in the Matter of A.K.A ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00666-CV
IN THE MATTER OF A.K.A.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2012JUV01430
The Honorable Carmen Kelsey, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 11, 2014
AFFIRMED
Appellant A.K.A. appeals the trial court’s order modifying his disposition and committing
him to the custody of the Texas Juvenile Justice Department. Concluding that the trial court did
not abuse its discretion by committing appellant to the TJJD, we affirm.
BACKGROUND
In 2012, the State alleged that appellant, when he was fifteen-years old, had engaged in
delinquent conduct—specifically, one count of aggravated sexual assault and one count of
indecency with a child. Appellant pled true to the allegation of indecency with a child, and the
State abandoned the other allegation. After considering the stipulated evidence, the trial court
found that appellant had engaged in delinquent conduct.
04-13-00666-CV
At the disposition hearing, 1 the trial court placed him on probation outside the home and
committed him to the custody of the Bexar County Juvenile Probation Department until his
eighteenth birthday. Condition 23 of appellant’s probation required him to cooperate fully and
obey all the rules of the residential placement facility where he was placed and to remain at such
facility until he completed a treatment program for sex offenders. Condition 27 of his probation
required him to comply with section 54.0405 of the Texas Family Code by attending and
completing sex offender treatment and counseling, submitting a DNA sample, submitting to
polygraph exams, and having his parents actively participate in his treatment sessions. See TEX.
FAM. CODE ANN. § 54.0405 (West 2014). Appellant was placed at the Judge Ricardo H. Garcia
Post-Adjudication Facility to participate in its rehabilitation program. Appellant was discharged
from the facility after seven months because he did not successfully complete the program.
In August 2013, the State moved for the trial court to modify appellant’s disposition,
alleging that appellant had violated the terms of his probation and requesting the trial court to
commit him to the TJJD. Appellant pled true to two of the State’s allegations. The trial court held
a hearing, and after considering the stipulated evidence and arguments of counsel, it found that
appellant had violated the terms of his probation and modified his disposition to commit him to
the TJJD.
DISCUSSION
On appeal, appellant argues that the trial court abused its discretion when it committed him
to the TJJD because the record indicates that a continuation of probation would have been a more
appropriate disposition.
1
“‘Disposition’ is a euphemism for sentencing and is used to honor the non-criminal character” of juvenile justice
proceedings. In re K.T., 107 S.W.3d 65, 67 (Tex. App.—San Antonio 2003, no pet.) (en banc) (quoting In re C.S., 804
A.2d 307, 309 n.2 (D.C. App. 2002)) (internal alterations omitted).
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The trial court may modify its original disposition in a juvenile justice proceeding and
commit the juvenile to the TJJD if: (1) the juvenile was originally found to have committed a
felony; and (2) after a hearing to modify the disposition, the court finds that the juvenile violated
a reasonable and lawful court order. TEX. FAM. CODE ANN. 54.05(f) (West 2014); In re J.P., 136
S.W.3d 629, 633 (Tex. 2004). The trial court originally found that appellant had engaged in
delinquent conduct by committing indecency with a child—a felony offense. See TEX. PENAL
CODE ANN. § 21.11(d) (West 2011). Appellant’s subsequent plea of true to violations of the
conditions of his probation and his stipulation to the evidence supporting his plea are analogous to
a judicial confession that justified a finding that appellant had violated a reasonable and lawful
court order. See In re M.A.L., 995 S.W.2d 322, 324 (Tex. App.—Waco 1998, no pet.); In re N.I.N.,
No. 04-11-00464-CV, 2011 WL 6739579, at *2 (Tex. App.—San Antonio Dec. 21, 2011, no pet.)
(mem. op.). Thus, the trial court was authorized to modify appellant’s disposition and commit him
to the TJJD’s custody. See In re J.P., 136 S.W.3d at 633.
The trial court’s decision to modify a juvenile’s disposition to commit them to the TJJD is
discretionary, and subject to review for abuse of that discretion. In re J.P., 136 S.W.3d at 633. The
trial court has broad discretion in determining a suitable disposition for a juvenile who has been
adjudicated to have engaged in delinquent conduct, particularly in a proceeding to modify a
disposition. In re E.D., 127 S.W.3d 860, 862–63 (Tex. App.—Austin 2004, no pet.). The trial court
abuses its discretion if it acts arbitrarily or unreasonably, or without reference to guiding rules and
principles. Id. at 863. Although most of the trial court’s decisions under the Family Code are
guided by consideration of the juvenile’s best interest, the best interests of juveniles who engage
in serious and repeated delinquent conduct are superseded to the extent they conflict with public
safety. In re J.P., 136 S.W.3d at 633; see TEX. FAM. CODE ANN. § 51.01 (West 2014).
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The record reflects that, although appellant successfully participated in many of the
detention facility’s rehabilitation programs, he failed to successfully complete his sex-offender
therapy, and he was discharged from the program and the facility for that failure. Appellant failed
three polygraph tests relating to his sex-offender-therapy sessions. After he failed his second
polygraph test, his probation officer met with him and told him that he needed to be truthful during
his sessions. The officer informed appellant that he would seek to revoke appellant’s probation if
he continued to lie because lying would prevent him from successfully completing sex-offender
therapy. Appellant then failed a third polygraph test and did not admit that he was lying until after
he was confronted with the results, at which point he admitted that he had been repeatedly lying
throughout therapy. For instance, appellant admitted that he lied about not having intercourse with
his victim. Appellant would also lie to his therapist about what questions he was asked in the
polygraph tests and what answers he gave the polygraph examiner. For instance, after the third
polygraph test, he told his therapist that he had lied to the polygraph examiner by denying that he
continued to have sexual fantasies about his victim. However, when the therapist reviewed the
polygraph results, they showed that appellant had actually admitted to the examiner that he
continued to have sexual fantasies about the victim. Due to appellant’s constant lies, his therapist
concluded that appellant “was a counseling failure.” His caseworker recommended that appellant
be committed to the TJJD because it has “an excellent sex offender treatment program.” His
therapist and probation officer also recommended committing appellant to the TJJD.
At the modification hearing, the trial court found that appellant’s commitment to the TJJD
was appropriate because appellant’s delinquent conduct was of a serious nature, appellant had
violated the terms of his probation, and the appellant had failed his treatment program.
On appeal, appellant argues that the trial court should have placed him back on probation
because he had a generally successful stay at the detention facility. He further argues that he should
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have been sent to the Pegasus School, a residential treatment facility offering a program
specifically aimed at rehabilitating adolescent sex offenders. He argues that this disposition would
be far less restrictive than commitment to the TJJD and would appear to promote the same result.
He points out that the facility where he had been placed did not have a special unit designated for
sex offenders. Appellant argues that because the trial court declined to place him in a less
restrictive environment that would meet his needs and protect the public equally as well as
commitment to the TJJD, the trial court abused its discretion.
“The Texas Family Code permits a trial court to decline third and fourth chances to a
juvenile who has abused a second chance.” In re J.R.C., 236 S.W.3d 870, 875 (Tex. App.—
Texarkana 2007, no pet.) (citing In re J.P., 136 S.W.3d at 633). The trial court did not need to
“exhaust all possible alternatives” before committing appellant to the TJJD on a motion to modify
appellant’s disposition. See id. (citing In re M.A., 198 S.W.3d 388, 391 (Tex. App.—Texarkana
2006, no pet.)); In re N.I.N., 2011 WL 6739579, at *3. Although appellant suggested commitment
to the Pegasus School as an alternative to commitment to the TJJD, there is nothing shown by this
record that would require the trial court commit appellant to the Pegasus School rather than the
TJJD. See In re J.R.C., 236 S.W.3d at 875.
On the contrary, appellant’s failure to successfully participate in and complete sex-offender
therapy was not merely a trivial infraction of the terms of his probation. Cf. In re J.P., 136 S.W.3d
at 632 (suggesting that a trial court may abuse its discretion if it removes a juvenile from his home
and commits him to the TJJD for a trivial infraction of his probation). The requirement that
appellant complete sex-offender therapy was imposed in order to correct the actions and behaviors
that led to appellant’s adjudication for delinquent conduct. His failure to successfully complete
that therapy implicates public-safety concerns and supports the trial court’s determination that
public safety would be better served if appellant continued his rehabilitation while in the TJJD.
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Thus, the record justifies the trial court’s exercise of its discretion to commit appellant to the TJJD,
and appellant has failed to show that the trial court acted without reference to the relevant guiding
rules or principles in choosing to exercise that discretion.
CONCLUSION
We affirm the trial court’s order modifying appellant’s disposition.
Luz Elena D. Chapa, Justice
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