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 In the Matter of B.J.D., UNPUBLISHED, No. 05-98-01048-CV, 1999 WL 174069, 1999 Tex.App.Lexis ___ (Tex.App.--Dallas 3/31/99)[Texas Juvenile Law (4th Ed. 1996)].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.
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.
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries