By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Not error to permit probation officer and
victim to testify at disposition that juvenile should be committed to the TYC
(00-2-22)
On May 9, 2000, the Dallas Court of Appeals held that the juvenile court did
not err in permitting a juvenile probation officer and the victim of the
aggravated robbery to testify at the disposition hearing that the juvenile
should be committed to TYC. Neither witness recommended a particular term of
years for the determinate sentence.
00-2-22. In the Matter of A.L.S., UNPUBLISHED, No. 05-99-01244-CV, 2000 WL
567091, 2000 Tex.App.Lexis ___ (Tex.App.—Dallas 5/9/00)[Texas Juvenile Law 179
(4th Edition 1996)].
Facts: This is an appeal from an order adjudicating appellant a child engaged in
delinquent conduct and committing him to the Texas Youth Commission (TYC).
Appellant presents two issues in which he contends the trial court erred in
allowing two witnesses to recommend a particular disposition.
The State filed a petition alleging appellant was a child engaged in delinquent
conduct. Specifically, the State alleged appellant committed aggravated robbery
with a deadly weapon. The petition was approved by the grand jury. After an
adjudication hearing, the jury found beyond a reasonable doubt that appellant
had engaged in the conduct alleged in the State's petition. A disposition
hearing followed in which the jury found appellant should be committed to TYC,
with a possible transfer to the Institutional Division of the Texas Department
of Criminal Justice, for twenty-five years. The trial court rendered judgment in
accordance with the jury's verdict. This appeal followed.
Appellant presents two issues, both of which concern the admission of evidence
at his disposition hearing. In the first issue, appellant complains of the
admission of expert testimony regarding what disposition the jury should make.
At the disposition hearing, David Breard testified that he is an assessment
officer with the Dallas County Juvenile Department. His job duties include
gathering information on juveniles, evaluating that information, and making
recommendations to the court for proper disposition. The disposition options are
(1) placement in the home, (2) placement outside the home, and (3) commitment to
TYC. Breard was assigned to make a recommendation in appellant's case and
concluded appellant should be committed to TYC. Appellant objected to Breard's
testimony asserting it was not relevant. The trial court overruled appellant's
objection. Breard then explained that his recommendation was based the
seriousness of the offense and his belief that appellant needed a highly
structured environment. Breard ruled out probation in the home or in a placement
facility because the maximum period of supervision would be until appellant's
eighteenth birthday, just over a year and a half. However, if appellant were
committed to TYC, TYC could work with appellant beyond his eighteenth birthday.
Specifically, TYC could meet appellant's educational needs and prepare him for
adult life by providing independent living skills and vocational training.
On appeal, appellant asserts the trial court erred in admitting Breard's
recommendation that he should be committed to TYC. The admission or exclusion of
evidence at a disposition hearing is a matter within the trial court's
discretion. See In re 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 rules or principles. Id. Rule 702 of the
rules of evidence provides that expert opinion testimony by a qualified witness
is admissible if it will assist the trier of fact to understand the evidence or
determine a fact in issue. See Tex.R. Evid. 702.
To show the trial court abused its discretion, appellant relies on criminal
cases in which witnesses were improperly permitted to give their opinion on the
defendant's punishment. See Sattiewhite v. State, 786 S.W.2d 271, 290
(Tex.Crim.App.1989); Hughes v. State, 787 S.W.2d 193, 196 (Tex.App.-Corpus
Christi 1990, pet. ref'd). Specifically, in Sattiewhite v. State, the court of
criminal appeals held an expert witness may not recommend a particular
punishment. Sattiewhite, 786 S.W.2d at 290. It explained that such testimony
would tend to confuse, rather than aid, the jury in its punishment decision. Id.
The issue presented in this case is whether the expert testimony would aid the
jury in determining the issues presented at the juvenile disposition hearing.
Before disposition may be made in a juvenile case, the jury must find the child
is in need of rehabilitation or the protection of the public or the child
requires that disposition be made. See Tex. Fam.Code Ann. § 54.04(c) (Vernon
Supp.2000). No disposition may be made placing the child on probation outside
the home unless the jury finds the child, in the child's home, cannot be
provided the quality of care and level of support and supervision that the child
needs to meet the conditions of probation. Id The family code should generally
be construed to effectuate its purposes to protect the public and to
rehabilitate the child. See Tex. Fam.Code Ann. § 51.01 (Vernon 1996).
Thus, the issues to be decided in determining a proper disposition in a juvenile
case differ from the issues presented in a criminal case. It follows that the
evidence that would be helpful to the jury in a juvenile case is not necessarily
the same as the evidence that would be helpful to the jury in a criminal case.
We conclude expert testimony regarding the disposition that would best meet the
child's needs for rehabilitation would be helpful to the jury.
In this case, Breard was permitted to testify that based upon his review of the
case and his experience as an assessment officer, appellant should be committed
to TYC. Breard further explained the basis for his opinion. Breard did not
testify that appellant should be assessed any particular sentence. The trial
court could have properly concluded Breard's testimony would be helpful to the
jury in deciding the issues presented at the disposition hearing. Therefore, the
trial court did not abuse its discretion in overruling appellant's objection.
Assuming, arguendo, the trial court erred in admitting Breard's testimony, we
conclude the error was rendered harmless when the same evidence was subsequently
admitted before the jury without objection. See Butler v. State, 769 S.W.2d 234,
241 (Tex.Crim.App.1989), overruled on other grounds by Geesa v. State, 820
S.W.2d 154 (Tex.Crim.App.1991); Nicholas v. State, 502 S.W.2d 169, 174-75
(Tex.Crim.App.1973); Posey v. State, 840 S.W.2d 34, 37 (Tex.App.-Dallas 1992,
pet. ref'd); In re G.M.P., 909 S.W.2d 198, 205- 206 (Tex.App.-Houston [14 th
Dist.] 1995, no writ). After Breard testified, Robert Pointer, the deputy
director of probation services with the Dallas County Juvenile Department,
testified without objection that he reviewed Breard's report and was aware that
Breard recommended appellant be committed to TYC. He further testified that he
was "very much" in agreement with Breard's recommendation. Pointer
further explained why he believed appellant should be committed to TYC and why
there were no appropriate lesser alternatives. Because appellant failed to
object to Pointer's testimony, which informed the jury not only of Breard's
recommendation, but of Pointer's own recommendation, appellant cannot now
complain of the admission of Breard's testimony. See Butler, 769 S.W.2d 241;
Nicholas, 502 S.W.2d at 174-75; Posey, 840 S.W.2d at 37. We resolve the first
issue against appellant.
In the second issue, appellant complains of the admission of Paul Geilich's
testimony, the victim in this case. Geilich was permitted to testify, over
appellant's objection, that based upon his experience with appellant, appellant
should not be released into the community. [FN1] After reviewing the record, we
conclude the error, if any, was harmless.
FN1. Geilich also testified that appellant should be in a secure place. The
trial court, however, sua sponte instructed the jury to disregard that portion
of Geilich's testimony. Appellant did not request any further relief and
therefore cannot now complain of that portion of Geilich's testimony. See Cook
v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.1993); Purtell v. State, 761 S.W.2d
360, 372 (Tex.Crim.App.1988).
The complained-of error is not constitutional error. Therefore, we must
disregard it unless it affected appellant's substantial rights. [FN2] See
Tex.R.App. P. 44.2(b); see Johnson v. State, 967 S.W.2d 410, 417
(Tex.Crim.App.1998). We affirm if, after reviewing the record as a whole, the
error did not influence the jury, or had but a slight effect. See Johnson, 967
S.W.2d at 417.
FN2. We recognize it is currently unclear whether the civil or criminal harm
analysis should be applied in juvenile cases. See In re D.I.B., 988 S.W.2d 753,
756 (Tex.1999)(applying civil harm analysis in the absence of a constitutional
challenge). Because both the State and appellant cite us to the criminal harm
analysis and because we conclude the error is harmless under the criminal
standard, we need not now decide whether the criminal standard is
constitutionally required. See D.I.B., 988 S.W.2d at 756 n.11.
This case involved a particularly egregious aggravated robbery. Appellant and an
older male accosted the victim in the victim's garage. The assailants then
ordered the victim into his home at gunpoint. While the older male ransacked the
victim's home, appellant held a gun to the victim's head. The victim testified
that he was afraid appellant was going to kill him. The complained- of evidence
consists of the victim's general testimony that appellant should not be released
into the community. The victim did not recommend a particular placement or
suggest appellant should be incarcerated for a particular number of years.
Furthermore, other evidence was admitted that appellant should be committed to
TYC. In light of the record as a whole, we conclude the complained-of error had
little, if any, effect on the jury. Therefore, the alleged error was harmless.
We resolve the second issue against appellant.