By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Denial of jury trial on punishment in
determinate sentence probation revocation hearing requires reversal (00-2-17)
On April 19, 2000, the Dallas Court of Appeals held the juvenile court erred
in submitting only the question of whether respondent violated his determinate
sentence probation to the jury at the revocation hearing. Respondent had not
waived jury punishment and was entitled to have the jury assess punishment as
well as find whether he had violated probation.
00-2-17. In the Matter of J.R., UNPUBLISHED, No. 05-99-01086-CV, 2000 WL 409676,
2000 Tex.App.Lexis ___ (Tex.App.-Dallas 4/19/00)[Texas Juvenile Law 351 (4th
Edition 1996)].
Facts: In July 1998, the State filed its amended petition alleging appellant
engaged in delinquent conduct by committing the offenses of criminal mischief,
burglary of a habitation, aggravated sexual assault and indecency with a child.
A grand jury approved the allegations of aggravated sexual assault and indecency
with a child. At the September 21, 1998 hearing on the State's petition,
appellant waived his right to a jury trial for both adjudication and
disposition. The trial court found appellant committed the charged offenses and
decreed him to be a child engaged in delinquent conduct. The trial court's
judgment of disposition ordered appellant be placed on probation in the custody
of his father until appellant's eighteenth birthday. The conditions of probation
specified that appellant not violate the law, that he attend school every school
day unless he had an excused absence, and that he was "not to associate in
any way" with various listed individuals, including Joshua Benavides.
J.R. appeals the trial court's order modifying his disposition. The trial court
revoked appellant's probation and committed him to the Texas Youth Commission (TYC)
for forty years. Appellant brings five issues questioning whether the trial
court erred: (a) by sentencing appellant to forty years without a jury trial on
the sentence; (b) by failing to give appellant an opportunity to withdraw his
prior pleas and stipulations of evidence; (c) by failing to conform the order
modifying disposition to the live pleading; and (d) by denying appellant's
motion for directed verdict.
On November 17, 1998, the State filed a motion to modify the disposition,
alleging appellant violated the terms of probation by failing to attend school
every school day and by possessing marijuana. On December 9, 1998, appellant
waived his right to a jury trial on adjudication and disposition. Appellant
pleaded true to the allegations. The trial court continued appellant on
probation and signed new conditions of probation. Although the trial court did
not sign an order modifying appellant's disposition at the December 9, 1998
hearing, the trial court made the following comments to appellant:
The Court: Here's what we're going to do. You listen very carefully. Forty years
of your life depends on it. I'm going to enter findings here today that you need
rehabilitation, the public needs protection, placement is in your best interest,
all reasonable efforts have been made to keep you at home, and all reasonable
efforts will be made to return you to your home, that placement is in your best
interest [sic], that you're assigned to progressive sanction level seven, and
you're to be given a sentence at the Texas Youth Commission of forty years. Now,
I'm not going to sign the order. I'm going to see how you do from now until your
eighteenth birthday. I will tell you this: We've already done enough right now
to send you away for forty years. You come back in here, we don't have to reach
any of these things except somebody just needs to tell me that you've done
something wrong. They don't have to prove it. They just need to have to tell me
you've done something wrong. I'm going to sign my name to one little piece of
paper and you're gone for forty years. Understand?
[J.R.]: Yes, sir
The Court: You better understand it because, if you screw it up--I'm telling
you. If you screw it up, I'll keep my word to you and you will go away for forty
long years.
[J.R.]: Yes, sir.
* * *
The Court: All right. I've made all these appropriate findings on the docket
sheet which become a part of the record for all purposes. I will note for the
record that I will withhold signing this order committing this young man to the
Youth Commission and the Texas Department of Criminal Justice-- Institutional
Division for forty years pending his conduct on the ISP probation.
On February 1, 1999, the State filed a new motion to modify disposition alleging
appellant violated the conditions of probation by failing to attend school every
school day and by associating with Joshua Benavides. At the hearing on March 17,
1999, appellant did not waive his right to a jury trial for adjudication or
disposition. However, the trial court submitted only the issue of adjudication
to the jury. The jury found the allegations true. The trial court then told
appellant:
[B]ack on December the 9th, 1998, the disposition hearing was held and an
adjudication hearing was held, also. You were found guilty of aggravated sexual
assault. The determinant [sic] sentence applied and I made all the findings at
that time on the docket sheet that you should be assessed a determinant [sic]
sentence of forty years, but there was a plea bargain in this case that I did
not want to accept and so I made a deal with you. The deal was, as I wrote on
the docket sheet, that I will withhold signing the order pending your conduct on
probation--intensive supervision probation. Upon any violation, the order will
be signed and the determinant [sic] sentence will be assessed. I'm keeping my
word to you. You're assessed forty years in the Texas Youth Commission with a
possible transfer to the Texas Department of Criminal Justice--Institutional
Division.
* * *
Just so the record will be clear, it is the December the 9th, 1998 order of
commitment that will apply in the disposition in this case.
On April 9, 1999, the trial court signed an order modifying appellant's
disposition. The order recites the docket entries the court entered on December
9, 1998 and finds that appellant violated the conditions of probation by failing
to attend school and by possessing marijuana. The order recites that on December
9, 1998, the court concluded appellant should be committed to the TYC for forty
years but that it withheld signing the order executing the commitment judgment
and that appellant was instructed that any violation would result in the
forty-year commitment order being signed and executed. The order then recites
that a jury found appellant violated the conditions of probation on January 22,
1999 by failing to attend school and associating with Joshua Benavides. Based on
the jury's findings, the trial court modified appellant's disposition and
"ordered that the judgement [sic] rendered on the 9th day of December 1999
be signed and fully executed."
Held: Reversed and remanded.
Opinion Text: DENIAL OF MOTION FOR DIRECTED VERDICT
In his fourth and fifth points of error, appellant contends the trial court
erred in denying his motion for directed verdict on the ground that no evidence
supported the allegations of appellant's failure to attend school and of his
association with Joshua Benavides. The standard of review of a modification of a
juvenile's disposition is abuse of discretion. See In the Matter of T.A.F., 977
S.W.2d 386, 387 (Tex.App.-San Antonio 1998, no pet.); J.R.W. v. State, 879
S.W.2d 254, 257 (Tex.App.-Dallas 1994, no writ). The trial court abuses its
discretion when it acts arbitrarily or without reference to guiding rules and
principles. See In the Matter of T.A.F., 977 S.W.2d at 387.
An appeal from the denial of a motion for directed verdict is a challenge to the
legal sufficiency of the evidence. See Lochinvar Corp. v. Meyers, 930 S.W.2d
182, 187 (Tex.App.-Dallas 1996, no writ). In determining whether evidence is
legally insufficient, we review the evidence in the light most favorable to the
party in whose favor the verdict has been rendered, and we indulge every
reasonable inference deducible from the evidence in that party's favor. See
Merrill Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997),
cert. denied, 523 U.S. 1119 (1998). Evidence is legally insufficient when (a)
there is a complete absence of evidence of a vital fact, (b) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact, (c) the evidence offered to prove a vital fact is no more
than a mere scintilla, or (d) the evidence conclusively establishes the opposite
of the vital fact. See id. (citing Robert W. Calvert, "No Evidence"
and "Insufficient Evidence" Points of Error, 38 TEX. L.REV. 361,
362-63 (1960)). "More than a scintilla of evidence exists when the evidence
supporting the finding, as a whole, ' "rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions." ' "
Id. (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995)
(quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994))).
In his fourth issue, appellant asserts the trial court abused its discretion in
denying his motion for directed verdict concerning appellant's violation of
condition of probation 4, which required appellant to attend school every day
unless he had an excused absence according to his school's rules. Shamar
Robinson, a teacher at appellant's school, and Marilyn Clemens, the attendance
coordinator at appellant's school, testified appellant was absent on January 22,
1999, and his absence was unexcused. Appellant argues this evidence is legally
insufficient because the witnesses did not testify to the school's rules and
regulations regarding excused absences. We disagree. The witnesses testified
that appellant's absence was unexcused. This evidence, standing alone, is
sufficient to constitute some evidence to support submission of the issue to the
jury. The lack of evidence of the rules and regulations for excused absences
does not affect the legal sufficiency of the witnesses' testimony. We hold the
trial court did not abuse its discretion in denying appellant's motion for
directed verdict on this ground. We resolve appellant's fourth issue against
him.
In his fifth issue, appellant asserts the trial court abused its discretion in
denying his motion for directed verdict concerning his violation of condition of
probation 6, which prohibited him from associating with Joshua Benavides.
Appellant argued no evidence showed the Joshua Benavides with whom he spent
January 22, 1999 was the same Joshua Benavides mentioned in condition of
probation 6. We disagree. Joshua Benavides testified he spent January 22, 1999
with appellant. On direct examination by the State, Benavides testified:
Q And did [J.R.] ever mention that he wasn't supposed to be around you?
A Yes--I mean, at first we knew that they didn't want him--well, they told him
not to hang around with me, but I didn't really actually believe him because, I
mean, they didn't tell me that when I came to court.
This testimony constitutes some evidence that appellant associated with the same
Joshua Benavides with whom appellant was prohibited from associating by
condition of probation 6. We hold the trial court did not abuse its discretion
in denying appellant's motion for directed verdict on this ground. We resolve
appellant's fifth issue against him.
RIGHT TO JURY TRIAL
In his first issue, appellant questions whether the trial court erred in
sentencing him to a determinate sentence at TYC on April 9, 1999 without a jury
trial or a waiver of jury trial. Section 54.05(h) of the juvenile justice code
provided a defendant in jeopardy of a determinate sentence in a hearing on a
motion to modify disposition with the right to a jury trial "on the issues
of the violation of the court's orders and the sentence." Tex. Fam.Code
Ann. § 54.05(h) (amended) (emphasis added). [FN2] Appellant received a jury
trial on the issue of the violation of the trial court's order, but he did not
receive a jury trial, or waive a jury trial, on the issue of his sentence.
FN2. See Act of May 27, 1987, 70th Leg., R.S., ch. 385, § 10, 1987 Tex. Gen.
Laws 1891, 1895, amended by Act of May 27, 1999, 76th Leg., R.S., ch. 1477, §
11, 1999 Tex. Gen. Laws 5067, 5071. The 1999 amendment eliminated the right to a
jury at the hearing to modify disposition. This amendment did not take affect
until September 1, 1999, more than four months after the trial court signed the
order committing appellant to TYC.
The State asserts appellant waived jury trial on the issue of his sentence
because the modified disposition sentencing him to a forty-year determinate
sentence was based on the November 17, 1998 motion to modify disposition and the
December 9, 1998 hearing on that motion, at which appellant waived a jury trial
on adjudication and disposition-not the February 1, 1999 motion to modify and
the March 17, 1999 hearing on that motion, at which appellant did not waive his
right to a jury trial. The crux of the issue is whether the procedure the trial
court followed in this case is permissible under the Juvenile Justice Code.
The trial court appears to have attempted to create a type of deferred
adjudication proceeding for juvenile defendants. Instead of sentencing appellant
at the December 9, 1998 hearing to a determinate sentence, the trial court
continued appellant on probation but told appellant he would be sentenced to a
determinate sentence of forty years if he violated probation. The docket sheet
also contains a reference to a forty-year sentence if appellant violates his
probation. The court cautioned him that any future violations of probation would
result in the court entering an order sentencing him to a forty-year determinate
sentence based on the court's findings at that hearing. When appellant violated
the conditions of probation, the trial court afforded appellant at the March 17,
1999 hearing a jury trial on the issue of his violation of the conditions of
probation alleged in the February 1, 1999 motion to modify disposition. The
court denied appellant a jury on the sentence because the court intended to
order into execution the sentence it had promised at the December 9, 1998
hearing. [FN3]
FN3. The trial court's procedure would be inappropriate in an adult deferred
adjudication context because the trial court prejudged appellant's punishment.
See Jefferson v. State, 803 S.W.2d 470, 472 (Tex.App.- Dallas 1991, pet. ref'd).
The Juvenile Justice Code does not support the procedure followed by the trial
court. When a motion to modify disposition is filed against a juvenile who was
found to be a child engaged in delinquent conduct for an offense enumerated in
section 53.045(a) of the code and the original petition was approved by the
grand jury, the trial court has two options: either deny the motion to modify
and continue the juvenile on probation, or grant the motion to modify and
sentence the juvenile to a determinate sentence at TYC. See Tex. Fam.Code Ann.
ss 54.05(f) (Vernon Supp.2000); see also id. § 53.045(a) (enumerated offenses);
id. § 54.04(d) (permitted dispositions). The code does not permit the procedure
followed by the trial court in this case.
At the December 9, 1998 hearing, appellant waived his right to a jury trial. At
that time, the trial court could have revoked appellant's probation, modified
his disposition, and sentenced him to a determinate sentence without a jury.
Instead, the trial court effectively denied the motion to modify disposition.
Despite the trial court's language and docket entries purporting to
conditionally sentence appellant to TYC, the trial court did not enter an order
after the December 9, 1998 hearing modifying appellant's disposition. The record
is clear that the trial court intended to continue, and did continue, appellant
on probation. The State's February 1, 1999 motion to modify disposition
constituted a new proceeding, and the trial court had to afford appellant all
the protections provided by the code, including the right to jury trial unless
waived "on the issues of the violation of the court's orders and the
sentence." Tex. Fam.Code Ann. § 54.05(h) (amended). Appellant did not
waive his right to a jury trial at the March 17, 1999 hearing on the February 1,
1999 motion to modify disposition.
We hold the trial court erred by denying appellant a jury trial on the issue of
sentencing at the March 17, 1999 motion to modify disposition. The denial of a
juvenile's right to jury trial without an appropriate waiver is reversible
error. See C.D.F. v. State, 852 S.W.2d 281, 285 (Tex.App.-Dallas 1993, no writ).
We resolve appellant's first issue in his favor. [FN4]
FN4. Whether the procedure the trial court followed in this case would be
reversible error under the current statutes, which do not afford a defendant in
a motion to modify disposition a right to jury trial under these circumstances
is not before us, and we make no ruling on that issue.
Due to our disposition of appellant's first issue, appellant's second and third
issues are not necessary to the disposition of his appeal. Accordingly, we do
not reach them. See Tex.R.App. P. 47.1.
We reverse the trial court's judgment and remand the cause for further
proceedings.