in the Matter of D. H., a Juvenile ( 2012 )

NUMBER 13-11-00453-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE MATTER OF D.H., A JUVENILE
On appeal from the 272nd District Court
of Brazos County, Texas, Sitting as a Juvenile Court.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez1
Appellant, D.H., appeals the trial court’s order modifying disposition on a finding
of delinquency. The trial court ordered that D.H.’s probation be extended for a year and
ordered him to attend Hays County Boot Camp. D.H. contends by five issues that: (1)
the trial court did not have jurisdiction to hear the State’s amended motion to modify
disposition; (2) the trial court failed to make an oral pronouncement regarding his plea of
1
This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West 2005).
“true”; (3) the trial court abused its discretion by accepting D.H.’s plea of “true”; (4) the
trial court abused its discretion when it found that D.H. violated the terms of his
probation as alleged by the State; and (5) D.H. received ineffective assistance of
counsel. We affirm.
I. BACKGROUND
The State filed an original petition claiming that D.H. was a child engaged in
delinquent conduct on June 9, 2010. The State alleged that D.H. had committed the
offenses of theft and criminal trespass. After a hearing, the trial court found that D.H.
had committed theft and was a child engaged in delinquent conduct. See TEX. FAM.
CODE ANN. § 51.03 (West Supp. 2011) (setting out what constitutes delinquent conduct).
The trial court ordered D.H. to comply with an eight-month probationary period and set
the conditions of his probation. Pursuant to those conditions, D.H. was placed under
house arrest and required to, among other things, obey all rules and orders given by his
parents, attend school every day unless he had an excused absence, and obey the
rules at school.2 On January 24, 2011, the State filed an amended motion to modify
disposition alleging that D.H. had violated the terms of his probation by: (1) leaving his
home without permission while under house arrest on or about December 15 and 16,
2010, and January 14 and 18, 2011; (2) failing to attend school without an excuse on
December 15, 2010, January 14, 2011, and January 18, 2011; and (3) failing to follow
school rules on December 16, 2010.
2
D.H. was instructed that while under house arrest, he “must remain at home unless attending
school, employment, or church, or be under the supervision of a parent/guardian who is providing
continuous supervision during any outing.”
2
On March 8, 2011, the trial court held a modification hearing at which D.H.
pleaded “not true” to the allegations that he left his home without permission and that he
did not follow school rules. D.H. pleaded “true” to the State’s allegation that he failed to
attend school without an excuse.3
J.G. Wood, D.H.’s juvenile probation officer, testified that he was notified by
D.H.’s mother that D.H. had left home without her permission on December 15 and 16,
2010 and January 14 and 18, 2011. Wood stated that D.H. was under house arrest at
that time. Wood explained that on January 14, D.H.’s mother left D.H. at home while
she took her other child to school. When D.H.’s mother returned, D.H. was not home.
Wood said that on January 18, a Monday, D.H. again left home when his mother took
her other child to school.
Wood testified that D.H. refused to take a test while attending College Station
Middle School on December 16, 2010. Wood agreed that D.H.’s refusal to take the test
was one of the precipitating factors in sending D.H. to “the Academy.” Wood testified
that D.H. also did not attend school on January 14 and 18, 2011. Wood agreed that
those absences were unexcused. Wood explained that D.H.’s GPS monitor showed
that he had been at a local park on December 15, 2010 and that he returned home after
lunch.
D.H.’s mother testified that on December 15, 2010, D.H. was supposed to take
the bus to school and that he did not attend school that day. D.H.’s mother was notified
by the principal that D.H. missed school that day. D.H.’s mother stated that she did not
give D.H. permission to go to the park on that day. D.H.’s mother said that on
3
D.H. was fourteen years old at the time of the hearing.
3
December 16, D.H. was not home when she came home from work; D.H. told her that
he was at basketball practice. D.H.’s mother did not give D.H. permission to go
anywhere, and D.H. was under house arrest at the time.
According to D.H.’s mother, on January 14, 2011, she took her daughter to
school; when she returned, D.H. was not home. D.H.’s mother did not give D.H.
permission to miss school that day. D.H.’s mother testified that on January 18, 2011,
she again took her daughter to school and when she returned, D.H. was gone. D.H.’s
mother did not give him permission to leave the house that day.
D.H.’s mother stated that she found out that a referral regarding whether D.H.
refused to take a test had been written by school personnel. D.H.’s mother stated that
D.H. told her that he did not understand the test because he had not been in class.
D.H. did not tell his mother that he disrupted the class.
D.H. testified that on December 15, 2010, he missed the bus to school, so he
began walking and became sick. According to D.H., he then rode “the Texas A&M bus”
to go home. D.H. stated that he waited for the bus approximately fifteen minutes, and it
took about ten or fifteen minutes to reach his destination of “Pepper Tree,” an apartment
complex “across the street.”4 When asked if he told his mother that he was not feeling
well, D.H. stated that he told his grandmother to tell her.5
D.H. testified that on December 16, 2010, he was at basketball practice when his
mother came home from work and discovered him missing. D.H. admitted that he did
not have his mother’s permission to go to basketball practice that day. D.H. claimed
4
D.H. later clarified that “Pepper Tree” is across the street from his home.
5
D.H.’s grandmother did not testify at the hearing.
4
that on January 14, instead of attending school, he went to his grandmother’s home.
D.H. did not know whether his grandmother notified school officials that he would be
absent. D.H. did not get permission from his mother to go to his grandmother’s house.
D.H. did not attempt to contact his mother that day. D.H. stated that on January 18,
2011, he did not go to school; instead, after his mother left for work, he walked to his
grandmother’s house. D.H. did not get his mother’s permission to go to his
grandmother’s house and to miss school.
D.H. testified that he understood the conditions of probation and that he had
previously been in court on several occasions. D.H. believed that his monitor was not
working properly and disputed that he was at a park for four or five hours as recorded
by the monitor. Later, D.H. claimed that he was confused about the terms of house
arrest and that he did not know what it meant to be under house arrest. However, D.H.
stated that he understood that he was required to get permission from his mother to
leave the house.
The trial court found the allegations that D.H. left home without permission while
under house arrest on December 15, 16, 2010, and January 14 and 18, 2011 to be
“true.”6 The trial court found the allegation that D.H. failed to follow school rules to be
“not true.” After hearing evidence at a disposition hearing, the trial court extended
D.H.’s probation for one year and sent him to Hays County Boot Camp. This appeal
ensued.
II. TRIAL COURT’S JURISDICTION
6
The trial court did not make an oral finding regarding whether D.H. failed to attend school
without an excuse—the violation for which D.H. pleaded “true.”
5
By his first issue, D.H. contends that “the trial court did not have jurisdiction to
hear the State’s [a]mended [m]otion to [m]odify [d]isposition due to improper filing of
motions in the case.” Specifically, D.H. argues that the State filed its motion in “Cause #
174-J-2010” and an amended motion in “Cause # 174-J-2010,” however, the correct
trial court’s cause number was “147-J-2010.” D.H. concludes, that based on this
typographical error, the trial court lacked jurisdiction.
D.H. has not cited any authority, and we find none, supporting a conclusion that a
trial court does not have jurisdiction over a case when the State’s motions to modify
disposition include the incorrect trial court cause number. Moreover, pursuant to
section 51.04 of the family code, the juvenile court has exclusive original jurisdiction
over proceedings involving the “delinquent conduct or conduct indicating a need for
supervision engaged in by a person who was a child . . . at the time the person engaged
in the conduct.” TEX. FAM. CODE ANN. § 51.04(a) (West 2008). The county’s juvenile
board shall designate “one or more district, criminal district, domestic relations, juvenile,
or county courts or county courts at law as the juvenile court . . . .” Id. § 51.04(b). D.H.
does not contend that the 272nd District Court of Brazos County, Texas—the trial court
that held the disposition hearing—was not designated by the Brazos County Juvenile
Board as a juvenile court or that it lacked jurisdiction prior to the State’s motions
containing the incorrect cause number. Therefore, we are not persuaded that the trial
court lost jurisdiction over the case when the State filed its amended motions with the
incorrect cause numbers.7 We overrule D.H.’s first issue.
7
We note that the State’s original petition requesting that the trial court find that D.H. was a child
engaged in delinquent conduct was filed on June 9, 2010 and contained the correct trial court cause
number.
6
III. ORAL PRONOUNCEMENT
By his second issue, D.H. contends that the trial court failed to make an oral
ruling concerning the State’s allegation that D.H. failed to attend school; therefore,
D.H.’s plea of “true” to that allegation “would not support allowing the State to proceed
to the Disposition portion of the hearing.” The State counters that the trial court’s “lack
of an oral pronouncement regarding [D.H.’s] plea of true to his school absences did not
prevent [the trial court] from reaching a disposition on how to modify [D.H.’s] probation”
because the trial court also found that D.H. violated probation by leaving home without
permission. We agree with the State.
We review the trial court’s decision to modify a juvenile disposition under an
abuse of discretion standard. See In re J.G., 112 S.W.3d 256, 259 (Tex. App.—Corpus
Christi 2003, no pet.). Hearings to modify the disposition of a juvenile are divided into
two distinct phases. TEX. FAM. CODE ANN. § 54.05(e) (West Supp. 2011); In re J.G., 112
S.W.3d at 259. In the first phase, the trial court determines whether there is a reason
for modifying a previous disposition; in the second phase, the trial court determines the
necessary modifications that are appropriate. In re J.G., 112 S.W.3d at 259; see TEX.
FAM. CODE ANN. § 54.05(e).
Only one violation of a condition of probation is necessary to support a trial
court’s decision to modify. See In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—
Texarkana 2003, no pet.). Here, D.H. pleaded “true” to the State’s allegation that he
missed school without an excuse. The trial court failed to make the oral pronouncement
of its finding concerning this violation. However, the trial court after hearing evidence in
the first phase of the hearing, also determined that D.H. violated his probation by
7
leaving home without permission while under house arrest. This finding was supported
by competent evidence. Thus, the trial court did not abuse its discretion by entering the
dispositional portion of the hearing due to its failure to orally pronounce its finding
regarding D.H.’s plea of “true” to his school absences. See id. We overrule D.H.’s
second issue.
IV. D.H.’S PLEA OF “TRUE”
By his third issue, D.H. contends that the trial court abused its discretion by
accepting his plea of “true” to the State’s allegations that he failed to attend school on
December 15, 2010, and January 14 and 18, 2011. Specifically, D.H. argues that the
evidence was legally and factually insufficient to establish that he “violated a reasonable
and lawful order of the court because D.H.’s plea of true was unsworn.”
“When juveniles challenge the legal and factual sufficiency of evidence to support
an adjudication of a penal offense requiring proof by the State beyond a reasonable
doubt as the basis for the finding of delinquency, the appellate court applies a criminal
standard of review.” In re E.R.L., 109 S.W.3d 123, 127 (Tex. App.—El Paso 2003, no
pet.). However, a motion to modify the disposition of a previous adjudication requires
proof of a violation of the juvenile court’s order by a preponderance of the evidence. Id.
We will apply the latter standard because the current matter is a modification of
disposition hearing. Id.
The trial court’s finding that D.H. left his house without permission on four
occasions while under house arrest was supported by competent evidence and
sufficient to support the trial court’s conclusion that D.H. violated the terms of probation.
See In re T.R.S., 115 S.W.3d at 320. Therefore, even if the trial court erred in accepting
8
D.H.’s plea of “true” to the State’s allegation that he missed school without an excuse,
the trial court’s ruling was nevertheless justified by its finding with regard to leaving the
house without permission. See id. We overrule D.H.’s third issue.
V. IDENTITY
By his fourth issue, D.H. argues that the evidence is legally and factually
insufficient because “the State failed to identify [him] as the individual on probation in
the cause which was before the trial court.” The State argues that the record
established that D.H. was the individual that the trial court found had violated the terms
of probation.
As stated earlier, a challenge to the sufficiency of the evidence in a proceeding to
modify the disposition of a previous adjudication requires proof of a violation of the
juvenile’s court’s order by a preponderance of the evidence. In re E.R.L., 109 S.W.3d at
127. Even under a reasonable doubt standard of review, the identity of a person who
has committed an offense may be established by either direct or circumstantial
evidence and even by inferences. Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.—
Texarkana 2008, no pet.). Although direct in-court identifications are often preferred, if
the circumstances pose no likelihood of confusion, they are not required. Id. When
there has been no in-court identification by witnesses, “[t]he sufficiency of the evidence
is then determined from the cumulative effect of all the evidence; each fact in isolation
need not establish the guilt of the accused.” Id.
In this case, the trial court referred to D.H. by name and took judicial notice of all
of the proceedings in which D.H. had appeared before it. Wood identified himself as
D.H.’s probation officer and stated that he had explained the conditions of probation to
9
D.H. Wood testified that D.H. had violated the terms of his probation by missing school
without an excuse and leaving his home without permission while under house arrest.
Wood consistently referred to D.H. by name. D.H. identified himself, under oath, and he
acknowledged that he received and understood the conditions required of him while on
probation. Finally, D.H.’s mother testified that D.H. was under house arrest and had
violated the terms of probation by leaving the home without permission. Thus, the
evidence was legally and factually sufficient to support the trial court’s finding that D.H.
was the individual the State accused of violating the terms of probation by leaving home
without permission while under house arrest, missing school without an excuse, and
failing to follow the school rules.8
By a sub-issue to his fourth issue, D.H. contends that he was not provided
reasonable notice of the “exact allegations in the [State’s] Amended Motion to Modify
Disposition . . . .” because he did not receive ten days notice of the State’s allegations.
Here, the trial court asked D.H.’s trial counsel if he had received at least ten days
to prepare for the hearing; trial counsel replied, “I believe so.” The trial court then
stated, “Yes, back on February 25th, you were retained as new counsel. Plus, he’s had
counsel before that, and there has been ten days notice.” D.H. responded that he had
no objection to the trial court’s acting as the juvenile referee in his case. The trial court
asked D.H. if he received the State’s amended motion to modify disposition on February
1, 2011, and D.H. replied, “Yes, ma’am.” D.H. also stated that he understood the
State’s allegations. Therefore, the record shows that D.H. received notice of the State’s
8
In the trial court, D.H. did not allege that he was not the individual accused by the State of
violating probation.
10
allegations more than ten days before the disposition hearing. Thus, D.H.’s contention
is without merit. We overrule D.H.’s fourth issue.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
By his fifth and final issue, D.H. contends that his trial counsel provided
ineffective assistance. Specifically, D.H. argues that his trial counsel elicited damaging
testimony that supported the State’s allegations and without this evidence, the trial court
would have found the State’s allegation “not true.” We disagree.
A juvenile is entitled to effective assistance of counsel in a hearing to modify
disposition. See In re F.L.R., 293 S.W.3d 278, 280 (Tex. App—Waco 2009, no pet.);
see also TEX. FAM. CODE ANN. § 51.10(a)(5) (West 2008). Ineffective assistance of
counsel claims are evaluated under the two-part test articulated by the Supreme Court
in Strickland v. Washington. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The Strickland test requires the
appellant to show that counsel’s performance was deficient, or in other words, that
counsel’s assistance fell below an objective standard of reasonableness. Thompson, 9
S.W.3d at 812; see Strickland, 466 U.S. at 687. The appellant must also show that
there is a reasonable probability that, but for counsel’s errors, the result would have
been different. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 694. In
determining the validity of an appellant’s claim of ineffective assistance of counsel, “any
judicial review must be highly deferential to trial counsel and avoid the deleterious
effects of hindsight.” Thompson, 9 S.W.3d at 813.
11
The burden is on appellant to prove ineffective assistance of counsel by a
preponderance of the evidence. Id. Appellant must overcome the strong presumption
that counsel’s conduct fell within the wide range of reasonable professional assistance
and that his actions could be considered sound trial strategy. See Strickland, 466 U.S.
at 689; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no
pet.). A reviewing court will not second-guess legitimate tactical decisions made by trial
counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (“[U]nless there
is a record sufficient to demonstrate that counsel’s conduct was not the product of a
strategic or tactical decision, a reviewing court should presume that trial counsel's
performance was constitutionally adequate . . . .”). Counsel’s effectiveness is judged by
the totality of the representation, not by isolated acts or omissions. Thompson, 9
S.W.3d at 813; Jaynes, 216 S.W.3d at 851. An allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011); Bone
v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814
(setting out that “in the vast majority of cases, the undeveloped record on direct appeal
will be insufficient for an appellant to satisfy the dual prongs of Strickland”); see Jackson
v. State, 877 S.W.2d 768, 771–72 (Tex. Crim. App. 1994) (en banc) (stating that “we
must presume that counsel is better positioned than the appellate court to judge the
pragmatism of the particular case, and that he made all significant decisions in the
exercise of reasonable professional judgment” and that “[d]ue to the lack of evidence in
the record concerning trial counsel’s reasons” for the alleged ineffectiveness, the court
12
was “unable to conclude that appellant’s trial counsel’s performance was deficient”)
(internal quotations omitted).
D.H. claims that his trial counsel elicited the only damaging evidence regarding
whether he violated the terms of probation. However, during the first phase of the
hearing, D.H.’s mother testified, on direct examination by the State, that on December
15, 2010 D.H. missed school and went to the park. D.H.’s mother stated that she did
not give D.H. permission to go to the park that day and that D.H. was under house
arrest. D.H.’s mother further testified that D.H. was not home when she arrived from
work, that she did not give D.H. permission to leave the house, and that he was under
house arrest at the time. D.H.’s mother also stated that on January 14 and 18 2011,
D.H. left the home without her permission. In addition, Wood testified, on direct
examination by the State, that on December 15 and 16, 2010, and on January 14 and
18, 2011, D.H. was under house arrest and that D.H. left his house without permission.
Thus, evidence supporting the trial court’s finding that D.H. violated his probation
was presented by the State. Moreover, D.H. does not provide citation to the record
wherein he claims his trial counsel elicited “the damaging testimony.” Therefore, we
conclude that D.H. has not met his burden to show that his trial counsel’s performance
was deficient by cross-examining the witnesses regarding their direct testimony.9
Even assuming, without deciding, that D.H.’s trial counsel elicited damaging
testimony during cross-examination that supported the State’s allegations, the trial court
had ample evidence elicited by the State supporting its findings. Thus, the trial court
9
D.H. asserts that his trial counsel allowed him “to plead true to the allegation without the benefit
of knowing what D.H. was pleading true to.” Although D.H. cites to specific pages in the record, there is
nothing supporting D.H.’s bald assertion that his trial counsel was unaware of the State’s allegations.
Furthermore, trial counsel informed the trial court that he had conversed with D.H. prior to the hearing.
13
would not have found the State’s allegation “not true” without the allegedly “damaging
testimony.” We conclude that D.H. has not met his burden to establish that but for his
trial counsel’s alleged error, the outcome of the proceeding would have been different.
See Thompson, 9 S.W.3d at 812, 813; see also Strickland, 466 U.S. at 694. We
overrule D.H.’s fifth and final issue.10
VII. CONCLUSION
Having overruled all of D.H.’s issues, we affirm the trial court’s order.
___________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
7th day of June, 2012.
10
D.H. claims that he “did not have proper counsel representing him before the trial court”
because his trial counsel was “never granted authority to substitute for [his] prior counsel as the Order
accompanying trial counsel’s Motion to Substitute was not signed off on by either the Juvenile referee
Glynis Gore or Presiding Judge Travis Bryan, III.” D.H. does not provide a clear and concise argument
with citation to appropriate authority supporting this claim. See TEX. R. APP. P. 38.1(i). Thus, this claim is
inadequately briefed. See id.
14