In the Matter of D.U.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00426-CV
IN THE MATTER OF D.U.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2001JUV02715
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Karen Angelini, Justice

Concurring opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 27, 2003

AFFIRMED

In a single issue, D.U. argues that the trial court abused its discretion in committing him to the Texas Youth Commission. We disagree and affirm the judgment of the trial court.

Background

On the night of October 19, 2001, D.U., a seventeen year-old juvenile, was traveling in a car with two of his friends. While stopped at an intersection, D.U. and the driver of the vehicle began yelling obscenities at the driver of the car pulled up alongside them. Unbeknownst to D.U., the motorist, William Hunt, was an undercover police officer in an unmarked vehicle. D.U. then pointed a loaded handgun at Officer Hunt. Officer Hunt drew his weapon, identified himself as a police officer, and placed all three occupants of the vehicle under arrest. A bystander, Eric Escue, helped Officer Hunt subdue D.U. D.U. threatened to kill Escue for helping Officer Hunt.

The State filed a petition alleging that D.U. had engaged in delinquent conduct by having committed aggravated assault with a deadly weapon. At the adjudication phase, D.U. entered a plea of true to the charge and waived his right to trial by jury. The trial court then proceeded to the disposition phase. After hearing evidence from both the State and D.U., the trial court sentenced D.U. to a determinate sentence of seven years confinement in the Texas Youth Commission.

Discussion

In his sole issue, D.U. argues that the trial court abused its discretion "in sentencing [him] to the Texas Youth Commission in that the evidence is both legally and factually insufficient to support any of the section 54.04(i) findings." If the trial court commits a juvenile to the Texas Youth Commission, it must find pursuant to section 54.04(i) of the Texas Family Code that (1) it is in the child's best interests to be placed outside the child's home; (2) 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 (3) 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) (Vernon 2002). Although D.U. has framed his issue in terms of legal and factual sufficiency, we review commitment orders under a criminal abuse of discretion standard. In re K.T., 107 S.W.3d 65, 74-75 (Tex. App.--San Antonio 2003, no pet.). In the criminal context, the abuse of discretion standard requires that we view the evidence in the light most favorable to the trial court's ruling, affording almost total deference to findings of historical fact that are supported by the record. Id. at 75. And, we employ the abuse of discretion standard divorced from the standards of evidentiary review. Id. at n. at 73. By doing so, we do not conduct a factual sufficiency review, thereby affording significantly more deference to the trial court's factual determinations. Id.

Here, there was substantial evidence to support the trial court's findings under section 54.04(i). According to D.U., his friends are members of a criminal street gang. His best friend, the driver of the car in which D.U. was traveling the night of the incident, is also a member of the gang and had been shot in the leg shortly before this incident, having been involved in a gang-related gunfight. Further, D.U. testified that while he was with these gang members, he engaged in other criminal activity: underaged drinking and using illegal drugs. Indeed, on the night in question, he was carrying marijuana and an illegal handgun. Based on this evidence, the trial court did not abuse its discretion in finding that it was in D.U.'s best interest to be placed outside of his home and away from his gang-member friends. (1)

Further, there was evidence to support the trial court's finding that D.U. needs to be rehabilitated by the Texas Youth Commission. D.U.'s family knew that he was associating with gang members and tried to stop him from doing so. In spite of his family's efforts, D.U. still pointed a loaded gun at a stranger and threatened to kill another stranger. D.U., himself, admits that although he has a very supportive family and did have a supportive family at the time of the incident, he still committed aggravated assault. D.U. created a situation in which innocent people could have been killed. Based on the evidence, the trial court did not abuse its discretion in finding that reasonable efforts had been made to prevent or eliminate D.U.'s removal from the home and to make it possible for him to return to his home and that D.U., in his home, does not have the quality of care and level of support and supervision that he needs to meet the conditions of his probation.

We overrule D.U.'s sole issue and hold that the trial court did not abuse its discretion in committing D.U. to the Texas Youth Commission.

Conclusion

We affirm the judgment of the trial court.

Karen Angelini, Justice

1. D.U. emphasizes that his parents have sold their home and have moved to another neighborhood. The mere fact that D.U.'s family has moved does not refute the evidence from which the trial court could find that D.U. was still likely to consort with his gang-member friends.