in the Matter of J.M.L. ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-00-00212-CV

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In the Matter of J. M. L.

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. J-19,591, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

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Appellant J.M.L. ("appellant") appeals from an order of the district court assessing a seven-year determinate sentence for delinquent conduct and seeks remand for a new disposition hearing. We will affirm.

BACKGROUND

The following facts are uncontested. On October 5, 1999, appellant, a sixteen- year-old high school dropout, trespassed onto the campus of his former school while possessing a pistol. By his own admission, appellant had consumed vodka and smoked marihuana. Later that evening, appellant shot Michael Robichaux in the leg with a rifle. At the time of the shooting, appellant had been without parental supervision for over twenty-four hours.

On November 29, 1999, the State filed its Original Petition Alleging Delinquent Conduct ("Petition #1") under Cause Number 19,591. In that petition, the State alleged three basic complaints constituting delinquent conduct. First, by "using a firearm, a deadly weapon, knowingly, intentionally, and recklessly caus[ing] bodily injury to Michael Robichaux, by shooting him," appellant had violated section 22.02 of the Texas Penal Code (Aggravated Assault with a Deadly Weapon). Second, by "intentionally, knowingly, or recklessly, possess[ing] and go[ing] with a firearm on the physical premises of a school, an educational institution, not pursuant to written regulations and written authorization of the institution," appellant had violated section 46.03 of the Texas Penal Code (Places Weapons Prohibited). Third, by "knowingly, intentionally, and recklessly caus[ing] serious bodily injury to Michael Robichaux by shooting him with a firearm, a deadly weapon," appellant had violated section 22.05 of the Texas Penal Code (Aggravated Assault). The State alleged that all of the offenses were punishable by imprisonment, but sought in its disposition request that should the juvenile be adjudged delinquent, "such disposition of care, control, and custody of said child be made as to the Court appears just and proper." See Tex. Fam. Code Ann. § 54.04(a)-(d) (West Supp. 2000).

On January 11, 2000, the State filed its Original Petition Alleging Delinquent Conduct Seeking A Determinate Sentence ("Petition #2") under the same cause number. In that petition, the State alleged identical complaints of aggravated assault and aggravated assault with a deadly weapon, but did not allege that appellant took a weapon onto a prohibited place. The State primarily sought a different remedy for the offenses. In Petition #2, the State requested that upon being adjudged delinquent, the juvenile "be committed to the care, custody and control of Texas Youth Commission with a possible transfer to the Institutional Division of the Texas Department of Criminal Justice for a term of years not to exceed forty years," which is known as a determinate sentence. A determinate sentence is one in which a juvenile is committed to the Texas Youth Commission ("TYC") for a period of time and may be transferred to the Texas Department of Criminal Justice to complete his sentence dependent on the outcome of a hearing that occurs sometime between his sixteenth and twenty-first birthdays. See Tex. Hum. Res. Code Ann. §§ 61.079, .084 (West Supp. 2000); Tex. Fam. Code Ann. § 54.11 (West 1996).

On February 28, 2000, the district court, acting as a juvenile court, adjudicated appellant guilty of delinquent conduct. The court found that appellant had engaged in delinquent conduct by committing the offense of aggravated assault with a deadly weapon by recklessly shooting Michael Robichaux. The disposition hearing was held the same day. Upon completion of the disposition hearing, the district court assessed appellant a seven-year determinate sentence and committed him initially to the TYC.

Appellant contends that the district court (1) failed to make the findings required by the Texas Family Code to support a determinate sentence, see Tex. Fam. Code Ann. § 54.04(i); and (2) lacked the authority to assess a determinate sentence because the petition seeking such a sentence was not properly presented to or approved by the grand jury, see Tex. Fam. Code Ann. § 53.045 (West Supp. 2000).

DISCUSSION

Findings to Support Appellant's Removal from Home

In order to commit a juvenile to TYC, the trial court must include findings in its order of commitment that:

(1) it is in the child's best interest to be placed outside the child's home; (2) reasonable efforts were 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 child's home; and (3) 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.

Tex. Fam. Code Ann. § 54.04(i). Although the trial court made these findings, appellant argues that the evidence was legally and factually insufficient to support committing him to TYC, and thus that the trial court abused its discretion. See id. Appellant contends that no evidence was presented at trial supporting the second and third required findings and that the evidence regarding the first finding was factually insufficient.

We discussed the interrelation between legal and factual sufficiency and abuse of discretion in In Re C.C., 13 S.W.3d 854 (Tex. App.--Austin 2000). This Court applies the criminal standard of review in deciding the legal sufficiency of the evidence in juvenile cases, and "we view the evidence in the light most favorable to the finding and determine whether any rational trier of fact could have found the elements of the requirement proven beyond a reasonable doubt." Id. at 858 (citation omitted). In reviewing factual sufficiency, we must consider and weigh all of the evidence and should set aside the judgment only if the evidence is so weak as to be manifestly unjust. Id. at 859. The juvenile court's discretion to determine a suitable disposition attaches once it properly makes the findings under section 54.04 of the Texas Family Code. Id.

We will not disturb the juvenile court's findings absent a showing of abuse of discretion. In re M.S., 940 S.W.2d 789, 791 (Tex. App.--Austin, 1997, no writ). A trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). This Court may not reverse for abuse of discretion merely because we disagree with a decision of the trial court. Id. at 242.

At the disposition hearing, conflicting evidence was introduced as to whether appellant should be removed from his home and committed to TYC. Appellant's witnesses testified that he was considerate, polite, and considered a member of the family in his friends' homes. Appellant also presented evidence that he and his mother had a close relationship. Additionally, his probation officer testified that appellant had complied with all of his probation requirements. On the other hand, the State's witnesses testified that appellant had a previous history of possessing weapons, using drugs and alcohol, and making threats against others. Evidence was also introduced that appellant's mother and step-father owned a business that required most of their time and which left appellant unsupervised for long periods of time. Furthermore, the State presented testimony describing appellant's poor attendance record at school, failure to complete academic requirements, and his mother's refusal to meet with school officials before withdrawing him from the campus.

Additionally, appellant complains that the district court's use of boilerplate language in its order of commitment supports the argument of legal and factual insufficiency. We disagree. The Texas Family Code mandates that the court's order specifically list its reasons for the disposition. See Tex. Fam. Code Ann. § 54.04(f) (West Supp. 2000). However, this Court has interpreted that language to require that, "the court include in its order the determination that the requirements are met. . . . The Code does not require the court to explain the evidentiary support for the conclusions in its order." In the Matter of M.S., 940 S.W.2d 789, 792 (Tex. App.--Austin 1997, no writ). We have reviewed the evidence presented at the hearing and find it to be both legally and factually sufficient.

Appellant cites In the Matter of J.S., 993 S.W.2d 370 (Tex. App.--San Antonio 1999, no pet.), to support reversal. In that case, the appeals court reversed the trial court judgment imposing a determinate sentence because there was no evidence that J.S.'s father could not provide the quality of care and level of support and supervision that the child needed to meet the conditions of probation. See Tex. Fam. Code Ann. § 54.04(i)(3) (West Supp. 2000). In J.S., the child lived with his aunt at the time of his delinquent conduct, but subsequently resided with his father and stepmother, who were able to provide a structured environment. This case presents very different facts. There is no evidence that appellant's parents have provided a more structured environment since the time of the offense, and witness testimony at the hearing indicated inadequate parental support, supervision, and guidance for appellant.

In light of the evidence in the record, the trial court's findings and resulting sentence were not arbitrary or unreasonable. See Downer, 701 S.W.2d at 242. Thus, the trial court did not abuse its discretion. We overrule appellant's first issue.

Grand Jury Presentment and Approval

Whenever the State seeks a determinate sentence as disposition for a juvenile's delinquent conduct, it must present a petition seeking such disposition to, and receive approval from, the grand jury. Tex. Fam. Code Ann. § 54.04(d)(3) (West Supp. 2000). Grand jury approval of such a petition must be certified to the juvenile court and entered into the record. Id. § 53.045(d) (West 1996). In these cases, the grand jury approves the petition "in the same manner that the grand jury votes on the presentment of an indictment." Id. § 53.045(b). This serves to extend protections to juveniles parallel to those afforded adults facing criminal prosecution. This process is in place to strike a balance between the criminal system, in which the goal is to protect society from persons who have committed crimes, and the juvenile system, in which the primary purpose is to provide for the physical and mental care, protection and development of children coming within its provisions. See id. § 51.01(3); In the Matter of R.L.H. 771 S.W.2d 697, 701 (Tex. App.--Austin 1989, writ denied).

A Certificate of Approval of Juvenile Petition by Grand Jury ("Presentment Document") appears in the record, in which the foreperson of the grand jury certified that the petition had been presented to the grand jury and approved on December 30, 1999. The foreperson also indicated in writing that the petition presented had been filed on December 30, 1999. However, the State filed Petition #1 on November 29, 1999 and filed Petition #2 on January 11, 2000. From this, appellant argues that there is no evidence in the record that Petition #2 was ever presented to the grand jury as required by statute. We disagree.

While it is correct that there is no petition in this record that was filed on December 30, 1999, that fact alone does not establish that Petition #2 was never presented to the grand jury. Indeed, all the evidence is to the contrary. The presentment document had within it several fill-in-the-blank dates to be completed by the foreperson of the grand jury. One of these dates consisted of the date the presentment document was actually signed by the foreperson of the grand jury. Another date to be filled in was the file date of the petition being considered for approval by the grand jury. Evidently, the foreperson mistakenly entered the same date in both blanks on the presentment document.

This conclusion is corroborated when one considers the factual elements of the petitions alongside the presentment document itself. There were only two petitions filed under the same cause number, both of which alleged the same assaultive conduct. The two petitions were almost identical except that Petition #1 sought an indeterminate sentence while Petition #2 sought a determinate sentence, and Petition #2 omitted the allegation of carrying a weapon in a prohibited place. The December 30, 1999 presentment to the grand jury occurred between the November 29, 1999 filing date for Petition #1 and the January 11, 2000 filing date for Petition #2. However, there was no requirement that the State seek grand jury approval of Petition #1 because it sought only an indeterminate sentence.

Furthermore, there is no absolute requirement in section 53.045 of the Texas Family Code that a petition seeking a determinate sentence be filed before the grand jury can approve it, especially in the unique factual situation where a juvenile proceeding is already on file. The record conclusively establishes that the petition being considered by the grand jury sought a determinate sentence for the same assaultive conduct described in the two petitions. Since Petition #2 was the only petition filed in this case that sought a determinate sentence, the conclusion is inescapable that the petition the grand jury considered was Petition #2. The trial court's Judgment of Adjudication reflects this conclusion by stating that the cause had been brought "by proper petition, approved by the Grand Jury under Section 53.045 of the Texas Family Code" (emphasis added). This Court is bound to accept such recitations in the judgment as true. See Kirkman v. Alexander, 280 S.W.2d 365, 367 (Tex. Civ. App.--Austin 1955, writ ref'd n.r.e.); Miller v. Permenter, 234 S.W.2d 459, 461 (Tex. Civ. App.--Galveston 1950, writ ref'd n.r.e.).

Grand jury presentment and approval are mandatory when a juvenile faces the possibility of transfer to the Texas Department of Criminal Justice. We conclude that presentment and approval occurred in this case. The argument that the offense was not presented and approved by the grand jury is not supported by the evidence. We overrule appellant's second issue.

CONCLUSION

Having overruled all of appellant's issues, we affirm the judgment of the district court.

Mack Kidd, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed: November 2, 2000

Do Not Publish

3.045(d) (West 1996). In these cases, the grand jury approves the petition "in the same manner that the grand jury votes on the presentment of an indictment." Id. § 53.045(b). This serves to extend protections to juveniles parallel to those afforded adults facing criminal prosecution. This process is in place to strike a balance between the criminal system, in which the goal is to protect society from persons who have committed crimes, and the juvenile system, in which the primary purpose is to provide for the physical and mental care, protection and development of children coming within its provisions. See id. § 51.01(3); In the Matter of R.L.H. 771 S.W.2d 697, 701 (Tex. App.--Austin 1989, writ denied).

A Certificate of Approval of Juvenile Petition by Grand Jury ("Presentment Document") appears in the record, in which the foreperson of the grand jury certified that the petition had been presented to the grand jury and approved on December 30, 1999. The foreperson also indicated in writing that the petition presented had been filed on December 30, 1999. However, the State filed Petition #1 on November 29, 1999 and filed Petition #2 on January 11, 2000. From this, appellant argues that there is no evidence in the record that Petition #2 was ever presented to the grand jury as required by statute. We disagree.

While it is correct that there is no petition in this record that was filed on December 30, 1999, that fact alone does not establish that Petition #2 was never presented to the grand jury. Indeed, all the evidence is to the contrary. The presentment document had within it several fill-in-the-blank dates to be completed by the foreperson of the grand jury. One of these dates consisted of the date the presentment document was actually signed by the foreperson of the grand jury. Another date to be filled in was the file date of the petition being considered for approval by the grand jury. Evidently, the foreperson mistakenly entered the same date in both blanks on the presentment document.

This conclusion is corroborated when one considers the factual elements of the petitions alongside the presentment document itself. There were only two petitions filed under the same cause number, both of which alleged the same assaultive conduct. The two petitions were almost identical except that Petition #1 sought an indeterminate sentence while Petition #2 sought a determinate sentence, and Petition #2 omitted the allegation of carrying a weapon in a prohibited place. The December 30, 1999 presentment to the grand jury occurred between the November 29, 1999 filing date for Petition #1 and the January 11, 2000 filing date for Petition #2. However, there was no requirement that the State seek grand jury approval of Petition #1 because it sought only an indeterminate sentence.

Furthermore, there is no absolute requirement in section 53.045 of the Texas Family Code that a petition seeking a determinate sentence be filed before the grand jury can approve it, especially in the unique factual situation where a juvenile proceeding is already on fil