in the Matter of J.M., III, a Child

NUMBER 13-02-140-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

IN THE MATTER OF J.M., III

On appeal from the 92nd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Dorsey ⁽¹⁾

Opinion by Chief Justice Valdez

Appellant, J.M., III, appeals from the juvenile court's modified order of disposition committing him to the Texas Youth Commission. Through four issues appellant argues: (1) the evidence presented was legally insufficient to support the trial court's findings that he violated the terms of his probation; (2) the evidence was also factually insufficient; (3) the trial court erred in allowing a witness to testify; and (4) appellant received ineffective assistance of counsel. Because we conclude the evidence presented was legally insufficient to support the trial court's findings, we need not address appellant's remaining contentions. See Tex. R. App. P. 47.1. We reverse and render judgment in appellant's favor.

I. FACTS AND PROCEDURAL HISTORY

The facts relevant to this appeal are described in In re J.M., III, No. 13-02-00139-CV, 2003 Tex. App. LEXIS __ (Corpus Christi ______, 2003, no pet. h.). As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. ANALYSIS

In his first issue, appellant challenges the legal sufficiency of the evidence presented. He attacks the juvenile court's determination that he failed to remain in the custody of Bokenkamp Children's Treatment Center and wilfully failed to pay restitution in violation of conditions one and thirteen of his probation.

A. Standard of Review

We review a trial court's modification of a juvenile disposition for abuse of discretion. In re J.G., 112 S.W.3d 256, 259 (Tex. App-Corpus Christi 2003, no pet.); In re H.G., 993 S.W.2d 211, 213 (Tex. App.-San Antonio 1999, no pet.); In re J.L., 664 S.W.2d 119, 120 (Tex. App.-Corpus Christi 1983, no writ). In this type of review, we conduct a two-pronged analysis: (1) did the trial court have sufficient evidence on which to exercise its discretion; and (2) did the trial court err in applying its discretion. In re L.R., 67 S.W.3d 332, 338 (Tex. App.-El Paso 2001, no pet.).

In considering the first prong, we turn to the standards employed in determining the sufficiency of the evidence. Id. When a juvenile challenges the legal sufficiency of the evidence, we consider only the evidence and inferences that tend to support the challenged finding, and disregard any and all evidence and inferences to the contrary. In re H.G., 993 S.W.2d at 213. If more than a scintilla of evidence exists to support the finding, the challenge fails. In re L.R., 67 S.W.3d at 338. In evaluating the second prong, that is, whether the trial court erred in its application of discretion, we consider whether the trial court acted arbitrarily or unreasonably, or without reference to guiding rules or principles. Id. B. Modification of the Disposition

A juvenile court may modify its prior disposition and order that the juvenile be committed to the Texas Youth Commission if the court finds by a preponderance of the evidence "that the child violated a reasonable and lawful order of the court." Tex. Fam. Code Ann. § 54.05(f) (Vernon 2002).

1. Condition Number One

Appellant first attacks the order modifying the disposition by claiming there is no evidence showing he violated condition one. Condition number one required appellant to "remain and stay" at Bokenkamp.

The State provided no evidence that appellant voluntarily violated condition number one. Appellant's probation officer, Alma Nely Ozuna, testified appellant did not run away from the facility. Rather, according to Ozuna's testimony, law enforcement authorities transported appellant from Bokenkamp to another location after appellant was unsuccessfully terminated from the program.

The State contends that because appellant was unsuccessfully terminated from the program, he violated subpart (b) of condition one, which states appellant will be returned to the custody of the Juvenile Probation Department upon unsuccessful termination from the program. The State's argument fails because the only condition imposed by number one is that appellant "remain and stay" at Bokenkamp. Subpart (b) is not worded in such a manner as to make successful completion a condition of probation. Instead, the subpart merely explains the result of unsuccessful termination from the program.

We note that condition number twenty-one required appellant to comply with Bokenkamp's rules and regulations. Had the State wanted to pursue modification of the disposition based on appellant's unsuccessful termination from the program, condition number twenty-one would have been the more appropriate vehicle to accomplish that goal. However, the State did not allege or prove, and the trial court did not find, appellant violated condition number twenty-one.

We conclude the State provided no evidence supporting the trial court's finding that appellant violated condition number one. Thus, the trial court did not have sufficient evidence on which to exercise its discretion. See In re L.R., 67 S.W.3d at 338.

2. Condition Number Thirteen

Appellant also contends the evidence was insufficient to support the trial court's finding that he wilfully failed to make restitution payments in violation of condition number thirteen. Appellant does not dispute the evidence showed he missed payments as required by the condition. However, he contends the evidence also affirmatively established his inability to pay and the State did not prove his failure to pay was intentional.

We have previously addressed the issue of revocation of juvenile probation for failure to pay court-ordered restitution in In re M.H., 662 S.W.2d 764, 768 (Tex. App.-Corpus Christi 1983, no writ). In that case, we held the inability of a juvenile to pay restitution was an affirmative defense to the revocation of probation and the burden of proof was on the juvenile. Id. In reaching this conclusion, we relied on the code of criminal procedure regarding the revocation of probation in adult proceedings for failure to pay restitution. Id. (citing Tex. Code Crim. Proc. Ann. art. 42.12 § 8(c) (Vernon Supp. 1982)).

Since our decision in In re M.H., the court of criminal appeals has held that under the code of criminal procedure, even though the inability to pay is an affirmative defense, the State still has the burden of proving the failure to pay restitution was intentional. Stanfield v. State, 718 S.W.2d 734, 737-38 (Tex. Crim. App. 1986). Failure to raise the defense merely allows the State to meet its burden without difficulty. Id. at 738. This is so because nonpayment by a person with the ability to pay gives rise to a strong inference that failure to pay was intentional. Id. We use the analysis in Stanfield as guidance in this case.

The State had the initial burden of proving appellant failed to make the required restitution payments. Through the testimony of Ozuna, the State met its burden.

However, appellant raised his inability to pay through the cross-examination of Ozuna. She testified appellant was not old enough to work. She also stated that he was either at Bokenkamp or the Juvenile Detention Center during the time the missed payments were due. Neither Bokenkamp nor the Juvenile Detention Center had a program giving appellant the opportunity to earn credit toward the payment of restitution. Ozuna also believed appellant had no access to funds and received only inconsistent support from his father. His mother was ill and unemployed.

The State did not provide any evidence contradicting Ozuna's testimony about appellant's inability to pay or showing that his failure to pay was intentional. The trial court did not have legally sufficient evidence on which to exercise its discretion. See In re L.R., 67 S.W.3d at 338.

III. CONCLUSION

The evidence supporting the findings that appellant violated conditions one and thirteen of his probation was legally insufficient. Therefore, the trial court abused its discretion in modifying the disposition. We sustain appellant's first issue and reverse the trial court's July 25, 2001 order. We render judgment denying the State's motion to modify the disposition.   

ROGELIO VALDEZ

Chief Justice

Retired Justice Dorsey not participating.

Opinion delivered and filed

this 23rd day of October, 2003.

1. Retired Justice J. Bonner Dorsey , who had been assigned to this Court by the Supreme Court of Texas pursuant to section 74.003 of the government code, and whose assignment expired on August 31, 2003, did not participate in this decision. See TEX. GOV'T CODE ANN. § 74.003 (Vernon 1998).