In Re CJH

79 S.W.3d 698, 2002 Tex. App. LEXIS 4238, 2002 WL 1291855
CourtCourt of Appeals of Texas
DecidedJune 13, 2002
Docket2-01-332-CV
StatusPublished

This text of 79 S.W.3d 698 (In Re CJH) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re CJH, 79 S.W.3d 698, 2002 Tex. App. LEXIS 4238, 2002 WL 1291855 (Tex. Ct. App. 2002).

Opinion

79 S.W.3d 698 (2002)

In the Matter of C.J.H.

No. 2-01-332-CV.

Court of Appeals of Texas, Fort Worth.

June 13, 2002.

*700 Cindy Stormer, Gainesville, for Appellant.

Brent Hill, Ass't County Attorney, Gainesville, for Appellee.

PANEL B: DAUPHINOT, HOLMAN, WALKER, JJ.

OPINION

LEE ANN DAUPHINOT, Justice.

This is an appeal from an order of commitment. Appellant raises four points, arguing that the trial court abused its discretion by committing Appellant to the Texas Youth Commission ("TYC") (points one and two); that the punishment was excessive (point three); and that the trial court erred by admitting the social worker's report over defense counsel's hearsay objection (point four). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND On July 9, 2001, after stipulating to the evidence, Appellant was adjudicated for engaging in the delinquent conduct of committing aggravated sexual assault of a child younger than fourteen years of age. He was placed on probation for twenty-four months. The conditions of probation included one year in boot camp or "in the custody of the Cooke County Department of Juvenile Services." Appellant filed a timely motion for new trial, arguing that his health would not allow him to attend boot camp.

Documents in the court record indicate other concerns about the judgment. Case notes filed by Brent O'Bannon, Appellant's therapist, indicate that Appellant did not want to go to boot camp and that if he did go to boot camp, he was in danger of "get[ting] into conflicts, fights, and be[ing] picked on for his sexual orientation or ... be[ing] exploited sexually for oral and anal sex." A letter, apparently from a boot camp teacher, indicated that the current boot camp inmates knew about Appellant's sexual orientation and planned to hurt him when he arrived. A letter from the boot camp case manager to the juvenile probation officer rejected Appellant as a candidate for the camp "due to safety issues." For the reasons stated in the motion for new trial and the safety concerns expressed in the above documents, the court granted the new trial and a new disposition hearing was held.

The evidence admitted during the disposition hearings and related detention hearings showed that

• Appellant himself had been a victim of sexual assault;
• he received counseling as a result;
• he was undergoing counseling when he perpetrated the sexual assault against a six-year-old, whose father was dating his mother; and
• Appellant had expressed no remorse for the offense.

Soon after the offense, his mother sent him to another state to live with his former stepfather for about eight months because she believed he could better control Appellant. Neither she nor the former stepfather had arranged sex offender counseling for him during that time period. Nevertheless, Appellant's mother testified that she could provide 24-hour supervision of *701 Appellant. A school bus driver, she planned to take him on her route before and after school to keep an eye on him. Her boyfriend of ten months, a former TYC employee, also testified that he could help supervise Appellant.

Additionally, despite the provision in the original order providing that the first year of probation could be served at boot camp or in the custody of the juvenile detention center, testimony at the second disposition hearing showed that neither option was available, given that the boot camp had rejected the placement and the detention center was not prepared to offer a longtime detention. Finally, Ron Perrett, a licensed social worker who interviewed Appellant before the second hearing, recommended TYC placement. According to him, "[I]t's the one recommended by an organization known as A.T.S.A., ... which is pretty much where all the best experts are for juvenile and adult offenders." His report, provided to all parties, was admitted over defense counsel's objection. After the hearing, the trial court committed Appellant to TYC for an indefinite period. The trial court's order included the following findings:

[T]he Court finds that on the 15th day of September, 1999, the Respondent ... committed the offense of Aggravated Sexual Assault which is a Felony and the Respondent is in need of rehabilitation and that the protection of the public and the Respondent requires that disposition be made.

The Court finds:

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 support and supervision that the child needs to meet the conditions of probation.

The order also included a provision that Appellant could be immediately released to his mother's care after he successfully completed TYC's sex offender program. The trial court deleted this provision more than three weeks later after the State filed a petition arguing that it made the entire order void. Appellant timely filed a notice of appeal.

II. LEGAL ANALYSIS

A. Evidence on Commitment

In his first point on appeal, Appellant argues that the trial court abused its discretion in committing him to TYC because the evidence did not support the finding that commitment was in his best interests. In the discussion of his first point, Appellant further argues that

[t]he record contains no evidence to establish that reasonable efforts had been made to prevent or eliminate the need for Appellant's removal from the home. Further, the juvenile court's finding that Appellant's home cannot provide him with the support and supervision needed to meet the conditions of probation is contrary to the great weight and preponderance of the evidence. Other than Appellant's commission of this offense, there is no evidence to establish that Appellant's mother cannot provide the quality of care and level of support and supervision that Appellant needs to meet the conditions of probation.

The first point thus complains that the trial court abused its discretion in issuing the three statutory findings required for commitment because the evidence was legally *702 and factually insufficient to support the findings.[1]

In his second point, Appellant complains that the trial court abused its discretion in committing him to TYC "rather than assigning him to sanction level five as provided for in ... the Texas Family Code" because the evidence was insufficient to support the court's deviation from the progressive sanctions guidelines. As Appellant points out, he is prohibited from complaining directly about the trial court's failure to make a sanction level assignment or its deviation from the sanction level assignment guidelines.[2] This point, then, also complains about the factual sufficiency of the evidence to support the trial court's findings on commitment.[3]

1. Standard of Review: Abuse of Discretion

After a juvenile has been adjudicated delinquent, the court has broad discretion to determine disposition.[4] We will not reverse the juvenile court's decision unless it abused its discretion.[5]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
McMillan v. Pennsylvania
477 U.S. 79 (Supreme Court, 1986)
Ellis County State Bank v. Keever
888 S.W.2d 790 (Texas Supreme Court, 1994)
Beaumont Bank, N.A. v. Buller
806 S.W.2d 223 (Texas Supreme Court, 1991)
Hankins v. State
646 S.W.2d 191 (Court of Criminal Appeals of Texas, 1983)
Maritime Overseas Corp. v. Ellis
971 S.W.2d 402 (Texas Supreme Court, 1998)
Rhoades v. State
934 S.W.2d 113 (Court of Criminal Appeals of Texas, 1996)
Texas Department of Health v. Buckner
950 S.W.2d 216 (Court of Appeals of Texas, 1997)
In Re King's Estate
244 S.W.2d 660 (Texas Supreme Court, 1951)
Romero v. State
927 S.W.2d 632 (Texas Supreme Court, 1996)
Jones v. State
850 S.W.2d 223 (Court of Appeals of Texas, 1993)
Continental Coffee Products Co. v. Cazarez
937 S.W.2d 444 (Texas Supreme Court, 1997)
Goode v. Shoukfeh
943 S.W.2d 441 (Texas Supreme Court, 1997)
Fields v. State
1 S.W.3d 687 (Court of Criminal Appeals of Texas, 1999)
National Liability & Fire Insurance Co. v. Allen
15 S.W.3d 525 (Texas Supreme Court, 2000)
Bradford v. Vento
48 S.W.3d 749 (Texas Supreme Court, 2001)
Grunsfeld v. State
843 S.W.2d 521 (Court of Criminal Appeals of Texas, 1992)
Leitch v. Hornsby
935 S.W.2d 114 (Texas Supreme Court, 1996)
Garza v. Alviar
395 S.W.2d 821 (Texas Supreme Court, 1965)
Garcia v. Martinez Ex Rel. Martinez
988 S.W.2d 219 (Texas Supreme Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
79 S.W.3d 698, 2002 Tex. App. LEXIS 4238, 2002 WL 1291855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cjh-texapp-2002.