In The Matter of J.H., a Juvenile--Appeal from County Court at Law No 2 of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-01-359-CV

IN THE INTEREST OF J.H., A JUVENILE

From the County Court at Law No. 2

Johnson County, Texas

Trial Court # JO2813

MEMORANDUM OPINION

J.H. was first adjudicated in juvenile court when he was thirteen. He was found to have committed burglary of a home and burglary of a motor vehicle, and the court placed him on twelve months probation. Over the next three years, he committed numerous crimes. After three modifications of his probation, including six months in boot camp, he came before the court on allegations that he violated two terms of his probation: (1) he violated the law by intentionally operating a motor vehicle without the owner s effective consent (unauthorized use of a motor vehicle), and (2) he ran away from his home without permission. The court found the allegations true and ordered J.H. into the custody of the Texas Youth Commission for a period not to exceed his twenty-first birthday.

J.H. complains on appeal that: (1) his two self-incriminating statements that he drove a car without authorization should not have been admitted into evidence; (2) the evidence was legally and factually insufficient that he drove a car without authorization, because the only evidence of it was the two self-incriminating statements; and (3) the evidence was legally and factually insufficient that he ran away from home. We will affirm the order of commitment.

A court can modify a juvenile s disposition order for any violation of a reasonable and lawful term or condition of probation. Tex. Fam. Code Ann. 54.05(f) (Vernon Supp. 2002). A term and condition of J.H. s probation was that he would not run away or live elsewhere without the permission of [his] parent, guardian and Probation Officer. J.H. does not argue that this term and condition was unreasonable or unlawful. Thus, if the evidence was legally and factually sufficient that J.H. ran away from home, the first two issues are moot. Therefore, we will address issue three first.

The standard of proof at a hearing to modify disposition is preponderance of the evidence. Id. When we conduct a review of whether the evidence is legally sufficient, we consider only that evidence and the inferences therefrom which support the finding, considered in the light most favorable to the finding, and disregard contrary evidence and inferences. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). We can find the evidence legally insufficient if: (1) there is a complete absence of evidence for the finding, (2) there is evidence to support the finding, but rules of law or evidence bar the court from giving any weight to the evidence, (3) there is no more than a mere scintilla of evidence to support the finding, or (4) the evidence conclusively establishes the opposite of the finding. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). To determine whether the evidence is factually sufficient, we must consider all the evidence in the record both for and against the finding, and we can find the evidence factually insufficient only if we conclude that the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App. Waco 2000, pet. denied).

The undisputed evidence was that J.H., who lived with his grandmother in Johnson County, Texas, was arrested by police in Oklahoma for possession of a stolen vehicle. The vehicle was owned by a third-party who testified the vehicle had been stolen in Johnson County on the day J.H. was found to be missing by his grandmother. His grandmother testified she did not give J.H. permission to leave home or Texas. J.H. had been gone overnight when he was apprehended. Applying the standards of review, we find the evidence is legally and factually sufficient that J.H. ran away without permission.

J.H. further argues that the State also alleged in its petition to modify that J.H. was gone for a substantial length of time and had no intent to return, and that these additional matters were not proven. Without deciding whether these matters were necessary to the issues before the court and therefore needed to be proven, we find that, under these facts, the evidence is legally and factually sufficient to prove that J.H. was away from home for a substantial length of time, and that he did not intend to return, at least not for the time being.

We affirm the order.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed May 29, 2002

Do not publish

[CV06]