
NO. 07-01-0003-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JANUARY 10, 2003

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IN THE MATTER OF J. R.


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FROM THE 137TH DISTRICT COURT OF COUNTY;

NO. 99-764,540; HONORABLE MARK C. HALL, JUDGE

_______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J. (1)
MEMORANDUM OPINION (2)
	Appellant J. R., a juvenile, appeals from an order that he be committed to the Texas
Youth Commission (TYC) for an indeterminate period of time. (3)  By two points of error, he
contends (1) the trial court abused its discretion by confining him to TYC and (2) the
evidence was insufficient to satisfy the requirements of section 54.04(i) of the Texas
Family Code and support the order of commitment.  Based upon the rationale expressed
herein, we affirm.
	Appellant was arrested on June 4, 1999, for aggravated sexual assault of another
juvenile and detained at the Lubbock County Juvenile Justice Center.  The offense
occurred at a church for the homeless where appellant and his family were residing.  The
minister of the church discovered and reported the offense after another juvenile reported
that appellant and the victim appeared to be engaging in inappropriate sexual behavior. 
In addition to another act of sexual misconduct, appellant told the officer he had committed
sexual assault against the victim by placing his hand over the victim's mouth and placing
his penis in the victim's anus.  
	The evidence demonstrated a family history of sexual abuse.  Appellant admitted
to being sexually assaulted by two cousins in 1998 while staying with his grandmother. 
Appellant also admitted to his juvenile probation officer that he had been involved in
several other sexual incidents.  He was allowed to attend counseling for juvenile sex
offenders in a facility in Waco, but was not admitted to the program until he turned 14. 
While appellant was in Waco, he admitted to sexually assaulting a younger brother.  On
October 31, 2000, the State filed its petition for adjudication and upon appellant's
stipulation of the evidence to the offense of aggravated sexual assault, on December 6,
2000, the court signed a judgment finding that he had engaged in delinquent conduct. 
Following a disposition hearing pursuant to section 54.04 of the Code, the trial court
signed its order of commitment. 
	By his first point, appellant contends that the trial court abused its discretion by
confining him to TYC.  We disagree.  Appellant commences his argument by asserting, in
detail, that "numerous mistakes occurred throughout the prosecution of J.R.," and prior to
his adjudication.  He concludes, "[n]ine months of illegal detention. Detention being based
on a smearing of clear statutory directives."  Although these alleged errors may have been
grounds for other relief, a question we need not decide, the claimed irregularities do not
implicate the trial court's discretion in the disposition phase of the proceeding under
section 54.04.  In addition, appellant's argument ignores the record which demonstrates
that he and his counsel signed waivers of follow-up detention hearings.   Moreover, errors
in the detention process are not subject to appeal under section 56.01 of the Code.  
	We have not overlooked appellant's argument, presented without issue or point of
error, that the trial court opted for sentencing under level 6 pursuant to section 59.009;
however, appellant acknowledges that these provisions are guidelines only and cites no
authority supporting his argument.  Further, section 56.01 does not authorize an appeal
of a departure from the guidelines under section 59.009.  Point of error one is overruled.

	By his second point, appellant contends the evidence was not sufficient to satisfy
the requirements of section 54.04(c) and 54.04(i) of the Code.  By his argument, appellant
narrows his challenge contending that the evidence was insufficient to warrant a finding
that reasonable efforts were made to avoid his placement in TYC. (4)  We disagree.
	In reviewing a factual insufficiency challenge, we will apply the standard set out in
In re J.J., 916 S.W.2d 532, 535-36 (Tex.App.--Dallas 1999, no pet.), and will set aside a
factfinder's determination only if we determine, after consideration of all the evidence,  that
it is so against the great weight and preponderance of the evidence as to be manifestly
unjust, shocking to the conscience, or clearly demonstrating bias.  See also In re C.J.H.,
79 S.W.3d 698, 703-04 (Tex.App.-Fort Worth 2002, no pet.).  Also, before we begin our
analysis, it is important to consider the contention in the context of the express provision
of section 54.04(i)(1)(B), which provides:
	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 . . . .

Appellant's point requires us to focus on his home, which, unfortunately did not present an
acceptable solution because

	evidence demonstrated family history of sexual abuse;
	sexual abuse of family members by family members; and
	when taken into custody, appellant was in a shelter for the
"homeless." 

Each case must be decided on a case by case basis.  The home environment might be
appropriate where the juvenile has been convicted of offenses such as theft, burglary,
possession, dealing in drugs, or writing of hot checks.  Also, unlike Matter of K.L.C., 972
S.W.2d 203 (Tex.App.--Beaumont 1998, no pet.), cited by appellant,  where the minor was
charged with the offense of aggravated assault with a deadly weapon, here, considering
the gravity and type of the illegal conduct, i.e., acts of sexual violence committed upon
family members, and even while visiting a grandparent, demonstrates a unique home 
situation which suggests the removal of the child from the home. 
	Appellant's mother testified that she was "drug free" and living at home with her two
sons.  She also testified that she could stay at home and supervise appellant because she
is unable to work due to a disability.  However, she presented no evidence that she was
in a position to provide professional counseling for appellant.  Accordingly, considering the
nature and gravity of appellant's conduct and all the evidence, we conclude the evidence
was not factually insufficient or so against the great weight and preponderance of the
evidence as to be manifestly unjust, shocking to the conscience, or clearly indicating bias. 
Appellant's second point is overruled.
	Accordingly, the judgment of the trial court is affirmed.  
						Per Curiam
1.             
2. Tex. R. App. P. 47.4.
3. Appellant does not appeal from the adjudication of delinquent conduct.
4. Based on the substance of appellant's argument, we conclude he intended to
reference section 54.04(i)(1)(B).

