in the Matter of A. H. J. ( 2010 )

MEMORANDUM OPINION
No. 04-09-00807-CV
IN THE MATTER OF A.H.J.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-JUV-01247
Honorable Carmen Kelsey, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: September 29, 2010
AFFIRMED
This appeal arises from the trial court’s order modifying A.H.J.’s disposition. The
modification extended his probation for a period of one year and placed him in the custody of the
Chief Juvenile Probation Officer of Bexar County. We affirm the order of the trial court.
BACKGROUND
On May 18, 2009, A.H.J., a juvenile, entered a plea of true to the charges of engaging in
delinquent conduct for committing the misdemeanor offense of possession of marihuana. See
TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1) (West 2010). A.H.J. further
acknowledged that he dealt drugs. Pursuant to a plea agreement, the trial court placed A.H.J. on
probation for a one-year period and placed A.H.J. in the custody of his aunt. Less than six
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months later, the State filed an Original Motion to Modify Disposition alleging that, on
September 20, 2009, A.H.J. violated Condition Number Six of his probation by leaving the
residence without permission. A.H.J. entered a plea of true.
The trial court considered the recommendations of: (1) the State (commitment to the
Texas Youth Commission); (2) the probation department (extension of probation, but placement
outside the home); and (3) A.H.J.’s counsel (extension of probation, but placement in the home).
A.H.J.’s mother explained that although she wanted A.H.J. home, she sought “what’s best” and
agreed that A.H.J. “need[ed] behavior modification.” The trial court found that A.H.J. violated
the terms of his probation; extended his probation for a period of one year; and placed him “in
the care, custody and control” of the Chief Probation Office of Bexar County for the purpose of
placement outside the home. On appeal, A.H.J. argues the trial court abused its discretion in
placing him outside the home.
STANDARD OF REVIEW
Because “[a] juvenile judge has broad discretion to determine the proper disposition of a
child who has been adjudicated as engaging in delinquent behavior,” its determination on this
question will not be disturbed absent an abuse of discretion. In re K.J.N., 103 S.W.3d 465, 465–
66 (Tex. App.—San Antonio 2003, no pet.). A trial court abuses its discretion when it “acts
unreasonably or arbitrarily and without reference to guiding rules and principles.” Id. at 466.
We review a trial court’s disposition order under the criminal abuse of discretion standard
“divorced from evidentiary standards of legal and factual sufficiency.” In re K.T., 107 S.W.3d
65, 74 (Tex. App.—San Antonio 2003, no pet.) (en banc). This standard requires that we view
the evidence in a light most favorable to the trial court’s judgment. Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997). Thus, we afford almost total deference to the trial court’s
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findings of fact that are supported by the record. In re K.T., 107 S.W.3d at 74. On the other
hand, when the trial court’s resolution of a factual issue is not dependent upon an evaluation of
credibility or demeanor, “we review the trial court’s determination of the applicable law, as well
as its application of the appropriate law to the facts it has found, de novo.” Id. at 75.
TEXAS FAMILY CODE
A.H.J. contends the trial court abused its discretion in placing him on probation outside
the home because the evidence indicates “that a continuation of probation at home would have
been a more appropriate disposition.” He contends it is more appropriate for him to remain on
probation in this family environment. When a juvenile court modifies a disposition by placing a
juvenile on probation outside the home, it must state its reasons for the disposition and must
determine that:
(A) it is in the child’s best interest to be placed outside the 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 home; and
(C) the child, in his home, cannot be provided the quality of care and level of
support and supervision the child needs to meet his probation conditions; . . . .
TEX. FAM. CODE ANN. § 54.05(i), (m)(1)(A)–(C) (West 2009). The trial court made the
following findings:
(1) A.H.J. was previously adjudged to have engaged in delinquent conduct;
(2) A.H.J. violated the Conditions of Probation, which are reasonable and lawful
orders pursuant to sections 54.04 or 54.05 of the Texas Family Code;
(3) A.H.J. violated Condition Number 6 by leaving home without permission;
(4) A.H.J. is in need of rehabilitation and the protection of the public and child
requires that disposition be made;
(5) A.H.J. was born April 27, 1993;
(6) It is in A.H.J.’s best interest to be placed outside the home and reasonable
efforts were made to prevent or eliminate the need for A.H.J’s removal from
the home and to make it possible for A.H.J. to return to his home;
(7) A.H.J., in his home, cannot be provided the quality of care and level of
supervision that A.H.J. needs to meet the conditions of probation;
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(8) The Bexar County Juvenile Probation Department is responsible for A.H.J.’s
placement, care, and control in a suitable foster home, or a suitable public or
private institution or agency, other than the Texas Youth Commission;
(9) It is in the best interest of A.H.J.’s health, safety, morals, and education, that
A.H.J. be extended on probation in the care, custody, and control of the Chief
Juvenile Probation Officer of Bexar County, Texas under the supervision of
the Bexar County Juvenile Probation Department; and
(10) A.H.J.’s placement outside the home is appropriate specifically because of
the need for a secure/structured environment, gang activity, history of
runaway, parent unable to adequately supervise child, child has the following
conduct disorders: Asperger’s syndrome, bipolar disorder, ADHD, aggressive
behavior, and gang affiliation.
Furthermore, the records indicate that A.H.J.’s mother reported that A.H.J. was
previously in possession of knives that were “altered and appeared to resemble prison weapons,”
and that, in recent correspondence from A.H.J. to his father in prison, A.H.J. detailed his dealing
drugs, starting a gang, and doing a “187.” 1 As such, the probation officer’s report strongly
recommended a secure placement outside the home.
CONCLUSION
After A.H.J. entered a plea of true, the trial court found, by a preponderance of the
evidence, that A.H.J. violated a condition of his probation, which was a reasonable and lawful
order of the court. See TEX. FAM. CODE ANN. § 54.05(f). The trial court also found placement
with either his mother or aunt was unsuitable and not in A.H.J.’s best interest. See id. at
§ 54.05(m). Because the evidence substantiates the trial court’s findings, we cannot say the trial
court abused its discretion in extending A.H.J.’s probation for a period of one year and placing
him in the custody of the Chief Juvenile Probation Officer of Bexar County. Accordingly, we
affirm the trial court’s order of disposition.
Rebecca Simmons, Justice
1
“187” is the California Penal Code section for murder and is often used as slang and as a gang reference for
murder. See CAL. PENAL CODE § 187 (West 2008).
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