Opinion filed July 15, 2010




                                             In The


   Eleventh Court of Appeals
                                           __________

                                      No. 11-09-00100-CV
                                          __________

                    IN THE MATTER OF W.C.M., A JUVENILE



                              On Appeal from the 323rd District Court

                                      Tarrant County, Texas

                               Trial Court Cause No. 323-81831J-05


                              MEMORANDUM OPINION

         In a single issue, W.C.M., a juvenile, challenges the trial court’s judgment modifying
disposition and committing him to the Texas Youth Commission (TYC). He contends that the
trial court abused its discretion by committing him to TYC rather than keeping him on probation.
We affirm.
                                         Background Facts
       On December 2, 2005, appellant stipulated in open court to an allegation that he
committed aggravated assault with a deadly weapon on October 13, 2005, by intentionally or
knowingly causing serious bodily injury by stabbing his father with a knife.       Based upon
appellant’s stipulation, the juvenile court found that he engaged in delinquent conduct by
committing a felony.              The juvenile court additionally noted that the State’s petition had
previously been approved by the grand jury under TEX. FAM. CODE ANN. § 53.045(a) (Vernon
2008) and that appellant’s delinquent conduct constituted a violation of a penal law listed under
that section.
          The juvenile court conducted a determinate sentence disposition hearing on January 18,
2006. The parties announced to the court at the hearing that they had reached a plea agreement
for a six-year determinate sentence probated for six years.1 The juvenile court accepted the
parties’ plea agreement by placing appellant on probation for a term of six years in his mother’s
custody. The conditions of appellant’s probation included not violating any laws of the State of
Texas; attending school daily; reporting to his community supervision officer; obeying curfew;
and not associating with negative peers. The terms of his probation specified that he was not to
use or possess alcohol, marihuana, inhalants, or any other illegal substance.
          The State filed a motion to modify disposition on February 1, 2008. The State alleged in
the motion that appellant violated a term of his probation by committing the offense of
possession of marihuana. The State asked the juvenile court to modify its previous disposition
by committing appellant to TYC.
          The trial court conducted a hearing on the motion to modify disposition on February 15,
2008. Appellant stipulated at the hearing that he possessed marihuana on January 23, 2008, in
violation of the terms of his probation. Based upon appellant’s stipulation, the juvenile court
found that he engaged in delinquent conduct as alleged in the motion to modify disposition and
that he violated the terms of his probation.                         The juvenile court then proceeded with an
adjudication hearing. Kelton Young, appellant’s probation officer, testified that appellant had
previously completed a residential substance abuse program but that appellant did not attend an
outpatient substance abuse program on a consistent basis. Young further testified that appellant
had consistently tested positive for drugs and that he tested positive for marihuana when he was
detained on the marihuana possession charge. Young further testified that appellant had not
successfully completed a family preservation program that had been required by the court when
appellant was placed on probation. On cross-examination, Young testified that the residential
substance abuse treatment program was a private placement paid for with the family’s insurance.
         1
           In announcing the terms of the plea agreement to the juvenile court, the State’s attorney indicated that appellant would
be twenty-one years old when the six-year term of probation would end.



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He also testified that appellant’s family was very supportive and that he had a strong network in
place to support him in probation.
         Appellant’s mother testified that he was “a good kid” who suffered from depression.
She believed that appellant was “self-medicating” his condition by using marihuana. Appellant’s
mother stated that appellant was not able to complete a residential substance abuse program at
Sundown Ranch because of a problem with her insurance. On cross-examination, appellant’s
mother acknowledged that he did not have a good attendance record at school and that he did not
do well in outpatient substance abuse programs.
         At the conclusion of the disposition hearing, the juvenile court informed appellant that he
was fortunate to have been placed on probation at the outset because of the severity of his initial
delinquent conduct (aggravated assault with a deadly weapon). The court then referred to the
opinion of the probation officer that the officer could continue working with the family in
support of appellant’s probation. Accordingly, the juvenile court continued the disposition
proceeding so that a “resource staffing” study could be completed in order to determine what
programs might be available in the community for continuing appellant’s probation.
         The juvenile court conducted a subsequent hearing on the disposition motion on April 3,
2008. During the course of this brief hearing, Young testified that appellant had used marihuana
since the last hearing while he was visiting at his father’s house. Appellant’s mother testified
that she had located an inpatient drug treatment facility in Belton named Cedar Oaks that would
admit appellant. At the conclusion of the hearing, the juvenile court continued the disposition
hearing pending appellant’s successful completion of the program offered by the Cedar Oaks
treatment facility.
         The next disposition hearing did not occur until February 6, 2009. Young testified that
appellant entered the Cedar Oaks treatment facility on July 10, 2008, and that he remained there
for approximately one and one-half weeks.2 Appellant subsequently entered another treatment
facility known as “Phoenix House” on August 13, 2008. Appellant remained at Phoenix House
until November 27, 2008, when he did not return to the facility after an eight-hour leave for the
Thanksgiving holiday.           Young testified that appellant continued to use drugs after leaving
Phoenix House and that he had not participated in any outpatient drug treatment or attended
         2
           Young attributed the delay from the juvenile court’s order on April 3, 2008, until July 10, 2008, on appellant’s
mother’s attempt to obtain dental treatment for appellant.



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school since leaving Phoenix House. Young further testified that appellant tested positive for
marihuana use on the day preceding the February 6, 2009 hearing.
       On cross-examination, Young testified that appellant’s mother had reported to him that
she had been home-schooling appellant. Young acknowledged that appellant had been taking the
medication prescribed by his psychiatrist and that he had not committed any assaultive offenses
while on probation. Young also acknowledged that appellant’s delay in being placed in the
treatment facility ordered by the court and his short stay there were attributable to insurance
problems. Lastly, Young testified that he did not believe it would be in either appellant’s or
society’s best interest for him to be committed to TYC. On redirect, Young testified that
Phoenix House would have readmitted appellant if he had taken the initiative of seeking
readmission.
       Appellant’s mother testified that, because of insurance coverage problems, appellant did
not intentionally violate the court’s order on April 3, 2008, to be admitted to the Cedar Oaks
treatment facility. With respect to appellant’s failure to return to Phoenix House, appellant’s
mother testified that he did not return because his grandmother was gravely ill. She further
testified that he had returned to Phoenix House for inpatient treatment on the day prior to the
hearing.
       Appellant also testified at the February 6, 2009 hearing. He testified that he left Phoenix
House in November 2008 because his grandmother was dying and he wanted to spend her last
days with her. He acknowledged that he had a marihuana problem and that he was willing to go
back to Phoenix House for treatment. He also acknowledged that he had used marihuana while
at his mother’s house in addition to using it at his father’s house. In this regard, appellant
admitted to using marihuana at his mother’s house approximately one and one-half weeks prior
to the hearing.
       At the conclusion of the final disposition hearing, the juvenile court reminded appellant
that it had initially delayed making a final ruling on the motion to modify disposition in order for
the resource staffing study to be completed. The court also reminded appellant that it entered a
subsequent order for him to be placed in an inpatient drug treatment facility but that appellant
had failed to comply with that order. The court further noted that appellant was not attending




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school and that he was continuing to use drugs. The court concluded the hearing with the
following pronouncement:
                 So now I am here with two choices here:           I can continue you on
         probation, allow you to go into the adult criminal justice system [because of
         appellant’s impending eighteenth birthday] where you’ll be sent directly to prison
         for a violation of your terms and conditions of probation, or I can send you to the
         Texas Youth Commission in the hope that you’ll receive rehabilitative services to
         turn your life around so you will not end up in prison.
                And that’s my choice today. I’m going to send you to the Texas Youth
         Commission for a period of six years with a possible transfer to the Institutional
         Division of the Texas Department of Criminal Justice.
                                        Abuse of Discretion
         Juvenile courts are vested with broad discretion in determining whether to modify the
disposition of juveniles found to have engaged in delinquent conduct. See In re D.R., 193
S.W.3d 924, 924 (Tex. App.—Dallas 2006, no pet.); In re P.L., 106 S.W.3d 334, 337 (Tex.
App.—Dallas 2003, no pet.). In reviewing the trial court’s decision, we examine the entire
record to determine whether the trial court acted unreasonably or arbitrarily or without reference
to any guiding rules or principles. See In re D.R., 193 S.W.3d at 924; In re K.B., 106 S.W.3d
913, 915 (Tex. App.—Dallas 2003, no pet.). Under the authority of TEX. FAM. CODE ANN.
§ 54.05(f) (Vernon 2008), a modification order may provide for commitment to TYC if the
original disposition was for conduct constituting a felony and the trial court finds the child
violated a reasonable and lawful order of the court. See In re J.P., 136 S.W.3d 629, 631 (Tex.
2004).
         Appellant asserts in his sole issue that the juvenile court abused its discretion in
committing him to TYC because his failure to comply with the terms and conditions of probation
were “beyond his control.” In this regard, he argues that his failure to complete the inpatient
program at the Cedar Oaks facility was due to insurance coverage problems and that his
departure from Phoenix House was attributable to a family illness.
         We conclude that the juvenile court did not abuse its discretion in committing appellant
to TYC. The court’s decision to commit appellant to TYC was certainly not hastily made
because the court conducted three disposition hearings over the course of approximately one
year. During the pendency of these proceedings, the juvenile court afforded appellant the



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opportunity to avoid commitment to TYC by completing programs to deal with his marihuana
problem. However, appellant continued to use marihuana during this entire period, including
using it within two weeks of the final disposition hearing.      Appellant’s continued use of
marihuana was a matter within his control. The fact that he continued to use marihuana while in
the custody of his parents indicated that a removal from his home setting was appropriate.
Appellant’s sole issue is overruled.
                                       This Court’s Ruling
        The judgment of the juvenile court is affirmed.


                                                             TERRY McCALL
                                                             JUSTICE


July 15, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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