By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
No discretion abuse in giving 3 year
determinate sentence instead of probation for child indecency (99-2-10).
On March 31, 1999, the Dallas Court of Appeals held that the juvenile court
did not abuse its discretion in giving a 3 year determinate sentence, instead of
probation, to the 17 year old juvenile it had adjudicated for child indecency.
The court was not required to accept the testimony of witnesses that the
juvenile could be rehabilitated in a sex offender treatment program as part of a
probation disposition.
99-2-10. In the Matter of B.J.D., UNPUBLISHED, No. 05-98-01048-CV, 1999 WL
174069, 1999 Tex.App.Lexis ___ (Tex.App.--Dallas 3/31/99)[Texas Juvenile Law
(4th Ed. 1996)].
Facts: Appellant pleaded true in juvenile court to the offense of indecency with
a child. On July 7, 1992, the trial court adjudicated appellant a delinquent and
imposed a three-year determinate sentence in the Texas Youth Commission (TYC),
with a possible transfer at age eighteen to the Texas Department of Criminal
Justice (TDCJ). In a single point of error, appellant complains the trial court
abused its discretion by committing appellant to TYC rather than granting
probation.
The Parsons, appellant's neighbors, employed appellant as a babysitter for their
young daughter, H.P. Appellant began babysitting for the Parsons when H.P. was
four and continued until she was six. On multiple occasions while babysitting,
appellant engaged in sexual contact with H.P. H.P. eventually made an outcry
statement to her father who contacted the police. When the police confronted
appellant, he initially denied the conduct, then admitted to touching H.P.
outside her underwear.
The State filed a petition alleging appellant had engaged in delinquent conduct
by engaging in sexual contact with H.P. The State later amended its petition to
include four additional counts pertaining to two other children. Appellant
denied engaging in sexual contact with any children other than H.P. The petition
was subsequently approved by the grand jury, allowing the State to seek a
determinate sentence. Thereafter, the State non-suited all the offenses except
indecency with a child as to H.P., and appellant pleaded true to the petition.
The trial court held an evidentiary hearing before assessing punishment. The
State sought to have appellant committed to TYC because before the punishment
hearing appellant had already turned seventeen and the juvenile court would lose
jurisdiction approximately ten months after the hearing. At the hearing, the
trial judge received conflicting punishment recommendations from the witnesses.
Sonia Ponce, a juvenile probation officer, testified the juvenile probation
department investigated three alternatives: intensive supervision probation with
placement outside the home with either appellant's biological father, who lives
out-of-state, or with his grandparents, who live in Denton County; or placement
at TYC in the sexual offender program. The department ultimately recommended
appellant be placed on intensive supervision until his eighteenth birthday and
be placed in the custody of his grandparents. The department also recommended
appellant receive individual therapy and participate in a group program for sex
offenders. The department recommended against appellant remaining in his
mother's home because young children live in the household. The department
further recommended against placement with his biological father because his
father has little involvement in appellant's life. Ponce testified she did not
believe appellant would benefit from being placed at TYC. She also testified
that, notwithstanding the department's recommendation appellant receive
intensive supervision until he was eighteen, the period of intensive supervision
generally lasts for only three months. Therefore, under the department's usual
procedure, its intensive supervision of appellant would likely terminate well
before appellant turned eighteen.
Allison Krauth, a staff psychologist for the department, testified she agreed
with the department's recommendation. She further testified, however, the sex
offender program recommended by the department typically lasts twelve months
and, while not mandatory, after-care is important after the initial twelve
months. She could not be certain appellant would complete the program within the
ten months remaining to his eighteenth birthday and appellant would not be
required to participate in any after-care program. Krauth stated appellant, as
part of his treatment, needs to address certain issues, including "taking
responsibility, victim empathy and legal expectations regarding sexual
behavior." Krauth stated her recommendation was influenced from her
understanding that appellant admitted responsibility from the time he was first
contacted by the police. She was nevertheless concerned about the abbreviated
time the juvenile court would have jurisdiction over appellant, but she
"hope [d] that if his eighteenth birthday does come and he is not completed
with his treatment, that he and his family will continue until it's
successful."
The victim testified she was seven years old and had known appellant since he
began babysitting with her when she was four. The victim described appellant's
conduct as follows: "Well, we sat down to watch a movie on the couch and I
sat by him and he started to put his hand down my pants ... and feeling my
privates." She testified appellant touched her in this fashion more than
once, and perhaps as many as ten to twenty times, or more. She stated appellant
always touched her inside her clothes and he had put his hand inside her. She
also described how appellant forced her to touch him: "I just had my hand
right here and he took it and put it down his pants." She also stated
appellant touched her bottom. She described the incidents as "nasty"
and "yucky" and said "it sort of hurt."
The victim's mother testified she firmly believed appellant should be committed
to TYC for one to two years. She further testified to the trauma H.P. and her
family suffered as a result of appellant's offense. Before her outcry, H.P. was
outgoing, enjoyed school, and was popular in class. Since then, H.P. did not
want to go to school and would cling closely to her mother. Frequently, H.P.
become sick at school with stomach aches, and she repeatedly expressed fear of
going to jail. Her teacher described H.P. as "an emotional wreck."
Barbara Ann Rila, a psychologist counseling H.P., also testified. Due to the age
difference between the victim and appellant, she characterized appellant's
conduct as sexual molestating rather than an act of simple curiosity. She
described H.P. as emotionally distraught and prematurely "sexualized,"
often engaging in precocious and sexualized behaviors which are unacceptable.
She was concerned appellant would commit further offenses if he was not provided
with "a multi-level, multi-dimensional intervention package" which she
believed should last at least a full year.
Appellant's mother testified she was willing to have appellant do whatever the
court wanted and believed appellant could be rehabilitated. She requested
appellant be placed on probation at home, or, alternatively, with her parents.
Appellant's grandmother testified she and her husband were willing for appellant
to live with them. Her husband was willing to give appellant a job assisting in
setting up greeting card displays.
Appellant testified he had turned seventeen two months before the hearing. He
stated the incidents with H.P. occurred when he was fifteen, more than eight
months before the date alleged in the State's petition. When first asked to
explain why he touched H.P., he testified, "I'm not sure. I'm kind of
confused about it." When asked again, he stated, "I think I was--I
think I'm kind of confused. I think I was just curious...." Appellant said
he was willing to complete counseling even if it extended beyond his eighteenth
birthday.
During cross-examination, appellant maintained the written statement he gave the
police was "the truth and the whole truth." Appellant testified he did
not touch H.P. inside her underwear or penetrate her vagina. He admitted to
having H.P. touch his penis on one occasion and acknowledged he had failed to
include this incident in his written statement. He also testified he could not
remember if he touched H.P. on her bottom. He further testified he touched her
vagina three times, but acknowledged that in his written statement he claimed he
"only touched her vagina on one occasion." Appellant then changed his
testimony and insisted he touched her vagina only once, but touched her
elsewhere twice.
Held: Affirmed.
Opinion Text: Trial courts in juvenile proceedings have broad powers and
discretion in determining suitable disposition of children who have engaged in
delinquent conduct. T.R.S. v. State, 663 S.W.2d 920, 923 (Tex.App.-Fort Worth
1984, no writ); see J.R.W. v. State, 879 S.W.2d 254, 257 (Tex.App.-Dallas 1994,
no writ). Absent an abuse of discretion, the reviewing court will not disturb
the juvenile court's determination. See In re A.S., 954 S.W.2d 855, 861 (Tex.App.-El
Paso 1997, no writ). The test for abuse of discretion is whether the court acted
arbitrarily or unreasonably-that is, without reference to guiding rules and
principles. See In re S.B.C., 952 S.W.2d 15, 17 (Tex.App.--San Antonio 1997, no
writ). In making this determination we must view the evidence in the light most
favorable to the trial court's actions and indulge in every legal presumption in
favor of the judgment. Id. at 17-18.
The guiding principles for committing a child to TYC are provided in the Family
Code. The court is permitted to commit a child to TYC if: (1) it is in the
child's best interests to be placed outside the home, (2) reasonable efforts
have been taken to prevent or eliminate the need for the child's removal from
home and to make it possible for the child to return to the child's home, and
(3) the child cannot receive the quality of care and level of support and
supervision the child needs in the child's own home to meet the conditions of
probation. Tex. Fam.Code Ann. § 54.04(i) (Vernon 1996); In re T.A.F., 977
S.W.2d 386, 387-88 (Tex.App.-San Antonio 1998, no pet.). When the trial court's
disposition reflects the principles specified in the Family Code and is
supported by the evidence, the court does not abuse its discretion in ordering
the offender committed to TYC. See In re T.A.F., 977 S.W.2d at 388; see also In
re S.B.C., 952 S.W.2d at 18.
In the present case, appellant does not challenge the sufficiency of the
evidence to commit appellant to TYC. Rather, in his brief, appellant complains
only that the trial court abused its discretion in rejecting the juvenile
probation department's recommendation of probation. Appellant, however, cites no
cases which have held that a juvenile court abused its discretion in a similar
situation, and we are not persuaded the trial judge abused her discretion in
this instance.
The trial court was in the best position to observe the demeanor of the
witnesses and evaluate their testimony. Clearly, the trial court was concerned
appellant would not complete counseling, which all witnesses agreed appellant
needs, before he turns eighteen and the juvenile court loses jurisdiction. The
trial court was not required to accept the department's "hope" or
appellant's promise he would complete his treatment. Furthermore, the
department's recommendation assumed appellant had acknowledged responsibility
for his conduct. Appellant's testimony, however, was at best equivocal in this
regard. The trial court apparently determined that only by committing appellant
to TYC could it ensure appellant would receive the full course of treatment and
supervision appellant needs. On the basis of the entire record, we cannot
conclude the trial court abused its discretion in refusing to grant probation.
See In re R.W., 694 S.W.2d 578, 580 (Tex.App.-Corpus Christi 1985, no writ) (
holding juvenile court did not abuse its discretion in rejecting probation
officer's recommendation of probation).
Nor do we find any abuse of discretion in the trial court sentencing appellant
to three years. Appellant complains the trial court failed to articulate its
reasons for choosing three years. Appellant, however, cites no authority, nor
are we aware of any, holding a juvenile court abuses its discretion by failing
to articulate its rationale for choosing a specific term within a permissible
sentencing range. The general rule is that as long as a sentence is within the
statutory limits for the offense charged, it will not be disturbed on appeal.
Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984); see Fielding v.
State, 719 S.W.2d 361, 366 (Tex.App.-Dallas 1986, pet. ref'd). Appellant does
not dispute that the maximum sentence for the offense in this case is twenty
years. See Tex. Penal Code Ann. § 21.11(a)(1), (c) (Vernon 1994); Tex. Fam.Code
Ann. § 54.04(d)(3)(B) (Vernon Supp.1999). The trial court sentenced appellant
well below the maximum sentence. Appellant has not demonstrated any basis for
departing from the general rule; therefore, we decline to disturb the sentence
on appeal.