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 abuse of discretion in TYC commitment
(00-2-18)
On April 19, 2000, the San Antonio Court of Appeals held that the juvenile
court did not abuse its discretion in commiting a 13-year-old child with an
extensive juvenile history to the TYC for the offense of resisting arrest.
00-2-18. In the Matter of J.L.R., UNPUBLISHED, No. 04-99-00217-CV, 2000 WL
424033, 2000 Tex.App.Lexis ____ (Tex.App.-San Antonio 4/19/00)[Texas Juvenile
Law 179 (4th Edition 1996)].
Facts: J.L.R. was adjudicated delinquent upon his plea of true to resisting
arrest. He appeals the court's order committing him to the Texas Youth
Commission (TYC) for an indeterminate time. We affirm.
The record in this case tells the story of a tragic but, lamentably, all-too-
common childhood. At the time of the disposition hearing, J.L.R. was thirteen
years old and had been involved with the juvenile justice system since he was
ten years old. His probation officer recounted that he had past and pending
charges of theft, assault, burglary, criminal mischief, retaliation, and
disorderly conduct. The retaliation charge resulted from an alleged threat to
kill a police officer and his son. J.L.R. has a history of marijuana, cocaine,
and inhalant use. In addition to physically attacking and threatening others, he
has engaged in self-mutilation, such as choking himself until his nose bled and
banging his head against a wall. The probation department and other state and
local organizations have pursued a number of punishment and rehabilitation
options, such as counseling, residential placement, juvenile detention, deferred
prosecution, formal probation, intensive supervision, and commitment to mental
health centers. Some of these attempts were successful for awhile, but J.L .R.
would usually revert to his antisocial behavior.
Held: Affirmed.
Opinion Text: COMMITMENT TO TYC
In his first point of error, J.L.R. argues the trial judge abused his discretion
by committing him to TYC. A juvenile judge has broad discretion to determine the
appropriate disposition for a child who has been adjudicated delinquent. See In
re T.A.F., 977 S.W.2d 386, 387 (Tex.App.--San Antonio 1998, no pet.). An abuse
of discretion occurs when the judge acts arbitrarily, i.e., without reference to
guiding rules and principles. See id. The Family Code sets out the guiding
principles to be followed in deciding whether to commit a child to TYC. See id.
Such a disposition can be made if the child is in need of rehabilitation or if
it is required for the protection of the public or the child and if it is in the
child's best interest to be placed outside the home, reasonable efforts have
been taken to prevent or eliminate the need for the child's removal from the
home, and the child cannot receive at home the quality of care and level of
support and supervision needed to meet the conditions of probation. See
Tex.Fam.Code Ann. § 54.04(c), (i) (Vernon Supp.2000).
The judge did not abuse his broad discretion in this case. The record contains
overwhelming evidence that J.L.R. needs a restrictive environment, that J.L.R.
poses a danger to himself and others, that attempts to rehabilitate him while he
lived at home and at residential treatment facilities had failed, and that there
are no feasible alternatives to TYC. J.L.R.'s probation officer recommended that
he be committed to TYC. He testified, "[I]n my four years that I have been
[a probation officer in Atascosa County], I don't think there has been a kid
that we have tried to work with more, and tried to get more resources involved
in." He also stated that J.L.R.'s assaultive behavior, "fire-setting
history," and suicidal ideations make it difficult to place him in
long-term residential treatment programs. He inquired about placing J.L.R. at
four or five facilities that specialize in hard-to-place youth, but all these
facilities rejected J.L.R.
The fact that J.L.R. has a history of treatment in mental health centers and has
been diagnosed with various disorders does not preclude committing him to TYC.
Nor does his commitment to TYC mean that his mental problems will be ignored.
TYC is required to accept children who are mentally ill. See Tex.Hum.Res.Code
Ann. § 61.077 (Vernon Supp.2000). A child may receive mental health services
while at a TYC facility, and if a child is unable to make progress toward
rehabilitation because of a mental illness, TYC must discharge the child. See
id. J.L.R.'s probation officer confirmed that TYC has access to medication and
facilities to address J.L.R.'s mental problems. J.L.R. argues that the State
completely disregarded the progressive sanctions guidelines. The evidence
establishes that the juvenile probation department and the juvenile court
attempted many of the lesser sanctions suggested in the progressive sanctions
guidelines before J.L.R. was committed to TYC. See Tex.Fam.Code Ann. §§
59.002-.009 (Vernon 1996 & Supp.2000). In any event, an appeal may not be
based on the failure to make a sanction level assignment recommended in the
progressive sanctions guidelines, a deviation from the sanction level assignment
guidelines, or the failure to report a deviation from the guidelines. See id. §
59.014(2)-(4) (Vernon Supp.2000).
We overrule the first point of error.
SPECIFICITY OF ORDER
In his second point of error, J.L.R. argues the trial court erred by failing to
specify its reasons for committing him to TYC. The Family Code requires the
court to "state specifically in the order its reasons for the
disposition." See id. § 54.04(f). The purpose of this requirement is to
assure that the child and his family will be advised of the reasons for
commitment to TYC and will be in a position to challenge those reasons on
appeal. See In re T.R.W., 533 S.W.2d 139, 141 (Tex.Civ.App.--Dallas 1976, no
writ), overruled on other grounds, K.K.H. v. State, 612 S.W.2d 657 (Tex .Civ.App.--Dallas
1981, no writ). If the trial court does not specifically state its reasons, the
appellate court must rely on assumptions in reviewing the trial court's
disposition. See id.
In this case, the trial court's order states that J.L.R. must be placed with an
agency capable of providing restricted activities in order to rehabilitate J.L.R.
and to protect the public. This finding satisfies section 54.04(f). In addition,
at the conclusion of the disposition hearing, the judge stated that the evidence
regarding J.L.R.'s violent disposition, including death threats and suicidal
ideations, and the evidence regarding the many attempts that various agencies
had already made to rehabilitate J.L.R. dictated that J.L.R. be committed to TYC.
These oral findings provide further support for the trial court's written
finding and also serve to inform J.L.R. and this court of the trial court's
reasons for committing J.L.R. to TYC. See In re J.C.C., 952 S.W .2d
47, 49 (Tex.App.--San Antonio 1997, no writ) (holding that a court's failure to
include required written findings in its order was harmless because the court's
oral findings were unambiguous and clearly identifiable).
Finding no reversible error, we overrule the second point of error.
MISSTATING OF THE EVIDENCE
In his third point of error, J.L.R. argues the prosecution misstated the
evidence during its opening statement and closing argument. Specifically, he
seems to complain that the prosecution asserted he had a history of starting
fires, but there was no evidence to support this assertion. J.L.R. did not make
this objection at the hearing; therefore, any error is waived. See Tex.R.App.P.
33.1(a); In re C.L., 930 S.W.2d 935, 937 (Tex.App.--Houston [14th Dist.] 1996,
no writ); see also Valencia v. State, 946 S.W.2d 81, 82- 83 (Tex.Crim.App.1997).
We also note that, contrary to J.L.R.'s argument, there was evidence to support
the prosecution's assertion. J.L.R.'s probation officer testified that two
people who had worked on J.L.R.'s case told him that J.L.R. had a history of
starting fires when he was younger. Although J.L.R. argues on appeal that this
testimony was hearsay, this argument is waived because it was not made at the
disposition hearing. See Tex.R.App.P. 33.1(a); In re K.P.S., 840 S.W.2d 706, 709
(Tex .App.--Corpus Christi 1992, no writ) (holding that to preserve error for
appeal, an objection must be made before the evidence is admitted). We overrule
the third point of error.
GANG TESTIMONY
In his fourth point of error, J.L.R. argues the trial court erred by admitting
evidence that he was a gang member because admission of the evidence violated
his right to free association. J.L.R. failed to object each time a reference was
made to his gang membership, and when he did object, he did not object on the
basis of his right to free association. Accordingly, any error is waived. See
Tex.R .App.P. 33.1(a); In re G.M.P., 909 S.W.2d 198, 205-06 (Tex.App.--Houston
[14th Dist.] 1995, no writ). We overrule the fourth point of error.
FAILURE TO INFORM REGARDING SEALING RECORDS
In his fifth point of error, J.L.R. argues the trial court erred by failing to
inform him of the procedures for sealing his juvenile record. The Family Code
provides that at the conclusion of a disposition hearing, the court must inform
the juvenile of the procedures for the sealing of juvenile records. See
Tex.Fam.Code Ann. § 54.04(h)(2) (Vernon Supp.2000).
We conclude that this failure was harmless error. We apply the civil harm
standard when reviewing the disposition phase of an indeterminate juvenile
sentencing proceeding. See In re D.V., 955 S.W.2d 379, 380 (Tex.App.--San
Antonio 1997, no pet.). Under the civil harm standard, an error requires
reversal only if it probably caused the rendition of an improper judgment or
probably prevented the appellant from properly presenting the case to this
court. See Tex.R.App.P. 44.1(a). The failure to inform J.L .R. of the procedure
for the sealing of his juvenile record could not have caused the rendition of an
improper judgment--the information has nothing to do with the merits of the case
and the failure to provide the information occurred after the court rendered its
disposition decision. Moreover, the failure to provide the information in no way
prevented J.L.R. from presenting the case to this court. Finding no reversible
error, we overrule the fifth point of error.