By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Prior efforts on probation support finding of
need for TYC commitment (00-1-03)
On December 1, 1999, the San Antonio Court of Appeals held that prior
probation efforts, involving regular, intensive and placement probation,
supported the juvenile court’s order of commitment to the TYC.
00-1-03. In the Matter of J.R., UNPUBLISHED, No. 04-99-00147-CV, 1999 WL
1095919, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 12/1/99)[Texas Juvenile
Law 179 (4th Edition 1996)].
Facts: The court found that J.R., a sixteen year old male, engaged in delinquent
conduct by committing the offenses of assault of a public servant, terroristic
threat, and retaliation. Following a disposition hearing, the court committed
J.R. to the Texas Youth Commission. In his first issue, J.R. argues that the
court abused its discretion by committing him to the Texas Youth Commission. In
his second issue, J.R. asserts that the evidence was legally and factually
insufficient to support the judgment.
Held: Affirmed.
Opinion Text: In the first issue, J.R. contends that the court abused its
discretion by committing him to the Texas Youth Commission. A juvenile judge
possesses broad discretion in determining a suitable disposition of a child who
has been adjudicated to have engaged in delinquent conduct. See In re J.S., 993
S.W.2d 370, 372 (Tex.App.-San Antonio 1999, no pet.). We will not disturb the
findings of a juvenile judge unless the juvenile judge abused its discretion.
Id. In order to commit a juvenile to the Texas Youth Commission, the juvenile
court must include in its order that (1) it is in the child's best interests 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
cannot be provided the quality of care and level of support and supervision the
child needs to meet the conditions of probation. Tex. Fam.Code Ann. § 54.04(i)
(Vernon 1996).
At the disposition hearing, J.R.'s probation officer testified that J.R. had
been placed on probation for one year for the offense of unlawfully carrying a
weapon. After completing probation, J.R. committed the offense of possession of
weapons and was placed on six months intensive supervision probation. While on
intensive probation, J.R. ran away from his home. Several months later, J.R.
turned himself into the probation officer and J.R. was placed in the Southton
facility for nine months. Although J.R. completed the program at Southton, he
tested positive for drugs after a home visit. After being released from Southton,
J.R. was supposed to live with his father, but decided to live with his
twenty-eight year old sister.
According to the probation officer, J.R. had completed his probation
approximately four months before his arrest for assaulting a public servant,
terroristic threat and retaliation. The probation officer testified that J.R.
was residing with his sister at the time of the assault and threat. J.R.'s
brother, Tracey Diaz, testified that he was also living with his sister. Diaz, a
parolee and admitted member of the Mexican Mafia, also took part in the assault
and threat for which J.R. was found to have engaged in delinquent conduct.
Neither of J.R.'s parents attended the adjudication or the disposition hearing.
The probation officer also testified that J.R. quit school in the eighth grade.
Based on the foregoing evidence, we cannot say that the court abused its
discretion in finding that it was in J.R.'s best interests to be placed outside
his home because he could not be provided the quality of care, support and
supervision necessary to meet the conditions of probation. Thus, the court did
not abuse its discretion by committing J.R. to the Texas Youth Commission. We
overrule the first issue.
In his second issue, J.R. asserts that the evidence was legally and factually
insufficient to support the judgment. In reviewing a claim of legal
insufficiency, we review the evidence in the light most favorable to the verdict
to determine whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 318-19 (1979); In the Matter of A.C., 949 S.W.2d 388, 389 (Tex.App.-San
Antonio 1997, no writ). In the first amended original petition, the State
alleged that J.R. knowingly and intentionally caused bodily injury to San
Antonio Police Officer Richard Hodge, a public servant, by striking the officer
with his foot. See Tex. Pen.Code Ann. § 22.01(a)(1), (b)(1) (Vernon 1994 &
Vernon Supp.1999). The State also alleged that J.R. intentionally and knowingly
threatened to harm Officer Hodge in retaliation for Officer Hodge's service as a
public servant. See Tex. Pen.Code Ann. § 36.06(a)(1) (Vernon Supp.1999). In the
third count, the State alleged that J.R. threatened to commit an offense
involving violence to Officer Hodge with intent to place Officer Hodge in fear
of imminent bodily injury which constitutes the offense of terroristic threat.
Tex. Pen.Code Ann. § 22.07(a)(2) (Vernon 1994).
Officer Hodge testified that he was dispatched to a domestic dispute. After
arriving at the address, Officer Hodge, wearing his police uniform, observed J.R.
and his brother Tracey Diaz walking away from the house. Officer Hodge testified
that he observed blood on the shirts and hands of J.R. and Diaz. After observing
the blood, Officer Hodge attempted to detain J.R. and Diaz. Officer Hodge
handcuffed J.R. and attempted to handcuff Diaz, but Diaz punched him in the
head. Officer Hodge and Diaz fell to the ground in a struggle and Officer Hodge
eventually got on top of Diaz. While Officer Hodge was attempting to restrain
Diaz, J.R. kicked Officer Hodge in the side of his back. According to Officer
Hodge, his ribs were sore the next day and his back was bruised. During the
struggle, Officer Hodge managed to push the emergency button on his radio and
Officer Jesse Allen arrived to the scene. After Officer Allen arrived, the
officers were able to put Diaz in handcuffs. The officers placed J.R. in the
patrol car but then removed him shortly thereafter because he started kicking
the windows and doors of the patrol car.
Because of J.R.'s violent behavior, the officers called for a transport wagon.
While the officers waited for the transport wagon, J.R. and Diaz claimed that
they belonged to the Mexican Mafia and that they were going to "f---
up" the officers. Officer Hodge testified that he believed that J.R. and
Diaz were making a threat. Officer Allen testified that J.R. bragged about being
connected to the Mexican Mafia and that the officers needed to look over their
shoulders. According to Officer Allen, J.R. also claimed that he had
"smoked" some people before. Officer Allen testified that he believed
that J.R. was threatening serious bodily injury to him and Officer Hodge. Based
on Officer Hodge's testimony that J.R. assaulted him by kicking him in his side
and the testimony that J.R. made threats of serious bodily injury, we find that
a rational trier of fact could have found the essential elements of the offenses
beyond a reasonable doubt. Thus, the evidence was legally sufficient to support
the judgment.
In a factual insufficiency challenge, we consider all of the evidence and will
set aside the judgment only if the evidence is "so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust." In
the Matter of A.C., 949 S.W.2d at 389-90 (quoting Clewis v. State, 922 S.W.2d
126, 129 (Tex.Crim.App.1996)). All the evidence in the record must be reviewed.
Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997) (citing Clewis, 922
S.W.2d at 129). Evidence which tends to prove the issue is compared with
evidence which tends to disprove the issue. Santellan v. State, 939 S.W.2d 155,
164 (Tex.Crim.App.1997). We give appropriate deference to the jury's decision
and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135.
In reviewing the evidence tending to show that J.R. did not commit the offenses,
J.R. testified that he did not kick Officer Hodge or make any threats to the
officers. Diaz also testified that J.R. did not kick Officer Hodge and that only
he made the threats to the officers. The jury, however, is the sole judge of the
credibility of the witnesses and the weight to be given their testimony. See
Santellan, 939 S.W.2d at 164. J.R. also asserts that Officer Hodge admitted that
J.R. did not assault him. On cross-examination, defense counsel asked Officer
Hodge if it were possible that Diaz inflicted the injury to his back. Officer
Hodge answered that he did not think so, but he was not positive. On direct,
however, Officer Hodge testified that he saw J.R. kicking him. J.R. also points
to the fact that, on cross-examination, Officer Hodge could not recall whether
J.R. or Diaz stated that the officers were "going down." Officers
Hodge and Allen, however, both testified that J.R. made threats toward them.
Having reviewed all of the evidence, we cannot say that the verdict was so
against the great weight and preponderance of the evidence as to be manifestly
unjust. We find that factually sufficient evidence exists to support the
judgment. We overrule the second issue.
Accordingly, we affirm the judgment.