In the Matter of J.T.B., No. 06-09-00006-CV (Tex. App. 5/27/2009)
| Decision Date | 27 May 2009 |
| Docket Number | No. 06-09-00006-CV.,06-09-00006-CV. |
| Parties | IN THE MATTER OF J.T.B. |
| Court | Texas Court of Appeals |
On Appeal from the 2nd Judicial District Court, Cherokee County, Texas, Trial Court No. J-03-088.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
After a troubled, five-year history entangled within the juvenile justice system, J.T.B. appeals1 a modification and disposition order revoking probation and sentencing him to ten years' confinement.2 J.T.B. contends: (1) his counsel was ineffective and (2) the juvenile court failed to make specific findings required by Section 54.05(i) of the Texas Family Code. We affirm the trial court's judgment.
In order to fully understand the nature of this case, and the extent to which the juvenile court attempted to rehabilitate this juvenile, we briefly provide J.T.B.'s disquieting history.
After previously receiving deferred adjudication for stealing bicycles from Wal-Mart, and completing probation for attempted theft of a Powerline BB pistol, twelve-year-old J.T.B. pled true to violating Section 30.02(c)(2) of the Texas Penal Code3 after he entered a habitation on August 31, 2003, and stole an X-Box video game and cell phone. On February 12, 2004, J.T.B. was placed on probation in the custody of his mother for three years. The rules of all of his probations required that he commit "no offense against the laws of this or any other state," "[r]emain in the home . . . from 6:00 p.m. until 6:00 a.m. seven days a week, unless . . . given permission," and "[p]erform 160 hours of community service." The rules further provided that J.T.B. was to attend school as scheduled without causing problems and obey the rules and regulations of the school.
Although J.T.B. affixed his signature to the rules averring that he understood them, the very next day, his teacher advised the probation department that J.T.B. "[was] acting like a fool in school" and threw papers after the teacher asked him about his progress on an assignment. When J.T.B. was informed the school was going to call the probation department, he said that he "[didn't] give a f***." The probation officer filed an application for directive to apprehend and was directed to take J.T.B. into custody and detain him in the Anderson County Juvenile Detention Center for no more than ten working days. This was the first of many detention orders entered throughout the next few years.
In March 2004, the first petition to modify disposition was filed, citing the February 13 incident and two other incidents which involved J.T.B. hitting another boy "in the face with a closed fist" and "assaulting . . . a public servant of the Jacksonville Texas Public School system; hitting her in the left shoulder and arm with a closed fist." After a hearing, the juvenile court ordered that J.T.B. be placed on probation at Azleway Boys' Ranch in Tyler, Texas. In addition to the rules of probation already recited in the first order, the court required J.T.B. to obey the instructions and rules of the residential placement program and prohibited J.T.B. from participating in gang activity.
On October 4, 2004, the Azleway Boys' Ranch program director contacted the probation department and advised that J.T.B. was being discharged due to pending sexual assault charges. The charges were later dropped, and J.T.B. was allowed to return home and enroll in Rusk Junior High School. However, J.T.B. "got kicked out of regular school," was placed in an alternative education program, and was suspended from that program three times. He also took his grandmother's car for a joyride and evaded arrest after a peace officer attempted to stop him. An evaluation completed by Trinity Counseling Associates of East Texas revealed that J.T.B. admitted that he was a member of the Northside Bloods gang in Jacksonville and that the joyride was "an effort to show off for gang members at the Alternative Education Program."
Citing these alleged offenses, subsequent petitions to modify disposition resulted in further orders of detention, and on August 4, 2005, a modification order was entered placing J.T.B. in the Southwest Key Program residential placement facility. In addition to the same rules of probation implemented previously, J.T.B. was to obey the rules of the Southwest Key Program, participate in electronic monitoring, and attend and complete all juvenile service programs.
The next petition to modify disposition, filed in January 2007, alleged that J.T.B.: (1) was suspended from school for eight days from October to December 2006; 2) failed to meet curfew; 3) had twice entered the property of Greg Ray without consent; 4) fraudulently attempted to possess or obtain hydrocodone by adding the words "Hydrocoden 600mg" to a prescription form that had already been filled out by his doctor; and 5) with the specific intent to commit the offense of sexual assault, placed a girl:
over his shoulders, carried her to the bedroom, placed her on a bed, removed her pants and underwear, lowered his shorts and took a position over [her], which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended.
A summary filed by the Cherokee County Juvenile Department listed eight violations of court orders from February 2004 to March 2007, unsuccessful discharges from the Azleway Boys' Ranch and Project Aspect Program, and unsuccessful completion of intensive probation and electronic monitoring.4 Since J.T.B. had been referred to the probation department, he had been "placed in detention nine different times totaling 231 days," and had been arrested six times.
On April 26, 2007, the juvenile court cited J.T.B.'s history and procedural background, found that he entered Ray's property in violation of Section 30.05 of the Texas Penal Code,5 violated Section 481.129 of the Texas Health and Safety Code6 by attempting to fraudulently obtain hydrocodone, was suspended from school, violated curfew, and ordered him committed to TYC.7
On May 5, 2008, a petition for determinate sentencing alleged J.T.B. had shot another person with a firearm on April 21, prior to the juvenile court's order committing J.T.B. to TYC. After waiver of a jury trial and right to appeal on the issue, the juvenile court found J.T.B. had committed the offense and sentenced J.T.B. to
ten (10) years confinement with the first portion of the confinement being in the Texas Youth Commission and the remaining confinement to be served in the Texas Department of Criminal Justice, Institutional Division; however, this confinement is suspended and [J.T.B.] shall be placed on probation and committed to the supervision of the Juvenile Probation Office of Cherokee County, Texas for ten (10) years, and the said supervision will be transferred to Cherokee County Adult Probation for the remainder of the ten year period upon approval.
A final petition to modify disposition resulted in the court revoking probation and instituting the sentence imposed above. The juvenile court found J.T.B. violated the conditions of his probation because he was issued a citation for minor in possession of a tobacco product, violated curfew on June 28, 29, and July 5, 2008, tested positive for marihuana and benzodiapine in a random urinalysis, and was unsuccessfully discharged from Summer II Program. In its order, the court did not find that J.T.B. failed to perform community service hours or that he stole money from Mike's Muffler Shop as alleged in the modification for disposition.
Nevertheless, J.T.B. contends "the result of the modification hearing was unreliable because [he] received ineffective assistance of counsel," when counsel failed to object to hearsay evidence related only to the theft allegation at Mike's Muffler Shop. The second issue on appeal deals with language in Section 54.05(i) of the Texas Family Code, requiring the court to "specifically state its reasons for modifying the disposition." We affirm.
The juvenile court has broad discretion to select the appropriate form of detention for juvenile offenders. To commit the juvenile to TYC, the court must make findings that: (1) it is in the child's best interest to be placed outside the home; (2) reasonable efforts were taken to prevent the need to remove the child from the home and make it possible to return home; and (3) the child did not receive the quality of care and level of support and supervision needed to meet the conditions of probation.8 Tex. Fam. Code Ann. §§ 54.04(i), 54.05(m) (Vernon 2008); In re J.R.C., 236 S.W.3d 870, 873 (Tex. App.-Texarkana 2007, no pet.); see also In re J.P., 136 S.W.3d 629, 630 (Tex. 2004). Thus, we do not disturb a juvenile court's disposition order in the absence of an abuse of discretion. In re K.H., 169 S.W.3d 459, 462 (Tex. App.-Texarkana 2005, no pet.); In re K.J.N., 103 S.W.3d 465, 465-66 (Tex. App.-San Antonio 2003, no pet.); In re A.E.E., 89 S.W.3d 250, 256 (Tex. App.-Texarkana 2002, no pet.).
An abuse of discretion occurs when a trial court acts arbitrarily, unreasonably, or without reference to guiding rules and principles. In re M.A., 198 S.W.3d 388, 391 (Tex. App.-Texarkana 2006, no pet.). This standard requires that we "view the evidence in the light most favorable to the trial court's ruling," affording almost total deference to findings of historical facts that are supported by the record. In re J.G., 195 S.W.3d 161, 187 (Tex. App.-San Antonio 2006, no pet.). When the resolution of factual issues does not turn on an evaluation of credibility or demeanor, we review de novo the trial court's determination of the applicable...
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