In the Matter of K.L.S., A Child--Appeal from County Court of Aransas County

   NUMBER 13-04-397-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

IN THE MATTER OF K.L.S., A CHILD

   On appeal from the County Court

of Aransas County, Texas.

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

   Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Chief Justice Valdez

Appellant, K.L.S., appeals a court order modifying his disposition by committing him to the Texas Youth Commission. He raises claims of failure to admonish and abuse of discretion. We affirm the judgment of the trial court.

I. Facts and Procedural History

Appellant is a child with a history of delinquent conduct, has an I.Q. of 80, and reads at the fourth grade level. He was fourteen years old at the time of the modification hearing.

After pleading true to allegations of delinquent conduct, appellant was placed on probation. One of the conditions of his probation was that he enroll in Adams House, a residential substance abuse treatment facility in Beaumont. Adams House discharged appellant from the facility for failure to follow its rules. Upon the State=s motion, the court held a modification hearing with appellant, his attorney, and his mother present. The court asked appellant how he pled to the allegations in the State=s motion to modify. He pled true.

The trial court found appellant had violated his probation and committed him to the Texas Youth Commission. The court listed several reasons commitment was in the best interest of appellant, including a need for 24-hour supervision, substance abuse treatment in a secure facility, and behavior modification therapy. The court further found appellant=s home could not provide Athe quality of care and level of support and supervision@ he needed to meet the conditions of probation.

II. Failure to Admonish

In his first issue, appellant claims the trial court committed a fundamental error by failing to admonish him, as required by statute, of the direct consequences that would result if he pled true. Appellant cites Texas Family Code section 54.03(b), which requires a juvenile court judge in an adjudication hearing to explain to the child and his parent the allegations, the nature and possible consequences of the proceedings, and his rights and privileges. See Tex. Fam. Code Ann. ' 54.03(b) (Vernon Supp. 2004-05). However, as noted in appellant=s brief, the hearing was a modification hearing, not an adjudication hearing.

Modification hearings are governed by section 54.05, which does not enumerate the same requirements as those set out in section 54.03(6) for a juvenile court judge. See Tex. Fam. Code Ann. ' 54.05 (Vernon Supp. 2004-05). We find persuasive authority from our sister courts of appeal that the admonishments required by section 54.03 do not apply to modification hearings. See In re S.J., 940 S.W.2d 332, 334 (Tex. App.BSan Antonio 1997, no writ) (AS.J. concedes that there is no requirement that the admonishments required for acceptance of guilty pleas be given at a hearing on a motion to modify, because the original admonitions from the adjudication hearing carry over into the disposition.@); Murphy v. State, 860 S.W.2d 639, 643 (Tex. App.BFort Worth 1993, no writ) ("The hearing to modify disposition is not a new adjudication of delinquency under 54.03."). Appellant does not complain the trial court failed to satisfy the requirements of the applicable section, section 54.05.

We therefore find no fundamental error as claimed by appellant. This issue is overruled.

III. Abuse of Discretion

In his second issue, appellant claims the trial court abused its discretion in ordering him to be committed to the Texas Youth Commission. A juvenile court may modify its prior disposition and order that the juvenile be committed to the Texas Youth Commission if the court finds by a preponderance of the evidence "that the child violated a reasonable and lawful order of the court." Tex. Fam. Code Ann. ' 54.05(f) (Vernon 2004).

The standard of review for a trial court's modification of a juvenile disposition is abuse of discretion. In re J.G., 112 S.W.3d 256, 259 (Tex. App.BCorpus Christi 2003, no pet.). The analysis for abuse of discretion has two prongs: (1) whether the trial court had sufficient evidence with which to exercise its discretion; and (2) whether the trial court erred in applying its discretion. In re J.M., 133 S.W.3d 721, 724 (Tex. App.BCorpus Christi 2003, no pet.). In evaluating whether the trial court abused its discretion, we consider whether the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles. Id.

The first prong is uncontested. Appellant admitted that he violated a reasonable and lawful order of the court by violating the provisions of his probation; therefore, the trial court had sufficient evidence with which to exercise its discretion under section 54.05(f). Appellant alleges, however, that the trial court erred in applying its discretion by considering factors that were either erroneous or irrelevant. We must therefore determine whether the trial court violated the second prong by acting arbitrarily, unreasonably, or without reference to guiding rules or principles. In re J.M., 133 S.W.3d at 724.

First, appellant claims the trial court erred in reciting in the record that appellant had eleven referrals. Appellant notes that three of those referrals were dismissed and one should not be counted against him because he was granted deferred adjudication and had successfully completed his probation. Even discounting those four, appellant is left with seven referrals, which still constitutes a significant juvenile record. Appellant does not argue the result would have been different if the court regarded him as having seven referrals instead of eleven.

Second, the trial court noted in the record that appellant=s parents had failed to make any payments on their court-ordered obligations. Appellant asserts this statement makes apparent the court=s impermissible and inappropriate consideration of his parents= deficiency in committing him to the Texas Youth Commission. We find this argument unpersuasive. In the order modifying disposition to the Texas Youth Commission, the court listed several reasons why it would be in the best interests of the child to be committed. None of those reasons mention the parents= non-payment of court-ordered obligations.

Third, appellant complains that the State directed the court=s attention to a statement by appellant=s mother that he had been out of control at times. Appellant urges that statement should be read in conjunction with another statement wherein the mother said she was unable to give appellant his medication for emotional and behavioral problems because appellant=s brother would steal and abuse the medication. Appellant does not explain how his mother=s failure to provide him prescribed medication could in any way ameliorate her argument that the court erred in placing appellant in the Texas Youth Commission. Instead, it only strengthens the State=s case that appellant should be in a facility that can better attend to his needs.

We hold the court did not act arbitrarily, unreasonably, or without reference to guiding rules or principles, and therefore did not abuse its discretion. In re J.M., 133 S.W.3d at 724. This issue is overruled.

IV. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 18th day of August, 2005.