By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Civil standard of review applied in assessing
evidence to support removal from home findings (99-4-05)
On September 8, 1999, the San Antonio Court of Appeals held that it would
follow the El Paso Court of Appeals, not the Austin court, and that it would
apply a civil standard to assess the sufficiency of the evidence to support the
required removal from home findings in Section 54.04.
99-4-05. In the Matter of T.K.E, ___ S.W.2d ___, No. 04-98-00651-CV, 1999 WL
692661, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 9/8/99)[Texas Juvenile
Law 179 (4th Edition 1996)].
Facts: Following T.K.E.'s plea of true to the State's allegation of aggravated
sexual assault, the trial court committed T.K.E. to the custody of the Texas
Youth Commission for a determinative term of six years. T.K.E. appeals the
commitment, contending that the evidence is not sufficient to support the trial
court's findings.
On June 22, 1998, T.K.E. pled true to the State's allegation of sexual assault
of a child by contact. The stipulated evidence included T.K.E.'s judicial
admission of the State's allegation and the police report of the incident. The
police report indicated that, on February 9, 1998, T.K.E. and his young cousin,
A.E., were in A.E.'s bedroom when their grandmother noticed that the light was
off and it had grown very quiet in the bedroom. She entered the bedroom to
investigate and found T.K.E. standing above A.E. with his penis out of his
pants. A.E. was on his knees in front of T.K.E., crying. The grandmother noticed
what appeared to be spit or semen coming from A.E.'s mouth. She could not get
A.E. to talk to her, so she called A.E.'s older brother, who arrived at the
house and talked to A.E. A.E. told his brother that, on the day in question and
on other occasions, T.K.E. forced A.E. to fondle and perform oral sex on him.
A.E. also said that T.K.E. had threatened to hurt him if he told anyone.
In response to T.K.E.'s plea and the stipulated evidence, the juvenile court
adjudicated T.K.E. delinquent. T.K.E. was permitted to return home that evening
with his mother. The following morning, the court conducted a hearing on
punishment. T.K.E.'s probation officer, Anthony Smith, testified for the State.
Based on the serious nature of the offense and the intensive sexual offenders
program available at the Texas Youth Commission, Smith recommended that T.K.E.
be committed to the TYC. Smith noted that it would be possible for the juvenile
probation department to send T.K.E. to one of two sexual offender's treatment
centers as a condition of probation, but stated that he believed the TYC's
program was more highly regarded.
Virginia Earls, the grandmother of both T.K.E. and the victim in this case,
testified on behalf of T.K.E. While Ms. Earls noted that T.K.E. needed to
"get some help," she did not believe confinement was appropriate. She
stated her belief that probation would give T.K.E. a sense of accountability as
well as something to keep him occupied. Accordingly, she noted that punishment
would be accomplished even if T.K.E. was permitted to remain at home. Ms. Earls
concluded her testimony by stating that T.K.E. should apologize.
T.K.E.'s mother, Patricia Evans, also testified. She stated that she could fully
support T.K.E. if he was placed on probation. She did not, however, provide any
details as to how she would accomplish this. She noted that she was an
unemployed single mother, whose only source of income was child support.
Following his mother's testimony, T.K.E. took the stand on his own behalf. He
read the following prepared statement and then stated that he had nothing
further to say: "I want to tell my grandma that I want to say that I am
sorry for the pain that I caused to my cousin and to my grandmother."
Following argument by both T.K.E. and the State, the juvenile court concluded
that commitment was in T.K.E.'s best interest. Accordingly, the court entered an
order of disposition committing T.K.E. to the Texas Youth Commission for a
determinative sentence of six years.
Held: Affirmed.
Opinion Text: A juvenile court has broad discretion in determining a suitable
disposition for a juvenile who has been adjudged to have engaged in delinquent
conduct. See Matter of T.A.F., 977 S.W.2d 386, 387 (Tex.App.--San Antonio 1998,
no writ); Matter of J.R., 907 S.W.2d 107, 110 (Tex.App.--Austin 1995, no writ).
Accordingly, we, as a reviewing court, will not disturb the juvenile court's
findings regarding disposition absent a clear abuse of discretion. See T.A.F.,
977 S.W.2d at 387; Matter of C.C., 930 S.W.2d 929, 930 (Tex.App.--Austin 1996,
no writ). The juvenile court abuses its discretion when it acts arbitrarily or
unreasonably, or without reference to guiding rules and principles. See T.A.F.,
977 S.W.2d at 387.
The juvenile court's discretion in ordering a disposition is guided by section
54.04 of the Texas Family Code. If the court commits a juvenile to the Texas
Youth Commission, the court must find and include in its disposition order its
determination that: (1) it is in the juvenile's best interests to be placed
outside the juvenile's home; (2) reasonable efforts were made to prevent or
eliminate the need for the juvenile's removal from the home and to make it
possible for the juvenile to return to the juvenile's home; and (3) the
juvenile, in the juvenile's home, cannot be provided the quality of care and
level of support and supervision that the juvenile needs to meet the conditions
of probation. Tex. Fam.Code Ann. § 54.04(i) (Vernon 1996). In this case, the
trial court included the required statutory language in its order of
disposition. However, T.K.E. contends that the evidence is both legally and
factually insufficient to support any of the section 54.04(i) findings and that,
therefore, the trial court abused its discretion in committing him to the Texas
Youth Commission.
Courts have historically struggled in deciding the appropriate standard for
reviewing sufficiency of the evidence challenges in juvenile cases. Although
juvenile proceedings are civil in nature, they are often characterized as
quasi-criminal with procedural protections and due-process requirements similar
to those in adult criminal prosecutions. See Matter of E.Q., 839 S.W.2d 144, 146
(Tex.App.--Austin 1992, no writ). The dual nature of juvenile proceedings often
leaves appellate courts at a loss as to how to review them. See In Interest of
D.Z., 869 S.W.2d 561, 565 (Tex.App.--Corpus Christi 1993, no writ).
Several courts, including this one, have resolved this dilemma in favor of
applying the criminal standards of review to evidentiary sufficiency challenges
in the adjudication phase of juvenile proceedings. See, e.g., Matter of A.C.,
949 S.W.2d 388, 390 n.1 (Tex.App.--San Antonio 1997, no writ); Matter of A.S.,
954 S.W.2d 855, 858 (Tex.App.--El Paso 1997, no writ); R.X.F. v. State, 921
S.W.2d 888, 889 (Tex.App.--Waco 1996, no writ); but see In re M.R., 858 S.W.2d
365, 366 (Tex.1993) (noting that reliance on adult criminal precedent and rules
may conflict with the Texas Family Code). This court has based its decision to
apply the criminal sufficiency standard to adjudication proceedings on the fact
that the Family Code requires the State to prove the facts necessary to support
an adjudication of delinquency beyond a reasonable doubt. See Tex. Fam.Code Ann.
s 54.03(f) (Vernon 1996). When the State carries the criminal burden of proof in
presenting the evidence, it is logical to apply a criminal standard in reviewing
the sufficiency of that evidence. See P.L.W. v. State, 851 S.W.2d 383, 387 (Tex.App.--San
Antonio 1993, no writ).
However, it is questionable whether this reasoning applies to cases in which the
sufficiency of the evidence in the disposition phase of a juvenile proceeding is
at issue. The Austin Court has held that it does, choosing "to apply the
criminal standard because the State bears the same burden of proof in a juvenile
case as it does in a criminal case." Matter of M.S., 940 S.W.2d 789, 792
n.2 (Tex.App.--Austin 1997, no writ). On the other hand, the El Paso Court
disagreed with the Austin Court's decision, noting that "the juvenile
court's findings supporting the disposition order are not required to be
supported by proof beyond a reasonable doubt." Matter of A.S., 954 S.W.2d
855, 861 n.3 (Tex.App.--El Paso 1997, no writ); see also Matter of K.L.C., 972
S.W.2d 203, 206 (Tex.App.--Beaumont 1998, no writ) (applying a civil standard to
a factual sufficiency review of section 54.04 findings).
We agree with the El Paso Court on this issue. The Family Code places no burden
of proof on the State at the disposition phase of a juvenile proceeding.
Accordingly, the logic enabling the application of a criminal standard during
the review of the adjudication phase does not apply in the review of the
disposition phase. The use of a civil standard to review the juvenile court's
findings during disposition supports the discretion the juvenile court has been
given to make those findings. Furthermore, the use of a civil standard is
consistent with the procedural requirements of the Family Code. See Tex.
Fam.Code Ann. § 51.17 (Vernon 1996) (stating that juvenile proceedings are
governed by the Texas Rules of Civil Procedure in the absence of a contrary
Family Code provision); Tex. Fam.Code Ann. § 56.01(b) (Vernon 1996) (stating
that the requirements governing an appeal are as in civil cases generally). We
note, also, that this court has applied a civil standard of review to a legal
sufficiency challenge of a disposition order, albeit without comment. See Matter
of S.A.M., 933 S.W.2d 744, 745 (Tex.App.--San Antonio 1996, no writ); see also
In re H.G., 993 S.W.2d 211 (Tex.App.--San Antonio 1999, no pet.) (applying civil
standard to sufficiency challenge of juvenile court's modification of
disposition). We reaffirm, today, the use of a civil standard in reviewing a
sufficiency of the evidence challenge to a disposition order in a juvenile
proceeding. [FN1]
FN1. We express no opinion as to the appropriate standard to be used in
determinative sentence cases in which a jury has decided disposition. See Tex.
Fam.Code Ann. § 54.04(a) (Vernon 1996) (noting right of juvenile to have
disposition determined by a jury if he is in jeopardy of a determinative
sentence).
Accordingly, in reviewing T.K.E.'s legal sufficiency challenge to the evidence
supporting his disposition, we consider only the evidence and inferences tending
to support the findings under attack and set aside the judgment only if there is
no evidence of probative force to support the findings. See A.S., 954 S.W.2d at
858; S.A.M., 933 S.W.2d at 745. In reviewing T.K.E.'s factual sufficiency claim,
we consider and weigh all the evidence and set aside the judgment only if the
finding is so against the great weight and preponderance of the evidence as to
be manifestly unjust. See A.S., 954 S.W.2d at 862; K.L.C., 972 S.W.2d at 206.
The record in this case does not contain much evidence from either T.K.E. or the
State. The scant evidence that is before us, however, supports the juvenile
court's section 54.04(i) findings. The evidence clearly demonstrates that the
incident that formed the basis of A.E.'s complaint was not the first of its
kind, thus demonstrating T.K.E.'s need for treatment as a sexual offender. Even
T.K.E.'s witnesses acknowledged his need for treatment. The record also reflects
that, while there are other treatment centers available, the Texas Youth
Commission's intensive sexual offender's program is the most highly rated and,
therefore, the best able to produce positive results. Given the serious and
repeated nature of T.K.E.'s conduct, the best treatment possible is in order.
Further, treatment at the other centers mentioned by the juvenile probation
officer would still require T.K.E. to be placed outside of his home as both of
the other centers are outside of San Antonio. When asked how she could give
T.K.E. support if he were placed on probation, T.K.E.'s mother mentioned a place
to live and made a vague reference to counseling. Again, the record reflects
that the type of counseling T.K.E. needs is not available as part of the
juvenile probation department in San Antonio.
Accordingly, if treatment is in T.K.E.'s best interest, and the record certainly
supports the fact that it is, there is no alternative but to remove T.K.E. from
his home so that he may receive the best treatment possible. In light of this
evidence, we conclude that the juvenile court did not abuse its discretion in
entering its order committing T.K.E. to the Texas Youth Commission. T.K.E.'s
challenge to the sufficiency of the evidence supporting the disposition order is
therefore overruled and the juvenile court's order is affirmed.
Concurring opinion by: Tom Rickhoff, Justice
Frankly, I never have understood the Family Code. The legislature has ordered us
to sanctify this troubled marriage of civil and criminal law, then imposed an
adoption of all the special considerations of Title III, and left us to make the
family function well. As a trial judge in the juvenile court for a decade I did
know that any successful sufficiency challenge would be
exceedingly rare irrespective of what standard of review is applied. Appellate
justices are hesitant to overturn the decision of a juvenile judge because they
do not understand Title III of the Family Code any better than I did. No one
does.
Added to that hesitancy is often, as here, a thin record. But essentially our
hesitancy exists because these decisions are often very subjective. Here, Judge
Mireles had one decision to make: what treatment would be best for this child.
He evaluated the child's needs (previous efforts, his home), the available
resources (TYC or local counseling), and expert recommendations (the juvenile
probation officer). In these specialized courts, the trial judges develop a
great deal of perceptive power not revealed in the record. They enjoy a long
history of evaluating the probation officer's competence and the effectiveness
and suitability of different rehabilitation programs. Most appellate justices
are limited to vicarious experiences in this field.
Finally, we test for abuse of discretion, that is, whether the trial court's
decision was arbitrary or unreasonable. Today's decision imposing the civil
sufficiency of the evidence standard on these hidden realities has the effect of
insulating, to a great extent, disposition decisions from our review. In this
respect, the result is similar to the result that would be reached by applying
the substantial evidence standard. Considering the expertise of juvenile judges,
this is appropriate. The legislature could bring some clarity to this issue by
expressly providing for a substantial evidence standard of review for
disposition decisions.