In re J.M., 06-08-00087-CV.
| Decision Date | 16 June 2009 |
| Docket Number | No. 06-08-00087-CV.,06-08-00087-CV. |
| Citation | 287 S.W.3d 481 |
| Parties | In The Matter of J.M. |
| Court | Texas Court of Appeals |
Lew Dunn, Law Office of Lew Dunn, Longview, TX, for appellant.
Zan Colson Brown, Asst. Dist. Atty., Carl Dorrough, Dist. Atty., Longview, TX, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
After having amassed a rather impressive record of offenses, J.M., a juvenile, was placed on probation for felony theft of a motorcycle. On July 7, 2008, the State filed its motion to modify the disposition, alleging that J.M. violated the terms of his probation by committing misdemeanor theft and resisting arrest, among other violations. The trial court found sufficient evidence supported the allegations and modified the disposition, sending J.M. to the Texas Youth Commission (TYC). J.M. moved for a new trial. In response to the motion for new trial, the trial court agreed that an error had been made in the judgment and reformed its judgment to correct that error. J.M. then filed another motion for new trial, this time unsuccessfully. It is from the order sending J.M. to TYC that this appeal is being sought.
On appeal, J.M. presents several points of error. First, he challenges the trial court's decision to modify his disposition, contending it was an abuse of discretion to do so when the evidence was legally and factually insufficient to show that he had committed a criminal offense in violation of the terms of his probation. Second, he challenges the trial court's order, maintaining it is insufficiently specific and, therefore, void. Finally, he lodges two constitutional challenges: (1) he contends the conditions present at the TYC facility constitute cruel and unusual punishment, and (2) he maintains that the trial court's decision to commit him to TYC, rather than a local or nearby youth facility, violated his right to equal protection of the law.
A trial court's modification of juvenile disposition is governed by Section 54.05 of the Texas Family Code. See TEX. FAM.CODE ANN. § 54.05 (Vernon 2008). When a juvenile has previously engaged in delinquent conduct, the trial court may modify the original sentence to commit the juvenile to TYC if the trial court determines, by a preponderance of the evidence, that the juvenile subsequently violated a reasonable and lawful order of the court. TEX. FAM. CODE ANN. § 54.05(f); In re J.P., 136 S.W.3d 629, 632 (Tex.2004); In re T.R.S., 115 S.W.3d 318, 320-21 (Tex.App.-Texarkana 2003, no pet.).
Modifying a juvenile's probation is a decision which lies within the sound discretion of the trial court, reversible on appeal only on a finding that the trial court abused that discretion. TEX. FAM.CODE ANN. § 54.05; J.P., 136 S.W.3d at 632; In re J.R.C., 236 S.W.3d 870, 875 (Tex.App.-Texarkana 2007, no pet.); In re M.A., 198 S.W.3d 388, 390-91 (Tex.App.-Texarkana 2006, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably or without reference to guiding rules or principles. J.R.C., 236 S.W.3d at 875; M.A., 198 S.W.3d at 391. A trial court does not abuse its discretion if some evidence supports the decision. J.R.C., 236 S.W.3d at 875; M.A., 198 S.W.3d at 391. Put another way, whether there is factually sufficient evidence to support the trial court's findings is a relevant consideration in determining whether the trial court abused its discretion. J.R.C., 236 S.W.3d at 875; In re C.J.H., 79 S.W.3d 698, 702 (Tex.App.-Fort Worth 2002, no pet.).
One of J.M.'s contentions on appeal is that the State, having pleaded both theft and resisting arrest as separate allegations, but under the same paragraph heading in its motion to modify, was required to prove J.M. committed both offenses in violation of the terms of probation before the trial court may use those allegations to modify the prior disposition. We find no authority to support such a position. To the contrary, a single violation of the conditions of the juvenile's probation is sufficient to support a trial court's order modifying a juvenile's disposition. TEX. FAM. CODE ANN. § 54.05(f); In re J.A.D., 31 S.W.3d 668, 671 (Tex.App.-Waco 2000, no pet.); In re S.G.V., No. 04-05-00605-CV, 2006 WL 923576, at *3, 2006 Tex.App. LEXIS 2688, at *9-10 (Tex.App.-San Antonio Apr.5, 2006, no pet.) (mem.op.).
Officer Steve Burnette was off duty and working in a loss-prevention capacity (i.e., as security) at a convenience store when he saw J.M. and his friend, D.O., secrete two bags of pork rinds on their persons and then remove the pork rinds (having a retail value of $3.98) from the convenience store without paying for them. Burnette provided the name and address of the convenience store and testified that Don Talley was the owner of that store. Burnette witnessed J.M. stick one bag of pork rinds in his friend's shorts and his friend stick another bag in his own shorts and the two then exited the store. Burnette testified that he first attempted to detain D.O., who succeeded in breaking loose and temporarily escaping from the scene. J.M. resisted as well, but did not get away.
According to Burnette's account of the event:
I just got ahold of [J.M.] and I got one cuff on him and he started hitting and pushing me back — well, pushing me back, not actually hitting, trying to get away from me and twisting and turning. I took the one cuff that I had in my hand — because I had one on — and I started pulling down. And then I got it up behind him, pushed him over the back of the car and got him handcuffed. It was a little bit hard because he had — not a backpack, but a big bag with him.
Burnette further explained that J.M. was using resistance to "pull away" from him. He had placed a cuff on J.M.'s left wrist and was attempting to get the handcuff on the other wrist when J.M. began to pull away from him. After J.M. was handcuffed and controlled, he showed Burnette the leg monitor he was wearing as ordered by the juvenile court in his previous disposition.
J.M. contends that the State's evidence failed to establish ownership of the stolen pork rinds; the State, he maintains, having alleged that "D. Talley" was the owner of the convenience store, needed to have evidence from Talley on the issue of ownership of the pork rinds in order to sustain the charge.1 The State argues that the evidence from Burnette that he was working for Talley in a security capacity at the convenience store is sufficient to show that Burnette had a greater right to possession of the pork rinds than did J.M.
The State is required to prove J.M. unlawfully appropriated property with intent to deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2008). The Texas Penal Code defines an "owner" as a person who "has title to the property, possession of the property, ... or a greater right to possession of the property than the actor." TEX. PENAL CODE ANN. § 1.07(35) (Vernon Supp.2008).
The fact that Talley did not testify is of no consequence. Similarly, the State's position that Burnette's testimony showed him to have a greater right to possession than J.M. is not central to the disposition of this issue. The State presented uncontroverted testimony that Talley was the owner of the specific convenience store from which J.M. took the pork rinds and, as the owner of the store, Talley had legal possession of the pork rinds prior to the boys' appropriation. Burnette testified that the boys took the pork rinds without paying for them (i.e., stole them). There is evidence to establish the challenged element of ownership with respect to the offense of theft. Again, evidence of only one violation of the conditions of the juvenile's probation will support the trial court's modification. Here, there is evidence that J.M. committed the offense of theft. There being sufficient evidence that J.M. committed theft, we conclude that the trial court did not abuse its discretion when it modified the disposition, and we overrule the points of error which challenge the sufficiency of the evidence and, concurrently, the contention that the trial court's modification was an abuse of its discretion.
J.M. argues that "The juvenile court's findings to remove appellant from his home were not specific enough to warrant removal and sending to the [TYC]." His contention is that the juvenile court's order was deficient because it failed to specifically state the reasons for the modification of the prior disposition.2 J.M. relies considerably on the proposition that "A statement to the effect that the court finds that the child has violated a reasonable and lawful order of the court does no more than track the statutory language of § 54.05(f)." A.Y. v. State, 554 S.W.2d 805, 807 (Tex.Civ.App.-San Antonio 1977, no writ). The A.Y. court, citing In re A.N.M., 542 S.W.2d 916, 919 (Tex.Civ.App.-Dallas 1976, no writ), continued, stating that the word "specifically" in Section 54.04(f) "emphasizes that the legislature intended the court to do more than merely track the statutory language." A.Y., 554 S.W.2d at 807.
The Texas Family Code requires that the trial court make the following three findings to remove the child from the home and commit the child to TYC:
1) It is in the child's best interest to be placed outside the home.
2) Reasonable efforts were made to prevent or eliminate the need for the child's removal from the home and to make it possible for the child to return home.
3) The child in the 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. § 54.05(m). The trial court...
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