                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00226-CV


IN THE MATTER OF K.L.




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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-104786-17

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                        MEMORANDUM OPINION1

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      K.L. appeals from the trial court’s orders adjudicating him delinquent and

committing him to the custody of the Texas Juvenile Justice Department (TJJD).

As grounds for relief, K.L. contends that the State failed to disprove his self-

defense claim and that the trial court’s decision to commit him to TJJD was

arbitrary and unreasonable. We affirm.




      1
      See Tex. R. App. P. 47.4.
                         I.     Procedural Background

      On April 9, 2017, sixteen-year-old K.L. and his older brother Darren got

into a verbal and physical altercation at the duplex they shared with their mother

Anne2 and two younger sisters. The fight started while Darren was looking for his

work jacket and started going through K.L.’s belongings. Anne called 911 twice

while K.L. and Darren were fighting. After the Fort Worth police arrived at the

home and interviewed K.L., Darren, and Anne, they arrested K.L. for aggravated

assault and issued Darren a citation for Class C misdemeanor assault. The State

then filed a petition accusing K.L. of engaging in delinquent conduct by

intentionally or knowingly threatening his brother with imminent bodily injury while

using or exhibiting a knife. See Tex. Fam. Code Ann. § 51.03(a)(1) (West Supp.

2017); Tex. Penal Code Ann. § 22.01(a)(2) (West Supp. 2017), § 22.02(a)(2)

(West 2011). The trial court ordered K.L. detained in the Tarrant County Juvenile

Detention Center.

      K.L. signed a waiver of the right to jury trial. See Tex. Fam. Code

Ann. §§ 51.09, 54.03(c) (West 2014). After the adjudication hearing, the trial

court3 found that K.L. had engaged in delinquent conduct by committing the



      We use pseudonyms to refer to K.L.’s brother and mother. See Tex. Fam.
      2

Code Ann. § 109.002(d) (West Supp. 2017); Tex. R. App. P. 9.8(c)(2).
      3
       K.L. signed a written waiver of his right to have the district judge preside
over his hearings; one of the associate judges assigned to the court presided
over both the adjudication and disposition hearings. See Tex. Fam. Code
Ann. § 54.10(a) (West Supp. 2017).

                                         2
offense of aggravated assault with a deadly weapon. See id. §§ 51.03(a)(1),

54.03. After the disposition hearing, the trial court ordered K.L. committed to

TJJD custody for an indeterminate sentence. Id. § 54.04 (West Supp. 2017).

                  II.    Sufficiency of Evidence–Adjudication

      K.L. first argues that the State failed to disprove his self-defense claim

beyond a reasonable doubt.

A.    Standard of Review

      For criminal convictions, federal due process requires that the State prove,

beyond a reasonable doubt, every element of the crime charged. Jackson v.

Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 2787 (1979); see U.S. Const.

amend. XIV. We apply the due-process standard of review applicable to criminal

convictions to delinquency adjudications. Tex. Fam. Code Ann. § 54.03(f); In re

J.D.P., 85 S.W.3d 420, 422 (Tex. App.––Fort Worth 2002, no pet.). According to

that due-process standard of review, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Jenkins v. State, 493 S.W.3d 583, 599 (Tex.

Crim. App. 2016). The trier of fact is the sole judge of the weight and credibility of

the evidence and may draw reasonable inferences from basic facts to ultimate

facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599;

Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016); see Tex. Code Crim.

Proc. Ann. art. 38.04 (West 1979). We determine whether inferences are

                                          3
reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex.

Crim. App.), cert. denied, 136 S. Ct. 198 (2015).

      We employ the same standard of review when the appellant raised a

nonaffirmative statutory defense at trial. At trial, once a defendant has introduced

some evidence supporting a defense under section 2.03 of the penal code, the

State bears the burden of persuasion to disprove it. Zuliani v. State, 97 S.W.3d

589, 594 (Tex. Crim. App. 2003); Kirk v. State, 421 S.W.3d 772, 777 (Tex.

App.—Fort Worth 2014, pet. ref’d). This burden requires the State to prove its

case beyond a reasonable doubt; it does not require the State to introduce

evidence disproving the defense. Zuliani, 97 S.W.3d at 594. Thus, to determine if

the State brought forward sufficient evidence to disprove a nonaffirmative

defense such as self-defense, we ask “whether[,] after viewing all the evidence in

the light most favorable to the prosecution, any rational trier of fact [1] would

have found the essential elements of [the offense] beyond a reasonable doubt

and [2] also would have found against appellant on the [defensive] issue beyond

a reasonable doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App.

1991); see also Smith v. State, 355 S.W.3d 138, 144–47 (Tex. App.—Houston

[1st Dist.] 2011, pet. ref’d). K.L. admits that he committed the essential elements

of aggravated assault with a deadly weapon, but he challenges the sufficiency of

the evidence to support the trial court’s rejection of his self-defense claim.



                                          4
B.    Applicable Law

      A person commits aggravated assault if he intentionally or knowingly

threatens another with imminent bodily injury and uses or exhibits a deadly

weapon while doing so. Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02 (a)(2). But a

person is justified in using force against another when and to the degree he

reasonably believes the force is necessary to protect himself against the other’s

use or attempted use of unlawful force. Id. § 9.31(a) (West 2011). The person

may also use deadly force against another when, among other things, he

reasonably believes the deadly force is immediately necessary to protect against

the other’s use of unlawful deadly force. Id. §§ 9.31(d), 9.32(a)(2) (West 2011).

The penal code defines “[d]eadly force” as “force that is intended or known by the

actor to cause, or in the manner of its use or intended use is capable of causing,

death or serious bodily injury.” Id. § 9.01(3) (West 2011). But “a threat to cause

death or serious bodily injury by the production of a weapon or otherwise, as long

as the actor’s purpose is limited to creating an apprehension that he will use

deadly force if necessary, does not constitute the use of deadly force.” Id. § 9.04

(West 2011).

C.    911 Recordings and Statements to Officers

      The State played the recordings of both of Anne’s 911 calls for the trial

judge. We cannot discern much of what Anne is saying on the recordings, but in

the first recording, we can clearly hear her telling the 911 operator that “they”

were about to beat each other up. When the operator asked Anne to identify who

                                        5
was fighting, she identified both K.L. and Darren by name. When the operator

asked her if either of the two had a weapon, Anne said, “One has a knife.”

Although there is little background noise in the beginning of the recording, as it

progresses, we can hear males yelling in the background. Anne yelled more than

once, “You[‘re] going to jail!” We can hear more yelling in the background of the

second recording, laced with copious profanity. Anne again told the operator that

“one of them” had a knife. When the operator asked if someone was threatening

another person with the knife, Anne answered, “Yes.”

      When Fort Worth police officer Josh Ward arrived at the home, he first

spoke with K.L., who appeared agitated. Ward talked to K.L. in the front yard for

a few minutes and then took K.L. to his vehicle where K.L. calmed down. K.L.

told Ward “he had gone after [Darren] with a knife” and that he got the knife after

throwing a shoe outside “because he was tired of his brother hitting on him.” K.L.

did not explain to Ward in detail what he did with the knife. K.L. also admitted to

Ward that he had knocked down the front door. When asked if Darren pulled a

knife on K.L., Ward testified that “there was a mention of a hair pick or something

that . . . [Darren] had.” But Ward also said he would not characterize a hair pick

as a deadly weapon.

      Another Fort Worth police officer, Daniel Pritzker, took written statements

from Anne and Darren, as well as a recorded interview, and gathered evidence,

including pictures of the broken front door frame and two knives. According to



                                        6
Pritzker, Anne and Darren identified the knives Pritzker collected as the ones

K.L. used that day.

      The trial court admitted the recorded interview and written statement into

evidence. In the recording, Anne told Pritzker that K.L. threw Darren’s phone

outside while the brothers were inside the house fighting. While Darren was

outside picking up the phone, K.L. came outside with a knife; Anne demonstrated

to Pritzker a back-and-forth-stabbing motion. She also said that when Darren

was holding K.L.’s arms back, K.L. tried to stab him with the other knife. Without

going into much detail, Darren told Pritzker that K.L. first pulled one knife and

then another on him.

      According to Darren’s written statement, when he started going through

K.L.’s things looking for his jacket, K.L.

      got mad . . . , then started fighting on me, so I fought back. As I
      fought back, he threw my phone outside, which escalated the
      situation. So I came in, fo[u]ght him again and threw his shoe
      outside. When I did that, I locked the door so he kicked it in, and
      pulled a long knife on me saying “fuck you, I’ll kill you.” So that
      started another argument. Then he grabbed my shoe trying to cut it
      up as I tried to stop him, he tried to stab me with another knife. Then
      when I stopped him, the police showed up.

      Pritzker testified that based on his training and experience, the way K.L.

used the knives that day could be deadly. Although Pritzker agreed that he saw

evidence of self-defense based on the broken door frame and items that were

strewn around the home, he did not believe that K.L. had acted in self-defense

that day.


                                             7
D.    Family’s Testimony at Trial

      1.     Darren

      Darren testified that in the afternoon on April 9, 2017, he was getting ready

for work and asked if K.L. had his work jacket. Although K.L. denied knowing

where the jacket was, Darren went through K.L.’s clothes and other belongings

looking for it. The brothers began to argue, which led to a physical altercation.

      K.L. told Darren, “Quit going through my stuff,” but Darren kept searching

through K.L.’s belongings. K.L. stepped “close to” Darren’s face, and Darren

pushed him twice. After K.L. pushed Darren back, Darren “swung on” K.L., and

the two started fighting.

      At some point, K.L. grabbed a butcher knife that was on the kitchen table

and according to Darren, “was like, Hey back up.” K.L. had the knife in his hand

for about three seconds but did not chase Darren with it; he just stood in one

spot, and Darren backed up. Darren described K.L.’s actions in more detail:

      Q. And did you -- did you tell the officers that he chased you with the
      knife?

      A. No. He didn’t chase me with it. He was just standing in one spot.

      Q. Well, you listened to what you just said --

      A. Uh-huh.

      Q. -- in the 911 recording -- or --

      A. Yeah.

      Q. -- the body cam, right?


                                            8
      A. Yeah, because I was outside, I was trying to get my phone, and
      after I saw him coming towards me, you know what I’m saying, I just
      saw -- I saw a knife in his hand, and that was it.

      Q. How long did he have the knife in his hand?

      A. For, like, three seconds.

      Q. Is that the only time he held a knife in his hand?

      A. The only time, like -- yeah. And then the second time he wasn’t,
      like, coming at me with it. He was trying to cut my shoes because I
      had threw his shoes outside. So I guess he got mad so he just trying
      to cut my shoes.

      Darren testified that K.L. did not have a knife with him when he kicked in

the front door. He denied that K.L. had tried to stab him despite what he had said

in his written statement. He also denied that K.L. had threatened to kill him and

said that he made up what he had told Pritzker because Anne had wanted K.L.

out of the house. According to Darren, Ward and Pritzker told him they could not

take K.L. away unless Darren said K.L. had done “certain things,” so Anne said,

“Say that, say that.” Darren tried to have the charges against K.L. dropped the

following week.

      2.    Anne

      Anne testified that she had been sleeping but woke up when she heard

Darren and K.L. fighting. When she came out of her room, K.L. was sitting on the

couch and Darren was looking through the closet for his jacket. Sometime after

that, K.L. threw Darren’s cell phone out the front door, breaking it. Anne and

Daren both went outside to look for the phone, leaving K.L. inside. According to


                                         9
Anne, while she and Darren were looking for the phone, she called 911 to report

that the two had been fighting. K.L. came to the open front door, threw a shoe

outside, and shut the door.

      Anne further testified that Darren climbed in the window. After that, she

opened the front door and saw that K.L. had picked up the butcher knife; he and

Darren were “trying to go outside and fight.” According to Anne, K.L. was “[g]oing

toward” Darren with the knife in his hand, but “[h]e didn’t aim it at him.” K.L. put

the knife down, but the two started arguing again and throwing each other’s

belongings outside.

      K.L. went outside, and Darren shut and locked the front door. K.L. then

broke the door open, went into Darren’s closet and grabbed a shoe, and then

grabbed a “little-bitty knife” and tried to cut the shoe up. Darren held K.L.’s arms

down so he “wouldn’t do nothing with it.” The police arrived “right after” K.L. put

the second knife down. Anne did not think she told the officers she saw K.L.

cutting Darren’s shoe and denied being able to see what K.L. was doing with the

small knife.

      Anne testified that she was angry and tired of “all the arguing and fighting

all the time,” and she wanted K.L. to leave the house, but only “to cool off [and]

come back.”

      3.       K.L.

      K.L. testified that the fight started in the living room and ended up in the

kitchen. K.L. described what happened in the kitchen: “Basically, he was hitting

                                        10
on me, punching me in my face and stuff, you know, hitting me in my jaw and my

lips and all that. So I felt like I was going to get knocked out or something, so I

just grabbed a knife in self-defense.” According to K.L., he had picked up only

one knife, the “little” one, and he only “held it.” Darren was standing behind him.

K.L. demonstrated how he was holding the knife, but the record does not reflect

K.L.’s physical actions in the courtroom. K.L. testified that he told Darren, “Get off

me,” and Darren did. According to K.L., at that point he walked over to Darren’s

shoe and tried to cut it. Darren grabbed the shoe and K.L. threw the knife on the

ground; Darren responded by throwing K.L.’s shoe outside and then locking the

door when K.L. went outside to get it. K.L. forced his way in the house because

he was afraid Darren was going to “do something to [his] stuff or . . . hide [his]

phone.” When he got inside, the two only argued until the police arrived. K.L.

denied grabbing a knife again after coming inside.

      K.L. said he was holding the knife while Darren was hitting him from

behind because he “couldn’t see him.” He denied that Darren had hit him with a

knife or displayed a weapon of any kind. Nevertheless, K.L. felt as if Darren was

winning the fight, that he could not defend himself, and that he was about to get

knocked out if Darren kept hitting him. He said he held the knife for only about

seven seconds, including while he was trying to cut Darren’s shoe. K.L. denied

waving the knife or threatening to kill Darren with it. He felt like he was getting

picked on that day. According to K.L., Ward was lying when he testified that K.L.

admitted getting the knife to “go after” Darren with it.

                                          11
E.    Analysis

      The trial judge was faced with conflicting versions of events: each family

member’s contemporaneous statements to the police and the testimony of each

family member at trial. As the fact finder, the trial judge could have believed that

the version of the events the family told the police officers on the day of the fight

was more credible. According to that version of events, K.L. pulled the large knife

on Darren after breaking down the door to the home, threatened to kill him,

moved the knife toward Darren in a stabbing motion, and later tried to stab

Darren with a smaller knife after Darren restrained K.L. as he was trying to cut

Darren’s shoe. Not only does this version of events contradict the trial testimony

that K.L. merely held the larger knife in his hand and only tried to cut Darren’s

shoe with the small knife, it also shows that K.L.’s use of both knives was not in

response to Darren’s hitting him. Therefore, we hold that the evidence is

sufficient to support (1) the trial court’s determination that K.L. engaged in

delinquent conduct by committing aggravated assault with a deadly weapon and

(2) the trial court’s concurrent rejection of K.L.’s self-defense claim. We overrule

K.L.’s first complaint.

           III.   Disposition Order Not Arbitrary and Unreasonable

      In his second complaint, K.L. argues that the trial court’s decision to

commit him to TJJD custody, instead of to a placement for psychological

treatment, was arbitrary and unreasonable in light of the legislative purposes

underlying the Juvenile Justice Code. According to K.L., committing him to TJJD

                                         12
does not promote his welfare or the public’s safety and “verges on cruel and

unusual punishment.”

A.    Standard of Review

      A juvenile court has broad discretion in determining a suitable disposition

for a juvenile who has been adjudged to have engaged in delinquent conduct.

See J.D.P., 85 S.W.3d at 426. Thus, we will not disturb the juvenile court’s

findings regarding disposition absent a clear abuse of discretion. See id. To

determine whether a trial court has abused its discretion, we must decide

whether it acted without reference to any guiding rules or principles; in other

words, whether its act was arbitrary or unreasonable. See In re C.J.H., 79

S.W.3d 698, 702 (Tex. App.––Fort Worth 2002, no pet.). “A trial court has no

‘discretion’ in determining what the law is or applying the law to the facts.” Walker

v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “Thus, a clear failure by the trial

court to analyze or apply the law correctly will constitute an abuse of discretion.”

Id. (citations omitted).

      A trial court is not required to exhaust all possible alternatives before

committing a juvenile to TJJD custody. Matter of D.P., No. 02-15-00181-CV,

2016 WL 7405796, at *3 (Tex. App.—Fort Worth Dec. 22, 2016, no pet.) (mem.

op.); In re A.K.A., No. 04-13-00666-CV, 2014 WL 2601731, at *3 (Tex. App.––

San Antonio June 11, 2014, no pet.) (mem. op.); In re J.R.C., 236 S.W.3d 870,

875 (Tex. App.––Texarkana Oct. 11, 2007, no pet.). Thus, in reviewing the

propriety of the trial court’s disposition, we do not focus on whether a placement

                                         13
for psychological counseling would have been a better choice for K.L. than

commitment to TJJD; instead, we consider whether sufficient evidence supports

the trial court’s decision to commit K.L. to TJJD custody.4 D.P., 2016 WL

7405796, at *3.

      We apply the civil standard of review to challenges to the sufficiency of the

evidence to support a disposition. Id. at *1; J.D.P., 85 S.W.3d at 426. When

determining whether legally sufficient evidence supports a finding under review,

we consider evidence favorable to the finding if a reasonable factfinder could and

disregard evidence contrary to the finding unless a reasonable factfinder could

not. D.P., 2016 WL 7405796, at *1; In re M.E., No. 02-14-00051-CV, 2014 WL

7334990, at *2 (Tex. App.––Fort Worth Dec. 23, 2014, no pet.) (mem. op.).

Anything more than a scintilla of evidence supporting a finding renders the

evidence legally sufficient. D.P., 2016 WL 7405796, at *1; M.E., 2014 WL

7334990, at *2. When reviewing whether the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

      4
        K.L. relies on an opinion urging that in an appropriate case, a court of
appeals should employ a standard of review that considers only the legal
question of whether the trial court’s disposition order conforms to the purposes of
juvenile law as expressed in the family code. See In re K.T., 107 S.W.3d 65, 74
(Tex. App.––San Antonio 2003, no pet.) (citing Tex. Fam. Code Ann. § 51.01
(West 2014)). But not only has the San Antonio court of appeals disapproved of
the standard of review articulated in that opinion, Matter of E.K.G., 487 S.W.3d
670, 676 (Tex. App.––San Antonio 2016, no pet.), principles of statutory
interpretation dictate that the required legislative findings that would permit a
TJJD commitment order are in conformity with the legislative purposes
underlying the Juvenile Justice Code, see Tex. Gov’t Code Ann. § 311.021(2)
(West 2013).

                                        14
all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. D.P., 2016 WL 7405796, at *2; M.E., 2014 WL 7334990, at

*2.

B.    Probation Officer’s Report

      At the disposition hearing, the trial judge read from a report prepared by

the probation department––and admitted into evidence––that detailed K.L.’s prior

referrals to the juvenile court beginning when he was twelve:

      Your previous history is extensive. You’ve been referred a number of
      times beginning in December of ‘13. It was an assault with bodily
      injury case that was not filed. March of 2014, assault on a public
      servant. You were given probation at that time for the first time April
      the 4th of 2014.

             A couple of months later there was another referral for theft
      from [a] person. You were allowed another opportunity of probation
      at that time. That was in early July of 2014. And the probation that
      you were on also was extended at that time.

             Later that year in September there was an assault with bodily
      injury that was not filed. In October ‘14, a violation of court order.
      March 15 -- March 2015, another violation of a court order. July 1st
      of 2015, aggravated assault with a deadly weapon and two more
      violations of court order. None of those cases were brought before
      the Court. August 27th of 2015, assault on a family member, which
      was dropped by the complainant.

            September of 2015, resisting arrest and possession of
      prohibited weapon, that being a switchblade or knuckles in a
      weapons free zone. You were adjudicated a third time, I believe, and
      given a third opportunity of probation.



                                        15
              There were additional violations of court orders that were not
      filed, and then you have this adjudication.

See Tex. Fam. Code Ann. § 54.04(b) (providing that trial court may consider

written reports from probation officers or professional consultants in disposition

hearing).

      The report also discusses K.L.’s family history, including his parents’

separation and his strained relationship with his father. K.L. is close with his

maternal grandmother. K.L. was primarily responsible for caring for his younger

sisters at night while Anne worked until 2:00 a.m. K.L. and Darren “got into it” at

least once a week; although their altercations were not always physical, K.L.

reported that “most of the time they argue until [Darren] puts his hands on” him.

According to Anne, K.L. and Darren argue over petty things; it “always turns

physical” and they tear up the house. K.L. is usually the aggressor, gets angry

easily, cusses at her, and is aggressive with his sisters. K.L. has assaulted Anne

twice. She described him as uncontrollable when angry.

      Anne described the dynamic between K.L. and Darren as follows:

      [E]very time he and [Darren] get into [a fight], [K.L.] gets a knife.
      [K.L.] will threaten . . . to stab [Darren] and says he wants [Darren]
      dead. [Anne] said [K.L.] has tried to stab [Darren] before and [she]
      tries to intervene. [K.L.] then turns on [her] when she tries to stop it.
      This time he turned to [Anne] and told her he wants her dead as
      well. [Anne] said she calls the cops when [K.L.] gets a knife but this
      is the first time the police arrested [K.L.] over it. [Anne] said [K.L.]
      pulls out a knife at least 2-3x a month. [Anne] said she tries to keep
      the knives hidden but she does a lot of cooking and catering so they
      are where she can access them when she needs them.



                                         16
      Anne reported that K.L. has been aggressive since third grade, had been

“very disturbed,” and would throw chairs in school and fight with teachers. K.L.

has been suspended twenty times since elementary school for “cussing, getting

loud, fighting, and being in possession of brass knuckles.” In middle school, staff

would have to restrain him often; he has “put his hands on” teachers and

destroyed property. K.L. is not allowed to enroll in at least two Fort Worth public

high schools. He is a year behind in school. Although K.L. told the probation

officer he regularly attended school, his mother reported that he may stay home

and “do nothing” one or two days a week if he does not feel like going to school.

      K.L. started going to MHMR in sixth grade but refused to take prescribed

medication. Anne believed he needed counseling; she had tried to get him help,

but he refused to listen to anyone, even his probation officer. Anne described her

relationship with K.L. as good until he was unable to get his own way.

      K.L. reported that he had started smoking marijuana at age twelve and that

he smokes three times a week to “calm . . . down and stay calm.” A psychologist

diagnosed him with severe cannabis use disorder after K.L. reported that he had

smoked marijuana nearly every day since he was twelve.

      The probation officer’s report also detailed all of the services––twelve––

that had been offered to K.L. He completed ten and failed to comply with two.

The report concluded that “[a] community plan is not recommended at this time

due to [K.L.’s] history of aggression, noncompliance with previous community

services offered; lack of motivation for change; and lack of parenting skills in the

                                        17
home.” The probation officer determined that K.L. had a high risk of reoffending

and that K.L. would benefit from additional supervision by the probation

department. K.L. had four incident reports while in detention awaiting his

adjudication hearing; three involved physical aggression against staff and one

involved threatening a peer.

      An associate judge performed a placement search and found an outside

placement that would accept K.L. However, the report also noted that

“Parent(s)/guardian(s) have indicated that they can provide suitable supervision if

the child is allowed to return home.” During the intake interview with the

probation officer, Anne had expressed that she wanted K.L. placed outside the

home, but she changed her mind after family mediation and wanted K.L. to come

back home. K.L.’s maternal grandmother offered to let him live with her. K.L.

reported that he wanted to “work on the way he handles situations and the way

he reacts.”

      A staffing resource form attached to the probation officer’s report notes

that K.L. had reported seeing his father physically abuse Anne, that CPS had

found reason to believe that K.L.’s parents had physically abused him when he

was eight years old, and that CPS had investigated allegations that Anne and

their grandmother had neglectfully supervised K.L. and his siblings.

      In an email to the probation officer from an MHMR chemical dependency

counselor dated April 18, 2017, the counselor opined that K.L. “could benefit from

a least restrictive setting of care to assess if he can achieve, and remain in

                                        18
recovery while residing within his primary living environment.” But the counselor

also noted that K.L. reported Anne does not have a problem with K.L. smoking

marijuana when he is not around his sisters.

      A psychological evaluation notes that K.L. “expressed a seemingly genuine

lack of empathy for those he ha[d] harmed in his many altercations, and he

indicated that he has simply accepted himself as he is.” K.L. admitted being

inebriated at school and told the psychologist that he was not motivated to

participate in mental health treatment because it had been a substantial waste of

time. K.L. told the psychologist that on several occasions he had needed to

reside with his grandmother to avoid trouble with the apartment complex where

he lived with Anne and his siblings. K.L. denied a history of physical or sexual

abuse, but the counselor noted that K.L.’s attachment to Anne and his siblings

seemed “ambivalent.”

      The psychologist made the following recommendation:

      [H]is relative immaturity, low motivation, and explosive anger
      combine to form a poor prognosis given a natural course or short-
      term intervention. Thus, it is recommended that [K.L.] be considered
      for placement in a long-term and secure residential treatment
      program where he might achieve a lasting sobriety and receive the
      strict supervision and comprehensive treatment that his needs
      require. It is also possible that [K.L.] might benefit from exposure to a
      strict behavioral program that reinforces prosocial attitudes in
      community living. Without successful intervention, [K.L.] is at a high
      risk for recidivistic behaviors, including acts of violence, and further
      development of his addiction as he matures into adulthood.




                                         19
C.       Disposition Hearing Testimony

         K.L. agreed that he had a problem with anger management despite being

in counseling. He admitted to using marijuana in the past. K.L. also admitted

having aggression issues while in detention because of his frustration with being

there.

         Anne testified that she wanted K.L. to be placed on probation and to come

home; she thought being in detention for two months had changed him for the

better. The family had attended mediation, which went well. Anne admitted that

she had dropped prior assault charges against K.L. But she explained that on at

least one of those occasions, they were “just tussling, and [K.L.] refused to stop

when the officer wanted him to stop.”

D.       Trial Judge’s Comments and Findings

         In concluding remarks, the trial judge stated,

                You have been provided a great number of services in the
         community during your prior three terms of probation. I’m concerned
         that you’re here again for another felony offense, and I am
         concerned . . . with the kinds of offenses that you’ve been referred
         for before. And I know you know you have an issue, and I don’t think
         that simply spending this time in detention is the way you learned a
         lesson about how to change that kind of behavior. You need some
         serious help with that, so I don’t intend to send you home today on
         probation.

               I do need to think about whether or not I’m going to order that
         you be placed or commit you to TJJD. There is an option for you to
         be placed, I understand, and I want to consider that before I make
         this decision. But I am concerned that while you’ve been here you
         have engaged in some aggressive activity, as well, and that’s
         happened while you’ve been in detention, and my concern is


                                           20
whether or not you’re going to continue that kind of behavior if I give
you the opportunity of placement.

       The purpose of placement would be for you to learn the skills
to change your behavior so you don’t end up severely hurting
someone and ending up spending the majority of your life in prison.
That is not what you need to do . . .

      You have the potential to do much better than that, but if you
continue with this kind of behavior, that is a future that I’m afraid you
face.

The trial court’s disposition order contains the following relevant findings:

[T]he child is in need of rehabilitation and . . . the protection of the
public and the child requires that disposition be made. The Court
also finds that the said child at the time of this hearing was 16 years
of age . . . .

       The Court finds it is in the child’s best interests to be placed
outside the child’s home. The Court also finds that reasonable efforts
were made to prevent or eliminate the need for the child’s removal
from the child’s home and to make it possible for the child to return
home and the child, in the child’s home[,] cannot be provided the
quality of care and level of support and supervision that the child
needs to meet the condition of probation.

      ....

      It further appears to the Court that the best interest of the child
and the best interest of society will be served by committing him to
the care, custody and control of [TJJD], for the following reasons:

1) There are no facilities, services or programs available which
would meet the needs of the child;

2) The Court finds that the educational needs of the child can be met
by [TJJD];

3) The child has been found by the COURT to have violated Section
22.02 (FEL) of the Texas Penal Code, on or about APRIL 9, 2017
and was adjudicated delinquent on JUNE 6, 2017.


                                   21
      4) The child has been previously adjudicated delinquent for [three
      prior felony] offenses . . . .

E.    Analysis

      The family code prohibits a trial court from making a disposition “unless the

child is in need of rehabilitation or the protection of the public or the child requires

that disposition be made.” Tex. Fam. Code Ann. § 54.04(c). Here, the trial court

found that K.L. needed to be rehabilitated and that both K.L.’s and the public’s

needs required a disposition. K.L. does not challenge these findings. At the time

K.L. committed the offense, the family code further provided that if a grand jury

had not approved the petition for adjudication (which it did not here), the trial

court could commit a child to TJJD without a determinate sentence if it made a

finding at the adjudication hearing that the child had engaged in delinquent

conduct that violated a felony-grade penal code provision. Act of May 24, 2013,

83rd Leg., R.S., ch. 1323, § 2, 2013 Tex. Sess. L. Serv. 3507, 3507 (amended by

Act of May 31, 2015, 84th Leg., ch. 962, §§ 1, 8, 2015 Tex. Sess. L. Serv. 3403,

3403, 3407, effective for conduct occurring on or after September 1, 2017)

(current version at Tex. Fam. Code Ann. § 54.04(d)(2)). Aggravated assault with

a deadly weapon is a felony offense. Tex. Penal Code Ann. § 22.02(b).

      To commit K.L. to TJJD for an indeterminate sentence, the trial court was

further required to find that

      (A) it is in the child’s best interests to be placed outside the child’s
      home;



                                          22
      (B) 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; and

      (C) the child, in the child’s home, cannot be provided the quality of
      care and level of support and supervision that the child needs to
      meet the conditions of probation. . . .

Tex. Fam. Code Ann. § 54.04(i). K.L. appears to be challenging the sufficiency of

the evidence to support these findings.

      The evidence shows that K.L. had a long history of violent behavior, had

been adjudicated delinquent for several felonies, had been placed on probation

at least twice, and was uncontrollable at home. His probation officer determined

he was at high risk for reoffending. He was prone to threaten Darren with knives

when violent, and although there is no evidence that K.L. had been violent with

his younger sisters, he was primarily responsible for their care until late at night.

K.L. had been offered numerous services, but he would not take advantage of all

of them, and he was resistant to counseling. The probation officer and a

counselor determined that K.L. would benefit not only from comprehensive

treatment but also the strict supervision that he did not have at home. Anne and

K.L.’s grandmother had a CPS history involving K.L. and his siblings. And K.L.

continued to act out even after being placed in detention for this offense. Finally,

the trial judge expressed a desire to provide the type of intervention that would

help prevent K.L. from committing a future crime that would subject him to the

adult correctional system.



                                          23
      We hold that this evidence is both legally and factually sufficient to support

the trial court’s disposition order, and we overrule K.L.’s second complaint.

                                IV.    Conclusion

      We affirm the trial court’s orders.



                                                    /s/ Wade Birdwell
                                                    WADE BIRDWELL
                                                    JUSTICE

PANEL: MEIER, GABRIEL, and BIRDWELL, JJ.

DELIVERED: April 12, 2018




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