COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-03-132-CV
2-03-133-CV
IN
THE MATTER OF C.P.D.
------------
FROM
THE 323RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
I. Introduction
Appellant
C.P.D. perfected this appeal from the juvenile court’s judgment adjudicating
him delinquent, modifying a prior disposition order, and ordering him committed
to the Texas Youth Commission (TYC). Appellate counsel has filed an Anders
brief asserting that there are no grounds that could be argued successfully on
appeal. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). We
grant counsel’s motion to withdraw and affirm the trial court’s judgment.
II. Procedural
Background
In
November 2001, the juvenile court adjudicated C.P.D. delinquent for committing
an aggravated sexual assault, a first-degree felony. See Tex. Penal Code Ann. § 22.021(e)
(Vernon Supp. 2004). The court placed C.P.D. on two years’ probation and
ordered him to abide by the court’s terms and conditions, including attending
sex offender counseling and not violating any laws. During the course of
probation, C.P.D. was unsuccessfully discharged from a sex offender counseling
program and committed the offense of indecency with a child. See id. §
21.11 (Vernon 2003).
Thereafter,
the State filed a motion to modify disposition and a second petition regarding a
child engaged in delinquent conduct, alleging that C.P.D. violated the terms of
his probation and engaged in delinquent conduct by contacting the genitals of
C.R., a child younger than seventeen years and not his spouse, and by causing
C.R. to touch C.P.D.’s genitals. The State requested that C.P.D. be committed
to the custody of TYC.
At
the hearing, C.P.D. stipulated to the evidence showing that he engaged in
indecency with a child by contact while on probation. The juvenile court
adjudicated C.P.D. delinquent of the new offense and proceeded to consider the
motion to modify. The court determined that C.P.D. had violated a reasonable and
lawful term of his probation by committing the new offense and by being
unsuccessfully discharged from sex offender counseling. The court entered an
order of commitment, transferring C.P.D. to the custody and care of TYC for an
indeterminate period not to surpass his twenty-first birthday.
III. The Anders
Brief
C.P.D.’s
court-appointed appellate counsel filed a motion to withdraw as counsel. In
support of his motion, counsel filed a detailed brief in which he avers that, in
his professional opinion, this appeal is frivolous. The Supreme Court of Texas
has held that the Anders procedure applies to juvenile proceedings. In
re D.A.S., 973 S.W.2d 296, 299 (Tex. 1998) (orig. proceeding).
Counsel’s
brief and motion meet the requirements of Anders by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. This court provided C.P.D. the opportunity to file a pro se
brief, even granting C.P.D. a lengthy extension of time to file a pro se brief,
but he did not do so.2 Once C.P.D.’s
court-appointed counsel files a motion to withdraw on the ground that the appeal
is frivolous and fulfills the requirements of Anders, we must conduct an
independent examination of the record and essentially rebrief the case to see if
there is any arguable ground that may be raised on C.P.D.’s behalf. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
IV. Independent
Examination of Record
A. Proper
Admonishments Given
The
juvenile court adequately admonished C.P.D. before his adjudication hearing and
his modification hearing. Cf. Tex.
Fam. Code Ann. § 54.03(b) (Vernon Supp. 2004) (setting forth
admonishment requirements for juvenile offenders at adjudication hearings).
C.P.D. indicated that he understood the charges against him and that he waived
his rights.
B. Sufficient
Evidence Supporting Adjudication and Modification
C.P.D.
stipulated to evidence that he committed the felony offense of indecency with a
child while on probation and stated that the stipulated evidence was true and
correct. Thus, the evidence supporting the adjudication of delinquency is
legally and factually sufficient. See In re D.L.C., 124 S.W.3d
354, 375-76 (Tex. App.—Fort Worth 2003, no pet.) (holding evidence legally and
factually sufficient to support adjudication of delinquency); In re B.P.H.,
83 S.W.3d 400, 408 (Tex. App.—Fort Worth 2002, no pet.) (holding evidence
legally and factually sufficient to support adjudication of deliquency).
The
stipulated evidence is likewise sufficient to support the trial court’s
judgment to modify disposition and its order of commitment. See Tex. Fam. Code Ann. § 54.05(f); In
re M.A.L., 995 S.W.2d 322, 324 (Tex. App.—Waco 1999, no pet.) (stating
plea of true to probation violation and stipulation to evidence are analogous to
judicial confession, justifying court’s finding that violation was committed
by preponderance of evidence).
C. Effective
Assistance of Counsel
There
is no evidence in the record showing that C.P.D. received ineffective assistance
of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). Thus, we continue our review of the record by proceeding with
the arguable grounds presented by C.P.D.’s counsel.
V. Counsel’s
Arguable Grounds Are Not Meritorious
C.P.D.’s
counsel raises three arguable grounds in his brief: (1) the absence of C.P.D’s
mother during the court proceedings directly contravenes the purpose of the
family code provision requiring her attendance; (2) the trial court lacked
jurisdiction because a copy of the State’s petition was not attached to the
citation; and (3) the evidence is factually insufficient to support the
judgment. However, after thoroughly examining each ground, C.P.D.’s counsel
concludes that none of the arguments would be meritorious. We agree.
A. Absence
of C.P.D.’s Mother Was Not Error
In
his first arguable ground, C.P.D.’s counsel contends that the absence of
C.P.D’s mother during the court proceedings directly contravenes the purpose
of the family code provision requiring her attendance. C.P.D.’s father and
grandparents attended the adjudication and modification hearing, but his mother
did not attend the hearing. Section 51.115 of the Texas Family Code requires all
parents to attend the adjudication and disposition hearings. Tex. Fam. Code Ann. § 51.115(a) (Vernon
2002). The code also provides, however, that “[i]f a person required under
this section fails to attend a hearing, the juvenile court may proceed with the
hearing.” Id. § 51.115(c); see also In re Edwards, 644 S.W.2d
815, 818 (Tex. App.—Corpus Christi 1982, writ ref’d n.r.e.) (holding that
issuance of summons to either of child’s parents is sufficient). C.P.D. made
no objection at the hearing that his mother was not present. Accordingly, the
alleged arguable error was not preserved. See Tex. R. App. P. 33.1(a) (stating that
complaint must be made to trial court by timely request, objection, or motion as
prerequisite to presenting complaint for appellate review).
B. Trial
Court Had Jurisdiction
C.P.D.’s
counsel’s second arguable ground is that the trial court lacked jurisdiction
because section 53.06(b) requires that a copy of the petition be attached to the
citation. Tex. Fam. Code Ann. §
53.06(b) (Vernon 2002). Although the citation in the record does not have a copy
of the petition attached to it, the citation directs C.P.D. to appear on a
certain date “[t]o answer the MOTION TO MODIFY DISPOSITION of the Criminal
District Attorney’s office, Tarrant County, Texas, a copy of which is
hereto attached . . . .” [Emphasis added.] Additionally, the
officer’s return on the citation recites that the officer delivered to C.P.D.
the “MOTION TO MODIFY DISPOSITION a copy of which accompanies this citation.”
[Emphasis added.]
Our
review of the record as a whole reveals no jurisdictional defects. The
juvenile court has jurisdiction over a child who is alleged to have engaged in
delinquent conduct. Tex. Fam. Code
Ann. § 51.04(a) (Vernon 2002). C.P.D. stipulated that he was
seventeen years old at the time of the hearing and that he resided in Tarrant
County. See id. § 51.02(2)(A) (Vernon Supp. 2004) (stating
“child” is person who is between ten and seventeen years of age). The
motion to modify disposition was not defective, and it provided sufficient
notice to C.P.D. of the allegations against him. Cf. id. § 53.05(d)
(stating that hearing on motion to modify disposition shall be held on petition
of State and reasonable notice of hearing on motion to modify shall be given to
all parties). Likewise, the State’s petition regarding a child engaged
in deliquent conduct was not defective, and it provided sufficient notice to
C.P.D. of the allegations against him. Cf. id. § 53.04(d) (setting forth
requirements of petition for adjudication); In re A.B., 868 S.W.2d 938,
940 (Tex. App.—Fort Worth 1994, no writ) (discussing notice requirements for
petition to adjudicate). Accordingly, the appellate record’s failure to
include a copy of the petition with the citation does not establish that the
trial court lacked jurisdiction.
C. Evidence
Supporting TYC Commitment Factually Sufficient
In
his third arguable ground, C.P.D.’s counsel argues that the evidence is
factually insufficient to support commitment to TYC. Specifically, C.P.D.’s
counsel contends that C.P.D. (1) was and continued to be a low-risk individual,
(2) was not predatorily seeking out victims, (3) was not a deviant nor inclined
toward deviance, (4) could successfully complete appropriate counseling and
therapy, (5) committed the new offense as a result of being lured into a totally
inappropriate setting, (6) facilitated immediate corrective action by
self-reporting, (7) had grandparents who provided a supportive environment and
were prepared for him to continue living with them, (8) presented an extremely
low risk of recidivism, and (9) has the ability to do well in school.
In
reviewing C.P.D.’s sufficiency challenge to the evidence supporting his
disposition, we review the evidence under the civil standard. See D.L.C.,
124 S.W.3d at 375. In reviewing C.P.D.’s factual sufficiency claim, we
consider and weigh all the evidence and set aside the judgment only if the
finding is so against the great weight and preponderance of the evidence as to
be manifestly unjust. See id.
If
the court commits a juvenile to TYC, the court must find and include in its
disposition order its determination that (A) it is in the child’s best
interests to be placed outside the child’s home; (B) 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 (C)
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. Tex. Fam. Code Ann.
§ 54.04(i)(1).
In
this case, the trial court included the required statutory findings in its order
of disposition. However, C.P.D.’s counsel argues that the evidence is
factually insufficient to support these findings. We disagree.
The
trial court heard testimony from Lawrence Post, Norman Scroggins, Mary Jo Smith,
and Debbie Moore. Each testified regarding C.P.D.’s ability to reform if
he remained in the community.
Lawrence
Post, C.P.D.’s grandfather, testified that C.P.D. is an obedient child who
attends church. Mr. Post explained that he sought to comply with the
court’s rules and requirements while C.P.D. was living with him, especially
with regard to installing a lock on the computer room where C.P.D. accessed
pornography, and that he is willing to devote his time and effort to see that
C.P.D.’s counseling is successful. He would like for C.P.D. to continue
living at his home and has designed a room for C.P.D. in the new house Mr. Post
is building.
Norman
Scroggins, a neighbor of the Posts, acknowledged that C.P.D. is a hard worker
who helped him install sprinkler systems and fencing. He explained that
C.P.D. alerted him when his house was on fire and then helped him move his
things out of the house. He described C.P.D. as honest and courteous.
Mary
Jo Smith, C.P.D.’s math teacher, testified that C.P.D. possesses exceptional
motivation to work hard and scored a ninety-four on his last test. She
said that she has not witnessed any behavior problems from C.P.D. and that there
have been no complaints about him from other teachers. Although she would
welcome him back to her class, she did testify that the school computers have
internet access and that there are places and instances where students are left
alone.
Debbie
Moore, C.P.D.’s counselor, stated that she met with C.P.D. five times and that
his testing revealed that he was a heterosexual male who was socially
immature—a seventeen-year-old boy functioning on a fourteen-year-old’s
level. She testified that he is not the type of personality out to hurt
somebody and that all of his history includes sexual contact with people he was
familiar with in his family; thus, he does not seek out sexual contact and has
shown no evidence of possessing a predatory nature. She mentioned that, to
her knowledge, C.P.D. has not committed other crimes.
Based
on her sessions with C.P.D., she found that he is “[l]ow risk based on no
abnormal sexual preferences, no personality disorder, no criminal behavior,
criminal thinking.” However, she pointed out that just “because
you’re low risk doesn’t mean that . . . person is never going to reoffend.
Some will. . . . He happened to be a low-risk offender who offended again.”
She
believes that accessing pornography on the computer did not cause C.P.D. to
reoffend; instead, “[h]e chose to reoffend.” She stated that C.P.D.
understands that his behavior is unacceptable, but he still chooses the
behavior. In other words, “[C.P.D.] is the only one that can keep
himself from reoffending.”
C.P.D.
acknowledged to Ms. Moore that he did not put a lot of effort into the sexual
offender treatment, and she testified that she is not sure how much benefit he
actually received from the treatment. She based her conclusion on the fact
that C.P.D. has a tendency to give excuses and to justify his behavior.
She said that it was up to C.P.D. to get what he could out of the
treatment. She sees a lot of motivation at this time for C.P.D. to get
through the treatment because of the legal consequences.3
Ms.
Moore expressed her concern about C.P.D. continuing to be isolated from his
peers if he continues to live with the Posts. She said that although
C.P.D. is very respectful, he is not comfortable with his peers and needs to
develop age-appropriate skills. She stated that school would be the best
interaction he could get. However, she said that C.P.D. needs to be
closely supervised due to his second offense, which is “more of a community
safety recommendation.” Although she feels that there is always some
risk when offenders are placed back in the community, she thinks that C.P.D.
would be an acceptable outpatient candidate4 with
the additional support of individual therapy and possibly some psychiatric
intervention. Because she believes that there are a lot of things that
C.P.D. has yet to deal with, she recommends continuing individual counseling
possibly post-high school. She concluded that there is an 85-90% chance
that C.P.D. can be very successful in the treatment program and that the risk of
recidivism is less than 5%.
The
trial court questioned Ms. Moore about C.P.D.’s honesty because a letter to
the probation department stated that C.P.D., upon being initially confronted
with the new charges, denied them, and the charges came out when the polygraph
was done. Ms. Moore confirmed that C.P.D. told his dad that he needed to
move, but he did not disclose his sexual behavior at that point. The trial
court expressed its concern that C.P.D. had committed two first-degree felonies,
and ultimately found that six months was not sufficient time to allow C.P.D. to
complete further sex offender treatment.
Because
the trial court found that six months was not a sufficient amount of time to
allow C.P.D. to complete further sex offender treatment and considering all of
the evidence, we hold that the trial court's findings in its disposition order
committing C.P.D. to TYC are not so contrary to the great weight and
preponderance of the evidence as to be manifestly unjust. Therefore, none
of the arguable grounds raised by C.P.D.’s counsel are meritorious.
VI. Conclusion
Based
on our independent review of the record and the three arguable grounds raised by
C.P.D.’s counsel, we have determined that there is no error on which an appeal
could be based or which would require reversal. Therefore, because we
agree with counsel’s professional determination that an appeal in the instant
case is frivolous, we grant counsel’s motion to withdraw and affirm the trial
court’s judgment.
SUE
WALKER
JUSTICE
PANEL
A: CAYCE, C.J.; WALKER and MCCOY, JJ.
DELIVERED:
July 8, 2004
NOTES
1.
See Tex. R. App. P. 47.4.
2.
We denied C.P.D.’s untimely request for a further extension of time to file a
pro se brief because his request was not filed until after this appeal was
submitted, almost six months after C.P.D.’s original pro se brief due date.
3.
The record demonstrates that possible charges against C.P.D. are also being
pursued in the adult criminal system.
4.
Ms. Moore stated that they are trying to get candidates through the program in
six months and that C.P.D. could get through the program “in six months with
his hands tied behind his back.”