In the Matter of E.P.G., a Juvenile--Appeal from County Court at Law of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00286-CV

In the Matter of E.P.G., a Juvenile,

From the County Court at Law

Hill County, Texas

Trial Court No. 1437

MEMORANDUM Opinion

Appealing a probation modification order that assigned him to the Texas Youth Commission (TYC) for a period not to exceed his 21st birthday, E.P.G. contends in his sole issue that the trial court abused its discretion by bypassing less extreme punishment measures and committing him to TYC. We will affirm the disposition by the trial court.

Background

E.P.G., a juvenile, had previously been found to have engaged in delinquent conduct burglary and had been placed on probation. Later, the trial court found that E.P.G. had violated the terms of his probation, and it extended his probation until he reached the age of 18. Approximately seven months after having his probation extended, the State petitioned the court to modify E.P.G. s probation, alleging twenty-six separate violations including possession of illegal narcotics, assault with bodily injury, evading arrest, failure to pay fees and fines, and failure to complete community service. After a hearing, the court found that E.P.G. had committed twenty-one of the twenty-six violations, and he was sent to TYC for a period not to exceed his 21st birthday.

 TexasYouth Commission

In his sole issue, E.P.G. contends that the trial court abused its discretion by committing him to TYC rather than ordering him into intensive supervision probation or requiring him to wear an electronic monitoring device. E.P.G. asserts that there was no showing that public safety was better served by sending him to TYC; that other than the allegedly improbable story by Officer Girsch, there was no indication of violence on his part; and that all of his remaining probation violations were technical. E.P.G. thus argues that the trial court had inadequate evidence to justify sending him to TYC rather than one of the other options. The State responds that the burden of proof in the modification hearing was a preponderance of the evidence and the court acted well within its discretion to order E.P.G to TYC.

The trial court's modification of a juvenile disposition is reviewed under an abuse of discretion standard. See In re D.S.S., 72 S.W.3d 725, 727 (Tex. App. Waco 2002, no pet.); In re H.G., 993 S.W.2d 211, 213 (Tex. App. San Antonio 1999, no pet.). In a probation revocation hearing, the decision whether to revoke rests within the discretion of the trial court. Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976). This discretion is not absolute. Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974). The trial court is not authorized to revoke probation without a showing that the probationer has violated a condition of the probation imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). The burden of proof in a probation revocation hearing is by a preponderance of the evidence. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).

This burden is met when the greater weight of the credible evidence creates a reasonable belief the defendant violated a condition of his or her probation as the State alleged. Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex. Crim. App. [Panel Op.] 1981); Allbright v. State, 13 S.W.3d 817, 819 (Tex. App. Fort Worth 2000, pet. ref'd). In a probation revocation hearing, the trial court is the sole trier of fact. Jones v. State, 787 S.W.2d 96, 97 (Tex. App. Houston [1st Dist.] 1990, pet. ref'd). The trial court also determines the credibility of the witnesses and the weight to be given their testimony. Id. It may accept or reject any or all of the witnesses' testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). Therefore, we will examine the evidence in the light most favorable to the trial court's order revoking probation. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983).

When the State's proof of any of the alleged violations of probation is sufficient to support a revocation of probation, the revocation should be affirmed. Stevens v. State, 900 S.W.2d 348, 351 (Tex. App. Texarkana 1995, pet. ref'd). Therefore, we only need to find one allegation where the State proved by a preponderance of the evidence that the terms of probation were violated, but we note that all of the allegations found true by the trial court that E.P.G. violated his probation were proven by a preponderance of the evidence.

EPG alleges that the only evidence that indicated that he may be a threat to the community was the incident described by Hillsboro police officer Justin Girsch. At the hearing, Girsch testified he caught several juveniles, including E.P.G, stealing from a convenience store. Girsch, who was off-duty, entered the convenience store to get change for the gas pump. As he was walking inside, he noticed several juveniles walking out of the store and holding their shirts as if they were concealing something. One of the clerks, who knew Girsch was a police officer, approached him and told him that the boys were stealing and asked him if he could do anything. Girsch went outside to get the license plate number of the vehicle they were driving and called the Whitney Police Department. He then told the driver that he was an off-duty police officer, that the boys had been accused of theft, and that they should not leave because police were on the way. When talking to the driver, he recognized several of the suspects, including E.P.G., from his work with the Hillsboro Police Department.

Some boys in the vehicle began to yell at the driver and said let s get out of here. Girsch testified that when the driver put the vehicle in reverse, the wheels spun, and the back bumper caught his knees causing him to fall partially into the back of the vehicle, which was a SUV with the back open. Girsch decided it would be safer to fully enter the vehicle and climb to the front so that he could get the car keys from the ignition. When he attempted to do so, several of the juveniles in the vehicle began hitting him, and he was placed in a headlock by E.P.G. Once Girsch was able to remove the keys from the ignition, E.P.G. exited the car and took off on foot.

Viewing this evidence in the light most favorable to the trial court s order, the record contains ample evidence that E.P.G. was involved with the theft at the convenience store and assaulted Girsch.

E.P.G. s argument that the trial court abused its discretion because less extreme punishment measures were available is misplaced. The court is required to look at alternative punishment measures in an original disposition hearing, but not in an order modifying disposition. Compare Tex. Fam. Code Ann. 54.04(i) (Vernon 2002) with Tex. Fam. Code Ann. 54.05 (Vernon 2002). E.P.G. was before the court on a motion to modify his prior disposition, which is governed by section 54.05.

Section 54.05(f) permits a trial court to modify a disposition by ordering commitment if it finds "that a child violated a reasonable and lawful order of the court." Tex. Fam. Code Ann. 54.05(f). Section 54.05(f), which specifically addresses transfer to TYC upon a modification of a disposition, merely requires that the trial court find that the child violated a reasonable and lawful order of the court. Id. Therefore, our sole inquiry is whether the evidence was sufficient to support the trial court's finding that E.P.G. violated a reasonable and lawful order of the court. Cf. In re S.H., 846 S.W.2d 103, 106 (Tex. App. Corpus Christi 1992, no writ); In re Rodriguez, 687 S.W.2d 421, 422-23 (Tex. App. Houston [14th Dist.] 1985, no writ); In re A.M.B., 676 S.W.2d 448, 451 (Tex. App. Houston [1st Dist.] 1984, no writ); In re J.L., 664 S.W.2d 119, 120 (Tex. App. Corpus Christi 1983, no writ); In re M.H., 662 S.W.2d 764, 769 (Tex. App. Corpus Christi 1983, no writ).

Specifically, the record demonstrates that, in addition to the assault discussed above, E.P.G. did not complete his community service hours, failed to pay restitution, tested positive for drugs, repeatedly missed appointments with his probation officer, and did not attend counseling as required under the terms of his probation, although evidence was offered in mitigation or to explain the reasons for E.P.G.'s violations. This evidence is sufficient to justify the trial court's modification under section 54.05(f). In re H.G., 993 S.W.2d at 214. We overrule E.P.G. s sole issue and affirm the disposition of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 27, 2008

[CV06]