Home/Court of Appeals of Texas/in the Matter of L. L., Jr. , a Juvenile

in the Matter of L. L., Jr. , a Juvenile

Court of Appeals of Texas·Decided February 10, 2009·No. 07-08-00241-CV·Published

Opinion

NO. 07-08-0241-CV


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL B


FEBRUARY 10, 2009

                                       ______________________________


IN THE MATTER OF L.L., JR., A CHILD

_________________________________


FROM THE 64TH DISTRICT COURT OF HALE COUNTY;


NO. A2193-0609; HONORABLE ROBERT W. KINKAID, JR., JUDGE

                                      _______________________________



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

          Appellant, L.L., Jr., appeals from the trial court’s order modifying the disposition to commit him to the Texas Youth Commission (TYC). Through one issue, he contends the trial court erred when it failed to make a statutorily-required determination in its written judgment. We will modify the trial court’s judgment to reflect the omitted finding and affirm it as modified.

Background

          In October 2006, appellant was found to be a child engaged in delinquent conduct on his plea of “true” to an allegation he committed burglary of a habitation. He was placed on probation until his eighteenth birthday. The State filed two motions to modify the disposition in 2007. The first was dismissed. After a hearing held in August 2007 as to the second, appellant was placed in a rehabilitation program outside of his home. In March 2008, the State filed another motion to modify the disposition. A hearing was held in May 2008 wherein appellant plead “not true” to the allegations. The court found the allegations to be true and modified the disposition to commit appellant to TYC.

          The oral pronouncements made by the trial court regarding its decision included the pronouncement “that [appellant] cannot be provided the quality of care and level of support and supervision that [he] need[s] to meet the conditions of probation.” But this pronouncement was not included in the written judgment, contrary to the statutory requirement in section 54.05(m)(1)(C) of the Family Code. Appellant timely appealed.

AnalysisVia his sole point of error, appellant complains the trial court erred in failing to include the [above-noted] statutorily-directed finding in the written judgment. Because appellant complains only of an omission in the written judgment and not the trial court’s decision to place appellant in TYC, we will address only the evidence pertinent to the omitted finding.

 

          Section 54.05(m)(1)(C) (Vernon 2007) provides:

(m) If the court places the child on probation outside the child’s home or commits the child to the Texas Youth Commission, the court:

 

                     (1) shall include in the court’s order a determination that:

 

(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 . . . .

          This Court has authority to correct, modify and reform a judgment to make the record speak the truth when the matter has been called to its attention and it has the necessary information to do so. In re K.B., 106 S.W.3d 913, 916 (Tex.App.–Dallas 2003, no pet.); In re J.K.N., 115 S.W.3d 166, 174 (Tex.App.–Fort Worth 2003, no pet.) (court is authorized to modify juvenile court’s judgment); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.–Dallas 1991, pet. ref’d). This power extends to reforming, correcting or modifying the written judgment to include omitted findings. See, e.g., French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992) (court of appeals properly granted State’s motion to reform trial court’s judgment to include the jury’s affirmative deadly weapon finding); Cobb v. State, 95 S.W.3d 664, 668 (Tex.App.–Houston [1st Dist.] 2002, no pet.) (court’s power includes adding a deadly-weapon finding to a judgment that erroneously omitted a fact-finder’s deadly-weapon finding); Asberry, 813 S.W.2d at 529-31) (adding deadly-weapon finding). The authority of the appellate courts to reform judgments is not limited to those situations involving mistakes of a clerical nature. Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App. 1993). The necessary information is provided in the record here. Accordingly, we are authorized to modify the trial court’s judgment. Tex. R. App. P. 43.2(b).

          At the close of the May 2008 hearing, the trial court stated the following findings on the record:

          This court finds that you are a juvenile who is in need of rehabilitation. I further fined [sic] that the public needs protection from you. I find that it would be in the best interest of yourself that you be placed outside your home, that you cannot be provided the quality of care and level of support and supervision that you need to meet the conditions of probation; that there have been reasonable efforts made by this Court to eliminate the need for your removal and make it possible for you to return to your home.

 

          I particularly take notice of the fact that this is the second time I have found that you have violated your probation. I gave you a [break] once before; so therefore, it will be the order of the Court that you shall be committed to the Texas Youth Commission where they’re authorized by law to keep you until your 21st birthday.

 

          However, as both parties agree, the court’s written order committing appellant to TYC failed to include the requisite determination that “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. § 54.05(m)(1)(C) (Vernon 2007).

          Appellant argues this omission requires the reversal of the judgment and remand of the case. Appellant relies on the decision in In re J.T.H., 779 S.W.2d 954 (Tex.App.–Austin 1989, no pet.) for this proposition.

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

in the Matter of L. L., Jr. , a Juvenile, (Tex. Ct. App. 2009).

in the Matter of L. L., Jr. , a Juvenile (in the Matter of L. L., Jr. , a Juvenile) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Asberry v. State
813 S.W.2d 526 (Court of Appeals of Texas, 1991)
Davis v. State
71 S.W.3d 844 (Court of Appeals of Texas, 2002)
Dallas v. State
983 S.W.2d 276 (Court of Criminal Appeals of Texas, 1998)
Ex Parte Rubac
611 S.W.2d 848 (Court of Criminal Appeals of Texas, 1981)
Mayo v. State
611 S.W.2d 442 (Court of Criminal Appeals of Texas, 1981)
Heiselbetz v. State
906 S.W.2d 500 (Court of Criminal Appeals of Texas, 1995)
French v. State
830 S.W.2d 607 (Court of Criminal Appeals of Texas, 1992)
Ex Parte Lowe
573 S.W.2d 245 (Court of Criminal Appeals of Texas, 1978)
Cobb v. State
95 S.W.3d 664 (Court of Appeals of Texas, 2002)
Montgomery v. State
810 S.W.2d 372 (Court of Criminal Appeals of Texas, 1991)
Bigley v. State
865 S.W.2d 26 (Court of Criminal Appeals of Texas, 1993)
Ex Parte Davila
623 S.W.2d 408 (Court of Criminal Appeals of Texas, 1981)
Ex Parte Spaulding
612 S.W.2d 509 (Court of Criminal Appeals of Texas, 1981)
Shawn Lee Shugart v. State
994 S.W.2d 367 (Court of Appeals of Texas, 1999)
Miller v. State
301 S.W.2d 672 (Court of Criminal Appeals of Texas, 1957)
Swinnea v. State
614 S.W.2d 453 (Court of Criminal Appeals of Texas, 1981)
Ex parte Castaneda
739 S.W.2d 456 (Court of Appeals of Texas, 1987)
In re J.T.H.
779 S.W.2d 954 (Court of Appeals of Texas, 1989)
Compian v. State
7 S.W.3d 199 (Court of Appeals of Texas, 1999)
Ex parte Cole
43 S.W.3d 713 (Court of Appeals of Texas, 2001)