By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Finding of prior efforts to justify commitment
to TYC satisfied by treatment efforts connected with conditional pre-adjuidcation
release from detention (00-1-01)
On December 2, 1999, the Austin Court of Appeals upheld a finding that
efforts had been made to prevent the need for removal of respondent from his
home when the efforts took the form of treatment measures taken incident to
conditional pre-adjudication release from detention.
00-1-01. In the Matter of C.C., ___ S.W.3d ___, No. 03-98-00651-CV, 1999 WL
1078696, 1999 Tex.App.Lexis ___ (Tex.App.--Austin 12/2/99)[Texas Juvenile Law
179 (4th Ed. 1996)].
Facts: After appellant C.C., a juvenile, waived his right to a jury trial, the
district court sitting as the Juvenile Court of Travis County found that he
engaged in delinquent conduct by possessing more than one gram but less than
four grams of cocaine. See Tex. Fam.Code Ann. § 54.03 (West 1996); Tex. Health
& Safety Code Ann. § 481.115(c) (West Supp.1999); Tex. Penal Code Ann. §
12.34 (West 1994). The juvenile court ordered appellant transferred to the
custody of the Texas Youth Commission ("TYC") for an indeterminate
period. In four issues, appellant argues that (1) the juvenile court abused her
discretion by sending appellant to TYC for a single, nonviolent offense and by
not following the Progressive Sanctions Guidelines in the Family Code; (2) the
record does not support the juvenile court's finding that reasonable efforts had
been made to prevent the removal of appellant from his home; (3) appellant was
not properly admonished before he gave a judicial confession; and (4)
appellant's constitutional rights to due process were violated because (a)
before he confessed, he received no notice that he could be sent to TYC, (b) he
received improper notice that he could go to TYC for breaking the terms of his
release, (c) he did not receive reasonable notice of his adjudication hearing,
and (d) he was punished for the wrongs of his siblings.
The details of appellant's offense are not in dispute; rather, appellant
complains about the procedures employed by the juvenile court after he was taken
into custody. Our factual discussion, therefore, will center on what happened to
appellant after he committed the crime. On May 5, 1998, the State filed a
petition alleging that appellant, then seventeen years of age, had violated the
Health & Safety Code by possessing cocaine. See Tex. Health & Safety
Code Ann. § 481.115(c). On May 18, appellant signed a "Conditions of
Release," which listed several conditions that appellant must follow or
face a return to custody at the Gardner-Betts Detention Center. These conditions
included: obeying all laws, meeting with his assigned probation officer, not
using controlled substances, and abiding by the rules of Southwest Key. [FN2]
The State's petition remained pending and appellant filed a motion to suppress
the tangible evidence against him.
On June 16, appellant's assigned probation officer, Kay Hester, filed a court
summary detailing appellant's situation. According to Hester, appellant had
experienced problems for the two years preceding his drug charge. Appellant had
abused drugs and alcohol since he was eleven; he dropped out of school when he
was in eighth grade; he had not held a stable job since dropping out; and he had
been a member of a gang. Appellant's family life was chaotic--his father was in
jail for assaulting his mother, who is disabled and does not work, and two of
appellant's siblings have been involved with juvenile court. At about the time
of her summary, Hester requested that appellant be taken into custody because he
had violated terms of the May 18 "Conditions of Release" by being
unaccountable to Southwest Key and by using cocaine. But Hester noted that
appellant did not meet ideal placement criteria for TYC, and if committed he
would be classified as a general offender and serve a minimum of nine months. On
June 18, after a hearing, the juvenile court ordered that appellant be detained
for violating the May 18 "Conditions of Release."
On June 25, appellant was released from detention and sent to Recovery Ranch, a
drug-treatment program. Appellant signed a second "Conditions of
Release," in which he acknowledged, inter alia, that he must obey the staff
at Recovery Ranch, obey all laws, avoid controlled substances, and participate
fully in the Recovery Ranch program.
On July 23, appellant appeared before the juvenile court for a hearing on his
motion to suppress. However, when the juvenile court called the case, appellant
announced he would go forward with a judicial confession. The court questioned
appellant about his knowledge of the proceedings in general and the following
exchange occurred:
THE COURT: And I also understand that you are asking today for me to accept what
is called a judicial confession; that you would admit that you committed this
offense in return for me allowing you the opportunity to go through whatever
treatment program is needed, and perhaps other matters that I might order you to
do, in lieu of a criminal record.
APPELLANT: Yes, ma'am.
THE COURT: But understanding that if you fail anything I tell you to do, you've
already confessed, and you waive your right to a motion to suppress; it's gone;
it's over with, and you will be convicted of this felony.
APPELLANT: Yes, ma'am.
THE COURT: And you will have a criminal record for life.
APPELLANT: Yes, ma'am.
THE COURT: So you don't have to do this.
APPELLANT: I know.
Appellant then admitted possessing cocaine as charged in the State's petition.
During the hearing, Hester told the court that appellant's siblings were on
probation. The court did not place appellant on probation, observing that
appellant was already receiving all the treatment possible, the juvenile system
was already tracking his family through the other siblings, and the court could
send appellant to TYC if he did not follow her orders. The court did not
adjudicate appellant, but ordered him to complete the program at Recovery Ranch
and to get a high-school-equivalency degree (GED). She stated that she wanted to
reassess appellant in four months to determine his progress with his
drug-treatment program. The court also warned appellant:
THE COURT: If he [sic] messes up, you've already confessed to this crime; I will
adjudicate you on that date and you'll be out of here.
APPELLANT: Yes, ma'am.
THE COURT: Agreeable?
APPELLANT: Yes, ma'am.
In October, appellant was released from Recovery Ranch and signed a third
"Conditions of Release" in which he promised to meet with his
probation officer on a weekly basis, avoid controlled substances, avoid negative
peers, abide by the Recovery Ranch outpatient program, comply with the rules of
Southwest Key, and become employed. Soon after being released, a capias was
issued for appellant because appellant violated terms of his release;
specifically, he missed two visits with his probation officer, he was
unaccountable to Southwest Key on two occasions, and he missed two sessions of
his outpatient program.
On October 27, the juvenile court conducted a hearing at which she accepted
appellant's prior confession and adjudicated him delinquent. The court heard
testimony from Hester, who testified that appellant violated various terms of
the third "Conditions of Release," including missing three outpatient
sessions at Recovery Ranch, being unaccountable to Southwest Key in excess of
six times, associating with negative peers, and admitting that if tested on that
day he would be positive for cocaine and marihuana. Hester recommended that
appellant be committed to TYC. The court concurred and committed appellant to
TYC for an indeterminate period.
Held: Affirmed.
Opinion Text: Commitment to TYC
In his first issue, appellant contends that the juvenile court abused her
discretion by committing him to TYC for a single, nonviolent offense and by not
following the Progressive Sanctions Guidelines in the Family Code. See Family
Code §§ 59.001-.015 (West 1996 & Supp.1999). For the offense of possession
of a controlled substance, the Progressive Sanctions Guidelines recommend
probation for six to twelve months. See Family Code §§ 59.003(a)(3), .006
(West Supp.1999). Instead of placing appellant on probation, the juvenile court
committed appellant to TYC. To the extent that appellant's issue complains about
the juvenile court's failure to follow the Progressive Sanctions Guidelines, it
is overruled because the Family Code prohibits a child from complaining on
appeal about the court's failure to make a sanction level assignment. See Family
Code § 59.014 (West 1996); In re A.S., 954 S.W.2d 855, 861 (Tex.App.--El Paso
1997, no pet.) (rejecting complaint that court abused its discretion by sending
juvenile to TYC rather than following the Progressive Sanctions Guidelines on
same statutory grounds). We also note that these guidelines are not mandatory:
"Nothing in this chapter prohibits the imposition of appropriate sanctions
that are different from those provided at any sanction level." Family Code
§ 59.003(e) (West Supp.1999).
Appellant's argument that the juvenile court abused her discretion by committing
him to TYC for a single, nonviolent offense combines with appellant's second
issue that there is legally and factually insufficient evidence to support the
juvenile court's finding that all reasonable efforts were made to eliminate the
need to remove appellant from his home. In sum, appellant contends the evidence
is insufficient to support the juvenile court's disposition order. Appellant
specifically complains that he should have been put on probation before being
sent to TYC. Because appellant did not file a motion for new trial, he has
waived his factual sufficiency arguments. See Tex.R. Civ. P. 324(b)(2); In re
M.R., 858 S.W.2d 365, 366 (Tex.1993); In re J.K.R., 986 S.W.2d 278, 282 (Tex.App.--Eastland
1998, pet. denied). We turn now to appellant's legal sufficiency arguments.
"The juvenile court possesses broad discretion to determine a suitable
disposition of a child adjudicated delinquent." In re J.R., 907 S.W.2d 107,
110 (Tex.App.--Austin 1995, no writ). Absent an abuse of discretion, a juvenile
court's findings should not be disturbed. See In re M.S., 940 S.W.2d 789, 791 (Tex.App.--Austin
1997, no writ). A trial court abuses its discretion when it acts in an
unreasonable and arbitrary manner, or without reference to any guiding rules or
principles. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991);
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). This
Court may not reverse for abuse of discretion merely because we disagree with
the decision of the trial court. See Buller, 806 S.W.2d at 226; Downer, 701
S.W.2d at 242.
The juvenile court is permitted to commit a child to TYC if:
(1) it is in the child's best interest to be placed outside the child's home;
(2) reasonable efforts were made to prevent or eliminate the need for the
child's removal from the home; and (3) 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.
Family Code § 54.04(i) (West 1996). The juvenile court determined that these
criteria were met.
This Court applies the criminal standard of review to juvenile cases: "We
view the evidence in the light most favorable to the finding and determine
whether any rational trier of fact could have found the elements of the
requirement proven beyond a reasonable doubt." See M.S., 940 S.W.2d at
791-92 (citing P.L.W. v. State, 851 S.W.2d 383, 387 (Tex.App.--San Antonio 1983,
no writ)).
We conclude the record supports the disposition order. Reasonable efforts were
taken to prevent the need to remove appellant from his home. Appellant was
conditionally released from custody at least three times and violated at least
two of those orders. Appellant was placed on Southwest Key twice and both times
was unable to comply with the program. Appellant was sent to Recovery Ranch, the
only drug-treatment center available to him, for over three months to recover
from his drug addiction but was admittedly using drugs only weeks after his
release. The juvenile court used all reasonable resources available to avoid
committing appellant to TYC; unfortunately, appellant did not respond to these
efforts. We hold that there is legally sufficient evidence to support the trial
court's disposition. [FN3]
Appellant urges that a juvenile court does not have the discretion to send a
juvenile to TYC without first placing him on probation. We find no authority for
such proposition and appellant directs us to none. Appellant's sole authority is
In re L.G., 728 S.W.2d 939 (Tex.App.--Austin 1987, writ ref'd n.r.e.). In L.G.,
we vacated a juvenile's commitment to TYC. See L.G., 782 S.W.2d at 941. Like
appellant, L.G. had been found to have engaged in delinquent conduct by
possessing cocaine but had no prior referrals. See id. at 941, 945. But unlike
appellant, L.G. had a supportive family, a stable academic school record, and a
positive recommendation for probation. See id. at 945. A proper commitment to
TYC occurs when, as here, there has been a negative recommendation for
probation. See id. We hold therefore that the juvenile court did not abuse her
discretion in committing appellant to TYC.
We overrule appellant's first two issues.
Admonishments
In issue three, appellant complains that he was not properly admonished under
section 54.03(b) of the Family Code before giving his judicial confession; more
specifically, appellant asserts that he was not warned before his confession
that confinement at TYC was a possible consequence. See Family Code § 54.03(b)
(West 1996). Appellant, however, has not preserved any such error for appeal
because he failed to object at trial. Appellant's adjudication is governed by a
1997 amendment to section 54.03. "In order to preserve for appellate ...
review the failure of the court to provide the child the explanation required by
Subsection (b), the attorney for the child must comply with Rule 52(a), Texas
Rules of Appellate Procedure...." Family Code § 54.03(i) (West Supp.1999).
Rule 33.1 (formerly Rule 52(a)) provides that in order to properly preserve a
complaint for appeal, the record must show that the complaint was made to the
juvenile court. See Tex.R.App. P. 33.1. Because appellant did not object at the
time of trial to the failure to admonish, any error is waived. Appellant relies
on the supreme court's holding in In re C.O.S., 988 S.W.2d 760 (Tex.1999), that
failure to admonish, if not specifically waived, could be raised for the first
time on appeal. See id. at 767. However, the supreme court explicitly recognized
that the offense at issue in C.O.S. occurred before the 1997 amendment and thus
the amendment did not govern the case. See id. at 761. The court also noted that
it was "not making any determination about error preservation in cases
arising under the statute since its amendment in 1997." Id. at 767. We hold
that the 1997 amendment is controlling in this case and since appellant did not
object at trial to the alleged improper admonishments, he waived any right to
raise that issue on appeal.
We overrule appellant's third issue.
Due Process
In issue four, appellant asserts that his due process rights were violated in
various ways. However, appellant has also failed to preserve this error for
appeal. Appellant made no objection to the procedures until appeal. "It is
a general rule that appellate courts will not consider any error which counsel
for accused could have called, but did not call, to the attention of the trial
court at the time when such error could have been avoided or corrected by the
trial court." Rogers v. State, 640 S.W.2d 248, 264 (Tex.Crim.App.1982).
This analysis "is applicable to alleged due process violations." Id.
at 265. "[S]ince appellant failed to voice any due process objection to the
procedures used by the trial court, we hold that he waived his complaint."
Id; see also In re M.A.S., 679 S.W.2d 548 (Tex.App.--San Antonio 1984, no writ).
This Court likewise holds. Appellant's fourth issue is overruled.
We recognize that implicit throughout appellant's arguments is a complaint about
the informal probation procedure used by the juvenile court. Appellant argues
that had he been given official probation, he would have received additional
procedural protections before the juvenile court could revoke his probation and
commit him to TYC. See Family Code § 54.05(d), (f) (West 1996). In appellant's
case, however, we have held that probation was never required; therefore, any
informal second chances that the juvenile court may have given appellant were
within her discretion and do not have to conform to section 54.05 of the Family
Code. See Family Code § 54.05 (West 1996).
A juvenile court's informal probation procedures may raise concerns in some
cases. Cf. M.A.S., 679 S.W.2d at 551. At the July 23 hearing, the juvenile court
heard sufficient evidence to find appellant committed the offense, but the court
did not render an order to that effect until October 27. Appellant was
adjudicated and disposition was rendered all on the same day. The result of the
procedure followed by the juvenile court in this case was to allow appellant
additional chances to postpone his commitment to TYC. Appellant was given notice
and represented by counsel at all hearings before the juvenile court.
Appellant's responses to the court's questions indicated a willingness on his
part to accept the court's conditions rather than face immediate confinement to
TYC following his confession. The juvenile court's action in postponing
adjudication and disposition in order to determine appellant's willingness and
ability to conform to socially acceptable norms of behavior did not result in a
denial of any constitutional right of appellant. See id.
CONCLUSION
Having overruled appellant's four issues, we affirm the juvenile court's
judgment.
FN2. Southwest Key is an organization that, among other things, monitors
juveniles.
FN3. We note, as we did in M.S., that some courts of appeals apply the civil
standard of review in juvenile cases. See In re M.S., 940 S.W.2d 789, 792 n. 2 (Tex.App.--Austin
1997, no writ); In re A.S., 954 S.W.2d 855, 860-61 (Tex.App.--El Paso 1997, no
pet.). Were we to apply the civil standard, our holding would be the same.