By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

2001 Case Summaries     2000 Case Summaries     1999 Case Summaries

Commitment justified because probation department would not pay for placement of 17 year old in sex offender program [In re J.W.](01-1-04).

On December 14, 2000, the El Paso Court of Appeals held that the juvenile court was justified in committing the respondent to TYC because the probation department would not pay for local sex offender treatment for the 17 year old respondent.

¶ 01-1-04. In the Matter of J.W., UNPUBLISHED, No. 08-99-00274-CV, 2000 WL 1838980, 2000 Tex.App.Lexis ___ (Tex.App.—El Paso 12/14/00)[Texas Juvenile Law (5th Edition 2000)].

Facts: J.W. appeals his adjudication as a delinquent following a jury determination that he had committed the criminal offense of aggravated sexual assault of a child. He also appeals the disposition order committing him to the Texas Youth Commission.

The incident of sexual assault was alleged to have occurred on or about April 15, 1997. At the time, J.W. was living with his biological father David Mosley, his stepmother Kathy Mosley, his older stepsister Ja.M. Mosley, and his younger half-sisters K.M. and Je.M. On June 14, 1997, Mrs. Mosley found a note under K.M.'s pillow:

Mrs. Mosley talked to both K.M. and J.W. about the note and called Child Protective Services. According to ten-year-old K.M., the offense had occurred within the last two years. J.W., who was born November 23, 1981, would have been between the ages of thirteen
and fifteen at the time.

K.M. maintained that while "playing house" in a clubhouse made of sheets and chairs, she and J.W. removed their underwear, and J.W. began "pushing ... his pee area toward ... [m]y pee area." During her trial testimony, K.M. responded affirmatively when asked whether J.W.'s "pee area" went inside her "pee area." Dr. Samuel MacFerran examined K.M. and testified at trial that his physical findings were consistent with either a sexual assault having occurred or not having occurred. He found a small, healed tear on the posterior fourchet of her vagina which he described as occurring "not recently." The tear could have been caused by sexual penetration or by blunt trauma to the external genitalia caused, for example, by falling down hard on a bicycle frame. And in fact, the record reveals that K.M. was sexually assaulted by a male cousin six years earlier.

K.M.'s stepsister, Ja.M., told detectives that she could corroborate K.M.'s story that K.M. and J.W. were naked in the clubhouse. However, her trial testimony indicated that while she remembered an incident where she, Je.M., K.M., and J.W. were playing house, and that she saw J.W. on top of K.M., she could not remember whether they were naked. Following Mrs. Mosley's report to authorities, J.W. left home to live with his biological mother, Billy Faye Woodberry, his brother, James, and his maternal grandmother, Leslie Warren. A court-appointed psychologist examined J.W. and found him to be borderline mentally retarded. At the age of sixteen years, one month, J.W. had a mental age of twelve years, eight months.

Held: Affirmed.

Opinion Text: SUFFICIENCY OF THE EVIDENCE

We proceed now to the issues raised on appeal. We will address them topically, rather than in the numerical order in which they are presented in the brief.

Legal Sufficiency of the Evidence at Adjudication

In Point of Error No. One, J.W. argues the evidence is legally insufficient to support the jury's finding that he engaged in delinquent conduct. He contends:

The State responds that because K.M.'s testimony is neither vague nor unclear, a rational trier of fact could reasonably conclude that sexual penetration occurred. Further, trauma to genitalia consistent with sexual assault can always be consistent with other types of activity such that it is the jury's prerogative to weigh the evidence. Finally, the State contends that the credibility of Ja.M.'s testimony was an issue for the jury. We begin with the standard of review.

Standard of Review

A jury finding that a juvenile engaged in delinquent conduct violates due process of law unless supported by sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. In the Matter of A.S., 954 S.W.2d 855, 858 (Tex.App.--El Paso 1997, no writ); Alvarado v. State, 912 S.W.2d 199, 206-07 (Tex.Crim.App.1995); In the Matter of Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). Under this standard, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. In the Matter of A.S., 954 S.W.2d at 858; Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Alvarado, 912 S.W.2d at 207.

Evidence Elicited At Trial

K.M. testified that J.W. "touched me in my private place," and that he touched her "[i]n the area where you go pee and the bottom." She described the incident in which she, J.W., and Ja.M. were playing house in a clubhouse they built with sheets and chairs and that she had written her mother a note. Medical testimony revealed that the tear in K.M.'s vagina was equally consistent with sexual penetration either having, or not having, occurred. Although Ja.M. did not "recant" her corroboration of K.M.'s story, she only remembered playing house with K.M. and J.W. and nothing more.

Analysis

J.W. argues that even when viewed in the light most favorable to the verdict, the evidence establishes only that J.W. and K.M. engaged in some kind of sexual play which could not have amounted to criminal conduct given J.W.'s delayed cognitive abilities. We disagree. It is not necessary that J.W. intended his actions be criminal in nature. The aggravated sexual assault statute requires only that a person intentionally or knowingly cause the penetration of the female sex organ of a child by any means. Tex.Pen.Code Ann . 22.021(a)(1)(B)(i)(Vernon Supp.2000). Under the Penal Code, a person acts knowingly or with knowledge with respect to the
nature of his conduct when he is aware of the nature of the conduct. Tex .Pen.Code Ann. 6.03(b)(Vernon 1994). Knowledge may be inferred from an accused's acts, words, and conduct. Stahle v. State, 970 S.W.2d 682, 687 (Tex.App.--Dallas 1998, pet. ref'd); Martinez v. State, 833 S.W.2d 188, 196 (Tex.App.--Dallas 1992, pet. ref'd). We find that there is sufficient evidence from which a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Point of Error No. One is overruled.

Factual Sufficiency of the Evidence on Adjudication

In Point of Error No. Two, J.W. complains that the evidence is factually insufficient to support the jury's finding that he engaged in delinquent conduct. Specifically, he contends that:

Once again, we begin with the standard of review.

Standard of Review

In reviewing a challenge to factual sufficiency, we must consider all the evidence presented at trial, and the point of error will be sustained only if the verdict is so contrary to the overwhelming weight of the evidence as to be manifestly wrong and unjust. In the Matter of A.S., 954 S.W.2d at 860. We review all of the evidence but we do not view it in the light most favorable to the verdict in determining whether the State met its burden of proof beyond a reasonable doubt. Id. at 861.

Evidence Elicited at Trial

J.W. expressed his innocence at trial. Mrs. Mosley informed the jury that she had never observed any inappropriate sexual conduct on J.W.'s part, and admitted she could not decide between K.M. and J.W. who was telling her the truth because she loved them both. The State's attempt to elicit evidence that J.W. had an abnormal interest in sex was unsuccessful. J.W. argues that it is unclear from K.M.'s statements whether the incident was an actual sexual encounter, or a pretend sexual encounter during a game of playing house. Referring to his borderline mental retardation range of intelligence, J.W. suggests that if he did have sexual contact with K.M., it could only have been in the nature of play or pretend sex which is a normal part of childhood development. The State counters that the finding of guilt is neither wrong, unjust, nor contrary to the evidence and emphasizes that the credibility of the witnesses was an issue for the jury. Responding to J.W.'s argument that if a sexual assault occurred, there is insufficient evidence that J.W. was the perpetrator, the State points to K.M.'s accusation, the note to her mother, and K.M.'s discussion with Dr. MacFerran. As for J.W .'s argument that he did not have the mental capacity to form criminal intent, the State notes that the Juvenile Justice Code pertains to individuals ten years of age or older and under seventeen years of age. Therefore, J.W. would be subject to adjudication even though he was cognitively twelve years, eight months old at the time of the offense.

After reviewing all of the evidence, we cannot conclude that the jury's verdict is contrary to the overwhelming weight of the evidence. There is substantial evidence that J.W. committed the delinquent act of aggravated sexual assault. Because we find the evidence factually sufficient to establish the required elements of the offense, we overrule the second point.

Factual Sufficiency of the Evidence on Disposition

In his fifth point, J.W. submits that the judge abused his discretion in committing him to the custody of the Texas Youth Commission ("TYC"), because:

Standard of Review

We have the authority to address a challenge to the factual sufficiency of the evidence to support commitment to TYC. In the Matter of A.S., 954 S.W.2d at 861. In a juvenile case, the trial court possesses broad discretion to determine a suitable disposition of a child who has been adjudicated to have engaged in delinquent conduct. Id.; In the Matter of J.R., 907 S.W.2d 107, 109 (Tex.App--Austin 1995, no writ); In the Matter of R.W., 694 S.W.2d 578, 580 (Tex.App.--Corpus Christi 1985, no writ). Absent an abuse of discretion, we will not disturb the juvenile court's findings. In the Matter of A.S., 954 S.W.2d at 861. The court's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards as are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answers to a charge. Id.; In the Matter of G.F.O., 874 S.W.2d 729, 731-32 (Tex.App.--Houston [1st Dist.] 1994, no writ).

In conducting this review, we engage in a two-pronged analysis: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion? In re M.A.C., 999 S.W.2d 442, 446 (Tex.App.--El Paso 1999, no pet.); Leibman v. Grand, 981 S.W.2d 426, 429 (Tex.App.--El Paso 1998, no pet.); Lindsey v. Lindsay, 965 S.W.2d 589, 591 (Tex.App.--El Paso 1998, no pet.). We then proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision or whether it is arbitrary and unreasonable. In re M.A.C., 999 S.W.2d at 446; Leibman, 981 S.W.2d at 430; Lindsey, 965 S.W.2d at 591. The question is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the for the trial court's action, but whether the court acted without reference to any guiding rules and principles. (Tex.1985)Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 242 , cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); In re M.A.C., 999 S.W.2d at 446; Leibman, 981 S.W.2d at 430; Lindsey, 965 S.W.2d at 591. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Company v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); In re M.A.C., 999 S.W.2d at 446; Leibman, 981 S.W.2d at 430; Lindsey, 965 S.W.2d at 592.

In reviewing a factual sufficiency challenge, we consider all of the evidence but we do not view it in the light most favorable to the challenged findings. See In the Matter of A.S., 954 S.W.2d at 860; R.X.F. v. State, 921 S.W.2d 888, 900 (Tex.App.--Waco 1996, no writ); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust will we conclude that the evidence is factually insufficient. See In the Matter of A.S., 954 S.W.2d at 860; R.X.F., 921 S .W.2d at 900, citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) and Clewis, 922 S.W.2d at 129.

Statutory Requirements

The juvenile court's discretion is guided by the requirements of Section 54.04 of the Family Code. Section 54.04(c) provides that the trial court may not make a disposition placing a juvenile outside of his home unless the court finds that 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. Tex.Fam.Code Ann. 54.04(c)(Vernon Supp.2000). Further, in order to commit a child to TYC, the court must additionally find and state in its disposition order that placement outside of the child's home is in the child's best interest and that reasonable efforts were made to prevent or eliminate the need for the child's removal from the home. Tex.Fam.Code Ann. 54.04(i).

Evidence Elicited at Trial

Due to the familial relationship between J.W. and K.M., it is not possible for J.W. to live with the Mosleys. However, since the incident with K.M., J.W. has resided with his maternal grandmother, Leslie Warren, and she wanted him to remain with her. Also living with Mrs. Warren are J.W.'s mother, whose mental deficits result in her being unable to care for her children without assistance, and J.W.'s older brother, James, who is also cognitively disabled. Mrs. Warren indicated J.W. was not a behavior problem at home. He did the chores she requested of him and she had never seen indications that he was using alcohol or drugs. Mrs. Warren would require J.W. to adhere to a curfew and report any failure to do so to the authorities.

The social history prepared by Probation Officer Teri Valero in December 1997 recommended that J.W. be placed on one year's probation with initial placement at the Kerr County Detention Center so that he could participate in their sex offender program. However, the supplemental social history prepared in April 1999, after J.W. rejected the State's plea offer, recommended that J.W. be committed to TYC. J.W. was still a juvenile when the first recommendation had been made and therefore the probation department would have paid for his placement. Valero explained that because J.W.'s status had changed, and he was now an adult, the department would not pay for his treatment. When Valero testified that money played a big part in treatment recommendation, the trial judge instructed her that placement had nothing to do with money. The court then explained:

J.W. argues this explanation implies that a juvenile who exercises his right to a jury trial is not entitled to remain with his family.

In order to commit a child to TYC, the court must also find that reasonable efforts were made to prevent or eliminate the need for the child's removal from the home. Tex.Fam.Code Ann. 54.04(i). J.W. asserts that no such efforts were made and that the trial judge mistakenly believed the plea offer constituted "reasonable efforts" to eliminate the need to remove him from home. The court specifically found:

J.W. concludes that the probation department's recommendation was based primarily on funding concerns and that the trial court's decision was motivated by a desire to punish him for exercising his right to trial. Consequently, he argues that the judge's findings were so against the great weight of the evidence as to be manifestly unjust.

The State responds that a stable home is not available to J.W. in Midland County. Citing Mrs. Warren's testimony that J.W. leaves home without informing her of his location and that she has little knowledge of his activities away from home, the State contends Mrs. Warren is not capable of providing the quality of care and level of support or supervision J.W. requires. The social history reveals that J.W. was enrolled in the tenth grade, was failing his classes, and had numerous referrals for chronic misbehavior in the classroom. Valero did not believe the home environment could provide the supervision, maintenance, and support that would be necessary for J.W. to maintain a successful probation. According to Valero, Mrs. Warren has said that although she will tell J.W. to stay home, he will leave, and that since turning seventeen, he has become rebellious. Valero believed that the TYC placement would meet J.W.'s needs because he would be evaluated for learning deficits and have these addressed in his education, participate in group counseling, and be provided a structured environment within which he can learn self-discipline.

The record contains evidence that the trial court did consider alternatives to committing J.W. to TYC. Valero could think of no program in Midland County, either through the probation department or the court, that would meet J.W.'s needs. In response to the judge's question, "Can you think of anything else that could have been done through the probation department that would have avoided the necessity of removing him from his house?" Valero replied, "Not-- since he's become an adult and with adult charges pending, I don't believe there is anything the juvenile system can do as far as rehabilitation and as well as sex offender treatment." However, she later acknowledged that admission to the sex offender program at TYC was limited and that J.W. might only be able to participate in group counseling at that facility. He would receive sex offender treatment at Kerr County, but because of his age at disposition, the probation department would no longer pay for his rehabilitation.

Because the trial judge did consider the treatment options available to J.W., and had broad discretion is making its decision, we find no abuse of discretion in committing J.W. to TYC. Point of Error No. Five is overruled.

EQUAL PROTECTION

A person who sexually assaults a child under the age of fourteen may be charged with aggravated sexual assault of a child, a first degree felony, rather than sexual assault of a child, a second degree felony. Tex.Pen.Code Ann. 22.021. The equal protection clause of the Fourteenth Amendment to the United States Constitution requires that all persons similarly situated be treated alike. U.S. Const. amend. XIV; City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439-40, 105 S.Ct. 3249, 3253-54, 87 L . Ed2d 313, 320 (1985).

In Point of Error No. Three, J.W. contends that the classification created in Section 22.021 results in a disproportionate penalty for juvenile offenders, because juvenile offenders are unlikely to sexually molest any person who is not a child, and are therefore more likely than adults to be charged with the aggravated offense. He argues that the State has no legitimate, important or compelling interest in charging juveniles with the aggravated offense, in cases where the sole aggravating circumstance is the age of the victim, because no gross disparity of power exist among juveniles as group, and therefore children do not need extraordinary protection from other children. Finally, he suggests that because the court is not bound to follow legislative sanction guidelines and is free to impose any appropriate punishment, it has no need to charge the aggravated offense.

In reviewing state action that is challenged as violative of the equal protection clause, we presume its validity and it will be sustained if the classification drawn is rationally related to a legitimate state interest. City of Cleburne, 473 U.S. at 439-40, 105 S.Ct. at 3253-54. However, if the classification is based on race, alienage, or national origin, or if it serves to deny an affected group a fundamental right, the statutory scheme must survive strict scrutiny. Id. In such a case, the classification will be sustained only if it is suitably tailored to serve a compelling state interest. Id.

J.W. maintains that Section 22.021 of the Texas Penal Code deprives him of the following fundamental liberty interests: . as a result of being charged with aggravated sexual assault rather than sexual assault, a higher sanction level is suggested to the court as appropriate under the Family Code; being charged with aggravated sexual assault rather than sexual assault may deprive him of liberty interests in future court proceedings, because if he is charged with a state jail felony in the future, the penalty could be enhanced to a third degree felony if a court should determine that J.W. had previously been "finally convicted" of aggravated sexual assault; and aggravated sexual assault is perceived socially to be a more heinous crime than sexual assault.

J.W. concludes that the age classification violates constitutional equal protection guarantees because it disproportionately burdens juveniles without any legitimate, important, or compelling governmental interest to justify that burden.

The State counters that the statute creates a classification based upon the age of the victim. Because the Legislature has determined that children need extra protection from sexual exploitation, and that this need for protection exists regardless of the age of the actor, violators of the statute are treated alike, regardless of their age, and there is no equal protection violation.

We conclude that the statute does not burden or impair the ability of a class, juveniles charged with aggravated sexual assault, to exercise a fundamental right. As no suspect class is involved and no fundamental right is implicated, the appropriate standard of review is whether charging aggravated sexual assault rationally furthers a legitimate state interest. City of Cleburne, 473 U.S. at 439-40, 105 S.Ct. at 3254. Equal protection requirements are satisfied as long as there is a plausible policy reason for the classification. The State has a legitimate interest in taking steps to protect children and this statutory scheme is rationally related to that interest. Indeed, classification based on age in statutes governing offenses involving deviant sexual acts with children under the age of fourteen "furthers the State's legitimate, reasonable interest and concern in protecting minor children of tender age." See In the Matter of C.O.S., 961 S.W.2d 360, 364 (Tex.App.-- Houston [1st Dist.] 1997), aff'd, 988 S.W.2d 760 (Tex.1999); Gass v. State, 785 S.W.2d 834, 839-40 (Tex.App.--Beaumont 1990, no pet.); see also P.G. v. State, 616 S.W.2d 635, 640-41 (Tex.Civ.App.--San Antonio 1981, writ ref'd n.r.e .). The statutes evidence an intention to protect a child from anyone who commits a sexual assault on her with or without her consent. It would frustrate the intent of the statutes to hold that a child is protected from sexual abuse by adults, with or without her consent, but is not protected from sexual abuse by minors, with or without her consent. Children are entitled to no less protection from other children who sexually abuse them than they are from adults who sexually abuse them. Id. at 640-41. Point of Error No. Three is overruled.

EVIDENTIARY COMPLAINT

Section 54.04 of the Texas Family Code governs juvenile disposition after adjudication and permits the court to consider written reports from probation officers, professional court employees or professional consultants in addition to the testimony of witnesses to determine a proper disposition. Tex.Fam.Code Ann. 54.04(b). Section 54.04 is silent as to whether evidence of extraneous, unadjudicated offenses is permitted. Referring to the supplement to social history she prepared, Probation Officer Teri Valero testified that J.W. had adult charges pending for burglary of a vehicle, possession of marijuana, and aggravated robbery. In Point of Error No. Four, J.W. maintains that evidence of unadjudicated, extraneous offenses should be admissible at disposition only if they are clearly proven, relevant, and more probative than prejudicial. He attempts to persuade us that although not specifically applicable to disposition proceedings in juvenile court, the Texas Code of Criminal Procedure provides an appropriate standard for ensuring due process. See Tex.Code Crim.Proc.Ann . art. 37.07, 3(a)(Vernon Supp.2000).

A social history is not subject to a strict application of the rules of evidence, and there is no limitation to the information contained therein. In the Matter of A.F., 895 S.W.2d 481, 485-86 (Tex.App.--Austin 1995, no writ.); In the Matter of C.D.R., 827 S.W.2d 589, 592 (Tex.App.--Houston [1st Dist.] 1992, no writ). The purpose of Section 54.04(b) is to broaden the pool of information available for the trial court's consideration at the disposition hearing. In the Matter of A.F., 895 S.W.2d at 485; In the Matter of A.N.M., 542 S.W.2d 916, 921 (Tex.Civ.App.--Dallas 1976, no writ); Tyler v. Texas, 512 S.W.2d 46, 48 (Tex.Civ.App.--Beaumont 1974, no writ). The information contained in the social history here was necessary and relevant to the trial court's decision in the disposition hearing inasmuch as further contact with law enforcement is relevant to J.W.'s home situation and need for rehabilitation. See In the Matter of A.F., 895 S.W.2d at 484. Subjecting social history reports to a rigid application of the rules of evidence would undoubtedly restrict the substantive information admissible, undermining the objective of considering all relevant factors in determining an appropriate disposition. Id. at 486. Because the information regarding the extraneous offenses was relevant to the disposition decision, we overrule Point of Error No. Four.

Having overruled all issues on appeal, we affirm the judgment of the trial court.

2001 Case Summaries     2000 Case Summaries     1999 Case Summaries