In the matter of J.W.R.--Appeal from County Court at Law of Midland County

Opinion filed January 11, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00385-CV

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IN THE MATTER OF J.W.R., Appellant

On Appeal from the County Court at Law

Midland County, Texas

Trial Court Cause No. 5219

M E M O R A N D U M O P I N I O N

The trial court modified a prior disposition order involving J.W.R., a fourteen-year-old boy, and entered an order committing J.W.R. to the Texas Youth Commission (TYC). J.W.R. appeals. We affirm.

On April 6, 2004, J.W.R. was placed on two years probation for delinquent conduct and was probated to the Hendrick Home in Abilene. On November 8, 2004, J.W.R. was expelled from the Hendrick Home for noncompliance with his sex-offender treatment. On August 23, 2005, following a hearing, the trial court committed J.W.R. to the care, custody, and control of TYC.

Tex. Fam. Code Ann. ' 54.05(f) (Vernon Supp. 2006) permits a prior disposition order to be modified to provide for commitment to TYC if (1) the original disposition was for conduct constituting a felony and (2) the court finds by a preponderance of the evidence that the child violated a reasonable and lawful order of the court.

J.W.R. asserts in his first issue that the evidence is legally and factually insufficient to show that the conduct underlying his prior adjudication was a felony.

To determine whether the evidence is sufficient in a juvenile case, we apply the criminal standard of review. In re L.F.L.T.B., 137 S.W.3d 856 (Tex. App.CEastland 2004, no pet.); In re C.C., 13 S.W.3d 854 (Tex. App.CAustin 2000, no pet.). In order to address J.W.R.=s challenge to the legal sufficiency of the evidence, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

Tex. Fam. Code Ann. ' 54.05(e) (Vernon Supp. 2006) states that the court at a hearing to modify a prior disposition may consider written reports from a probation officer. The written report prepared by Scott Kain, who testified at the hearing, states, AOn April 6, 2004, [J.W.R.] was placed on two years delinquent probation for the offense of INDECENCY WITH A CHILD BY CONTACT.@ J.W.R. signed a written stipulation and waiver in the April 6, 2004 hearing wherein he stipulated that he violated a penal law of the grade of felony by engaging in sexual contact with a child younger than seventeen years of age by touching her genitals. See Tex. Pen. Code Ann. ' 21.11 (Vernon 2003). Had appellant been an adult, the offense would have been a felony of the second degree. Section 21.11(d). We overrule the first issue. The evidence is both legally and factually sufficient to support the trial court=s finding that the original disposition was for conduct constituting a felony.

In the second issue, J.W.R. contends the trial court abused its discretion by committing him to TYC rather than to a less restrictive placement. J.W.R.=s therapist, Emily Orozco, testified that J.W.R. admitted to her that, while he was on probation in the summer of 2004, at a family reunion, he had had sexual contact with three younger girls when he placed his finger in their vaginal area. The therapist stated that she learned that J.W.R. had downloaded pornography on the school computer, rented X-rated movies, and had done some peeping on a fifteen-year-old girl through a window as the girl was changing clothes. Also, he was involved in a lot of deviant masturbation. The therapist stated that her primary complaint was that there were new victims. She felt that, while the pornography was an outlet, the next step was going to be a child. She felt that J.W.R. should be where he could be watched and be receiving intensive therapy. She believed that it Awould be great@ if J.W.R. was an Ainpatient@ and had a positive relationship with his mother. The therapist noted, AThat speeds up the process, and that helps these kids move through this quickly.@

J.W.R.=s probation officer testified that he believed that TYC would be the best place for J.W.R.=s placement. In his opinion, TYC has the best sex-offender program available, and he would have concerns if J.W.R. was placed back into the community.

J.W.R.=s mother testified that he was continuing to make positive improvement, and she thought he would be better off staying with her and his stepfather in a family atmosphere where he is surrounded with brothers and sisters who love him. She stated he did not need to be locked up. The therapist acknowledged that J.W.R.=s mother was actively involved in his treatment but that she had to work and maintain a home for her family. The therapist stated, A[I]t is hard to watch a 15-year-old boy, and that=s where we=re at with [J.W.R.].@

The trial court made the following findings:

Having found the juvenile, [J.W.R.], to be a child to have engaged in further delinquent conduct, the parties announced ready for disposition, and the Court proceeded to hear evidence on the proper disposition in this cause. The Court, after examining the pleading of the parties, hearing the evidence, and considering the argument of counsel, finds that the child is in need of rehabilitation and that the protection of the public and the child requires that a modification of the previous disposition be made.

This Court finds that reasonable efforts have been made to prevent or eliminate the need for the child to be removed from his home and to make it possible for the child to return to his home. This Court further finds 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. Therefore, this Court finds that the best interest of the child and the community will be served by placing the child outside his home and committing the child to the care, custody and control of the Texas Youth Commission:

(1) The child is presently experiencing problems with the home environment and the community and it is necessary to place him in an alternative situation in order for him to continue his education.

(2) Probation at home is not feasible as the home is not capable of providing for the child=s needs and will not serve his best interest, and the only alternative presently available to the juvenile court consists of facilities provided by the Texas Youth Commission.

(3) The parent has no control or influence over the child, and, as indicated by his past activities within the community, the community not only needs to be protected but the child needs to change his behavior.

(4) The child has previously shown his inability to adjust his behavior in the home environment and through the traditional juvenile justice system within the community, and it appears to the Court that he needs a structured environment to serve his best interest.

This Court further finds that the educational needs of the child were assessed in the written report prepared by the Probation Officer and will be adequately addressed in the treatment plan prepared by the Texas Youth Commission.

See In re J.P., 136 S.W.3d 629 (Tex. 2004); see also Tex. Fam. Code Ann. ' 54.05(m) (Vernon Supp. 2006) (effective September 1, 2005, applicable to conduct committed before September 1, 2005).

We hold that the trial court did not abuse its discretion in committing J.W.R. to TYC. We overrule the second issue.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

January 11, 2007 SENIOR JUSTICE

Panel consists of: Wright, C.J.,

Strange, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.