In re T.D.

817 S.W.2d 771

• Court: Court of Appeals of Texas
• Decided: October 3, 1991
• Docket: No. 01-90-00670-CV
• Status: Published

Opinions

OPINION

DUGGAN, Justice.

This is an appeal from an order entered under Tex.Fam.Code Ann. § 54.02(a) (Vernon Supp.1991), transferring jurisdiction over appellant, T.D., from the district court, sitting as a juvenile court, to the criminal district court. Tex.Fam.Code Ann. § 56.01(c)(1)(A) (Vernon Supp.1991). We affirm.

Statement of Facts

Appellant was born on February 15, 1973. He has been referred six times to the Harris County Juvenile Probation Department: (1) on June 10,1987 for indecent exposure; (2) on December 22, 1988 for possession of crack cocaine; (3) on January 1, 1989 for possession of crack cocaine; (4) on May 3, 1989 for robbery; (5) on May 25, 1989 for possession and delivery of crack cocaine; and (6) on January 30, 1990 for possession and delivery of crack cocaine, the current referral. For the first referral, appellant was counseled and the case was closed. The second and third referrals were consolidated, and appellant was found to have engaged in delinquent conduct and committed to the Texas Youth Commission. Appellant was re-referred to the Texas Youth Commission for the fourth and fifth referrals. He was released to his mother’s custody after the fourth referral and his father’s custody after the fifth referral because the Texas Youth Commission declined the referrals.

With respect to the present referral, it is alleged that appellant sold two $10 pieces of crack cocaine to undercover Houston Police Officer Chaney on January 30, 1990. The police arrested appellant the same day and placed him in the Harris County Juvenile Center on hold for the Texas Youth Commission. He had regularly scheduled detention hearings, but no adjudicatory hearing while at the Center.

On February 5, 1990, the State filed a motion requesting to waive jurisdiction of the juvenile court. On the same day, the juvenile court ordered a diagnostic study, social evaluation, and full investigation of appellant, his circumstances, and the circumstances of the alleged offense (“the report”). Tex.Fam.Code Ann. § 54.02(d) (Vernon 1986). The report was filed on March 29, 1990. The juvenile court held the hearing on the motion on April 3, 4, and 5, 1990. On April 6, 1990, the juvenile court waived jurisdiction and transferred appellant to the criminal district court.

Constitutionality of Waiver/Certification Process

In his first point of error, appellant contends the waiver/certification hearing process is unconstitutional in general, and as applied to appellant, because it is discretionary, fails to require a specific evidentia-ry standard relative to the State’s burden of proof, and fails to require or define a specific standard of appellate review.

Section 54.02(a) of the Texas Family Code is couched in discretionary terms. See P.G. v. State, 616 S.W.2d 635, 638 (Tex.Civ.App. — San Antonio 1981, writ ref’d n.r.e.); In the Matter of 601 S.W.2d 175, 177 (Tex.Civ.App. — Corpus Christi 1980, no writ); see also In the Matter of K.D.S., 808 S.W.2d 299, 302 (Tex. App. — Houston [1st Dist.] 1991, no writ). The civil trial courts are well accustomed to using their “discretion.” They use it in determining whether temporary injunctions should issue, Tex.Civ.Prac. & Rem.Code Ann. § 65.011(3) (Vernon Supp.1991), in imposing discovery sanctions, Tex.R.Civ.P. 215(2), and in allowing pleading amendments, Tex.R.Civ.P. 66. The fact that a court may undertake an act, but is not required to do so, does not mean that a court is free to do as it pleases. The court must act with reference to guiding rules and principles, reasonably, not arbitrarily, and in accordance with the law. See, e.g., Lamar Builders, Inc. v. Guardian Sav. & Loan Ass’n, 789 S.W.2d 373, 374 (Tex. App. — Houston [1st Dist.] 1990, no writ).

Section 56.01 of the Family Code, the section that authorizes the appeal in this instance, provides that the requirements governing an appeal from juvenile certification proceedings are the same as those in civil cases generally. Tex.Fam. Code Ann. § 56.01(b) (Vernon 1986). The standards for evaluating the evidence to support findings are well established, factual and legal sufficiency standards. See Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982); In re King’s Estate, 150 Tex. 662, , 244 S.W.2d 660, 661 (1951); IFG Leasing Co. v. Ellis, 748 S.W.2d 564, 566 (Tex.App. — Houston [1st Dist.] 1988, no writ); Ritchey v. Crawford, 734 S.W.2d 85, 86 (Tex.App. — Houston [1st Dist.] 1987, no writ). If an appellate court finds the evidence factually or legally insufficient to support the juvenile court’s order transferring jurisdiction of a youth to the criminal district court, it will necessarily find that the juvenile court has abused its discretion.

We overrule appellant’s first point of error.

Constitutionality of Harris County Policy

In his second point of error, appellant asserts that the waiver/certification process and policy of the Harris County District Attorney to file a certification request for the juvenile court to waive jurisdiction over appellant was unconstitutional and violated appellant’s right to treatment, training, and rehabilitation.

We first address appellant’s argument that the Harris County District Attorney has a procedure or policy to seek a waiver of jurisdiction solely on the basis of a subsequent referral. The evidence for such a procedure or policy comes from the following exchange between defense counsel and Ms. Willis, appellant’s Harris County juvenile probation officer:

Q: There is some reference to a policy at the time in terms of [appellant] coming into arrest and detention while he was in the custody of T.Y.C. Is there some sort of new policy?

A: There is a new policy that came into effect I think somewhere around September, 1989, that stated that we will file on all children that have been previously committed to the Texas Youth Commission who come in with drug offenses.

Q: So, there is a specific policy within—

A: Yes.

Q: —the Harris County Juvenile Probation or is it the District Attorney’s office?

A: I cannot best answer that for you.

Q: As far as you know, there is a policy that singles out drug cases for certification while children are in custody?

A: I did not say for certification, for re-filing.

Q: For re-filing. Okay.

(Emphasis added.)

Contrary to appellant’s assertion in his brief, there is no evidence in the record that the Harris County District Attorney's office has a policy to seek a waiver of juvenile court jurisdiction, that is, certification of a juvenile as an adult, solely on the basis of a subsequent referral. For this Court to consider a constitutional issue, the issue must be properly raised and necessary to a decision in a case. See Wood v. Wood, 159 Tex. 350, 358-59, 320 S.W.2d 807, 813 (1959) (the question of constitutionality of the statute not having been properly raised or briefed, it is thus immaterial to a decision of the case); Courtney v. State, 639 S.W.2d 16, 17 (Tex.App.— Houston [1st Dist.] 1982, pet. ref d) (constitutionality of a statute will be considered only when a question is properly raised and a decision is necessary to a disposition of a case). An issue is not properly raised where, as here, the existence of a state of facts, which may be unconstitutional, is assumed and not proved.

Appellant asks us to hold that “Meaningful and realistic treatment, training and rehabilitation must be a condition precedent to a waiver of jurisdiction.” We are asked to reverse and remand the juvenile court’s order waiving jurisdiction in connection with appellant’s January 30, 1990 referral because appellant did not receive appropriate treatment following his commitment to the Texas Youth Commission after his January 1, 1989 referral.

The statutes dealing with delinquent children have several public purposes. Tex. Fam.Code Ann. § 51.01 (Vernon 1986). Two of them are:

(2) to protect the welfare of the community and to control the commission of unlawful acts by children;

(3) consistent with the protection of the public interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation

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Tex.Fam.Code Ann. § 51.01(2), (3) (Vernon 1986) (emphasis added).

Treatment, training, and rehabilitation are not the sole public purposes behind the procedures for handling delinquent children. These purposes also need to be balanced against the welfare of the community and the protection of the public interest. If the legislature intended that children should never be treated as adults when they violate the law, then the certification provisions of Tex.Fam.Code Ann. § 54.02(a) (Vernon Supp.1991) would not have been included in the law. Moreover, Tex.Fam. Code Ann. § 54.02(f) (Vernon 1986) directs the juvenile court, in deciding whether to waive jurisdiction over a child, to consider whether the child can be rehabilitated through the use of juvenile services and facilities currently available to the juvenile court. Section 54.02(f) does not direct the juvenile court to evaluate the quality of the treatment services offered the child in determining whether to waive its jurisdiction. As an intermediate court, in the absence of a statutory or higher court directive, we decline to mandate such a consideration. See Public Util. Comm’n v. Cofer, 754 S.W.2d 121, 124 (Tex.1988); Lumpkin v. H & C Communications, Inc., 755 S.W.2d 538, 540 (Tex.App. — Houston [1st Dist.] 1988, writ denied).

We overrule appellant’s second point of error.

Specificity of Reasons

In his third point of error, appellant urges that the juvenile court erred in waiving its jurisdiction over him because the court failed to specify its reasons, certify its findings, or specifically state which constitutional and statutory rights were waived by appellant, all in violation of express statutory requirements.

Section 54.02 of the Texas Family Code provides in relevant part:

If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and shall transfer the child to the appropriate court for criminal proceedings.

Tex.Fam.Code Ann. § 54.02(h) (Vernon Supp.1991) (emphasis added). The statute directs the juvenile court in arriving at its decision to waive jurisdiction to consider, “among other matters,” whether the alleged offense was against people or property and committed in an aggressive and premeditated manner, whether there is evidence on which a grand jury might return an indictment, the sophistication, maturity, record, and previous history of the child, adequate protection of the public, and the likelihood of the child’s rehabilitation through juvenile services. Tex.Fam.Code Ann. § 54.02(f) (Vernon 1986).

The order of the juvenile court waiving jurisdiction dated April 6,1990, provides as follows:

[T]he Court finds that the said [appellant] is charged in the violation of a penal law of the grade of felony, if committed by an adult, to wit: THREE PARAGRAPHS OF DELIVERY OF CONTROLLED SUBSTANCE NAMELY COCAINE on or about the 30th day of January, 1990; that there has been no adjudication of these offenses; that he was 16 years of age at the time of the commission of the alleged offense, having been bom on the 15th day of FEBRUARY, 1973, that there is probable cause to believe that the child committed the offense alleged and that because of the seriousness of the offense the welfare of the community requires criminal proceedings. In making that determination, the Court has considered, among other matters:

1. Whether the alleged offense was against the person or property, with the greater weight in favor of waiver given to offenses against the person;

2. Whether the offense was committed in an aggressive and premeditated manner;

3. Whether there is enough evidence upon which the grand jury may be expected to return an indictment;

4. The sophistication and maturity of the child;

5. The record and previous history of the child; and

6. The prospects of adequate protection of the public and likelihood of reasonable rehabilitation of the child by use of procedures, services and facilities currently available to the Juvenile Court.

The Court finds that the penal law alleged to have been violated by the Respondent, was of the grade of felony. The Court further finds that the Respondent is now 17 years of age and was at the time of the alleged offense 15 years of age or over having been born on the 15th day of February, 1973. The Court further finds that there was no adjudication hearing concerning the offense. The Court has considered the offense and finds that it was committed in an aggressive and premeditated manner, and that there is sufficient evidence upon which a grand jury might be expected to return an indictment, and that the Court has considered the sophistication and maturity of the Respondent and his previous history.

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The Court finds that it has considered the rehabilitative processes available to this Court and the facilities currently available to this Court, and having considered these among other matters, the Court finds that there is little if any, likelihood that the facilities and services available to this Court could reasonably be expected to rehabilitate the Respondent and that there is from the nature of the offense the likelihood that the public is not adequately protected from future such conduct, and for those reasons and other reasons, the jurisdiction of this Court is waived.

The juvenile court arrived at its findings after three days of testimony, filling five volumes of the statement of facts, from appellant’s juvenile probation officer, the six Houston police officers who were involved in arresting and processing appellant for the alleged offenses in January 1989, May 1989, and January 1990, appellant’s case manager from the Texas Youth Commission, the psychologist who evaluated appellant, the drug rehabilitation counselor who evaluated appellant, the psychiatrist who evaluated appellant, and appellant’s mother. The documentary evidence introduced included the certification investigation report, the psychiatric and psychological evaluations, records from the Texas Youth Commission, and appellant’s probation file.

Appellant cites Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); In re J.R.C., 522 S.W.2d 579 (Tex. Civ.App. — Texarkana 1975, writ ref'd n.r.e.); R.E.M. v. State, 541 S.W.2d 841 (Tex.Civ.App. — San Antonio 1976, writ ref’d n.r.e.); and In the Matter of N.S.D., 555 S.W.2d 807 (Tex.Civ.App. — El Paso 1977, no writ) to support his contention that the juvenile court’s findings are not specific enough.

In Kent, the court made no findings and recited no reasons. 383 U.S. at 546, 86 S.Ct. at 1049. The waiver of jurisdiction merely stated, “after full investigation, I do hereby waive jurisdiction of petitioner.” Id. In J.R.C., with a statute substantially similar to the one before us today, the court’s order stated, “after diagnostic study, social evaluation and full investigation, [the Court] is of the opinion that it is contrary to the best interest of said child and to the public to retain jurisdiction.” 522 S.W.2d at 580. In R.E.M., the order waiving jurisdiction appears to have stated reasons substantially similar to those in the order before us. 541 S.W.2d at 846. The court did not object to the specificity of the reasons, but to the fact that there was no evidence to support the reasons. Id. In N.S.D., the order recited three reasons for waiving jurisdiction, which were not nearly as extensive as those before us today: “(a) The juvenile is in need of rehabilitation.... (b) There are no services ... to effectuate the juvenile’s rehabilitation, (c) The general public ... needs to be protected.” 555 S.W.2d at 809. The court condemned reasons (a) and (c) as too general and found no evidence to support (b). Id.

We find that these cases provide no support for appellant’s contention that the juvenile court’s reasons were not specific enough. Moreover, other courts have approved specific findings similar to those before us. See In re I.B., 619 S.W.2d 584, 587-88 (Tex.Civ.App. — Amarillo 1981, no writ); P.G., 616 S.W.2d at 638-39; see also In re C.L.Y., 570 S.W.2d 238, 241 (Tex.Civ. App. — Houston [1st Dist.] 1978, no writ). Therefore, we find the juvenile court’s reasons to be specific as required by the statute.

Appellant also complains that the court’s order waiving jurisdiction was not certified to the district court. The copy of the juvenile court order that appears in the transcript does not contain a certificate, but it is signed. The order of the criminal district court receiving the case, which also appears in the transcript, reads: “[I]t appearing to this court that the 314TH JUDICIAL DISTRICT COURT, sitting as a Juvenile Court of Harris County, Texas, has certified to this court that it has waived jurisdiction ... and it appearing to the court from said court’s certification including the written order and finding of the court_” (Emphasis added.) Therefore, we find the juvenile court did certify its findings to the criminal district court. See In the Matter of B.V., 645 S.W.2d 334, 336 (Tex.App. — Corpus Christi 1982, no writ) (the signing of the order by the judge in his capacity of presiding judge of the juvenile court is sufficient to comply with the certification requirement of § 54.02(h)).

The juvenile court order also provides that appellant “is of sufficient sophistication and maturity to have intelligently, knowingly and voluntarily waived all constitutional and statutory rights heretofore waived by the said Respondent-” Appellant asserts that such a finding lacks specificity, and complains that he did not waive any constitutional or statutory rights. The order does not state that appellant waived any constitutional or statutory rights, merely that if he did so, such waiver was intelligent, knowing, and voluntary. Therefore, any error is harmless. Tex.R.App.P. 81(b)(1).

We overrule appellant’s third point of error.

Sufficiency of Evidence

Appellant, in his fourth point of error, argues that there was no evidence or, alternatively, insufficient evidence to support the juvenile court’s findings. More specifically, appellant asserts that there is no probative evidence that the welfare of the community required a waiver of jurisdiction of the juvenile court and criminal proceedings against appellant. Appellant identifies the procedures, resources, and services available to the juvenile court as being of primary importance in establishing the welfare of the community.

Findings of fact entered in a case tried to the court are of the same force and dignity as a jury’s verdict upon special issues. A.T.S. v. State, 694 S.W.2d 252, 253 (Tex. App. — Fort Worth 1985, writ dism’d w.o.j.). The court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards applied in reviewing the legal or factual sufficiency of the evidence supporting the jury’s answers to special issues. Id. In deciding a challenge to the legal sufficiency of the evidence, we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Id.; I.B., 619 S.W.2d at 587; N.S.D., 555 S.W.2d at 809.

Dr. Cavazos, who did the psychiatric evaluation of appellant, testified that she still thought appellant could benefit by consistent education, a structured environment, and vocational training, provided he was motivated and dedicated. Ms. Olson, who was appellant’s case manager at the Texas Youth Commission, testified that, after appellant was released from the Brown-wood state school, he chose not to participate in the services provided him through the Texas Key Program, which included educational, psychological, and drug treatment plans. She stated that appellant was angry at being placed in the Texas Key Program because he felt he was being “baby sat,” and because he felt he had completed his time at the state school. She stated appellant wished to return to Brown-wood because he believed he would be freed faster from control by the Texas Youth Commission. Dr. Scherzer, who performed the psychologic examination of appellant, testified that rehabilitation services would be helpful for someone who was motivated and willing to participate. He also characterized appellant as someone who denied any current psychological or emotional problems and who did not remember having past depression anxieties. He stated that appellant knew the difference between right and wrong and between acceptable and unacceptable behavior, and that appellant should be considered culpable and responsible for his behavior. Mr. Chevalier, an alcohol and drug abuse counselor who administered a “SASSI” test to appellant, testified if a person was willing to go into treatment and was also willing to follow instructions, he or she would benefit from treatment. In response to a hypothetical by appellant’s attorney, which reflected appellant’s circumstances, Mr. Chevalier stated such a person would have no chance at recovery and rehabilitation.

Ms. Willis, appellant’s Harris County juvenile probation officer, testified that appellant was streetwise, mature, and sophisticated, and did what he determined he wanted to do. She stated that appellant’s mother lacked the ability to control his behavior, that Harris County did not offer programs for someone as sophisticated as appellant, and that the only place capable of doing anything for him was the Texas Youth Commission. She admitted, however, that the Texas Youth Commission had been handling him for a year and that he had picked up subsequent offenses. She agreed that the concept behind the juvenile system is to rehabilitate those children who can be rehabilitated. She conceded appellant did not come across as a child, but as a streetwise person who was not dependent on his parent or the system to survive. She gave as her opinion that appellant needed a “full time lockup” because he was not capable of conforming his behavior to the rules of society without being held against his will in a lockup facility.

Officer Chaney, who participated in the events leading up to appellant’s arrests for cocaine possession and delivery in May 1989 and January 1990, testified that the attitude of appellant was that the police should hurry up and complete their paperwork so he could return to his business on the street. Police Officer Drozd, who arrested appellant in January 1990, testified that appellant acted more like an adult than a juvenile. He characterized appellant as cool, calm, and sure of himself; he stated appellant did not appear to be under the influence of drugs or alcohol. He stated that appellant said he would be out dealing his stuff before the police finished the paperwork on him.

Having reviewed the testimony and records pertaining to the unavailability of rehabilitative services suitable for appellant and the unwillingness of appellant to be rehabilitated, we conclude there is probative evidence supporting the juvenile court’s finding that there is little likelihood the facilities and services available to the juvenile court could reasonably be expected to rehabilitate appellant.

In reviewing appellant’s factual sufficiency contention, we consider all the evidence. P. G., 616 S.W.2d at 639. The finding will be upheld if it is not so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. A.T.S., 694 S.W.2d at 253; LB., 619 S.W.2d at 587. However, we do not substitute our judgment for that of the juvenile court. C.L.Y., 570 S.W.2d at 240.

In January 1989, Dr. Cavazos diagnosed appellant as having a probable chemical dependence. Appellant’s mother testified that he had expressed willingness to go into an alcohol and drug rehabilitation treatment program. She stated that in her experience her son was very cooperative. She also stated that he needed treatment for his addiction and because of his low I.Q. Dr. Scherzer found appellant cooperative and polite and that he gave his best effort on the test administered. He stated that people under the influence of drugs and alcohol, even though they know the difference between right and wrong, act in an unacceptable manner. Officer Chaney testified that if someone has an identified substance abuse problem, he or she ought to be treated for it and that such treatment was in the best interest of society. Ms. Willis testified that appellant had become very cooperative with her. She stated nothing in appellant’s records reflected any violent acts against third parties. She testified, in her opinion, that appellant could still benefit from long-term care in a structured facility that provided the special education and vocational training he needed. She stated that the Texas Youth Commission had a state hospital that could meet appellant’s needs. She also agreed that, although appellant had been in the custody of the Texas Youth Commission for a year, he had really not received any structure or care for the last six months. She also stated that Harris County Juvenile Probation could provide a structured environment for one year, individual drug counseling, and daily school attendance. Ms. Olson testified that appellant’s needs assessment done by the Texas Youth Commission in 1989 dictated that he be placed in a structured medium risk facility; however, he was placed in a low risk facility. She acknowledged that the Texas Youth Commission was required to establish an educational plan for a child; however, it had not done so with respect to appellant.

Having reviewed all the evidence regarding appellant’s willingness to rehabilitate and the availability of juvenile services to rehabilitate him, as well as the previously described evidence to the contrary, we conclude there was conflicting testimony. The juvenile court, as the trier of fact, was entitled to weigh the evidence and the credibility of the witnesses. We find the evidence factually sufficient to uphold the juvenile court’s conclusion there is little likelihood the facilities and services available to the juvenile court could reasonably be expected to rehabilitate appellant.

Furthermore, we note that appellant has challenged the sufficiency of only one of the juvenile court’s findings. The availability of services to rehabilitate a juvenile is only one of the issues to be considered by the court in determining if juvenile court jurisdiction should be waived. See P.G., 616 S.W.2d at 639; C.L.Y., 570 S.W.2d at 240-41.

We overrule appellant’s fourth point of error.

The judgment is affirmed.

O’CONNOR, J., dissenting.