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                                  MEMORANDUM OPINION

                                         No. 04-09-00005-CV

                               IN THE MATTER OF S.J.P., a Juvenile

                      From the 289th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-JUV-02525
                             Honorable Carmen Kelsey, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: January 6, 2010

AFFIRMED AS MODIFIED

           S.J.P. was adjudicated as having engaged in delinquent conduct by committing criminal

trespass, and placed on probation until his eighteenth birthday in the custody of the Chief Juvenile

Probation Officer of Bexar County, Texas for the purpose of long-term placement outside the home.

We modify the trial court’s judgment to correctly reflect that the type of delinquent conduct in which

S.J.P. engaged was criminal trespass to a building, and we affirm the judgment as modified.

                             FACTUAL AND PROCEDURAL BACKGROUND

           On the evening of September 29, 2008, S.J.P., who was sixteen years old, was arrested for

criminal trespass after officers found him and a friend inside a vacant house located at 3715

Portsmouth Drive, San Antonio, Texas. The owner of the vacant house, who resided nearby, had
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called police to report a possible burglary stating that she saw two males go around the back of the

house and then saw a light go on inside the house. When the officers arrived, they found the back

door’s deadbolt unlocked but the inside chain attached, preventing the door from opening. The

officers obtained the owner’s permission to force the door open and entered the house, ordering all

occupants to show themselves. They found S.J.P. and another male “in separate bedrooms sitting

on the floor of the empty, vacant house.” S.J.P. told the officers that he and his friend needed a place

to stay and he knew the house was vacant because his sister had recently been evicted from the

house.

         The State filed an original petition alleging that S.J.P. had engaged in delinquent conduct by

committing the offense of criminal trespass to a building, a Class B misdemeanor. See TEX . PENAL

CODE ANN . § 30.05(a)(1) & (d)(1) (Vernon Supp. 2009). Subsequently, the State filed an amended

petition correcting S.J.P.’s date of birth and alleging he had committed the offense of criminal

trespass to a habitation, a Class A misdemeanor. See TEX . PENAL CODE ANN . § 30.05(a)(1) & (d)(3)

(Vernon Supp. 2009). On December 16, 2008, S.J.P. appeared in court for trial with his parents and

counsel. The court advised S.J.P. that he was charged with criminal trespass to a building, and S.J.P.

orally pled true to that charge and stipulated to the State’s evidence admitted as State’s Exhibit 1;

the written plea papers signed by S.J.P. also reflect a plea of true to criminal trespass to a building.

The trial court accepted the plea of true and adjudicated S.J.P. delinquent, finding that State’s

Exhibit 1 “does support the charge of criminal trespass that I had read to you earlier.” The court then

found a need for disposition and proceeded to consider the pre-disposition report prepared by the

Juvenile Probation Officer, the parental written statement by S.J.P.’s mother, and the State’s

recommendation. The court followed the State’s recommendation and placed S.J.P. on probation


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until his eighteenth birthday in the custody of the Chief Juvenile Probation Officer of Bexar County

for the purpose of placement outside the home in a secure placement facility. The written order of

adjudication states that S.J.P. engaged in delinquent conduct by committing criminal trespass of a

habitation, not a building. S.J.P. now appeals both the order of adjudication and the order of

disposition.

                                             ANALYSIS

       Order of Adjudication

       S.J.P. challenges the adjudication order as legally insufficient because it finds he engaged in

delinquent conduct by committing criminal trespass to a habitation, while the written plea papers and

the oral plea colloquy were for criminal trespass to a building, a lesser class of misdemeanor. S.J.P.

asserts there is no evidence in the record to support a finding he committed trespass to a habitation,

and requests that we reverse the adjudication order and render a “verdict of not true.” The State

responds that the record supports S.J.P.’s plea of true to trespass to a building, which is a lesser

included offense of trespass to a habitation, and asserts we should reform the adjudication order “to

reflect the manner in which Appellant was found delinquent, criminal trespass of a building.”

       Juvenile delinquency proceedings are considered “quasi-criminal” in nature, with the Code

of Criminal Procedure and the Rules of Evidence pertaining to criminal cases applying in part, and

the Rules of Civil Procedure applying in part. TEX . FAM . CODE ANN . § 51.17 (Vernon Supp. 2009);

In re B.L.D., 113 S.W.3d 340, 351 (Tex. 2003). Section 51.17(a) of the Texas Family Code provides

in relevant part that, except for the burden of proof on the State in adjudicating a child delinquent

or in need of supervision, the Texas Rules of Civil Procedure govern juvenile proceedings. TEX .

FAM . CODE ANN . § 51.17(a). Under Civil Procedure Rule 65, the State’s amended petition alleging


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S.J.P. committed criminal trespass to a habitation superceded and replaced the original petition

alleging trespass to a building. TEX . R. CIV . P. 65 (providing that an amended pleading substitutes

and takes the place of the original pleading). The elements of criminal trespass to a habitation

applicable to this case are that: (1) a person, (2) intentionally or knowingly, (3) enters or remains in

a habitation, (4) without the effective consent of the owner, (5) having notice that entry was

forbidden. TEX . PENAL CODE ANN . § 30.05(a)(1) & (d)(3) (offense is a Class A misdemeanor if

committed to a habitation); see also TEX . PENAL CODE ANN . § 30.01(1) (Vernon 2003) (defining a

“habitation” as a “structure or vehicle that is adapted for the overnight accommodation of persons”).

However, S.J.P.’s plea of true as reflected in the written plea papers, as well as during the oral plea

colloquy before the court, was to the original allegation of delinquent conduct based on criminal

trespass to a building, which is a lesser included offense of trespass to a habitation.1 At the

adjudication hearing, the trial court admonished S.J.P. that the State had alleged he committed

criminal trespass to a building, and accepted his plea of true to that allegation. The court continued

with the required admonishments and then made a finding that the State’s evidence “does support

the charge of criminal trespass that I had read to you earlier.” After both sides rested and closed on

adjudication, the court stated, “I’m going to accept your plea of true to this charge today, . . . and I

am going to find you have engaged in delinquent conduct.” As noted, the court’s written order of

adjudication states that S.J.P. engaged in delinquent conduct by committing criminal trespass to a

habitation, not to a building.


         1
            … The elements of criminal trespass to a building are that: (1) a person, (2) intentionally or knowingly, (3)
enters or remains in a building of another, (4) without the effective consent of the owner, (5) having notice that entry was
forbidden. T EX . P EN AL C O D E A N N . § 30.05(a)(1) & (d)(1). A “building” is defined as “any enclosed structure intended
for use or occupation as a habitation or for some purpose of trade, manufacture, ornament or use.” T EX . P EN AL C O D E
A N N . § 30.01(2) (Vernon 2003). Thus, criminal trespass to a building is a lesser included offense of criminal trespass
to a habitation. See T EX . C O D E C RIM . P RO C . A N N . art. 37.09 (Vernon 2006).

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        The record clearly reflects S.J.P.’s intent to enter a plea of true to the lesser included offense

of criminal trespass to a building, and the trial court’s acceptance of such a plea and finding of

delinquent conduct based on criminal trespass to a building, without any objection. See TEX . FAM .

CODE ANN . § 54.03(f) (Vernon Supp. 2009) (providing a juvenile may be adjudicated as having

engaged in conduct constituting a lesser included offense as provided by articles 37.08 and 37.09 of

the Code of Criminal Procedure); Id. § 54.03(h) (Vernon Supp. 2009) (requiring court to state

“which of the allegations in the petition were found to be established by the evidence”). Moreover,

it is undisputed that the record contains sufficient evidence supporting the court’s finding that S.J.P.

committed criminal trespass to a building. Id. § 54.03(f) (providing that the court’s finding of

delinquent conduct must be based on competent evidence admitted at the adjudication hearing).

Therefore, the erroneous statement in the adjudication order that S.J.P. committed criminal trespass

to a habitation, a Class A misdemeanor, does not affect the validity of the court’s judgment because

the evidence is sufficient to prove that S.J.P. committed the lesser Class B misdemeanor of criminal

trespass to a building. See In re J.M., 287 S.W.3d 481, 491 (Tex. App.—Texarkana 2009, no pet.)

(error in written modification order that juvenile violated probation by committing theft punishable

by confinement did not affect validity of judgment because evidence was sufficient to show

commission of theft punishable by fine only, which still constituted a violation of probation).

        An appellate court has the authority to correct, modify, and reform a judgment in a juvenile

case to make the record speak the truth when it has the necessary information to do so. Id.; In re

K.B., 106 S.W.3d 913, 916 (Tex. App.—Dallas 2003, no pet.); In re J.K.N., 115 S.W.3d 166, 174

(Tex. App.—Fort Worth 2003, no pet.). We therefore modify the trial court’s adjudication order to

correctly reflect the type of delinquent conduct in which the court found S.J.P. engaged, i.e., criminal


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trespass to a building. TEX . R. APP . P. 43.2(b); TEX . FAM . CODE ANN . § 56.01(i) (Vernon Supp.

2009) (appellate court may modify the judgment or order in a juvenile court adjudication). The trial

court’s order of adjudication is affirmed as modified.

       Order of Disposition

       As discussed, supra, S.J.P. entered a plea of true in the adjudication proceeding; however,

there was no plea agreement as to disposition. On appeal, S.J.P. asserts the trial court abused its

discretion in entering a disposition order which placed him on probation outside his home. Juvenile

courts have broad discretion in determining a suitable disposition for a child adjudicated of engaging

in delinquent conduct. In re K.J.N., 103 S.W.3d 465, 465-66 (Tex. App.—San Antonio 2003, no

pet.). An appellate court will not reverse a juvenile court’s determination of an appropriate

disposition unless the court abused its discretion. Id.; In re J.P., 136 S.W.3d 629, 633 (Tex. 2004).

A juvenile court commits an abuse of discretion only if it acts arbitrarily, unreasonably, or without

reference to guiding rules and principles. In re K.J.N., 103 S.W.3d at 466.

       Here, the trial court found a need for disposition and ordered S.J.P. placed on probation until

his eighteenth birthday outside his home, in the custody of the Chief Juvenile Probation Officer for

purposes of long-term residential placement in a suitable foster home or public or private institution,

other than the Texas Youth Commission. See TEX . FAM . CODE ANN . § 54.04(d)(1)(B) (Vernon

Supp. 2009). In making its determination, the court considered the written predisposition report, the

written statement by S.J.P.’s mother, and the recommendations by the probation officer, the staffing

committee, and the State. The probation officer and staffing committee recommended that S.J.P.

be placed on probation until his eighteenth birthday in the custody of his mother. However, his

mother’s parental statement explained that both she and S.J.P.’s father are very ill and are unable to

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adequately supervise S.J.P.; his mother requested placement for S.J.P., stating her belief that it was

in his best interest. The State recommended probation outside the home based on the parental

statement, as well as S.J.P.’s prior juvenile record, his lack of supervision and long-term absence

from school. In deciding to place S.J.P. on probation outside the home, the trial court verbally

stated, “The factual reason that I’m ordering you into placement is because at this time I find that you

are in need of a very structured and very therapeutic environment in order to be rehabilitated.” The

court’s written order of disposition contains the required statutory findings that it is in S.J.P.’s best

interest to be placed outside the home, reasonable efforts were made to prevent the need for removal

from the home and make it possible for the child to return home, and in his home the child cannot

be provided the quality of care and level of support and supervision that he needs to meet the

conditions of probation. See TEX . FAM . CODE ANN . § 54.04(i) (Vernon Supp. 2009). The

disposition order also includes the following specific reasons for placement of the child outside the

home:

        Child in need of a secure and structured environment; followed recommendation of
        the State; needs treatment for substance abuse; parents have insufficient skills to
        properly supervise their child; child in need of a therapeutic environment; child is a
        danger to self or others; child found delinquent in past and may commit new offense;
        history of runaway; child has the following conduct disorders: depression, A.D.H.D.,
        bipolar D; and past cocaine and marijuana use.


        Based on the record and the court’s findings, we conclude the court did not abuse its

discretion in placing S.J.P. on probation outside the home for purposes of long-term placement. See

In re K.J.N., 103 S.W.3d at 466. S.J.P.’s issue challenging his disposition is overruled.




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       Conclusion

       Based on the foregoing analysis, we modify the trial court’s order of adjudication to reflect

that S.J.P. engaged in delinquent conduct by committing the offense of criminal trespass to a

building, and affirm the trial court’s judgment as modified.




                                                      Phylis J. Speedlin, Justice




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