Opinion issued February 6, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00175-CV ——————————— IN THE MATTER OF D.M.
On Appeal from the County Court at Law No. 6 Fort Bend County, Texas Trial Court Case No. 20-CJV-024199
MEMORANDUM OPINION
Appellant D.M. appeals the juvenile court’s order revoking his probation and
committing him to the Texas Juvenile Justice Department (“TJJD”).1 In two issues,
1 To maintain his privacy, we refer to appellant by his initials. See TEX. FAM. CODE § 56.01(j) (“Neither the child nor his family shall be identified in an appellate opinion rendered in an appeal . . . related to juvenile court proceedings under this title.”). D.M. contends (1) the trial court abused its discretion by committing him to TJJD
because his supervision and support needs could be met at home and (2) he received
ineffective assistance of counsel. We affirm.
I. Background
In February 2021, the juvenile court found that 15-year-old D.M. had engaged
in delinquent conduct by assaulting two family members—his grandmother and his
brother. The first assault against D.M.’s grandmother was a misdemeanor. See TEX.
PENAL CODE § 22.01(a)(1), (b). The second assault against D.M.’s brother was a
felony because it involved impeding breath or circulation by applying pressure to
the throat or neck. See id. § 22.01(b)(2)(B).
The juvenile court placed D.M. on six months’ probation. Among other
things, the probation conditions required D.M. to not commit any new offenses, to
go to school, to follow the school’s rules, and to stay home or be accompanied by a
guardian except when attending school, a school activity, or a church function.
Based on violations of these conditions, including a second assault against his
grandmother, D.M.’s probation was extended three times.
Two of the extension orders required D.M. to participate in intensive
supervision programs at secure residential facilities—the Fort Bend County Juvenile
Leadership Academy (“JLA”) and the Center for Success and Independence at the
Rockdale Academy (“Rockdale”). But D.M. completed neither program. The
2 juvenile court found that D.M. violated JLA rules by “receiving 9 write-ups” for
failing to follow instructions, threatening peers and staff, and having violent
outbursts. D.M. was “unsuccessfully discharged” from Rockdale for “failure to
adjust to the rules and regulations of the program.”
In August 2022, D.M. was living with his grandmother but still on probation
when a student at D.M.’s school alleged that D.M. had threatened to kill him. A
school resources officer investigated the threat and interviewed D.M. at home. After
initially denying the allegation, D.M. admitted threatening the student. The school
resources officer found brass knuckles in D.M.’s backpack and a knife in D.M.’s
closet. D.M. was suspended from school.
The State moved to revoke D.M.’s probation. The State alleged that by
threatening the other student, D.M. had violated school rules and committed a new
offense. See TEX. PENAL CODE § 22.07(a)(2) (defining the offense of “terroristic
threat” as threatening violence that places a person “in fear of imminent serious
bodily injury”). The State also alleged that D.M. had violated the stay-home
requirement of his probation when he twice left home without a guardian and for an
impermissible purpose. D.M. pleaded “not true” to the State’s allegations.
At the hearing to adjudicate the alleged probation violations, the State
presented two witnesses—the school resources officer and D.M.’s probation officer.
The school resources officer testified about the investigation of D.M.’s alleged
3 terroristic threat.2 And the probation officer testified about D.M.’s stay-home
violations. The probation officer explained that he knew D.M. left home on a certain
date because D.M.’s great grandmother reported the violation and D.M. wore an
ankle monitor that tracked his movement. When D.M. left home again three days
later, the probation officer had a general idea where D.M. might be based on routes
he had taken before. The probation officer found D.M. about a mile from his
grandmother’s house. D.M. claimed he was walking to school, even though he had
been suspended.
After the parties rested on adjudication, the juvenile court found that D.M.
had violated the terms of his probation by twice leaving home without a guardian
for reasons other than to attend school, a school activity, or a church function. The
juvenile court made no finding on whether D.M. violated probation by threatening
the other student.
The juvenile court proceeded to the disposition phase. After testimony from
several witnesses about the efforts to provide D.M. individual and trauma-based
counseling, intensive supervision, and other services that would help him complete
probation and improve his continued behavioral issues, the juvenile court signed an
2 After the school resource officer testified, the parties realized that his testimony had not been sworn. Over D.M.’s objection and request that the unsworn testimony be stricken, the juvenile court concluded that any error could be cured and brought the officer back to swear that his testimony would have been the same had it been given under oath. 4 order revoking D.M.’s probation and committing him to TJJD for an indeterminate
time not to exceed when he turns 19 years old or until discharged by law. Although
D.M.’s grandmother and great grandmother testified that D.M. had their support and
could successfully complete probation at home, the juvenile court found it was in
D.M.’s best interest to be placed outside the home, reasonable efforts were made to
prevent or eliminate the need for D.M. to be removed from home, and D.M. could
not receive the support and supervision he needed at home.
II. Commitment to TJJD
In his first issue, D.M. argues that the juvenile court abused its discretion by
committing him to TJJD because his probation violations were minor and his
supervision and support needs could be met in his grandmother’s home.
A. Applicable law and standard of review
A juvenile court has broad discretion to determine a suitable disposition for a
juvenile found to have engaged in delinquent conduct, particularly in proceedings
involving modification. See In re K.H., 682 S.W.3d 567, 575 (Tex. App.—Houston
[1st Dist.] 2023, pet. denied); In re E.K.G., 487 S.W.3d 670, 673 (Tex. App.—San
Antonio 2016, no pet.). When a juvenile’s prior disposition is based on a finding
that he engaged in delinquent conduct that would be a felony offense, the court may
modify the disposition and commit the child to TJJD if it “finds by a preponderance
of the evidence that the child violated a reasonable and lawful order of the court.”
5 TEX. FAM. CODE § 54.05(f); see TEX. PENAL CODE § 22.01(b)(2)(B) (making family
violence assault by impeding breath or circulation a felony). The order committing
the child to TJJD must include a 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 child’s home and to make it possible for the child to return 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 § 54.05(m)(1).
We review the juvenile court’s decision to modify a disposition for an abuse
of discretion. See In re J.P., 136 S.W.3d 629, 632 (Tex. 2004); In re C.J., No.
01-18-00771-CV, 2009 WL 1886614, at *2 (Tex. App.—Houston [1st Dist.] July 2,
2009, no pet.) (mem. op.). The court abuses its discretion if it acts arbitrarily,
unreasonably, or without reference to guiding rules or principles. In re K.H., 682
S.W.3d at 575; In re C.J., 2009 WL 1886614, at *2. Legal and factual sufficiency
of the evidence are relevant factors in assessing whether the court abused its
discretion. In re K.H., 682 S.W.3d at 575; In re C.J., 2009 WL 1886614, at *2; see
also In re R.L.R. III, No. 14-06-00926-CV, 2008 WL 323758, at *2 (Tex. App.—
Houston [14th Dist.] Feb. 7, 2008, no pet.) (mem. op.) (reviewing modification of
6 disposition for abuse of discretion after deciding whether evidence was sufficient to
support finding that juvenile violated a condition of probation).
When reviewing legal sufficiency, favorable evidence is considered if a
reasonable and fair-minded factfinder could consider such evidence, and evidence
contrary to the court’s finding is disregarded unless a reasonable and fair-minded
factfinder could not disregard it. See City of Keller v. Wilson, 168 S.W.3d 802, 807
(Tex. 2005); see also In re C.J., 2009 WL 1886614, at *2. When reviewing factual
sufficiency, we consider and weigh all the evidence, and will set aside the judgment
only if the findings are so weak or so against the great weight and preponderance of
the evidence as to be clearly unjust. See In re K.H., 682 S.W.3d at 575; In re C.J.,
2009 WL 1886614, at *2.
B. Sufficiency of the evidence
D.M. argues that the juvenile court abused its discretion by committing him
to TJJD because the evidence does not support the court’s best interest, reasonable
efforts, and quality of in-home care findings. Construing D.M.’s brief liberally,3 we
understand D.M.’s argument as being that the adjudicated violations of his
probation—two violations of the stay-home requirement—were “minor,” and
considering that the violations were only “minor,” there was no showing that he
3 The Supreme Court of Texas has instructed that courts should construe briefs liberally to avoid disposing of issues without reaching the merits when possible. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008). 7 could not successfully complete his probation in his grandmother’s home. We
disagree.
The record contains evidence that adequately supports the juvenile court’s
finding that placement outside the home was in D.M.’s best interest. See TEX. FAM.
CODE § 54.05(m)(1)(A). The State presented evidence of D.M.’s ability and
inclination to undermine his grandmother’s supervision and the conditions of his
probation by assaulting his grandmother a second time, repeatedly leaving her home
without permission, and engaging in other inappropriate behavior like threatening
persons. See In re E.K.G., 487 S.W.3d at 678 (determining continuous violations of
probation conditions while at home suggest placement outside the home is in the
child’s best interest).
The record also contains evidence that reasonable efforts were made to avoid
placing D.M. outside the home. See TEX. FAM. CODE § 54.05(m)(1)(B). D.M.’s
original disposition was six months’ probation at home, during which time he was
to live with his grandmother. D.M. initially did well on probation in his
grandmother’s home but later reverted to behavior that was “defiant,” “aggressive,”
and “confrontational.” One month after he was placed on probation, D.M. assaulted
his grandmother a second time and was detained. Based on this new offense, D.M.’s
probation was extended, and he was placed in JLA, a secure residential facility. His
probation was extended twice more because of continued noncompliance and
8 aggressive behavior, and he was unsuccessfully discharged from not just JLA but
also Rockdale.
After being unsuccessfully discharged from the secure residential facilities,
D.M. was placed back in his grandmother’s care, in part, because his behavior
precluded other placements. Even though D.M. received counseling and other
services through the probation department, he remained unwilling to conform his
conduct to what the probation order required while in the home environment. See,
e.g., In re V.L.T., 570 S.W.3d 867, 873 (Tex. App.—El Paso 2018, no pet.)
(affirming trial court’s modification sending child to TJJD after probation
department attempted trauma counseling, deferred prosecution, and intensive
supervision); In re E.K.G., 487 S.W.3d at 678 (recognizing multiple alternative
dispositions made before placement outside the home amounted to reasonable efforts
to avoid removal of the child); see also In re J.P., 136 S.W.3d at 632 (“[T]the act of
modification itself indicates an in-home alternative has been tried, and undoubtedly
most trial courts would find these efforts reasonable because they ordered them.”
(emphasis in original)). The juvenile court did not have to “exhaust all possible
alternatives” before committing D.M. to TJJD. In re J.R.C., 236 S.W.3d 870, 875
(Tex. App.—Texarkana 2007, no pet.).
The juvenile court also could reasonably determine that the level of care,
support, and supervision in the grandmother’s home was not meeting D.M.’s needs
9 or enabling him to complete probation based on his continued disregard for the
conditions of his probation and aggressive behavior. D.M.’s grandmother and great
grandmother both acknowledged as much. And while the record shows that D.M.’s
family was loving and supportive, actively participated in the services offered to
D.M., and wanted D.M. to continue his probation at home, that evidence is not so
overwhelmingly contrary to the juvenile court’s findings that the disposition order
is manifestly unjust. See In re J.D.S., No. 04-15-00540-CV, 2016 WL 3342137, at
*3 (“The trial court is in the best position to determine a [guardian’s] ability to
adequately supervise the juvenile.”).
In sum, the evidence at the disposition hearing and D.M.’s probation history
is legally and factually sufficient to support the juvenile court’s findings that
placement outside the home was in D.M.’s best interest and was required to provide
the level of support and quality of care that D.M. needs to meet his probation
conditions after reasonable efforts to keep D.M. at home were made. See TEX. FAM.
CODE § 54.05(m). Therefore, we hold the juvenile court did not abuse its discretion
by modifying D.M.’s disposition and committing him to TJJD.
We overrule D.M.’s first issue.
III. Assistance of Counsel
In his second issue, D.M. argues that trial counsel provided ineffective
assistance because she did not present witnesses or other evidence to rebut the
10 alleged probation violations and thus effectively conceded the adjudication portion
of the proceedings. D.M. argues that trial counsel was also ineffective for not
developing evidence to mitigate the State’s case for commitment to TJJD.
Although juvenile delinquency proceedings are civil proceedings governed by
the Texas Family Code, they are quasi-criminal in nature. See In re M.P.A., 364
S.W.3d 277, 282 n.2 (Tex. 2012); In re R.J.H., 79 S.W.3d 1, 6 (Tex. 2002). A
juvenile is entitled to effective assistance of counsel in such proceedings. See In re
Z.Q., No. 14-12-00129-CV, 2013 WL 176116, at *2 (Tex. App.—Houston [14th
Dist.] Jan. 17, 2013, pet. denied) (mem. op.); In re J.M.S., 43 S.W.3d 60, 63 n.1
(Tex. App.—Houston [1st Dist.] 2001, no pet.).
The effectiveness of counsel’s representation is reviewed under the familiar
two-prong Strickland standard. See, e.g., In re D.A.O., No. 03-09-00483-CV, 2010
WL 3271812, at *2–3 (Tex. App.—Austin Aug. 19, 2010, no pet.) (mem. op.)
(applying standard from Strickland v. Washington, 466 U.S. 668, 687–88 (1984), in
reviewing counsel’s representation at hearing to modify juvenile disposition). To
prevail under Strickland, the juvenile must show by a preponderance of the evidence
that (1) counsel’s performance fell below an objective standard of reasonableness
and (2) there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Strickland, 466 U.S. at 687–
11 88, 694; Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). Our
review of counsel’s representation is highly deferential. Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002). We presume counsel’s conduct fell within the
wide range of reasonable professional assistance and will find counsel’s
performance deficient only if the conduct is so outrageous that no competent
attorney would have engaged in it. Andrews, 159 S.W.3d at 101. The unprofessional
conduct must undermine confidence in the outcome. Bone, 77 S.W.3d at 833.
Because we cannot speculate beyond the record provided, any allegation of
ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999); see Anderson v. State, 193 S.W.3d 34, 39 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d). Thus, it is critical that the juvenile
obtain the necessary record in the trial court to rebut Strickland’s presumption that
counsel’s conduct was strategic. See Thompson, 9 S.W.3d at 814. Direct appeal is
often an inappropriate forum for this type of claim because the record may be
underdeveloped and not show the facts related to the reasonableness of counsel’s
decisions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); see
also Bone, 77 S.W.3d at 833 (recognizing that, “[i]n the majority of cases, the record
on direct appeal is simply undeveloped and cannot adequately reflect the failings of
trial counsel” (quotation omitted)).
12 B. Failure to investigate and present evidence rebutting probation violations
D.M. argues that trial counsel’s representation during the adjudication hearing
“amounted to nothing” because she did not present witnesses or other evidence
challenging the State’s allegation that he violated the conditions of his probation.
But D.M.’s complaint of ineffectiveness is not shown in the record.
As D.M. acknowledges, trial counsel challenged the credibility of the State’s
witnesses through cross-examination on the alleged probation violations, moved to
strike the unsworn testimony from the school resources officer, and made several
other objections to the admissibility of the State’s evidence. Based on her
cross-examinations and objections, counsel argued in closing that the State had not
met its burden of proof as to any alleged probation violation. Her closing argument
addressed the alleged probation violations individually and offered reasons why the
juvenile court should find against the State on each allegation. And the juvenile
court impliedly rejected some of the State’s evidence when it declined to adjudicate
D.M.’s alleged threat against the other student.
The record is silent as to why trial counsel decided to put the State to its burden
of proof rather than call defense witnesses or offer exhibits into evidence. D.M. did
not move for a new trial or otherwise develop his ineffective assistance claim in the
juvenile court. While D.M. asserts on appeal that counsel should have done more to
investigate potential defenses, he does not say what that investigation would have
13 revealed. On that matter the record is also silent. See Stokes v. State, 298 S.W.3d
428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (“A claim for
ineffective assistance based on trial counsel’s general failure to investigate the facts
of the case fails absent a showing of what the investigation would have revealed that
reasonably could have changed the result of the case.”). Considering the record’s
silence, we must presume that counsel’s actions were motivated by sound trial
strategy. See Thompson, 9 S.W.3d at 813–14 (a silent record that does not explain
counsel’s actions cannot overcome the strong presumption of reasonable assistance).
Nothing in the record compels a conclusion that counsel’s performance at the
adjudication hearing fell below an objective standard of reasonableness. Strickland,
466 U.S. at 687–88.
Because D.M. has not met Strickland’s first prong, he has not shown that trial
counsel was ineffective at the adjudication hearing. See Williams v. State, 301
S.W.3d 675, 687 (Tex. Crim. App. 2009) (appellant’s “failure to satisfy one prong
of the Strickland test negates a court’s need to consider the other prong”).
C. Failure to present evidence rebutting the need for commitment to TJJD
D.M. also argues that trial counsel was ineffective at the disposition hearing
because she did not present evidence “mitigating” the need for commitment to TJJD.
We understand D.M. as complaining that counsel should have offered evidence that
D.M. could receive the quality and level of support and supervision he needed at
14 home. We note counsel called D.M.’s grandmother and great grandmother to testify
about D.M.’s family support and home environment. She also cross-examined the
State’s witnesses about alternatives to commitment to TJJD. The record is silent as
to what more counsel could or should have offered. On such a silent record, we
cannot say that counsel’s conduct was “so outrageous that no competent attorney
would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005); cf. Bone, 77 S.W.3d at 834–35 (rejecting ineffective assistance claim
because appellant failed to show that other mitigating evidence existed).
Consequently, D.M. has not met Strickland’s first prong and has not shown that
counsel was ineffective at the disposition hearing. See Williams, 301 S.W.3d at 687.
We overrule Appellant’s second issue.
IV. Conclusion
We affirm the trial court’s order revoking D.M.’s probation and committing
him to TJJD.
Andrew Johnson Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.