IN THE MATTER OF G.O., A CHILD--Appeal from County Court at Law No 1 of Victoria County

NUMBER 13-05-286-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

IN THE MATTER OF G.O., A CHILD

 
On appeal from the County Court at Law No. 1
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Ya ez and Vela
Memorandum Opinion by Justice Ya ez

Appellant, G.O., is a juvenile who pled true to the offense of aggravated sexual assault. (1) Following a disposition hearing pursuant to the Texas Family Code, G.O. was given probation. After G.O. committed a series of probation violations, the State moved to modify the disposition. After a disposition hearing on the State's motion, the trial court committed G.O. to the custody of the Texas Youth Commission ("TYC"). G.O. appeals the modified disposition, complaining that the trial court erred by (1) admitting testimony contrary to Texas Rules of Evidence 602 and 805, (2) (2) violating his right of confrontation, and (3) committing him to TYC without fully investigating all available treatment options. We affirm.

Facts

The State filed a petition for indeterminate sentence against G.O. on July 11, 2003. The petition alleged that G.O. had committed the crime of aggravated sexual assault. (3) G.O. pled true and he was subsequently placed on community supervision. On March 14, 2005, the State filed a motion to modify disposition; the motion alleged that G.O. had violated numerous terms of his probation. On April 14, 2005, the trial court conducted a hearing on the State's motion to modify disposition. After G.O. entered a plea of not true to the State's allegations, the trial court heard testimony from three witnesses: Yvonne Rossman, Nora Brosnig, and John Ledesma.

Yvonne Rossman was employed as an attendance officer by Victoria I.S.D. According to her testimony, G.O. had violated the terms of his probation by (1) failing to attend school each day unless properly excused, (2) disobeying school rules and regulations, (3) failing to perform in accordance with his ability, and (4) wearing or possessing an article of clothing which is considered drug related or contains offensive material. Nora Brosnig, a probation officer with Victoria County Juvenile Services, testified that G.O. had further violated the terms of his probation by (1) failing to meet, visit, call, or contact his probation officer at any time and place at his or her request, and (2) failing to avoid being in the presence of, or engage in the use of, any drugs or inhalant of any type. At the conclusion of Brosnig's testimony, the trial court found that the State had proven, by a preponderance of the evidence, that G.O. violated the terms of his probation.

The trial court then proceeded to the disposition phase of the hearing. In her testimony, Brosnig recommended that the court commit G.O. to TYC. John Ledesma, a teacher at a juvenile detention center, testified that G.O. had been a student of his for about two months, and that G.O. had been an excellent student during this time. At the close of all the evidence, the trial court committed G.O. to the custody of TYC.

Analysis

We begin by first addressing G.O.'s third issue: whether the trial court erred in committing him to TYC without fully investigating all available treatment options. G.O.'s argument is premised on the applicability of section 54.04(i) of the family code, (4) which if applicable, would have required the trial court to determine if "reasonable efforts were made to prevent or eliminate the need for the child's removal from the home and to make it possible for the child to return to the child's home." (5) The Texas Supreme Court has held, however, that the "plain language of the Juvenile Justice Code requires different findings in initial orders committing a juvenile to TYC than in modified orders to do so." (6) Section 54.04(i) is only applicable if an initial disposition order places a child in TYC or on probation outside the home; a modification order, on the other hand, is governed by subsections (f) and (k) of family code section 54.05. (7) In dealing with a modification order, as in this case, a trial court "can provide for commitment to TYC if (1) the original disposition was for conduct constituting a felony or multiple misdemeanors, and (2) the court finds the child violated a reasonable and lawful order of the court." (8) Because G.O.'s third issue attacks the trial court for its failure to comply with section 54.04(i), and because we find this section to be inapplicable to the instant case, we overrule G.O.'s third issue.

We next address G.O.'s contention that the trial court erred in admitting testimony from Yvonne Rossman because it conflicted with Texas Rules of Evidence 602 and 805. (9) We review this non-constitutional issue under rule 44.2(b) of the Texas Rules of Appellate Procedure and disregard the error, if any, unless it affected G.O.'s substantial rights. (10) A substantial right is affected when the error had a substantial and injurious effect or influence on the verdict. (11) In making this determination, we review the record as a whole. (12)

After examining the record as a whole, we conclude that the error in question, if any, did not have a substantial and injurious effect or influence in determining the verdict. Even if Rossman's testimony was excluded, the record reveals that the trial court would have still determined that G.O. violated certain terms of his probation based on Brosnig's testimony alone. As stated earlier, Brosnig testified that G.O. violated his probation by (1) failing to meet, visit, call, or contact his probation officer at any time and place at his or her request, and (2) failing to avoid being in the presence of, or engage in the use of, any drugs or inhalant of any type. (13) These violations alone created a basis for the trial court to commit G.O. to TYC's custody, because the trial court simply needed to find that G.O. "violated a reasonable and lawful order of the court." (14) We thus overrule G.O.'s first issue.

In his second issue, G.O. asserts that Rossman's testimony violated his Confrontation Clause rights under the Sixth Amendment. (15) According to G.O., Rossman's use of attendance and discipline reports violated his right of confrontation under Crawford because the persons who gave information described in the reports were not present to testify at the transfer hearing. (16) If we assume, without deciding, that the use of these reports violated either the rules of evidence or the Confrontation Clause, this Court is satisfied beyond a reasonable doubt that such error did not contribute to G.O.'s conviction or punishment. (17) This decision is predicated upon the same rationale utilized in response to G.O.'s hearsay complaint. G.O.'s second and final issue is therefore overruled.

Conclusion

Accordingly, we affirm the judgment of the trial court.

 

LINDA REYNA YA EZ,

Justice

 

Memorandum opinion delivered and filed

this the 22nd day of February, 2007.

1. Tex. Pen. Code Ann. 22.021 (Vernon 2004).

2. Tex. R. Evid. 602, 805.

3. Tex. Pen. Code Ann. 22.021 (Vernon 2004).

4. Tex. Fam. Code Ann. 54.04(i) (Vernon Supp. 2006).

5. Id.

6. In re J.P., 136 S.W.3d 629, 633 (Tex. 2004).

7. Tex. Fam. Code Ann. 54.05(f), (k) (Vernon Supp. 2006); see In re J.P., 136 S.W.3d at 630-31.

8. In re J.P., 136 S.W.3d at 631.

9. Tex. R. Evid. 602, 805.

10. See Tex. R. App. P. 44.2(b).

11. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

12. Kotteakos, 328 U.S. at 764-65.

13. The record reveals that the trial judge found G.O. to have violated his probation on both of these grounds in light of Brosnig's testimony.

14. See Tex. Fam. Code Ann. 54.05(f).

15. U.S. Const. amend. VI.

16. Crawford v. Washington, 541 U.S. 36 (2004).

17. See Tex. R. App. P. 44.2(a) ("[T]he court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.")