By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Witnesses may recommend disposition; jury may
be instructed as to post-determinate sentence procedures at TYC (99-3-21)
On July 19, 1999, the Dallas Court of Appeals held that witnesses at a
dispositional hearing may recommend a disposition to the jury. The court also
held that the juvenile court may instruct the jury as to the post-commitment
procedures at TYC following a determinate sentence.
99-3-21. In the Matter of C.E.M., UNPUBLISHED, No. 05-98-01866-CV, 1999 WL
504551, 1999 Tex.App.Lexis ___ (Tex.App.-- Dallas 7/19/99)[Texas Juvenile Law
(4th Ed. 1996)].
Facts: A grand jury approved a petition alleging that C.E.M. engaged in
delinquent conduct by committing a first degree felony, specifically by
intentionally or knowingly causing the sexual organ of G.M., a child, to contact
C.E.M.'s mouth. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B)
(Vernon Supp.1999). A jury found C.E.M. committed the alleged delinquent
conduct. Following a disposition hearing, the jury found C.E.M. to be in need of
rehabilitation, assessed a determinate sentence of fifteen years, and committed
him to the Texas Youth Commission (TYC) with a possible transfer to the
Institutional Division of the Texas Department of Criminal Justice. In his first
and second issues, C.E.M. contends the trial court erred in denying his motion
for directed verdict, and the evidence is factually insufficient to support his
delinquency adjudication. In his third and fourth issues, C.E.M. contends the
trial court erred in allowing witnesses to recommend a disposition and in
placing information in the charge regarding parole and any possible transfer to
the Institutional Division of the Texas Department of Criminal Justice. We
overrule C.E.M.'s issues and affirm the judgment.
Held: Affirmed.
Opinion Text: SUFFICIENCY OF THE EVIDENCE [discussion omitted].
WITNESS TESTIMONY AT DISPOSITION
In his third issue, C.E.M. contends the trial court erred in allowing the
witnesses to recommend a disposition. Specifically, C.E.M. argues that four
witnesses recommended his commitment to TYC, and that this unanimous opinion
testimony influenced the jury's verdict.
A. Applicable Law and Standard of Review
The family code provides that if a petition alleges that a juvenile engaged in
delinquent conduct that violates the aggravated sexual assault statute, section
22.021 of the penal code, he is "in jeopardy of a determinate
sentence" and may elect to have a jury determine the sentence. Tex.
Fam.Code Ann. § 53.045(a)(4) (Vernon Supp.1999), § 54.04(a), (d)(3) (Vernon
1996 & Supp.1999). A juvenile is subject to three possible dispositions:
probation in the home, placement outside the home, or commitment to TYC. See id.
§§ 54.04(d)(1) & (3), 59.003(a)(7), 59.010(a) (Vernon Supp.1999).
Section 54.04(b) of the family code provides, in part:
At the disposition hearing, the juvenile court may consider written reports from
probation officers, professional court employees, or professional consultants in
addition to the testimony of witnesses.
Id. § 54.04(b) (Vernon 1996). The admission or exclusion of evidence at a
disposition hearing is within the trial court's discretion. See In the Matter of
T.D.H., 971 S.W.2d 606, 610 (Tex.App.-Dallas 1998, no writ). A trial court
abuses its discretion when a review of the entire record shows the trial court
acted in an unreasonable and arbitrary manner, or when it acts without reference
to any guiding principles. See id.
B. Discussion
C.E.M. directs our attention to the disposition hearing testimony of the
following four witnesses:
1. Stanley Thomas, Dallas County probation officer, testified he gathered
background information on C.E.M. and his family. He testified there were
disposition options and recommended that C.E.M. be committed to TYC because of
poor home behavior and the nature of the offense and because TYC provided sex
offender counseling and treatment.
2. Gene Gardner, Dallas County Juvenile Department supervisor and Thomas's
supervisor, in addition to considering the same assessment facts as did Thomas,
recommended commitment to TYC because it provided substance abuse counseling,
education, and a controlled, structured environment. Gardner testified C.E.M.'s
needs could not be met by other placement facilities.
3. Dr. John Pita, Dallas County Juvenile Department psychologist, testified he
reviewed C.E.M.'s psychological assessment and recommended TYC because it
offered long-term, structured, secure care and provided intense sex offender
treatment not available at other treatment facilities.
4. Howard Gordon, administrator for Pegasus School, testified Pegasus provided
residential sex offender treatment. He testified C.E.M. ran away from Pegasus
and recommended sex offender treatment at a restricted facility like TYC or
"some other locked facility."
Each witness recommended commitment to TYC, one of three disposition options,
and stated the facts on which he based his recommendation. No witness
recommended commitment for a specific number of years. Furthermore, C.E.M.'s
counsel conceded in final argument that "the only viable option is a
commitment to the [TYC]." We conclude that section 54.04(b) allows for
testimony of witnesses at a disposition hearing in language broad enough to
encompass the testimony of the witnesses outlined above. Therefore, we further
conclude the trial court did not abuse its discretion in allowing the above
named witnesses to recommend a disposition, and we overrule C.E.M.'s third
issue.
DISPOSITION CHARGE
In his fourth issue, C.E.M. contends the trial court erred by placing
information in the disposition charge regarding parole and any possible transfer
to the Institutional Division of the Texas Department of Criminal Justice.
Specifically, C.E.M. argues that the "Administrative Release,"
"Release Hearing," "Release Hearing Determination," and
"Release from the Texas Youth Commission" sections of the disposition
charge informed the jury of when he might be released back into the community,
and how a child is transferred from TYC to the Institutional Division of the
Texas Department of Criminal Justice.
A. Applicable Law and Standard of Review
If a juvenile is found to have engaged in delinquent behavior by committing the
first degree felony of aggravated sexual assault, assessed a determinate
sentence, and committed to the TYC with possible transfer to the Institutional
Division of the Texas Department of Criminal Justice, the human resources and
family codes provide several options regarding the juvenile's release, transfer,
and termination of TYC's control. The human resources code provides that the TYC
may not release the juvenile under supervision without approval of the juvenile
court that entered the commitment order unless the child has served at least
three years. See Tex. Hum. Res.Code Ann. § 61.081(f)(2) (Vernon Supp.1999). The
human resources code also provides for termination of the TYC's control of a
juvenile by transfer to the Institutional Division of the Texas Department of
Criminal Justice. See id. §§ 61.079(a), 61.084(c) (Vernon Supp.1999). The
family code provides for a hearing preceding administrative release or
transferral. See Tex. Fam.Code Ann. § 54.11 (Vernon 1996). The human resources
code also provides for the release of a juvenile on TYC or adult probation under
specified circumstances. See Tex. Hum. Res.Code Ann. § 61.084(f), (g) (Vernon
Supp.1999). A trial court errs when it improperly charges the jury in a juvenile
proceeding. See W.D.A. v. State, 835 S.W.2d 227, 230 (Tex.App.-Waco 1992, no
writ).
B. Discussion
C.E.M. argues that the code of criminal procedure allows the jury to be informed
in criminal proceedings of the possibility of parole and good conduct time but
prohibits the jury from considering the extent to which parole and good conduct
time might be applied to the particular defendant. See Tex.Code Crim. Proc. Ann.
art. 37.07, § 4(a)-(c) (Vernon Supp.1999). C.E.M. contends that the
complained-of instructions "invited the jury to speculate how future
discretionary actions might be carried out and, more specifically, how they
might be carried out with respect to [himself]." C.E.M. points out that the
court of criminal appeals found comparable instructions unconstitutional in Rose
v. State, 752 S.W.2d 529, 552 (Tex.Crim.App.1988) (op. on reh'g) (adopting
conclusions expressed in original op.), and that a subsequent amendment to the
Texas Constitution permitted the trial court to include instructions on the
effects of parole laws in jury charges only for defendants convicted of a
criminal offense. See Tex. Const. art. IV, § 11(a) (amended 1989); Guillory v.
State, 956 S.W.2d 135, 136-37 (Tex.App.-Beaumont 1997, no pet.); Broussard v.
State, 809 S.W.2d 556, 557-58 (Tex.App.-Dallas 1991, pet. ref'd). However, as
juvenile cases are civil, not criminal, proceedings, C.E.M. argues there is no
state constitutional authority for the complained-of instructions in a juvenile
proceeding. Further, statutory admonishments that specifically prohibit the jury
from considering the extent to which the parole law and good conduct time might
apply to a particular accused in criminal cases were not given here. Thus,
according to C.E.M., the "constitutional infirmities articulated ... in
Rose persist," and the complained-of sections invited the jury to speculate
on how parole or transfer might specifically affect his sentence and to enhance
his punishment due to the possibility of his early release or parole.
Even assuming a Rose-type instruction regarding parole is unconstitutional in a
civil, juvenile proceeding (because the post-Rose constitutional amendment
applies only to criminal matters), we conclude the instructions here are
distinguishable from those in Rose. In Rose, the court of criminal appeals held
that, in addition to violating state constitutional guarantees of separation of
powers, the statutory instruction regarding parole and good conduct "preclude[d]
a fair and impartial trial on the issue of punishment" because punishment
was improperly based on a jury's anticipation of the exercise of clemency power
and its attempt to delay or avoid parole by increasing punishment. Rose, 752
S.W.2d at 535-36. Here, the disposition charge instructed the jury it could
sentence C.E.M. to commitment to the TYC with a possible transfer to the
Institutional Division of the Texas Department of Criminal Justice for any term
of years not to exceed forty years. The charge then instructed the jury
regarding the options of release, transfer, or parole of a juvenile after
commitment to the TYC under a determinate sentence as well as the procedural
requirements. The complained-of instructions track the statutory options
relevant to the adjudicated offense, but they do not apply them to C.E.M. Nor do
these sections invite the jury to increase C.E.M.'s sentence in anticipation of
good conduct time, parole, eligibility formula, or "decisions made by
prison and parole authorities." Id. at 534-35; see Arnold v. State, 786
S.W.2d 295, 299-300 (Tex.Crim.App.), cert. denied, 498 U.S. 838 (1990).
We agree with the State's response that the instructions here defined a
determinate sentence and informed the jury of the effect of a determinate
sentence pursuant to statutory law. Thus, under a criminal or civil standard, we
conclude the constitutional infirmities articulated by the Rose court do not
apply. Therefore, we conclude the trial court did not err in placing the
complained-of information in the charge, and we overrule C.E.M.'s fourth issue.