Matter of C.C.
| Decision Date | 02 March 2000 |
| Citation | 13 S.W.3d 854 |
| Parties | (Tex.App.-Austin 2000) In the Matter of C. C. NO. 03-98-00651-CV |
| Court | Texas Court of Appeals |
We withdraw our original opinion and judgment issued December 2, 1999 and substitute this opinion on appellant's motion for rehearing.
After appellant C.C., a juvenile, waived his right to a jury trial, the district court sitting as the Juvenile Court of Travis County found that he engaged in delinquent conduct by possessing more than one gram but less than four grams of cocaine. See Tex. Fam. Code Ann. 54.03 (West Supp. 2000);1 Tex. Health & Safety Code Ann. 481.115(c) (West Supp. 2000); Tex. Penal Code Ann. 12.34 (West 1994). The juvenile court ordered appellant transferred to the custody of the Texas Youth Commission ("TYC") for an indeterminate period. In four issues, appellant argues that (1) the juvenile court abused her discretion by sending appellant to TYC for a single, nonviolent offense and by not following the Progressive Sanctions Guidelines in the Family Code; (2) the record does not support the juvenile court's finding that reasonable efforts had been made to prevent the removal of appellant from his home; (3) appellant was not properly admonished before he gave a judicial confession; and (4) appellant's constitutional rights to due process were violated because (a) before he confessed, he received no notice that he could be sent to TYC, (b) he received improper notice that he could go to TYC for breaking the terms of his release, (c) he did not receive reasonable notice of his adjudication hearing, and (d) he was punished for the wrongs of his siblings. We will affirm the juvenile court's judgment.
The details of appellant's offense are not in dispute; rather, appellant complains about the procedures employed by the juvenile court after he was taken into custody. Our factual discussion, therefore, will center on what happened to appellant after he committed the crime. On May 5, 1998, the State filed a petition alleging that appellant, then seventeen years of age, had violated the Health & Safety Code by possessing cocaine. See Tex. Health & Safety Code Ann. 481.115(c). On May 18, appellant signed a "Conditions of Release," which listed several conditions that appellant must follow or face a return to custody at the Gardner-Betts Detention Center. These conditions included: obeying all laws, meeting with his assigned probation officer, not using controlled substances, and abiding by the rules of Southwest Key.2 The State's petition remained pending and appellant filed a motion to suppress the tangible evidence against him.
On June 16, appellant's assigned probation officer, Kay Hester, filed a court summary detailing appellant's situation. According to Hester, appellant had experienced problems for the two years preceding his drug charge. Appellant had abused drugs and alcohol since he was eleven; he dropped out of school when he was in eighth grade; he had not held a stable job since dropping out; and he had been a member of a gang. Appellant's family life was chaotic-his father was in jail for assaulting his mother, who is disabled and does not work, and two of appellant's siblings have been involved with juvenile court. At about the time of her summary, Hester requested that appellant be taken into custody because he had violated terms of the May 18 "Conditions of Release" by being unaccountable to Southwest Key and by using cocaine. But Hester noted that appellant did not meet ideal placement criteria for TYC, and if committed he would be classified as a general offender and serve a minimum of nine months. On June 18, after a hearing, the juvenile court ordered that appellant be detained for violating the May 18 "Conditions of Release."
On June 25, appellant was released from detention and sent to Recovery Ranch, a drug-treatment program. Appellant signed a second "Conditions of Release," in which he acknowledged, inter alia, that he must obey the staff at Recovery Ranch, obey all laws, avoid controlled substances, and participate fully in the Recovery Ranch program.
On July 23, appellant appeared before the juvenile court for a hearing on his motion to suppress. However, when the juvenile court called the case, appellant announced he would go forward with a judicial confession. The court questioned appellant about his knowledge of the proceedings in general and the following exchange occurred:
Appellant then admitted possessing cocaine as charged in the State's petition.
During the hearing, Hester told the court that appellant's siblings were on probation. The court did not place appellant on probation, observing that appellant was already receiving all the treatment possible, the juvenile system was already tracking his family through the other siblings, and the court could send appellant to TYC if he did not follow her orders. The court did not adjudicate appellant, but ordered him to complete the program at Recovery Ranch and to earn a high-school-equivalency degree (GED). She stated that she wanted to reassess appellant in four months to determine his progress with his drug-treatment program. The court also warned appellant:
In October, appellant was released from Recovery Ranch and signed a third "Conditions of Release" in which he promised to meet with his probation officer on a weekly basis, avoid controlled substances, avoid negative peers, abide by the Recovery Ranch outpatient program, comply with the rules of Southwest Key, and become employed. Soon after being released, a capias was issued for appellant because appellant violated terms of his release; specifically, he missed two visits with his probation officer, he was unaccountable to Southwest Key on two occasions, and he missed two sessions of his outpatient program.
On October 27, the juvenile court conducted a hearing at which she accepted appellant's prior confession and adjudicated him delinquent. The court heard testimony from Hester, who testified that appellant violated various terms of the third "Conditions of Release," including missing three outpatient sessions at Recovery Ranch, being unaccountable to Southwest Key in excess of six times, associating with negative peers, and admitting that if tested on that day he would be positive for cocaine and marihuana. Hester recommended that appellant be committed to TYC. The court concurred and committed appellant to TYC for an indeterminate period.
In his first issue, appellant contends that the juvenile court abused her discretion by committing him to TYC for a single, nonviolent offense and by not following the Progressive Sanctions Guidelines in the Family Code. See Family Code 59.001-.015 (West 1996 & Supp. 2000).3 For the offense of possession of a controlled substance, the Progressive Sanctions Guidelines recommend probation for six to twelve months. See Family Code 59.003(a)(3), .006 (West Supp. 2000). Instead of placing appellant on probation, the juvenile court committed appellant to TYC. To the extent that appellant's issue complains about the juvenile court's failure to follow the Progressive Sanctions Guidelines, it is overruled because the Family Code prohibits a child from complaining on appeal about the court's failure to make a sanction level assignment. See Family Code 59.014(2) (West Supp. 2000);4 In re A.S., 954 S.W.2d 855, 861 (Tex. App.-El Paso 1997, no pet.) ( complaint that court abused its discretion by sending juvenile to TYC rather than following the Progressive Sanctions Guidelines on same statutory grounds). We also note that these guidelines are not mandatory: "Nothing in this chapter prohibits the imposition of appropriate sanctions that are different from those provided at any sanction level." Family Code 59.003(e) (West Supp. 2000).
Appellant's argument that the juvenile court abused her discretion by committing him to TYC for a single, nonviolent offense combines with appellant's second issue that there is legally and factually insufficient evidence to support the juvenile court's finding that all reasonable efforts were made to eliminate the need to remove appellant from his home. In sum, appellant contends the evidence is insufficient to support the juvenile court's disposition order. Appellant specifically complains that he should have been placed on probation before being sent to TYC.
The juvenile court is permitted to commit a child to TYC if:
(1) it is in the child's best interest to be placed outside the child's 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 to the child's home; and (3) the child, in the child's home, cannot be provided the quality of care and level of...
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