                                         NO. 07-01-0003-CV

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                                PANEL E

                                         JANUARY 10, 2003

                              ______________________________


                                     IN THE MATTER OF J. R.


                            _________________________________

                     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.*


                                    MEMORANDUM OPINION1


      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.2 By two points of error, he

contends (1) the trial court abused its discretion by confining him to TYC and (2) the


      *John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
      1
          Tex. R. App. P. 47.4.
      2
          Appellant does not appeal from the adjudication of delinquent conduct.
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.

                                             2
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.




                                            3
       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.3 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;


       3
       Based on the substance of appellant’s argument, we conclude he intended to
reference section 54.04(i)(1)(B).

                                              4
       •      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.


                                             5
Per Curiam




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