M------ H------, Matter of

• Decision Date: 30 November 1983
• Docket Number: No. 13-83-356-CV,13-83-356-CV
• Citation: 662 S.W.2d 764
• Parties: In the Matter of M______ H______. Corpus Christi
• Court: Texas Court of Appeals

Page 764

662 S.W.2d 764

In the Matter of M______ H______.

No. 13-83-356-CV.

Court of Appeals of Texas,

Corpus Christi.

Nov. 30, 1983.

Rehearing Denied Dec. 29, 1983.

Charles A. Hood, Port Lavaca, for appellant.

Mark R. Kelly, Asst. Crim. Dist. Atty., Port Lavaca, for appellee.

Before KENNEDY, BISSETT and GONZALEZ, JJ.

OPINION

KENNEDY, Justice.

This is an accelerated appeal from the revocation of probation of a juvenile. Appellant, who had previously been adjudicated a delinquent, was found to have violated the terms of her probation by failing to pay restitution and her probation was revoked and she was committed to the custody of the Texas Youth Council. We affirm.

On April 23, 1982, appellant was adjudicated a delinquent based on an allegation of two counts of burglary and one count of misdemeanor theft. At the subsequent disposition hearing, appellant was placed on probation for one year subject to extensions of one year until she reached the age of 18. One of the conditions of appellant's probation was that she pay restitution in the amount of $811.35. In March of 1983, the probation office submitted a violation report showing that appellant had failed to pay any of the restitution ordered. In early April, the State filed a petition to revoke appellant's probation for failure to pay the restitution. On May 27, 1983, a hearing was conducted at the conclusion of which appellant's probation was revoked and she was ordered into the custody of the Texas Youth Council.

In her first point of error, appellant complains that the trial court erred in revoking her probation because the State's trial pleadings failed to pray for restitution. It is appellant's argument that the original order sentencing appellant to probation was invalid because it did not conform to the State's pleadings which did not request restitution. Therefore, the subsequent revocation of probation for failure to pay restitution was not based on a lawful order and was, therefore, improper.

Generally, juvenile matters are governed by the Rules of Civil Procedure. Matter of D.C.T., 641 S.W.2d 658 (Tex.App.--Tyler 1982, writ ref'd n.r.e.); Brenan v. Court of Appeals, Fourteenth District, 444 S.W.2d 290 (Tex.1968); TEX.FAM.CODE ANN. § 51.17 (Vernon 1975). It is appellant's contention that since Tex.R.Civ.P. 301 requires that judgment conform to pleadings, the absence of a specific pleading for restitution makes a subsequent judgment ordering restitution invalid, at least as to that provision. Rule 301 requires the judgment to conform to the pleadings and be framed so as "to give the party all the relief to which he may be entitled." Rule 301.

In the last paragraph of its trial pleading, the State sought to have appellant found to have engaged in delinquent conduct and in need of rehabilitation and disposed of for her own and the public protection. We think that, in light of § 54.04(d)(1)(D) of the Family Code, this pleading is sufficient to support the judgment. Section 54.04(d)(1)(D) of the Family Code allows a juvenile court to order restitution upon a finding that the child is in need of rehabilitation and that protection of the public and the child requires disposition. See TEX.FAM.CODE ANN. § 55.04(c). The court made the requisite finding and we hold that a disposition requiring restitution is proper where such a finding is made without a specific pleading for restitution by the State. Appellant's first point of error is overruled.

In her second point of error, appellant alleges that the trial court erred in revoking appellant's probation without making a specific finding that appellant had violated her probation beyond a reasonable doubt. It is appellant's contention that the court must either state on the record or recite in its order revoking probation that appellant had violated her probation beyond a reasonable doubt.

TEX.FAM.CODE ANN. § 54.05(f) states:

"A disposition based on a finding that the child engaged in delinquent conduct may be modified so as to commit the child to the Texas Youth Council if the court after a hearing to modify disposition finds beyond a reasonable doubt that the child violated a reasonable and lawful order of the court."

There is no requirement that the words "beyond a reasonable doubt" be incorporated into the judgment. Finch v. State, 506 S.W.2d 749 (Tex.Civ.App.--Waco 1974, no writ). We will presume that the trial court is familiar with the State's burden of proof. Absent some showing to the contrary, we will assume the trial court's determination that the appellant had violated her probation was based on the requisite burden of proof. We will not require that the trial judge parrot such a finding from the bench. Appellant's second point of error is overruled.

In her third point of error, appellant complains that the trial court erred in revoking her probation because the original order of disposition failed to specify the reasons for disposition. TEX.FAM.CODE ANN. § 54.04(f) (Vernon 1975) provides that the court must specifically state the reasons for its disposition of the child in its order of disposition. See K.K.H. v. State, 612 S.W.2d 657 (Tex.Civ.App.--Dallas, 1981); J.L.E. v. State, 571 S.W.2d 556 (Tex.Civ.App.--Houston [14th Dist.] 1978, no writ). It was held that the actual order of disposition, standing alone, must state the reasons for disposition. We therefore turn to that portion of the record to determine if the requirements of § 54.04(f) have been met, keeping in mind that appellant's original disposition was probation. The court order of disposition (titled Order of Probation) recites that the appellant was being placed on probation because she did not have a history of delinquent conduct, because she had not had the benefit of supervised probation, and because her age allowed adequate time to attempt a plan of rehabilitation. We feel these recitations provide the necessary statutory specificity to the court's order. Appellant's third point of error is overruled.

Appellant's fourth point of error asserts that the trial court erred in revoking appellant's probation because the notice of the hearing to revoke probation was defective. Specifically, appellant is complaining that the notice failed to specify the reasons for revocation. TEX.FAM.CODE ANN. § 54.05(d) provides that the juvenile be given reasonable notice of the hearing to modify.

In reviewing the record in this case, we note that the court recited that reasonable notice of the hearing had been given. We also note that no objection was raised by appellant's attorney to proceeding with the hearing because he was unaware of the grounds upon which the State sought revocation. We feel the notice given appellant complied sufficiently with § 54.05(d). Appellant's fourth point of error is overruled.

In her fifth point of error, it is appellant's contention that the trial court erred in orally ordering appellant to the Texas Youth Council until she was 18 years old rather than for an indeterminate period of time. At the conclusion of the hearing, the trial judge ordered appellant committed to the Texas Youth Council until she was 18 years of age or released by a court of authority. Appellant's entire argument is predicated on the case of In the Matter of A.N.M., 542 S.W.2d 916 (Tex.Civ.App.--Dallas 1976, no writ), wherein it was held that under TEX.FAM.CODE ANN. § 54.04(d)(2) a trial court may not commit a juvenile to the Texas Youth Council for a definite period of time. In the A.N.M. case, the trial court also made an oral order committing the youth to the Texas Youth Council for a period of one year. We give no effect to the trial court's oral pronouncement concerning appellant's disposition. § 54.04(d)(2) allows only for commitment to the Texas Youth Council. As was held in A.N.M., this commitment is for an indeterminable period of time. Any comments by the trial judge is of no force or effect and are to be ignored. The written order of disposition only orders appellant into the custody of the Texas Youth Council. The written order of disposition is correct. Appellant's fifth point of error is overruled.

In her final point of error, the appellant complains there was insufficient evidence to support the trial court's finding she had failed to pay restitution. As was previously noted, any finding that a child engaged in conduct violating a term of probation must be made beyond a reasonable doubt. TEX FAM.CODE ANN. § 54.05(f) (Vernon 1975).

There do not appear to be any cases dealing with the question of the sufficiency of the evidence to revoke a juvenile probation for failure to pay court ordered restitution. We do, however, take some guidance from the Code of Criminal Procedure. TEX.CODE CRIM.PROC.ANN. § 42.12 Sec. 8(c) (Vernon Supp.1982) provides:

"In a probation revocation hearing at which it is alleged only that the probationer violated the conditions of probation by failing to pay ... restitution, ... the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of the evidence."

Reviewing the evidence in light of the test that the inability to pay is an affirmative defense which necessarily places the burden of proof on the defendant, we find that the State established beyond a reasonable doubt that the appellant had failed to pay restitution. The appellant's mother then took the stand and testified that appellant's father was currently recovering from surgery and had recently been convicted of some crime which had necessitated $6,000.00 in attorney's fees and had resulted in his being sentenced to 10 years in the Texas Department of Corrections. She further testified that defendant had had a baby in August of 1982 by ceasarian section and had had to spend two weeks and three days in the hospital after the delivery. She further testified that the baby was in poor health and was constantly in need of...