in the Matter of I.M.M., a Child ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00303-CV
IN THE MATTER OF I.M.M., A CHILD
On Appeal from the County Court
Hale County, Texas
Trial Court No. C3014-1805, Honorable Bill Coleman, Presiding
February 25, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
I.M.M., a juvenile, appeals the trial court’s disposition order committing him to the
Texas Juvenile Justice Department (TJJD) for an indeterminate period. We will overrule
I.M.M.’s three appellate issues and affirm the disposition order of the trial court.
Background
According to the allegations of the State, thirteen-year-old I.M.M. engaged in
delinquent conduct by committing the offenses of aggravated robbery1 of the Happy Stop
1 TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
convenience store in Plainview, Texas, and evading arrest or detention. 2 The
adjudication and disposition hearings in the case were tried to the bench. At the
adjudication hearing, I.M.M. stipulated to his involvement in the offenses alleged and
plead true to the State’s allegations. The court found I.M.M. had engaged in the
delinquent conduct alleged.
After the adjudication hearing the court convened a contested disposition hearing
which is the focus of this appeal. I.M.M. did not contest placement outside the home.
The question for the disposition hearing was whether the placement should be a “boys’
ranch” or bootcamp, as I.M.M. requested, or commitment to TJJD, as the State sought.
At the hearing’s conclusion the court rendered findings, including those stating I.M.M. was
in need of rehabilitation and protection, and the public required protection. It ordered
I.M.M. committed to TJJD for an indeterminate period not to exceed his nineteenth
birthday.
Analysis
Second and Third Issues
By his second and third issues, I.M.M. argues the trial court abused its discretion
by committing him to TJJD because the evidence was legally or factually insufficient to
prove: (1) reasonable efforts were made to prevent or eliminate the need for his removal
from the home and to make it possible for him to return to his home; and (2) in his home
I.M.M. cannot be provided the quality of care and level of support and supervision he
2 TEX. PENAL CODE ANN. § 38.04(a) (West 2016).
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needs to meet the conditions of probation. See TEX. FAM. CODE ANN. § 54.04(i)(1)(B),(C)
(West Supp. 2018).
A juvenile court has broad discretion to determine the proper disposition of a child
adjudicated as engaging in delinquent conduct. In re A.W.B., 419 S.W.3d 351, 359 (Tex.
App.—Amarillo 2010, no pet.). A trial court abuses its discretion when it acts arbitrarily
or without regard to guiding rules and principles. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). When the abuse of discretion standard is used to
review a court’s disposition order in a juvenile matter, legal and factual insufficiency are
relevant factors. In re C.G., 162 S.W.3d 448, 452 (Tex. App.—Dallas 2005, no pet.).
An appellant attacking the legal sufficiency of an adverse finding on an issue on
which he did not have the burden of proof must demonstrate there is no evidence
supporting the adverse finding. In re J.W.M., 2008 Tex. App. LEXIS 3551, at *8-9 (citing
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)). In determining the legal
sufficiency of the evidence, we consider the evidence in the light most favorable to the
finding and indulge every reasonable inference that supports it. Scott’s Marina at Lake
Grapevine, Ltd. v. Brown, 365 S.W.3d 146, 151 (Tex. App.—Amarillo 2012, pet. denied)
(citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
Factual sufficiency review is subject to only one standard of review regardless of
whether the court of appeals reviews a negative or affirmative finding or whether the
complaining party bore the burden of proof on the issue. M.D. Anderson Hosp. & Tumor
Inst. v. Felter, 837 S.W.2d 245, 247 (Tex. App.—Houston [1st Dist.] 1992, no writ) (citing
M.J. Sheridan & Son v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex. App.—
Houston [1st Dist.] 1987, no writ)). The court of appeals first examines all of the evidence,
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Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986) (per curiam), and, after
considering and weighing all of the evidence, must set aside the verdict only if the
evidence is so weak or the finding is so against the great weight and preponderance of
the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986) (per curiam); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Otis Elevator Co.
v. Joseph, 749 S.W.2d 920, 923 (Tex. App.—Houston [1st Dist.] 1988, no writ). In a
bench trial, the court, as fact finder, is the exclusive judge of the witnesses’ credibility and
the weight given their testimony, and is free to resolve any inconsistencies in the
evidence. Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex. 2011). It is authorized to believe some, all,
or none of a witness’s testimony. Rivas v. Rivas, No. 01-10-00585-CV, 2012 Tex. App.
LEXIS 412, at *5 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem. op.).
Family Code section 54.04(i) requires that a court placing a child on probation
outside the child’s home or committing the child to TJJD shall include in its order its
findings that:
(A) it is in the child’s best interest to be placed outside the home;
(B) 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
(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.
TEX. FAM. CODE ANN. § 54.04(i)(1).
The trial court’s disposition order contains the required findings under section
54.04(i)(1) but as noted I.M.M. contends the evidence supporting the findings under
subsections (B) and (C) is insufficient. After review of the record, we find the contention
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disregards the evidence the court heard and the posture of the parties at the disposition
hearing.
Disposition hearing evidence showed I.M.M. was age thirteen. During the spring
of 2018 I.M.M. lived in Fort Worth with his parents and was enrolled in the seventh grade.
His mother, V.M., testified she withdrew him from school in late April and planned to begin
homeschooling. Instead he was sent to Plainview to visit his grandmother until Mothers’
Day. After arriving in Plainview, I.M.M. did not enroll in school.
Evidence showed I.M.M.’s seventeen-year-old brother, J.M., and his eleven-year-
old cousin, A.G., also were staying with grandmother. J.M. arrived in Plainview some
three or four months before I.M.M. and did not attend school. While in the care of
grandmother, J.M. and A.G were allegedly involved in the robbery of another Plainview
convenience store. At points during the disposition hearing, J.M. was referred to as the
“ring leader” of the Happy Stop robbery.
There was hearing testimony that while in grandmother’s care, I.M.M. smoked
marijuana. J.M. became aware of this fact and used the threat of reporting it to
grandmother or the boys’ parents as leverage to coerce I.M.M. into robbing the Happy
Stop.
The Happy Stop robbery occurred less than two weeks after I.M.M. arrived in
Plainview. Evidence showed in the course of committing the offense I.M.M. wore a black
ski mask and brandished a loaded .380 caliber handgun at the store attendant and her
relative while demanding money. I.M.M. took money and cigars from the store and
attempted to flee responding police officers. He was later apprehended and officers
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recovered the money and cigars. The handgun was located on the floor of the store.
After he was taken into custody, I.M.M. was transported to the Lubbock County Juvenile
Detention Center where he remained under detention orders until completion of the
disposition hearing. Detention center officers from the Lubbock facility testified I.M.M.
had caused no problems since placed in their care.
I.M.M. testified on his own behalf and read a prepared, conciliatory statement to
the trial court. I.M.M. clearly expressed regret and sorrow for what he had done. He told
the court he did not want to spend the remainder of his teenage years “locked up.”
The probation officer assigned I.M.M.’s case testified the juvenile probation
department recommended the court commit I.M.M. to TJJD because of the seriousness
of I.M.M.’s offense. The officer agreed that at the time I.M.M. did not have the quality of
care and support in the home that would allow him to be placed on probation and returned
to the home. We find the officer’s conclusion supported by the undisputed evidence
showing I.M.M.’s parents allowed their son to withdraw from the seventh grade and leave
Fort Worth for the home of a grandmother who did not require school attendance and did
not or could not provide proper supervision. We further find the conclusion supported by
the evidence indicating the parents had found it necessary to place at least two of their
children outside their home because of undescribed hardships. I.M.M.’s older brother
J.M. had lived with grandmother for several months before I.M.M.’s arrival in Plainview.
While in grandmother’s care I.M.M. smoked marijuana and, like his brother, did not attend
school; while at grandmother’s I.M.M. obtained a handgun, a ski mask and black clothing,
and formed and carried out a plan to place the lives of others in jeopardy for the sake of
stealing what was not his.
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V.M.’s parental statement, which was attached to the probation officer’s social
history and in evidence, states that the family “has always lived with other family members
due to hardships,” and that during 2017 they “had to stay at a motel.” I.M.M.’s parents
moved to Plainview from Fort Worth when I.M.M. was taken into custody after the robbery,
and at the time of the hearing were staying in the home of the boys’ maternal aunt.3 The
probation officer further testified to her opinion a family placement was not possible and
I.M.M.’s parents had not provided proper supervision for their son. On cross-examination,
the probation officer agreed she had not performed an evaluation of I.M.M.’s parents’
home in Fort Worth and could not tell the court whether that would be a proper placement
for I.M.M. That admission seems to us of little import, however, because it was
undisputed the parents were no longer at home in Fort Worth; later, V.M., the mother,
seemed to indicate they would move wherever I.M.M. was placed.
Although at the hearing V.M. wanted to take her son “home” and testified she had
investigated community programs, I.M.M. did not dispute that he could not return home,
whether to that of grandmother or his parents. The issue tried was where outside the
home he should be placed. The court reasonably could have believed that alternatives
to removal of I.M.M. from the home of his parents or grandmother were unavailable. In
closing argument, in fact, counsel for I.M.M. made clear that I.M.M. could not be returned
home. Counsel’s argument was that I.M.M. should be placed in a “boys’ ranch” or boot
camp, placements that also are outside the child’s home. We conclude the court’s
findings under § 54.04(i)(1)(B),(C) are supported by sufficient evidence and the trial court
3The financial information in the social history shows that both parents were
employed, the mother in Plainview and the father in nearby Lubbock, and that they were
paying $200 rent per month.
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did not abuse its discretion in making those findings. See In re A.W.B., 419 S.W.3d 351(Tex. App.—Amarillo 2010, no pet.) (finding evidence under section 54.04(i) for
commitment to former Texas Youth Commission sufficient); In re M.L.B., 184 S.W.3d 784(Tex. App.—Amarillo 2006, no pet.) (same). Accordingly, we overrule I.M.M.’s second
and third appellate issues contending otherwise.4
First Issue
By his first issue, I.M.M. argues the trial court erroneously considered his
involvement in a prior deferred disposition case from Tarrant County in reaching its
determination to commit him to TJJD. We find this issue was not first presented to the
trial court and an adverse ruling obtained. TEX. R. APP. P. 33.1(a). Accordingly, the
question is not preserved for our review. I.M.M.’s first issue is overruled.
Conclusion
Having overruled I.M.M.’s three issues on appeal, we affirm the disposition order
of the trial court.
James T. Campbell
Justice
4 We note also that the disposition order, in its decretal paragraph, states that
I.M.M.’s commitment to TJJD is made “in accordance with . . . Sections 54.04(d)(2) and
54.04013 of the Texas Family Code . . . .” The order contains the finding required under
section 54.04013 for a special commitment to TJJD, stating that I.M.M. “has behavioral
health or other special needs that cannot be met with the resources available in the
community.” TEX. FAM. CODE ANN. § 54.04013 (West Supp. 2018). The finding is not
challenged in this court.
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