Opinion filed March 20, 2015




                                     In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-14-00071-CV
                                   __________

               IN THE MATTER OF J.F.E., A JUVENILE

                    On Appeal from the County Court at Law
                           Midland County, Texas
                         Trial Court Cause No. 6482


                     MEMORANDUM OPINION
      Appellant, J.F.E., appeals from an order of the county court at law sitting as
a juvenile court. The court modified a prior disposition, revoked Appellant’s
probation, and ordered him committed to the Texas Juvenile Justice Department
(TJJD) for an indeterminate period of time but not beyond his nineteenth birthday.
Appellant asserts that there was legally and factually insufficient evidence to
support the findings with respect to his commitment to TJJD; he also claims that
his right to confrontation, under both federal and state constitutions, was violated
by the juvenile court, when it admitted hearsay evidence. We affirm.
                                      I. Procedural History
       Appellant originally stipulated and admitted that he had committed each of
the six counts of a six-count Petition for Delinquency. 1                     The juvenile court
adjudicated Appellant delinquent and in need of rehabilitation, placed him on
probation for one year, and released him to live with his aunt in Las Vegas,
Nevada. Appellant went to live with his aunt in Las Vegas; however, he would not
follow her rules and the court’s orders, so she returned him to Midland.
       Upon Appellant’s return, the State moved to modify his disposition and
alleged that he had violated his probation when he (1) engaged in disorderly
conduct at the Las Vegas McCarran International Airport, (2) violated his curfew
on four occasions while living with his aunt in Las Vegas, (3) engaged in a fight
with another student at Midland High School prior to his departure to Las Vegas,
and (4) violated school policy at Western High School in Las Vegas. Appellant
pleaded not true to the allegations, and the juvenile court held modification and
disposition hearings.
               II. Evidence at Modification and Disposition Proceedings
       The State called four witnesses in the modification hearing: Appellant’s
aunt, Officer Mike Giblin, Tom Heiting, and Sherri Schrieber. Mike Giblin is a
police officer with the Las Vegas Metropolitan Police Department. Schrieber is an
assistant principal at Western High School, while Heiting is an assistant principal
at Midland High School. The State called three witnesses during the disposition
hearing: Jeff Leyva, Appellant’s grandmother, and Appellant’s father. Leyva was
Appellant’s probation officer. Appellant testified in his own defense.




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         Appellant admitted that he had assaulted his father and another family member and that he also
had threatened his father with imminent bodily harm with a deadly weapon, a machete. Appellant also
admitted to two counts of resisting arrest and one count of evading arrest or detention.
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      A. Modification Proceeding
      Appellant’s aunt testified that Appellant arrived in January 2014 and was
supposed to live with her but that, because her sister had cable, internet, and phone
service, Appellant stayed with his aunt’s sister. Appellant’s aunt and his aunt’s
sister paid for Appellant’s food and other things that he needed, and they asked
him to follow three rules: (1) go to school, (2) take out the trash, and (3) be home
by curfew. Appellant’s aunt testified that he was absent from school one day and
tardy on two days. She said he was supposed to be in the house by 10:00 p.m. but
came home late, past curfew, on February 1, 2014. She also said that he did not
always take out the trash.
      Appellant’s aunt described Appellant’s attitude as nonchalant and said that
“he does not care about anything.” She told him that, if he ignored the rules, she
would send him back to Midland. Because of Appellant’s attitude and his refusal
to follow the rules, his aunt took him to the airport in Las Vegas to send him back
to Midland, but he caused a disturbance in the airport parking garage when he
learned he was going back to Midland. She had to call the police.
      Officer Giblin testified that he and another officer were dispatched to the
McCarran airport parking garage about a disturbance there. Once they arrived,
Officer Giblin spoke to Appellant’s aunt and her sister about Appellant’s behavior
in the parking garage.       Officer Giblin then arrested Appellant for disorderly
conduct because Appellant used profane and vulgar language in a public place and
his utterances tended to incite an immediate breach of the peace. Officer Giblin
indicated that Nevada law allowed him to arrest a juvenile for a misdemeanor
offense of disorderly conduct.
      Heiting and Schrieber also testified at the modification hearing. Heiting
testified that Appellant had engaged in a fight with another student and was
suspended for three days in January 2014. Schreiber testified that Appellant had
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attended Western High School for less than two months and that, on two occasions,
he was insubordinate and showed a lack of respect to others, which were violations
of the school’s rules.    Schreiber admitted that the two violations were not
committed in her presence.
      B. Disposition Proceeding
      Leyva testified that he initially recommended Appellant complete probation
while he lived with his aunt; however, that did not work, and he recommended that
Appellant go to the TJJD. Leyva made this recommendation, based on the best
interest of Appellant and to protect the public, because Appellant could not be
controlled by his grandmother, father, or aunt and because no other family member
could care for him.
      Leyva also pointed out that Appellant had had seven detentions at the
Barbara Culver Juvenile Justice Center (Culver) in Midland since July 2013 when
he returned from his grandmother’s care in Houston. The social history noted he
had trouble in both Midland and Las Vegas. Leyva recommended commitment
because, if Appellant failed to follow the rules there, he would already be in State
custody; whereas, if Appellant were placed in the G4S program in Brownfield and
did not follow the rules of that program, he would have to be retrieved from
Brownfield and there would be no home to return him to and no place to take him.
      Appellant’s father testified that he and Appellant’s grandmother had
primarily raised Appellant. Appellant’s grandmother and father also testified that
they could not control Appellant. The father did not know of any family member
that could control Appellant. Appellant’s grandmother testified that Appellant
would not follow her rules, would become angry when he could not go to a
friend’s house or stay out after curfew, and had damaged her home. Appellant’s
father acknowledged that he and his son had fought and that he struck his son and
knocked out his son’s front tooth. Appellant’s father also indicated that he tried to
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talk to his son and get him to follow rules, but Appellant would respond that he
would not follow the rules.
      Appellant’s grandmother further testified that she had taken Appellant to
three health care facilities and had learned that Appellant suffered from opposition
defiant disorder. She said the disorder was directed toward her and Appellant’s
father and that Appellant acted differently around others; she indicated that she did
not want Appellant to live with her or his father. However, she also indicated that,
if Appellant made a “complete change,” then he would be welcomed back in her
home. Appellant’s father also testified that, if Appellant followed his father’s rules
and completed the G4S program, he would be welcomed back in his home.
      Appellant testified on his own behalf. Appellant said that he did not know
what should happen to him but that he did not want to go to the TJJD. Appellant
thought that his problems began in seventh and eighth grade when he got
“whippings” for “little things” or for “stuff that didn’t matter.”         Appellant
recounted that he and his father argued and that Appellant has been defensive since
his teeth got knocked out.
      Appellant said that he had Attention Deficient Hyperactivity Disorder
(ADHD) and had taken anti-depressants and other medication but that those
medications had not helped him. Appellant admitted that he had used alcohol and
marihuana and had gotten into trouble at school. Appellant conceded that he got
into a fight at school less than two weeks after being put on probation and got into
trouble on the first day of school in Las Vegas. Appellant said that he knew he
would have to follow rules and that he wanted to go home.
      C. Rulings of Juvenile Court
      The juvenile court found by a preponderance of the evidence that Appellant
had violated the court’s order when he (1) intentionally used abusive, indecent,
profane, and vulgar language at the McCarran airport parking garage on
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February 4, 2014—language which, by its very utterance, tended to incite an
immediate breach of the peace; (2) stayed out past curfew on February 1, 2014;
and (3) violated a school rule at Midland High School and was suspended for
fighting on January 15 and 16, 2014. The juvenile court found that commitment of
Appellant to the TJJD was in Appellant’s and the community’s best interest
because Appellant was delinquent and in need of rehabilitation and because the
various homes he had lived in were not providing for his needs.
                                III. Issues Presented
      Appellant presents two issues on appeal.          First, Appellant asserts the
evidence was legally and factually insufficient to support the trial court’s findings
regarding commitment. Appellant’s second issue is that the juvenile court violated
his right to confrontation, under both the Texas and United States Constitutions,
when it admitted hearsay evidence.
                                     IV. Analysis
      Modification of a juvenile disposition by the juvenile court is governed by
the standards in Section 54.05 of the Texas Family Code. TEX. FAM. CODE ANN.
§ 54.05 (West 2014); In re J.P., 136 S.W.3d 629, 631 (Tex. 2004). The juvenile
court may modify its original disposition for a juvenile who committed a felony
and was adjudicated delinquent. FAM. § 54.05(f). The juvenile court may modify
the juvenile’s probation and commit the juvenile to the TJJD if the juvenile court
finds by a preponderance of the evidence that the juvenile violated a reasonable
and lawful order of the court. Id. A juvenile court that commits a child to TJJD is
required to include in its order a determination that (1) it is in the juvenile’s best
interest to be placed outside the home; (2) reasonable efforts were made to prevent
or eliminate the need for the juvenile’s removal from the home and to make it
possible for the juvenile to return home; and (3) in his home, the juvenile cannot be
provided the quality of care and the level of support and supervision that he needs
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to meet the conditions of probation. Id. § 54.05(m). Appellant does not challenge
the trial court’s findings that he violated a reasonable and lawful order of the court,
but he instead challenges the legal and factual sufficiency of the evidence to
support the trial court’s findings made pursuant to Section 54.05(m).
      A. Issue One: Legal and Factual Sufficiency
      We review a court’s decision to modify a juvenile disposition under an
abuse of discretion standard. In re J.P., 136 S.W.3d at 632–33. The trial court has
broad discretion to determine a suitable disposition for a child adjudicated
delinquent, and we will not disturb the determination of the trial court absent an
abuse of discretion. In re T.E.G., 222 S.W.3d 677, 678 (Tex. App.—Eastland
2007, no pet.). Under an abuse of discretion standard, legal and factual sufficiency
of the evidence are relevant factors in assessing whether the trial court abused its
discretion. Id. at 679.
      The juvenile court’s findings made pursuant to Section 54.05(m) may be
reviewed for legal and factual sufficiency of the evidence using the same standards
applied to review the legal and factual sufficiency of the evidence supporting a
jury’s findings in a civil case. See In re A.G., 292 S.W.3d 755, 761 (Tex. App.—
Eastland 2009, no pet.); In re J.M.L., 243 S.W.3d 727, 729 (Tex. App.—El Paso
2007, no pet.). When a juvenile challenges the legal sufficiency of the evidence,
we apply the four City of Keller requirements. City of Keller v. Wilson, 168
S.W.3d 802, 821–28 (Tex. 2005). First, we consider the evidence in the light most
favorable to the findings and indulge every reasonable inference that supports
them. Id. Second, we credit favorable evidence if a reasonable trier of fact could
and disregard contrary evidence unless a reasonable trier of fact could not. Id.
Third, we recognize the trier of fact is the sole judge of the witnesses’ credibility
and the weight to be given their testimony. Id. Finally, we cannot substitute our
judgment for that of the trier of fact so long as the evidence falls within the zone of
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reasonable disagreement. Id. When we review the factual sufficiency of the
evidence, we consider and weigh all the evidence and set aside a juvenile court’s
determination only if it is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust. In re T.E.G., 222 S.W.3d at 679–80 (citing Cain
v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re J.D.P., 85 S.W.3d 420, 426 (Tex.
App.—Fort Worth 2002, no pet.); In re T.K.E., 5 S.W.3d 782, 785 (Tex. App.—
San Antonio 1999, no pet.)).
      Appellant argues that the evidence was insufficient to support the findings
made by the trial court pursuant to Section 54.05(m): that removal was in
Appellant’s best interest; that reasonable efforts had been made to eliminate the
need for removal; and that, in his home, Appellant could not be provided with the
quality of care and level of support needed to meet the conditions of probation.
One issue that occupied the court’s attention and that was the subject of testimony
of several witnesses was Appellant’s inability to control his behavior and follow
rules. Appellant’s aunt testified that Appellant was absent from school one day
and tardy on two days. She testified that Appellant would not follow rules and had
missed curfew. Appellant’s grandmother also testified that he would not follow
her rules. Appellant’s grandmother indicated that Appellant had damaged her
house when he did not get his way and that he was angry and defiant toward her
and Appellant’s father.     Heiting recounted that Appellant had exhibited such
behavior in school when he engaged in a fight with another student and was
suspended for three days.
      Appellant’s grandmother testified that she had tried to help Appellant and
had taken him to three health care facilities where she learned that he suffered from
opposition defiant disorder. Appellant said that he had ADHD and had taken
medication for the disorder but that the medication did not help him. Appellant’s
aunt, grandmother, and father all testified that they could not control Appellant;
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furthermore, Appellant’s father did not know of any family member that could
control Appellant.
       Appellant used profane and vulgar language in a public place, and his
utterances tended to incite an immediate breach of the peace. Appellant admitted
he had used alcohol and marihuana and gotten into trouble at school. Appellant
also conceded that he got into a fight at school less than two weeks after being put
on probation. Leyva pointed out that Appellant had had seven detentions at Culver
since July 2013 when he returned from his grandmother’s care in Houston.
       Leyva said that, if Appellant failed to follow the rules at the TJJD facility,
then nothing else need be done because he would already be in the custody of the
State. Leyva recommended commitment, based on the best interest of Appellant
and to protect the public, because Appellant could not be controlled by his
grandmother, father, or aunt and because no other family member could care for
him.
       Nothing in the record indicates that Appellant’s mother, or anyone else, was
able to care for him. When asked by the court what Appellant wanted to do,
Appellant was noncommittal, other than stating that he wanted to go home.
Appellant did not testify that he wanted to go to the G4S program. Having
reviewed the record, we hold that the trial court’s findings under Section 54.05(m)
were supported by legally and factually sufficient evidence and that the trial court
did not abuse its discretion by ordering that Appellant be committed to the care and
custody of TJJD. We overrule Appellant’s first issue.
       B. Issue Two: Alleged Violation of Right to Confrontation
       Appellant claims the juvenile court violated his right to confrontation, under
both the state and federal constitutions, when the juvenile court admitted the report
of Dr. Charles Silverman, which was part of a social study report on Appellant
commissioned by the Midland County Juvenile Probation Department. The Sixth
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Amendment’s Confrontation Clause provides: “In all criminal prosecutions, the
accused shall enjoy the right to . . . be confronted with the witnesses against
him . . . .”   U.S. CONST. amend. VI.         The Fourteenth Amendment of the
Constitution makes the Confrontation Clause applicable to the states. Pointer v.
Texas, 380 U.S. 400, 401 (1965). Article I, Section 10 of the Texas Constitution
and Article 1.05 of the Texas Code of Criminal Procedure also guarantee the
accused the right to confront witnesses in all criminal prosecutions. TEX. CONST.
art. I, § 10; TEX. CODE. CRIM. PROC. ANN. art. 1.05 (West 2005).
       But in this case, Appellant had already been adjudicated on the underlying
offenses to which he had stipulated. The State’s motion to modify disposition
alleged he had violated the terms and conditions that were part of his probation for
those underlying offenses.     And, just as a revocation of criminal community
supervision is not a criminal prosecution within the meaning of the Sixth
Amendment, modification of a juvenile’s probation also is not a criminal
prosecution within the meaning of the Sixth Amendment. See In re A.M.B., 676
S.W.2d 448, 450–51 (Tex. App.—Houston [1st Dist.] 1984, no pet.) (proceeding to
modify juvenile probation is not a “trial” under Sixth Amendment); see also In re
E.B., 525 S.W.2d 543 (Tex. Civ. App.—Amarillo 1975, writ ref’d n.r.e.) (not a
violation of due process or equal protection to deny jury trial in modification of
disposition hearing). Compare FAM. § 54.03(b), (e) (juvenile is entitled to a jury
trial, counsel, confrontation of witnesses, and right against self-incrimination in an
adjudicatory proceeding to determine if juvenile is delinquent of a felony or
misdemeanor) with FAM. § 54.05(c) (juvenile has no right to jury in a modification
hearing). We hold that Appellant had no Sixth Amendment right to confront
witnesses in the modification proceeding.




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       But even if we are incorrect and Appellant has a right to confrontation,
which we do not hold, 2 then any error in the admission of Dr. Silverman’s report3
is reviewed under the civil harm analysis in TEX. R. APP. P. 44.1(a). See In re C.P.,
925 S.W.2d 151, 152 (Tex. App.—Austin 1996, writ denied); see also In re T.E.G.,
222 S.W.3d at 678; G.A.O. v. State, 854 S.W.2d 710, 716, 718 (Tex. App.—San
Antonio 1993, no writ). The civil harm analysis applies to original and modified
dispositions involving indeterminate sentencing. In re D.V., 955 S.W.2d 379, 380
(Tex. App.—San Antonio 1997, no pet.).
       Rule 44.1(a) provides that error is only reversible if the error (1) probably
caused the rendition of an improper judgment or (2) probably prevented the
appellant from properly presenting the case to the court of appeals. TEX. R.
APP. P. 44.1(a). Dr. Silverman conducted a psychological evaluation of Appellant,
and his report included relevant history, findings, and recommendations.                         In
Appellant’s case, not only did his grandmother testify about his mental health
conditions, Appellant testified to them as well.                Even if we assume without
deciding that it was error to admit Dr. Silverman’s report, there can be no harm
where similar evidence was presented by other witnesses, including Appellant,
without objection. We overrule Appellant’s final issue.
                                    V. This Court’s Ruling
       We affirm the order of the juvenile court.


March 20, 2015                                               MIKE WILLSON
Panel consists of: Wright, C.J.,                             JUSTICE
Willson, J., and Bailey, J.


       2
        See In re M.P., 220 S.W.3d 99, 111 (Tex. App.—Waco 2007, pet. denied).
       3
         Section 54.04(b) provides that written reports from probation officers, professional court
employees, or professional consultants may be considered by the juvenile court. FAM. § 54.04(b); see
also In re A.F., 895 S.W.2d 481, 483 (Tex. App.—Austin 1995, no writ).
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