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

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Court of Appeals upholds TYC commitment under abuse of discretion standard [In re S.R.M.] (04-1-02)

On December 3, 2003, the San Antonio Court of Appeals upheld a commitment to TYC under its abuse of discretion standard.

04-1-02. In the Matter of S.R.M., UNPUBLISHED, No. 04-03-00349-CV, 2003 WL 22848955, 2003 Tex.App.Lexis ___ (Tex.App.-San Antonio 12/3/03) Texas Juvenile Law (5th Ed. 2000).

Facts: This is an appeal from the trial court's disposition in a juvenile matter, sentencing appellant to confinement with Texas Youth Commission. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex.R.App. P. 47.4.

Held: Affirmed.

Opinion Text: RIGHT OF CONFRONTATION

In his first issue, appellant complains the trial court violated his constitutional right to confront the probation officer who testified at the disposition hearing.

During the hearing, the court asked the probation officer for a recommendation, and the officer replied, "TYC was the recommendation as still stated on the PDR." The court then asked for the predisposition report. Appellant's counsel stated "I would object to the introduction of [the] predisposition report. I'd like question and answer format, your honor." Counsel did not obtain a ruling on her objection. At no time did appellant's counsel ask to question the probation officer or present other witnesses. At the conclusion of the hearing, the trial court asked appellant's counsel "Anything else?" Counsel replied, "No." The court then ordered appellant committed to the Texas Youth Commission and recited its reasons pursuant to Texas Family Code section 54.04. See Tex. Fam.Code Ann. § 54.04(f), (I) (Vernon 2002). Only at this point did appellant's counsel state, "Just for the record ... I did not have the right to cross examine the probation officer." Appellant's counsel did not state her objection was based on a violation of appellant's constitutional right to confront witnesses against him. Nor did counsel preserve in a bill of exception what questions or information she sought to explore on cross examination. See Tex.R.App. P. 33.2. Accordingly, appellant has not preserved this complaint for our review. See Briones v. State, 595 S.W.2d 546, 547 (Tex.Crim.App.1980) (constitutional right of confrontation can be waived).

DISPOSITION ORDER

In his second issue, appellant asserts the trial court's disposition is not supported by legally or factually sufficient evidence because the probation officer's testimony was conclusory and no other evidence was offered to support the trial court's findings. We review a trial court's disposition order under an abuse of discretion standard. See In the Matter of K.T., 107 S.W.3d 65, 75 (Tex.App. San Antonio 2003, no pet.).

Here, in addition to the probation officer's recommendation, the trial court also considered the predisposition report, which stated that (1) appellant continued to defy his probation officer's warnings to refrain from drug use; (2) he has been referred to the juvenile department on nine occasions, five of which were for felony offenses; (3) his mother has a good relationship with her son, but claims he is in need of constant supervision; (4) his mother has been convicted of an offense and will be confined for several weeks; and (5) appellant recently has been in violation of his probation concerning curfew, drug tests, community service assignments, and reporting. On this record, appellant has not demonstrated the trial court abused its discretion in committing him to the Texas Youth Commission.

2003 Case Summaries     2002 Case Summaries     2001 Case Summaries     2000 Case Summaries     1999 Case Summaries