In the Matter of V. J., a juvenile--Appeal from County Court at Law of Houston County

NO. 12-05-00324-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE

IN THE MATTER OF V.J., COUNTY COURT AT LAW OF

A JUVENILE

HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

V.J. appeals from a juvenile court order committing him to the Texas Youth Commission. In two issues, V.J. complains that the juvenile court did not request and then consider unspecified reports before committing him to the Texas Youth Commission and that the decision to commit him was an abuse of the court s discretion. We affirm.

Background

On July 6, 2004, the juvenile court found beyond a reasonable doubt that V.J. had engaged in delinquent conduct. Specifically, V.J. committed what would have been a terroristic threat, had he been an adult, by threatening one of his teachers with serious bodily injury. See Tex. Pen. Code Ann. 22.07 (Vernon 2005). The court ordered that V.J. be placed on probation with certain terms and conditions. SeeTex. Fam. Code Ann. 54.04(d) (Vernon 2005).

In January 2005, the State filed to modify the court s earlier disposition of the matter. The State alleged that V.J. had violated the laws of the State of Texas by operating a motor vehicle without the permission of the owner and that he had violated curfew restrictions. V.J. stipulated to the unauthorized use of a motor vehicle allegation, and the juvenile court modified the terms of his probation to include more stringent monitoring.

In February 2005, the State again filed to modify the earlier disposition alleging that V.J. had committed what would be a criminal offense had he been an adult, specifically, a terroristic threat. The court found this allegation to be true and returned V.J. to probation.

In June 2005, the State filed another motion to modify the earlier disposition alleging that V.J. operated a motor vehicle without the permission of the owner and left the Methodist Boys Home in Waco, Texas, without finishing the program. Two amended motions were filed alleging that V.J. had tested positive for marijuana, gotten into a fight, and gone to a location without the permission of his parents.

A hearing was held, and V.J. pleaded true to the allegation that he tested positive for marijuana and not true to the other allegations. The court found that V.J. had tested positive for marijuana, that he had left the Methodist Boys Home against the wishes of his parents, and that he visited a location in Grapevine, Texas, also against his parent s wishes. The court committed V.J. to the Texas Youth Commission. This appeal followed.

Consideration of Reports

In his first issue, V.J. contends that the trial court erred when it did not request and use any reports before it determined that he would be committed to the Texas Youth Commission. As support for this argument, V.J. directs us to Texas Family Code Sections 54.04 and 54.05, which provide that the trial court may consider written reports at a disposition hearing or a hearing to modify disposition. Id. 54.04(b), 54.05(e) (Vernon 2005).

V.J. took no action to preserve this complaint in the court below, and it is raised for the first time on appeal. Generally, and with some exceptions that do not apply here, a complaint must be raised in the court below as a prerequisite to our consideration. See Tex. R. App. P. 33.1(a)(1)(A). In this case, the trial court called for the submission of any reports for its consideration. The State offered a report, which the trial court received over V.J. s objection. V.J. offered no reports and did not request that additional reports be prepared. The trial court did not refuse to consider any report. Even if the complaint had been preserved, there is no error. Family Code Sections 54.04 and 54.05 provide a hearsay exception to allow a trial court to consider otherwise inadmissible information. See In re C.J.H., 79 S.W.3d 698, 705 (Tex. App. Fort Worth 2002, no pet.). The statutes do not require the court to do anything in particular and certainly do not, as V.J. suggests, require the court to order that reports be generated and then consider them. The court considered every report that was presented. We overrule V.J. s first issue.

Commitment to Texas Youth Commission

In his second issue, V.J. complains that the trial court abused its discretion when it committed him to the Texas Youth Commission.

Standard of Review

The decision to commit a youthful offender to the Texas Youth Commission is discretionary and subject to review for an abuse of discretion. In re J.P., 136 S.W.3d 629, 632 (Tex. 2004). The juvenile court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to guiding rules and principles. In re C.L., Jr., 874 S.W.2d 880, 886 (Tex. App. Austin 1994, no writ). A trial court does not abuse its discretion merely because it reaches a different conclusion than the reviewing court might have reached. In re C.J.H., 79 S.W.3d at 702.

A plea of true to an alleged violation of probation is analogous to a judicial confession and justifies a finding that the violation was committed. In re M.A.L., 995 S.W.2d 322, 324 (Tex. App. Waco 1999, no pet.). When the issue is commitment to the Texas Youth Commission, however, the test is not simply whether the evidence is sufficient. As the supreme court has noted, commitment to the Texas Youth Commission by modification order is proper if a juvenile originally committed a felony or multiple misdemeanors and subsequently violated one or more conditions of probation. In re J.P., 136 S.W.3d at 633 (citing Tex. Fam. Code 54.05(f), (k)). Even then, commitment is not required, and if a trial court arbitrarily removes a child from home for a trivial infraction, nothing in the statute prohibits the appellate judges of Texas from doing something about it. Id. at 632. As Justice Schneider observed, the legislature has expressed its intent that commitment to the Texas Youth Commission is to be reserved for serious juvenile offenders. Id. at 634 (J. Schneider, concurring).

Analysis

Before reaching its judgment, the juvenile court carefully considered the evidence before it, the time line of its interactions with V.J., and the efforts made to dissuade V.J. from his course. The court had strategically placed V.J. in a secure detention facility, including over the 2004 Christmas holiday, removed him from his mother s custody, subjected him to drug testing, placed him in alternative school, ordered that he be home schooled, ordered him to do community service, modified the terms of his probation at least twice, and allowed him to go to a boys ranch. During this time, V.J. committed what would have been a felony had he been an adult, used marijuana, left the boys ranch after less than two weeks, and threatened a teacher.

V.J. concedes that there was sufficient evidence to support the disposition. He argues instead that the juvenile court abused its discretion when it committed him to the Texas Youth Commission. This is a case where reasonable minds could disagree about the appropriate disposition. V.J. s criminal conduct, while persistent, is not the most serious, and he does not present the highest risk to public safety. On the other hand, as the Texas Supreme Court has recognized, the statute allows a trial court to decline third and fourth chances to a juvenile who has abused a second one. In re J.P., 136 S.W.3d at 633. The juvenile court did not reflexively commit V.J. to the Texas Youth Commission. The court only made that decision after it had used other reasonable intermediate measures to attempt to reform his conduct. Even then, the court carefully considered the available options and made a reasoned judgment as to what disposition was in V.J. s best interest. The juvenile court did not abuse its discretion. We overrule V.J. s second issue.

Disposition

We affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered July 12, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(PUBLISH)