By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Evidence justified probation outside the
home in school assault case [In re M.F.] (00-3-25)
On July 26, 2000, the San Antonio Court of Appeals upheld a juvenile
court’s order placing the juvenile on probation outside her home. The Court of
Appeals recited the mother’s denial of the juvenile’s responsibility for the
assault, resulting in her removing the child from school for home schooling. The
Court also recited numerous school infractions and a psychological report
asserting a need for structured supervision.
00-3-25. In the Matter of M.F., UNPUBLISHED, No. 04-99-00180-CV, 2000 WL
1053909, 2000 Tex.App.Lexis ___ (Tex.App.—San Antonio 7/26/00)[Texas Juvenile
Law 179 (4th Edition 1996)].
Facts: M.F. appeals from a disposition order placing her on probation for
assault of a uniformed officer. In three issues, M.F. argues she never received
a summons, the evidence is factually and legally insufficient to support the
sentence of probation outside her home, and the written order is inconsistent
with the oral pronouncement at the disposition hearing. We overrule M.F.'s
claims and affirm the trial court's order as modified.
Working as a security officer at MacArthur High School, off-duty San Antonio
Police Officer Steven Bazany received a call to respond to a disruptive student
in the cafeteria. When Officer Bazany approached M.F.'s cafeteria table and
attempted to escort her to the principal's office, M.F. responded "get the
hell out of her damn face" and "what the hell you still doing in my
fuckin' face." Shortly thereafter, Bazany attempted to physically remove
M.F. who responded with profanity and began shoving the officer. A struggle
between the two ensued and eyewitnesses testified that M.F. scratched the
officer across his arm. Other students took part in the struggle, and eventually
M.F. and the officer were shoved against a freezer. Additional faculty and law
enforcement officers arrived and handcuffed M.F. and took her to the principal's
office. M.F. was charged with assault of a public servant. See Tex.Pen.Code Ann.
§ 22.01 (Vernon Supp.2000).
At trial, the jury found her guilty of delinquent conduct. Thereafter, the trial
court conducted a disposition hearing and entered an order placing M.F. on
probation outside her home.
Held: Affirmed.
Opinion Text: A juvenile judge has broad discretion to determine the appropriate
disposition for a child who has been adjudicated as having engaged in delinquent
conduct. In re A.S., 954 S.W.2d 855, 861 (Tex.App.--El Paso 1997, no pet.).
Absent an abuse of discretion, the reviewing court will not disturb the juvenile
court's determination. In re K.L.C., 972 S.W.2d 203, 206 (Tex.App.--Beaumont
1998, no pet.). An abuse of discretion occurs if the trial court acted
arbitrarily or unreasonably -that is, without reference to guiding rules and
principles. In re S.B.C., 952 S.W.2d 15, 17 (Tex.App.--San Antonio 1997, no
pet.). The guiding principles for placing a child on probation outside the home
are provided in the Family Code. The court is permitted to commit a child to
probation outside the home if: (1) it is in the child's best interest to be
placed outside the home; (2) reasonable efforts have been taken to prevent or
eliminate the need for the child's removal from home; and (3) while in the home,
the child cannot receive the quality of care and level of support and
supervision needed to meet the conditions of probation. See Tex.Fam.Code Ann. §
54.04(i) (Vernon 1996); In re J.S., 993 S.W.2d 370, 372 (Tex.App.--San Antonio
1999, no pet.).
In her second issue, M.F. argues the evidence is factually and legally
insufficient to support the trial court's decision to remove her from her home.
Under an abuse of discretion standard, legal and factual sufficiency are
relevant factors in assessing whether the trial court abused its discretion.
Doyle v. Doyle, 955 S.W.2d 478, 481 (Tex.App.--Austin 1997, no pet.). Under a
legal sufficiency or no evidence point, we review only the evidence and
inferences which tend to support the challenged findings, disregarding any
evidence and inferences to the contrary. In re H .G., 993 S.W.2d 211, 213 (Tex.App.--San
Antonio 1999, no pet.). Under a factual sufficiency point, we consider the
totality of the evidence to determine whether the evidence supporting the
finding is so weak or the evidence contrary to the finding is so overwhelming
that it is clearly wrong or unjust. Id. In this regard, the trier of fact is the
exclusive judge of the credibility of the witnesses. Id.
The record contains testimony from cafeteria workers, students, and school
administrators who witnessed the assault. The substance of the testimony
confirmed that Officer Bazany attempted to calmly escort M.F. to the principal's
office. Testimony also corroborated Bazany's account of M.F.'s belligerence as
she threw paper towels at his head, threw a bucket of water on him, cursed,
scratched, and kicked him.
At the disposition hearing, the trial court received testimony from the unit
supervisor for Bexar County Juvenile Probation and from an assistant principal
at MacArthur, and reviewed extensive discipline records of M.F.'s consistent
history of disruptive behavior. Although the unit supervisor recommended M.F.
serve her probation at home because of a good relationship with her mother, he
also indicated that M.F. is currently home schooled as a result of her mother's
belief that the school systems persecute her daughter. The report from M.F.'s
psychologist recommended that M.F. be placed in a structured environment with
adequate supervision. But, evidence in the record also suggests that M.F.'s
mother is unable to provide such an environment. Particularly, the record shows
M.F.'s mother demonstrates a pattern of denial toward her daughter's behavior.
M.F.'s mother withdrew M.F. from her middle school claiming her daughter
suffered harassment from fellow students and teachers. She further refused to
acknowledge her daughter's responsibility in the instant assault.
The assistant principal described a series of fifteen infractions in a one- year
school term, and five infractions in a subsequent year. He testified that the
discipline referrals came not only from teachers, but also from bus drivers who
dealt with M.F.'s disruptive conduct. He further testified that as a result of
these infractions, M.F. has served in-school suspension multiple times and was
once removed from MacArthur and placed in a temporary student reassignment
school. The discipline log also detailed truancy, verbal abuse to authoritative
figures, and physical assault of another female student one week prior to the
instant assault.
From the testimony elicited at the hearing, coupled with M.F.'s extensive
history of delinquency, we hold the trial court acted within its discretion in
ordering that M.F. serve her probation outside her home. Accordingly, we
overrule M.F.'s second issue.
In her first and third issues, M.F. raises procedural complaints. M.F. complains
she never received service of citation in accordance with the Family Code. See
Tex.Fam.Code.Ann. § 53.06 (Vernon 1996). Although the return of service was
initially absent from the appellate record, proof of service was included in the
juvenile court's record. On appeal, the State complied with the requirements of
the Family Code by filing a supplemental record which included proof of service.
See Tex.R.App.P. 34.5(c) (permitting supplementation of omitted items from
appellate record).
In her third issue, M.F. argues the disposition order recites a different
sentence than that pronounced at the disposition hearing. At the hearing, the
trial court entered an oral pronouncement sentencing M.F. to probation until her
eighteenth birthday. See Tex.Fam.Code §§ 54.04(d)(1); 54.04(l) (Vernon 1996)
(providing that juvenile probation may not extend beyond child's eighteenth
birthday). The order of disposition, however, reflected that the sentence
extends ten days beyond M.F.'s eighteenth birthday. The State concedes error on
this issue, and requests that the disposition order be modified to comply with
the requirements of the Family Code. We therefore modify the disposition order
to reflect that M.F.'s probation sentence will terminate at the age of eighteen.
Accordingly, we overrule M.F.'s first and third issues and affirm the trial
court's disposition order as modified.