In the Matter of D.B. Jr., A Juvenile--Appeal from 73rd Judicial District Court of Bexar County

No. 04-97-00218-CV

IN THE MATTER OF D.B., JR.

From the 73rd Judicial District Court, Bexar County, Texas

Trial Court No. 96-JUV-01135

Honorable Pat Priest, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Karen Angelini, Justice

Delivered and Filed: October 14, 1998

AFFIRMED

Nature of the case

A jury found that fourteen year-old D.B., Jr. engaged in delinquent conduct by committing the offense of aggravated assault with a deadly weapon. See Tex. Pen. Code Ann. 22.02(a)(2) (Vernon 1994). Following a disposition hearing, the court committed D.B. to the Texas Youth Commission for a determinate sentence of eight years. In his first and second issues, D.B. argues that the court erred because it failed to specifically state in its disposition order the reasons for committing him to the Texas Youth Commission and thus the evidence was legally insufficient to support the disposition order. In his third issue, D.B. alleges that the evidence was factually insufficient to support the disposition order. We affirm.

Disposition order

In his first issue, D.B. contends that the disposition order does not give the specific reasons for committing him to the Texas Youth Commission as required by section 54.04(f) of the Family Code. Section 54.04(f) states: "The court shall state specifically in the order its reasons for the disposition and shall furnish a copy of the order to the child." Tex. Fam. Code Ann. 54.04(f) (Vernon 1996). In order to place the child outside his home, the court must find that the child's home cannot provide the level of quality of care, support, and supervision needed to meet the conditions of probation. Tex. Fam. Code Ann. 54.04(c), (i)(3). If the court commits the child to the Texas Youth Commission, the court must include in its order that it is in the child's best interest to be placed outside the home and that reasonable efforts were made to prevent the need for the child's removal from the home and to make it possible for the child to return to the home. Tex. Fam. Code Ann. 54.04(i)(1)-(2).

D.B. filed a motion for new trial alleging that the court's disposition order failed to comply with section 54.04(f). The court denied the motion for new trial but ordered the preparation of an amended order adding reasons for the disposition. The amended order contains the following language:

The Court finds that this is the appropriate disposition for the following reasons:

Respondent engaged in a crime of violence and needs to be removed from society for protection of the society until he can be rehabilitated. The court finds that the child, in the child's home, cannot be provided the quality of care and the level of support and supervision that the child needs to meet the conditions of probation.

The Court further finds that it is in the child's best interest to be placed outside of the child's home and that reasonable efforts have been made to prevent or eliminate the need for the child to be removed from the child's home and to make it possible for the child to return home.

D.B. argues that the amended order does not give specific reasons for the disposition but rather recites the statutory requirements and details of the delinquent conduct. See J.L.E. v. State, 571 S.W.2d 556, 557 (Tex. Civ. App.--Houston [14th Dist.] 1978, no writ) (finding that section 54.04(f) requires more than details of delinquent conduct); In re A.N.M., 542 S.W.2d 916, 919 (Tex. Civ. App.--Dallas 1976, no writ) (finding that 54.04(f) requires more than merely tracking the statutory language). We acknowledge that the judgment recites the required statutory language but the judgment also states that the disposition is appropriate because D.B. engaged in a crime of violence and needs to be removed for the protection of society until he can be rehabilitated. The State contends that the violent nature of the offense and the protection of society are the specific reasons required under section 54.04(f). We agree.

In the case of In re J.T.H., the Third Court of Appeals also held that the statutory recitals or the description of the offense would not qualify as specific reasons for disposition under section 54.04(f). In re J.T.H., 779 S.W.2d 954, 959 (Tex. App.--Austin 1989, no writ). However, the court of appeals found that the court's statements, that the offense was serious and commitment was necessary for protection of the public, were specific reasons for the court's disposition. Id. Thus, we find that the order in this case gave the required specific reasons, the violent nature of the crime and the protection of society, in its disposition order committing D.B. to the Texas Youth Commission. We overrule D.B.'s first issue.

In his second issue, D.B. argues that the evidence is legally insufficient because the statutory recitals and details of the delinquent conduct are not enough to support a disposition order of commitment to the Texas Youth Commission. D.B. argues that because the court failed to give specific reasons for its disposition, the evidence was legally insufficient to support the court's disposition order. However, we have found that the court's disposition order gave the required reasons, and thus the evidence is not legally insufficient to support D.B.'s commitment to the Texas Youth Commission.(1) We overrule D.B.'s second issue.

Factual sufficiency

In his third issue, D.B. alleges that the evidence supporting the court's disposition order is

factually insufficient. In a factual insufficiency challenge, we consider all of the evidence and will set aside the judgment only if the evidence is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." In re A.C., 949 S.W.2d 388, 389-90 (Tex. App.--San Antonio 1997, no writ) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).

At the disposition hearing, the court granted the State's motion to offer into evidence the testimony and evidence admitted during the adjudication hearing. The complainant testified at the adjudication hearing that he was standing on his porch when D.B. aimed a gun at him and shot him in the leg. Several witnesses saw the shooting and were able to identify D.B. as the shooter. When the police arrived at the scene, they received a description of the suspect and D.B. was apprehended in the vicinity of the shooting. D.B. testified at the disposition hearing that he was present when the shooting occurred but that he was not the shooter. The jury found that D.B. engaged in the delinquent conduct of aggravated assault with a deadly weapon.

The State offered the testimony of three witnesses at the disposition hearing. D.B.'s probation officer, Elida Martinez, recommended that D.B. be committed to the Texas Youth Commission because of the serious nature of the offense. Bobby Norwood, the assistant vice-principal at D.B.'s school, testified that D.B. was suspended for threatening another student. According to Norwood, D.B. grabbed a student around the neck, tried to choke him, and threatened to beat up the student if the student didn't give him money. Norwood testified that he considered D.B. a threat to other students. Bruce Burris, the detention center manager, testified that D.B. had 27 incident reports while in the detention center. Burris testified that some of the incidents were minor infractions but in one incident D.B. assaulted another juvenile.

D.B. also offered the testimony of witnesses at the disposition hearing. Fred Douglas, a mentor specialist at a youth center, testified that the youth center had a Second Chance program which would help D.B. fulfill probation conditions by offering counseling, education, community service opportunities, and restitution. D.B.'s minister testified that he would help D.B. obtain employment and would work with D.B. to help turn his life around. The minister testified that he believed incarceration was too harsh for D.B. and that he deserved a second chance. D.B. testified on his own behalf and denied having shot the victim, but if put on probation he testified that he would cooperate and make a positive change in his life. Gladys Brown, an evangelist, testified that she had worked with D.B. in the past and if granted probation she would help him with his conditions. According to D.B.'s mother, D.B. has lost a lot of people in his life which has caused him some problems. His mother testified that she would help him if he were granted probation.

Having considered all the evidence, we cannot say that the disposition of commitment to the Texas Youth Commission for a determinate sentence of eight years is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Thus, we find the evidence factually sufficient to support the disposition order. We overrule his third issue.

Accordingly, we affirm the judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. We note that D.B. does not argue in his brief that the evidence introduced at the disposition hearing was legally insufficient to support the disposition order.