade longer than five and
one-half inches. TEX . PENAL CODE ANN . §§ 46.01(6), 46.02 (Vernon Supp. 2008).
The State filed a petition to modify disposition based upon the allegation that appellant
violated the terms and conditions of community supervision by violating a law of the State of Texas
by virtue of his subsequent arrest for unlawfully carrying a weapon and that he violated curfew by
failing to be home by 7:00 p.m. on the day he was arrested. Appellant was still sixteen years old
when the subsequent arrest was made. He turned seventeen years old prior to the adjudication
hearing conducted on November 20, 2007, by the trial court on the State’s petition to modify
disposition.
Appellant contested the State’s allegations by attempting to establish the “traveling” defense
to the weapon allegation. He testified that he found the knife while walking to his friend’s house
to retrieve a shirt for school the next morning. He contended that he picked up the knife because he
thought it was a collector’s item. Appellant asserted that he was returning to his home when he was
stopped by Officer Perkins and that he was never more than 600 to 700 feet from his home. The trial
court rejected appellant’s defensive theories by finding the State’s alleged community supervision
violations to be “true.” After a disposition hearing conducted on November 21, 2007, the trial court
committed appellant to TYC for an indeterminate period not to exceed his nineteenth birthday.
Standard of Review
Juvenile courts are vested with broad discretion in determining whether to modify the
disposition of juveniles found to have engaged in delinquent conduct. See In re D.R., 193 S.W.3d
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924, 924 (Tex. App.—Dallas 2006, no pet.); In re P.L., 106 S.W.3d 334, 337 (Tex. App.—Dallas
2003, no pet.). In reviewing the trial court’s decision, we examine the entire record to determine
whether the trial court acted unreasonably or arbitrarily or without reference to any guiding rules or
principles. See In re D.R., 193 S.W.3d at 924; In re K.B., 106 S.W.3d 913, 915 (Tex. App.—Dallas
2003, no pet.).
“Traveling” Defense
Appellant asserts in his first point that the trial court erred in not sustaining his affirmative
defense of traveling to the allegation of unlawfully carrying a weapon. A person commits an offense
under Penal Code Section 46.02 if he “intentionally, knowingly, or recklessly carries on or about his
or her person [an] . . . illegal knife.” However, Section 46.02 does not apply to a person who is
traveling. TEX . PENAL CODE ANN . § 46.15(b)(3) (Vernon Supp. 2008). The traveling exclusion
from Section 46.02 has the procedural and evidentiary consequences of a defense. Illingworth v.
State, 156 S.W.3d 662, 664 (Tex. App.—Fort Worth 2005, no pet.) (citing TEX . PENAL CODE ANN .
§ 2.03(e) (Vernon 2003)). Consequently, once the defendant produces some evidence that supports
the defense, the State bears the burden of persuasion to disprove the raised defense. Zuliani v. State,
97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton v. State, 804 S.W.2d 910, 914 (Tex.
Crim. App. 1991)). However, “[t]he burden of persuasion is not one that requires the production of
evidence, rather it requires only that the State prove its case beyond a reasonable doubt. When a
[factfinder] finds the defendant guilty, there is an implicit finding against the defensive theory.” Id.
(citation omitted). In other words, the State has “no duty to introduce affirmative controverting
evidence to rebut the defensive theory.” Ayesh v. State, 734 S.W.2d 106, 107 (Tex. App.—Austin
1987, no pet.). Rather, the State satisfies its burden of proof if “the [factfinder] could properly
disbelieve appellant’s testimony” on the issue. See id. (citing Johnson v. State, 571 S.W.2d 170, 173
(Tex. Crim. App. 1978)).
The legislature has never defined what “traveling” means, and its precise meaning has been
the subject of much debate. See Ayesh, 734 S.W.2d at 108. Texas courts have generally
distinguished “traveling” based on the distance and duration of the trip. See Birch v. State, 948
S.W.2d 880, 882 (Tex. App.—San Antonio 1997, no pet.). Some cases have suggested that crossing
county lines establishes traveling, see Illingworth, 156 S.W.3d at 665 (citing Ballard v. State, 167
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S.W. 340, 340 (Tex. Crim. App. 1914)), but this is not a categorical rule, see Perez v. State, 87
S.W.3d 648, 652-53 (Tex. App.—San Antonio 2002, no pet.). The Austin Court of Appeals
observed that the traveling exception generally “applies to persons on a journey which takes them
some distance from their home in excess of 35 miles, or 40 miles, and the trip must typically be
overnight.” Ayesh, 734 S.W.2d at 108 (citations omitted). We conclude that the trial court could
have properly disbelieved appellant’s testimony that he was traveling. He was only a short distance
from his home, and he was not traveling overnight. Furthermore, the presence of three other
individuals walking along with appellant at the time that Officer Perkins stopped him is a fact that
contradicts his contention that he was simply returning home with a knife that he just found while
walking to a friend’s house. Appellant’s first point is overruled.
Curio Defense
In his second point, appellant contends that the trial court erred in not sustaining his
contention that the knife was a curio. However, appellant does not cite any authority that carrying
a knife that might constitute a collector’s item is an exception to prosecution under Section 46.02.
In this regard, the Penal Code provides a “curio” exception for firearms, but it does not provide a
similar exception for illegal knives. TEX . PENAL CODE ANN . § 46.01(3), (6) (Vernon Supp. 2008).
In his argument in support of the second issue, appellant contends that the State failed to meet its
burden because it did not show that he used, exhibited, or brandished the knife in a threatening
manner. We disagree. Section 46.02 does not require evidence that the accused used a weapon in
any particular manner. A person is guilty of unlawfully carrying a weapon by merely carrying it on
or about his or her person. Appellant’s second point is overruled.
TEX. FAM . CODE ANN. 54.05(f)
Appellant asserts in his third point that the trial court erred in committing him to TYC
because the State failed to prove that he violated a reasonable and lawful order of the court. TEX .
FAM . CODE ANN . § 54.05(f) (Vernon 2008) provides in relevant part as follows:
Except as provided by [TEX . FAM . CODE ANN . § 54.05(j) (Vernon 2008)], a
disposition based on a finding that the child engaged in delinquent conduct that
violates a penal law of this state or the United States of the grade of felony may be
modified so as to commit the child to the Texas Youth Commission if the court after
a hearing to modify disposition finds by a preponderance of the evidence that the
child violated a reasonable and lawful order of the court.
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Thus, a modification order may provide for commitment to TYC if the original disposition was for
conduct constituting a felony and the trial court finds the child violated a reasonable and lawful order
of the court. In re J.P., 136 S.W.3d 629, 631 (Tex. 2004).
We have previously determined that the trial court did not err in failing to sustain appellant’s
defenses to the allegation that he violated a law of this State by unlawfully carrying a weapon. The
evidence supporting a finding of “true” to the allegation is ample given the fact that appellant was
carrying a knife in his waistband that had a blade longer than five and one-half inches. The trial
court additionally found that appellant violated the curfew provision of his terms and conditions of
community supervision, and appellant has not challenged this finding on appeal. Accordingly, the
trial court did not err in determining that appellant violated a reasonable and lawful order of the
court. Appellant’s third point is overruled.
TEX. FAM . CODE ANN. 54.05(m)
In his fourth point, appellant contends that the trial court erred in committing him to TYC
because the evidence was insufficient to support a finding that “all reasonable efforts” had been
expended to prevent his placement outside his home (emphasis added). The decision to commit a
child to TYC is a discretionary decision of the trial court subject to review for an abuse of that
discretion. In re J.P., 136 S.W.3d at 632. We apply the civil standards in reviewing the legal and
factual sufficiency of the evidence supporting a juvenile court’s disposition decision. In re T.E.G.,
222 S.W.3d 677, 678-79 (Tex. App.—Eastland 2007, no pet.). In our legal sufficiency analysis of
the juvenile court’s fact findings, we apply the City of Keller requirements: we consider the evidence
in the light most favorable to the findings and indulge every reasonable inference that supports them;
we credit favorable evidence if a reasonable trier of fact could and disregard contrary evidence unless
a reasonable trier of fact could not; we recognize that the trier of fact is the sole judge of the
witnesses’ credibility and the weight to be given their testimony; and we cannot substitute our
judgment for that of the trier of fact so long as the evidence falls within the zone of reasonable
disagreement. City of Keller v. Wilson, 168 S.W.3d 802, 821-28 (Tex. 2005). With respect to the
factual sufficiency of the evidence, we consider and weigh all the evidence and set aside the juvenile
court’s determination only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re J.D.P., 85 S.W.3d
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420, 426 (Tex. App.—Fort Worth 2002, no. pet.); In re T.K.E., 5 S.W.3d 782, 785 (Tex.
App.—San Antonio 1999, no pet.).
TEX . FAM . CODE ANN . § 54.05(m) (Vernon 2008) provides in relevant part as follows:
If the court places the child on probation outside the child’s home or commits
the child to the Texas Youth Commission, the court:
(1) shall include in the court’s order a determination that:
(A) it is in the child’s best interests to be placed
outside the child’s home;
(B) reasonable efforts were made to prevent or
eliminate the need for the child’s removal
from the child’s home and to make it possible
for the child to return home; and
(C) the child, in the child’s home, cannot be
provided the quality of care and level of
support and supervision that the child needs to
meet the conditions of probation[.]
Accordingly, appellant appears to be challenging the determination required by
Section 54.05(m)(1)(B) that reasonable efforts were made to prevent or eliminate the need for the
child’s removal from the child’s home.1
The only evidence offered by the State at the disposition hearing consisted of a report
prepared by appellant’s community supervision officer. See TEX . FAM . CODE ANN . § 54.05(e)
(Vernon 2008). This report stated in relevant part as follows:
EXISTING CONDITIONS:
....
On September 19, 2007, it was determined in a Case Review that the Texas
Youth Commission would be most beneficial to [appellant] being that he is 17 years
old and was very recently adjudicated and had already received an additional offense
involving a weapon.
1
We note that appellant has misstated the requirements of Section 54.05(m)(1)(B). This section does not require a showing
that all reasonable efforts were made to prevent or eliminate the need for the child’s removal from the child’s home (emphasis added).
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PROBATION OFFICER’S OPINION:
In this officer’s opinion, [appellant] made a foolish judgment that he has
learned was definitely the wrong thing to do, unfortunately due his being 17 years old
[sic] and riding the fence of childhood and adulthood this department has little left
to offer him.
SUMMARY AND RECOMMENDATION:
[Appellant], age 17, was placed on Delinquent Court Probation on July 10,
2007 for the offenses of Evading Arrest with a Vehicle and Evading Arrest.
On November 22, 2006, [appellant] committed the offense of Evading Arrest
with a Vehicle, which is a felony. He was adjudicated for this offense on July 10,
2007 and received a disposition of Delinquent Court Probation.
It is believed that [appellant] has engaged in delinquent conduct and is in
need of rehabilitation. Therefore, it is the recommendation of the Jefferson County
Juvenile Probation Department that:
1. [Appellant] be committed to the care, custody and control of
the Texas Youth [Commission] because it is in the best
interest of the child; and the child, in the child’s homes [sic],
cannot be provided the quality of care and level of support
and supervision that the child needs to meet the conditions of
probation.
Appellant called his current community supervision officer as a witness at the disposition hearing.
She denied hearing any discussions in the community supervision department about reasonable
efforts that could be made to return appellant to his home.
As noted previously, only six weeks elapsed between the time that appellant was placed on
delinquent court community supervision and his subsequent arrest for unlawfully carrying a weapon.
Appellant was continuously detained thereafter in the Jefferson County Juvenile Detention Center
after his arrest on the weapon charge. Accordingly, appellant was only on community supervision
for a short period of time while in his father’s custody. There is no evidence of any efforts to return
appellant to his home after he was arrested on the weapon charge. As reflected in the report from
the community supervision department, the evidence affirmatively demonstrates that the department
did not attempt to return appellant to his home with more stringent community supervision
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conditions after the subsequent arrest or make any other alternative placement short of TYC. In the
absence of evidence of alternative placement efforts, we conclude that the trial court abused its
discretion in determining that reasonable efforts were made to return appellant to his home
environment. Appellant’s fourth point is sustained.2
This Court’s Ruling
Having found error in the trial court’s judgment, it is reversed, and this cause is remanded
for a new disposition hearing. TEX . FAM . CODE ANN . § 56.01(i) (Vernon 2008).
TERRY McCALL
JUSTICE
July 9, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
2
Appellant also raises an argument that the trial court abused its discretion because it failed to follow the Progressive
Sanctions Model. TEX. FAM. CODE ANN. §§ 59.001-.015 (Vernon 2008). The Family Code does not permit a juvenile to bring this
complaint on appeal, however. See Section 59.014(3) (“A child may not bring an appeal or a postconviction writ of habeas corpus
based on . . . a departure from the sanction level assignment model provided by this chapter.”). A juvenile court’s decision is guided
by the Progressive Sanctions Model, but the guidelines are not mandatory. Id.; In re C.C., 13 S.W.3d 854, 858 (Tex. App.—Austin
2000, no pet.).
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