In re K.E.

316 S.W.3d 776, 2010 Tex. App. LEXIS 5466
Court of Appeals of Texas·Decided July 14, 2010·No. No. 05-09-00522-CV·Published·Cited by 6 cases

Opinion

OPINION

Opinion By

Justice RICHTER.

K.E. appeals the trial court’s order adjudicating him delinquent and committing him to the Texas Youth Commission (“TYC”) for six years. In six issues, appellant claims (1) the evidence is legally and factually insufficient to support the trial court’s finding that he could not be properly supervised at home; (2) the trial court abused its discretion in committing him to TYC; (3) the trial court failed to comply with the Family Code by failing to specify the reasons for the disposition; (4) the trial court failed to comply with the Family Code by failing to advise appellant of the procedures for sealing his records; and (5) the trial court’s order should be reformed to reflect the correct name of the complainant on Count V. We affirm the trial court’s judgment, as modified in Count V, to reflect the correct name of the complainant.

BACKGROUND

Dallas police officer Walls was patrolling an area in South Oak Cliff when he saw appellant and another juvenile, B.J., outside past the City’s juvenile curfew. The juveniles recognized Officer Walls, who was in uniform, and ran up to an apartment. B.J. had a key that allowed them to enter one of the apartments. Officer Walls pursued the juveniles into the apartment and saw B.J. jump over an exterior balcony. Another officer pursued B.J., while Officer Walls found appellant lying on the floor in the bedroom, pretending to be asleep, with his arm outstretched near a couch. Underneath the couch were two .45 caliber handguns. Appellant never attempted to take possession of or shoot the guns. After appellant was handcuffed he showed the officers two SKS rifles, with fully loaded magazines, in a closet in the apartment. Appellant was the only person in the apartment at the time. The officers found crack cocaine in plain view on the kitchen counter. After searching the apartment they also found cocaine, marijuana, PCP (phencyclidine), alprazolam, and four or five scales frequently used in the drug trade to weigh and package drugs. Some of the drugs were already packaged to be sold.

A five-count petition was filed against appellant and a grand jury approved two counts for a determinate sentence: possession with intent to deliver cocaine (4 grams or more but less than 200 grams); and possession with intent to deliver phencycli-dine (4 grams or more but less than 200 grams). Tex. Health & Safety Code Ann. §§ 481.102(3)(D) (cocaine), 481.102(8) (phencyclidine), 481.112(a), (d) (Vernon Supp.2009); Tex. Fam.Code Ann. § 53.045(a)(10) (Vernon 2002) (referral of petition to grand jury for child engaged in delinquent conduct that constitutes habitu[779] al felony). Appellant waived a jury trial and entered pleas of true to both counts.

The trial court held an adjudication and disposition hearing before assessing punishment. Officer Walls is with the gang unit of the Dallas Police Office. He testified at the hearing concerning the facts surrounding appellant’s arrest and identified appellant as an associate of the DFW gang, an “up and coming gang” that engaged in violent activity and drug sales. He also testified that the apartment complex where appellant was arrested is known for gang activities and drug sales. Officer Walls recommended that appellant be placed in TYC. He said that “these guys don’t learn with a slap on the wrist ... two days later, you can catch them doing the same thing over and over again.” He also did not believe that a placement for six to nine months, with release when appellant turned eighteen, would be sufficient. Instead, he recommended several years in TYC. Officer Walls acknowledged that he had never seen appellant sell drugs, and that appellant was cooperative after he was arrested. He estimated that the street value of the drugs found in the apartment was between $5,000-$10,000, and the amount of drugs was sufficient to cover a “few” days’ sales.

Appellant testified that he has not been a member of a gang since 2006, but that he associated with gang members. Appellant claimed he never sold any drugs, but he hung out at the apartment to get “free weed.” Appellant admitted that he knew drugs were sold from the apartment and that he smoked about five marijuana “blunts” each day. Appellant was almost seventeen years old at the time of the hearing and said that he had been smoking marijuana since he was fifteen years old. Despite the daily marijuana use, a chemical assessment showed that appellant had a low level of substance abuse.

An unidentified probation officer testified that appellant needed rehabilitation. The probation officer recommended that for the protection of appellant and the public, appellant be assigned Progressive Sanction Level 6 or 7 and committed in TYC. He acknowledged that appellant’s home was appropriate, but that the level of supervision in the home was not. Appellant’s mother’s employment required her to be out of the home until approximately 6:00 p.m. every evening. Although appellant’s mother testified that she would reduce her hours and do whatever she could to provide more supervision and get her son “on the right track,” the evidence established that she did not receive any governmental assistance, could not pay court costs, and she would not be paid if she reduced her hours. There was no other adult in the home to provide supervision, but appellant has two younger siblings who reside in the home.

Appellant’s mother requested that her son be placed on probation or in a facility where he could learn a trade. She testified that she moved her family from Indiana to Dallas two and one-half years earlier to escape a violent situation with her “ex,” who is not appellant’s father. She did not know the area she moved into, but chose it because there was bus service to her job. She stated that she does not have any problems with appellant; he is respectful and does his chores. Appellant’s mother has since moved to a house in DeSoto to provide a better environment for the family. Appellant’s mother also admitted that she did not know her son smoked five marijuana “blunts” a day, or that he associated with gang members, until she learned about it from the reports in this proceeding.

The evidence established that appellant had been admitted to three other placements: Lyle Medlock Center, Dallas [780] Youth Village, and Gulf Coast Trade School. Despite the availability of the other placements, the probation officer and the arresting officer continued to recommend placement in TYC, based upon the nature of the offenses, appellant’s history of gang involvement and drug use, and the fact that he was almost seventeen.

A psychological screen of appellant was admitted into evidence. It indicated that (1) appellant needs a well structured and supervised environment; (2) appellant needs therapeutic intervention to help with decision making and judgment; (3) upon release appellant would benefit from a mentor; (4) educational needs should be clarified; and (5) appellant would benefit from an assessment to determine a vocational interest. The probation officer acknowledged that all of those recommendations could be satisfied at the other placements.

Appellant has not had any other referrals to juvenile court. However, the predisposition report indicated that appellant had been referred to an alternative education program the preceding year for “almost getting into a gang fight.”

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In re K.E., 316 S.W.3d 776, 2010 Tex. App. LEXIS 5466 (Tex. Ct. App. 2010).

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