in the Matter of J.H.C., a Juvenile

Criminal Case Template COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE MATTER OF J.H.C., Appellant.

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No. 08-02-00244-CV Appeal from the 65th District Court of El Paso County, Texas (TC# 9900073)

MEMORANDUM OPINION

J.H.C. appeals a judgment committing him to the Texas Youth Commission. He argues that the trial court's denial of a continuance was an abuse of discretion, resulted in an improper disposition, and deprived him of due process. We affirm.

Factual and Procedural Background

J.H.C. signed a written waiver of jury trial, stipulation of evidence, and admission to the offense of evading detention. The trial court therefore adjudicated him delinquent.

At the disposition hearing, the only witness was Linda Yvonne Castro, J.H.C.'s probation officer. Her predisposition report was admitted into evidence, along with the reports of a psychiatrist and a psychologist. The psychiatrist and the psychologist recommended that J.H.C. be placed in a highly structured, secure facility.

Castro testified that J.H.C. had three prior adjudications of delinquency for committing family violence against his mother. J.H.C.'s mother was the only family member he had in El Paso. Castro testified that she believed his mother contributed to J.H.C.'s delinquency because she had difficulty controlling him, and much of his anger was directed at her. J.H.C.'s mother had a history of alcohol abuse, but did not abuse alcohol at the time of the hearing.

J.H.C. began using drugs when he was twelve years old. His drug usage included inhalants, marijuana, cocaine, rohypnol, heroin, and alcohol. J.H.C. was also a gang member.

In addition to his substance abuse problem, J.H.C. had been diagnosed with numerous psychological and medical disorders. Although various medications had been prescribed for these disorders, J.H.C. had a history of refusing to take the medication.

J.H.C. was under the care of a neurologist, Dr. Fierro-Stevens. Castro provided J.H.C.'s counsel with documentation from Dr. Fierro-Stevens, indicating that J.H.C. had an abnormal EEG without seizures, for which J.H.C. was taking Depakote. Another doctor, Dr. Rathbun, had previously diagnosed J.H.C. with a "severe problem with subclinical epilepsy attacks." J.H.C. was receiving Social Security benefits because of the epilepsy. After the State objected to the cross-examination of Castro about the epilepsy, J.H.C.'s counsel explained that the epilepsy was relevant because it could lead to abnormal emotional responses and might have contributed to J.H.C.'s aggressive behavior. The State argued that if the epilepsy was relevant, J.H.C.'s counsel should have subpoenaed Dr. Fierro-Stevens to testify on the matter. J.H.C.'s counsel responded, "Very well. Then, I would ask for a continuance to go ahead and subpoena Doctor Fierro-Stevens for this case." The court denied the continuance.

Castro detailed the efforts that had been made to keep J.H.C. in his home and out of TYC. When he was first adjudicated delinquent, J.H.C. was put on electronic monitoring probation and sent home. After he again committed family violence against his mother, he was unsuccessfully placed in a foster home. After that, he was placed in the Campbell Griffin Center and then the Rio Grande Residential Treatment Center. He was "assaultive" toward three staff members at Campbell Griffin, and at Rio Grande he continued to have "aggressive incidents" and absconded from the facility. J.H.C. was eligible for the Challenge Boot Camp, but Castro believed that he would not be successful in that program because of its aggressive approach to treatment and J.H.C.'s history of aggressive behavior. Castro stated that there was no other facility in El Paso that would offer J.H.C. the services he needs in a locked-down facility. Castro indicated that TYC could provide treatment for all of J.H.C.'s medical, mental, and substance abuse problems. Accordingly, she recommended that J.H.C. be committed to TYC.

Abuse of Discretion by Denying Continuance

In his first issue, J.H.C. argues that the trial court abused its discretion by denying his motion for a continuance to procure Dr. Fierro-Stevens's testimony. We will evaluate this argument under the applicable Texas Rules of Civil Procedure and civil case law. See Tex. Fam. Code Ann. § 51.17 (Vernon 2002) (stating that civil rules govern juvenile delinquency proceedings, except for discovery and evidentiary rules and rules that conflict with the Juvenile Justice Code); In re D.B., 594 S.W.2d 207, 212 (Tex. Civ. App.--Corpus Christi 1980, no writ) (applying civil case law in reviewing the denial of a juvenile's continuance motion).

Continuances should be granted only "for sufficient cause supported by affidavit." Tex. R. Civ. P. 251. When a party seeks a continuance for want of testimony, the motion must be supported by an affidavit showing that the testimony is material and that the party used due diligence to procure the testimony. Tex. R. Civ. P. 252.

A court's decision to deny a continuance motion will not be reversed unless the record shows a clear abuse of discretion. Walton v. Canon, Short, & Gaston, 23 S.W.3d 143, 150 (Tex. App.--El Paso 2000, no pet.). If the motion does not comply with Rules 251 and 252, we presume the court did not abuse its discretion in denying the motion. Grace v. Duke, 54 S.W.3d 338, 343 (Tex. App.--Austin 2001, pet. denied); Rosedale Partners Ltd. v. Resolution Trust Corp., 882 S.W.2d 622, 630 (Tex. App.--Corpus Christi 1994, writ denied).

J.H.C.'s oral motion for continuance did not comply with Rules 251 and 252. Therefore, the court did not abuse its discretion in denying the motion.

Abuse of Discretion by Rendering Judgment Without Sufficient Information

In his second issue, J.H.C. argues that the trial court abused its discretion by rendering a judgment without considering all the evidence that was essential to a proper disposition. The trial court has broad discretion to determine a suitable disposition for a juvenile who has been adjudicated delinquent. In re A.S., 954 S.W.2d 855, 861 (Tex. App.--El Paso 1997, no pet.). To determine whether the court abused its discretion, we must answer two questions. First, did the trial court have sufficient information upon which to exercise its discretion? Second, did the trial court err in the application of its discretion? In re M.A.C., 999 S.W.2d 442, 446 (Tex. App.--El Paso 1999, no pet.).

J.H.C. argues that the court did not have sufficient information upon which to exercise its discretion because, as a result of the denial of the continuance, the court did not receive testimony from Dr. Fierro-Stevens. He asserts that the doctor's testimony could have informed the court whether his epilepsy contributed to his aggressive behavior and whether it would be better to subject him to medical treatment instead of incarceration.

It is not clear what caused J.H.C.'s behavior. It could have been caused by his environment, his drug abuse, a mental problem, epilepsy, or a combination of these factors and others. But regardless of what caused the conduct, the trial court could have easily found from the evidence at the disposition hearing that J.H.C. had engaged in repeated aggressive and self-destructive behavior. The court could have also found that many attempts had been made to rehabilitate J.H.C. and to subject him to medical treatment, yet those attempts had all failed. We therefore conclude that the trial court had sufficient information upon which to exercise its discretion. ⁽¹⁾

Deprivation of Due Process by Denying Continuance

In his third issue, J.H.C. argues that the denial of the continuance deprived him of due process. In evaluating this argument, we will apply criminal law. See In re R.S.C., 940 S.W.2d 750, 751-52 (Tex. App.--El Paso 1997, no writ) (stating that delinquency proceedings are quasi-criminal in nature and that juveniles are entitled to many of the constitutional protections that are afforded to adult criminal defendants).

J.H.C. relies on In re R.D.B., 20 S.W.3d 255 (Tex. App.--Texarkana 2000, no pet.). In that case, the court held that trial counsel was ineffective in failing to request the assistance of a court-appointed mental health professional. Id. at 261. J.H.C. argues that if counsel must request the assistance of a mental health expert to fulfill the professional responsibility to a client, then the trial court has a duty to grant a continuance to procure the professional's assistance. Based on the record before us, and for the reasons explained below, we do not agree with the contention that the court had a duty to grant the untimely motion for continuance.

When the circumstances surrounding the denial of an oral motion for continuance amount to a denial of the rudiments of due process, the denial is subject to appellate review. Petrick v. State, 832 S.W.2d 767, 770 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). To determine whether the denial of a continuance to procure a defense witness amounts to a deprivation of due process, we examine the facts preceding the motion for continuance. Id. We consider the following factors: (1) the diligence of the defense in interviewing the witness and procuring the testimony; (2) the probability of procuring the testimony within a reasonable time; (3) the specificity with which the defense can describe what the expected testimony will be; (4) the degree to which the testimony is expected to be favorable to the accused; and (5) the unique or cumulative nature of the testimony. Id. at 771.

Here the predisposition report, which mentioned Dr. Fierro-Stevens's treatment of J.H.C., was prepared on May 22, 2002, and the disposition hearing was held on May 24, 2002. Appellate counsel argues that it would not have been practical to interview Dr. Fierro-Stevens and prepare for the hearing in this two-day period. That may be true, but the record indicates that trial counsel did not make any effort to procure his testimony before asking for the continuance in the middle of the hearing. Appellate counsel concedes that Dr. Fierro-Stevens could have been subpoenaed before the hearing. Thus, the record does not reflect that trial counsel exercised diligence in procuring Dr. Fierro-Stevens's testimony.

The record offers very little information about the next three factors. There is no information regarding how long it would have taken to procure Dr. Fierro-Stevens's testimony. The doctor presumably would have been able to shed additional light on J.H.C.'s mental condition, but it is not at all clear that his testimony would have been favorable to J.H.C. As for the fifth factor, it appears that Dr. Fierro-Stevens's testimony would have been somewhat cumulative because evidence that J.H.C. had been treated for epilepsy, seizures, and aggressive behavior had already been admitted into evidence.

After applying the Petrick factors to the record in this case, we conclude the trial court did not abuse its discretion in denying the continuance, and J.H.C. was not deprived of due process.

Conclusion

For the reasons stated herein, we overrule all J.H.C.'s issues and affirm the judgment of commitment.

SUSAN LARSEN, Justice

April 24, 2003

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

1. A form attached to the order of commitment sets forth the reasonable efforts that were made to prevent the need to remove J.H.C. from his home. The form has blanks for listing the counseling or psychological services provided to J.H.C. In these blanks, the court wrote that there were "[e]valuations" by several doctors, including Drs. Rathbun and Fierro-Stevens. J.H.C. argues that no such "evaluations" were offered for the court to consider and that the disposition hearing was therefore unreasonable. This contention is without merit. It is undisputed that J.H.C. was treated by both doctors. The form does not state that any evaluations were offered into evidence.