In the Matter of M.F.--Appeal from 73rd Judicial District Court of Bexar County

99-00180 In the Matter of MF a juvenile.wpd No. 04-99-00180-CV
IN THE MATTER OF M.F., A Juvenile
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 99-JUV-00057
Honorable Andy Mireles, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 26, 2000

AFFIRMED AS MODIFIED

M.F. appeals from a disposition order placing her on probation for assault of a uniformed officer. In three issues, M.F. argues she never received a summons, the evidence is factually and legally insufficient to support the sentence of probation outside her home, and the written order is inconsistent with the oral pronouncement at the disposition hearing. We overrule M.F.'s claims and affirm the trial court's order as modified.

Factual and Procedural Background

Working as a security officer at MacArthur High School, off-duty San Antonio Police Officer Steven Bazany received a call to respond to a disruptive student in the cafeteria. When Officer Bazany approached M.F.'s cafeteria table and attempted to escort her to the principal's office, M.F. responded "get the hell out of her damn face" and "what the hell you still doing in my fuckin' face." Shortly thereafter, Bazany attempted to physically remove M.F. who responded with profanity and began shoving the officer. A struggle between the two ensued and eyewitnesses testified that M.F. scratched the officer across his arm. Other students took part in the struggle, and eventually M.F. and the officer were shoved against a freezer. Additional faculty and law enforcement officers arrived and handcuffed M.F. and took her to the principal's office. M.F. was charged with assault of a public servant. See Tex. Pen. Code Ann. 22.01 (Vernon Supp. 2000).

At trial, the jury found her guilty of delinquent conduct. Thereafter, the trial court conducted a disposition hearing and entered an order placing M.F. on probation outside her home.

Standard of Review

A juvenile judge has broad discretion to determine the appropriate disposition for a child who has been adjudicated as having engaged in delinquent conduct. In re A.S., 954 S.W.2d 855, 861 (Tex. App.-El Paso 1997, no pet.). Absent an abuse of discretion, the reviewing court will not disturb the juvenile court's determination. In re K.L.C., 972 S.W.2d 203, 206 (Tex. App.-Beaumont 1998, no pet.). An abuse of discretion occurs if the trial court acted arbitrarily or unreasonably -that is, without reference to guiding rules and principles. In re S.B.C., 952 S.W.2d 15, 17 (Tex. App.-San Antonio 1997, no pet.). The guiding principles for placing a child on probation outside the home are provided in the Family Code. The court is permitted to commit a child to probation outside the home if: (1) it is in the child's best interest to be placed outside the home; (2) reasonable efforts have been taken to prevent or eliminate the need for the child's removal from home; and (3) while in the home, the child cannot receive the quality of care and level of support and supervision needed to meet the conditions of probation. See Tex. Fam. Code Ann. 54.04(i) (Vernon 1996); In re J.S., 993 S.W.2d 370, 372 (Tex. App.-San Antonio 1999, no pet.).

Sufficiency of the Evidence

In her second issue, M.F. argues the evidence is factually and legally insufficient to support the trial court's decision to remove her from her home. Under an abuse of discretion standard, legal and factual sufficiency are relevant factors in assessing whether the trial court abused its discretion. Doyle v. Doyle, 955 S.W.2d 478, 481 (Tex. App.-Austin 1997, no pet.). Under a legal sufficiency or no evidence point, we review only the evidence and inferences which tend to support the challenged findings, disregarding any evidence and inferences to the contrary. In re H.G., 993 S.W.2d 211, 213 (Tex. App.-San Antonio 1999, no pet.). Under a factual sufficiency point, we consider the totality of the evidence to determine whether the evidence supporting the finding is so weak or the evidence contrary to the finding is so overwhelming that it is clearly wrong or unjust. Id. In this regard, the trier of fact is the exclusive judge of the credibility of the witnesses. Id.

The record contains testimony from cafeteria workers, students, and school administrators who witnessed the assault. The substance of the testimony confirmed that Officer Bazany attempted to calmly escort M.F. to the principal's office. Testimony also corroborated Bazany's account of M.F.'s belligerence as she threw paper towels at his head, threw a bucket of water on him, cursed, scratched, and kicked him.

At the disposition hearing, the trial court received testimony from the unit supervisor for Bexar County Juvenile Probation and from an assistant principal at MacArthur, and reviewed extensive discipline records of M.F.'s consistent history of disruptive behavior. Although the unit supervisor recommended M.F. serve her probation at home because of a good relationship with her mother, he also indicated that M.F. is currently home schooled as a result of her mother's belief that the school systems persecute her daughter. The report from M.F.'s psychologist recommended that M.F. be placed in a structured environment with adequate supervision. But, evidence in the record also suggests that M.F.'s mother is unable to provide such an environment. Particularly, the record shows M.F.'s mother demonstrates a pattern of denial toward her daughter's behavior. M.F.'s mother withdrew M.F. from her middle school claiming her daughter suffered harassment from fellow students and teachers. She further refused to acknowledge her daughter's responsibility in the instant assault.

The assistant principal described a series of fifteen infractions in a one-year school term, and five infractions in a subsequent year. He testified that the discipline referrals came not only from teachers, but also from bus drivers who dealt with M.F.'s disruptive conduct. He further testified that as a result of these infractions, M.F. has served in-school suspension multiple times and was once removed from MacArthur and placed in a temporary student reassignment school. The discipline log also detailed truancy, verbal abuse to authoritative figures, and physical assault of another female student one week prior to the instant assault.

From the testimony elicited at the hearing, coupled with M.F.'s extensive history of delinquency, we hold the trial court acted within its discretion in ordering that M.F. serve her probation outside her home. Accordingly, we overrule M.F.'s second issue.

Service and Disposition Order

In her first and third issues, M.F. raises procedural complaints. M.F. complains she never received service of citation in accordance with the Family Code. See Tex. Fam. Code. Ann. 53.06 (Vernon 1996). Although the return of service was initially absent from the appellate record, proof of service was included in the juvenile court's record. On appeal, the State complied with the requirements of the Family Code by filing a supplemental record which included proof of service. See Tex. R. App. P. 34.5(c) (permitting supplementation of omitted items from appellate record).

In her third issue, M.F. argues the disposition order recites a different sentence than that pronounced at the disposition hearing. At the hearing, the trial court entered an oral pronouncement sentencing M.F. to probation until her eighteenth birthday. See Tex. Fam. Code 54.04(d)(1); 54.04(l) (Vernon 1996) (providing that juvenile probation may not extend beyond child's eighteenth birthday). The order of disposition, however, reflected that the sentence extends ten days beyond M.F.'s eighteenth birthday. The State concedes error on this issue, and requests that the disposition order be modified to comply with the requirements of the Family Code. We therefore modify the disposition order to reflect that M.F.'s probation sentence will terminate at the age of eighteen. Accordingly, we overrule M.F.'s first and third issues and affirm the trial court's disposition order as modified.

Catherine Stone, Justice

DO NOT PUBLISH