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                                   MEMORANDUM OPINION

                                          No. 04-09-00556-CV

                                      IN THE MATTER OF J.A.

                      From the 386th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009JUV01956
                              Honorable Laura Parker, Judge Presiding1

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 10, 2010

AFFIRMED

           The sole issue presented in this appeal is whether the juvenile court abused its discretion in

committing J.A. to the Texas Youth Commission (“TYC”). J.A. contends the record indicates that

probation, either in the home or in placement, would have been a more appropriate disposition. We

affirm the juvenile court’s order of disposition.

                                              BACKGROUND

           The complainant, C.G., reported that he was walking with a friend on April 4, 2009, when

he observed J.A. with three other individuals. C.G. and his friend walked down a drainage ditch to


       … Referee Lisa K. Jarrett presided over the hearing and made recommendations to the
           1

Honorable Laura Parker who signed the orders in the underlying cause.
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avoid J.A. because they knew J.A. caused trouble. J.A. and the others followed them and pushed

C.G. to the ground. J.A. and the others started punching and kicking C.G. The officer responding

to the complaint observed physical injuries to C.G.’s eye and arm, and photographs of the injuries

are included in the record. J.A. and the others removed C.G.’s shoes and took the shoes and C.G.’s

backpack. J.A. and the others were yelling “We are BDTs, don’t fuck with us.” C.G. reported the

BDT stands for Brown Down Thugs, a gang, and J.A. and the others were wearing brown bandanas

around their neck. C.G. knew J.A. because he used to go to C.G.’s school before J.A. was sent to

alternative school.

       J.A. pled true to the offense of robbery without a plea bargain agreement. At the disposition

hearing, the Bexar County Juvenile Probation Department’s Pre-Disposition Report was admitted

into evidence without objection. J.A. was previously referred to the juvenile probation department

for a charge of arson on December 11, 2008. The charge stemmed from an allegation that J.A. had

started a fire in a dumpster. Although J.A. was positively identified at the scene as the suspect, the

charge was rejected on April 28, 2009. J.A. also was previously referred for expulsion on January

8, 2009.

       J.A. reported that he smoked marijuana once a month. J.A. had a history of disruptive

behavior at school. From September 2006 until December 2008, J.A. had thirty-nine disciplinary

referrals. The referrals consisted of violations of classroom and school rules, offensive physical

contact, disruptive behavior in the classroom, and persistent misbehavior. As a result of his

persistent misbehavior, J.A. was sent to alternative school. J.A. was subsequently expelled by the

school district and sent to the Bexar County Juvenile Justice Academy. Although J.A. denied being




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associated with gangs when questioned by the probation officer, J.A. previously admitted to being

affiliated with “brown” to an officer of the school district’s police department.

        Although the report noted that J.A. has a stable home environment, J.A.’s mother reported

she had issues with J.A.’s behavior in the past and stated J.A. can be disrespectful and defiant. J.A.’s

step-father reported he had told J.A. for years that his attitude and behavior were eventually going

to get him in trouble.

        The State recommended commitment to TYC. The probation officer also recommended

TYC; however, seven of the ten individuals on the juvenile probation department’s staffing

committee recommended probation with participation in GANG ISP and the KAPS program. The

probation officer reported that his recommendation was based on J.A.’s persistent misbehavior at

home and at school and the best interest of the community. The probation officer also testified that

his recommendation was based in large part on the nature of the offense because a person should not

be afraid to walk down the street.

        J.A.’s attorney asserted that J.A. was diagnosed with depression disorder and qualified for

special education. J.A.’s attorney also asserted that J.A. had not received any prior resources and

requested that J.A. be placed on probation.

        The juvenile court noted that she trusted the probation officer’s judgment. The juvenile court

found reasonable efforts were made to prevent or eliminate the need for J.A.’s removal from the

home, but the child, in the child’s home, could not be provided the quality of care and level of

support and supervision that the child needs to meet the conditions of probation. The juvenile court

also found that commitment to TYC was the appropriate disposition due to J.A.’s behavior problems

and inadequate supervision at home.


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                                             DISCUSSION

        In order for a juvenile to be committed to TYC, the juvenile court must find that: (1)

placement outside the home is in the juvenile’s best interests; (2) reasonable efforts were made to

prevent or eliminate the need for removal from the home; and (3) the juvenile, in the juvenile’s

home, cannot be provided the quality of care and level of support and supervision the juvenile needs

to meet the conditions of probation. TEX . FAM . CODE ANN . § 54.04(i)(1) (Vernon Supp. 2009). A

trial court’s order committing a juvenile to TYC “must be reviewed under an abuse of discretion

standard divorced from legal and factual sufficiency standards.” In re K.T., 107 S.W.3d 65, 67 (Tex.

App.—San Antonio 2003, no pet.). “[T]he abuse of discretion standard requires that we ‘view the

evidence in the light most favorable to the trial court’s ruling,’ affording almost total deference to

findings of historical fact that are supported by the record.” In re K.T., 107 S.W.3d at 75 (quoting

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). “However, when the resolution of

the factual issue does not turn upon an evaluation of credibility and demeanor, we review the trial

court’s determination of the applicable law, as well as its application to the appropriate law to the

facts it has found, de novo.” Id.

        In his brief, J.A. contends that the juvenile court abused its discretion in not placing him on

probation, noting he had no prior juvenile adjudications and describing “many of [the thirty-nine

school disciplinary] infractions to be rather minor.” A trial court, however, is not required to exhaust

all possible alternatives before sending a juvenile to TYC. In re J.R.C., 236 S.W.3d 870, 875 (Tex.

App.—Texarkana 2007, no pet.). Although J.A. may not have had any prior juvenile adjudications,

he was first given the chance to attend alternative school as a result of his disciplinary problems, but

was subsequently expelled by the school district and required to attend the Bexar County Juvenile


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Justice Academy. Although J.A. seeks to describe his disciplinary referrals as minor infractions, J.A.

was referred numerous times for “disrespectful/profanity” and a few times for “insubordination,”

which is consistent with J.A.’s mother describing him as disrespectful and defiant in the home. In

addition, J.A. had multiple referrals for participating in gang activity, two referrals for offensive

verbal/physical conduct, and one referral for scuffling/aggressive physical conduct, which the

juvenile court could have believed were not “minor” infractions. Moreover, even if some of the

infractions in isolation may appear to be minor, they must be considered in the context of J.A. having

received thirty-nine referrals in just over a two-year period. Finally, the juvenile court also had to

consider the offense in which J.A. engaged, i.e., attacking an individual who was simply walking

down the street, the relation of the offense to J.A.’s gang involvement, and J.A.’s admitted on-going

use of marijuana. Based on this evidence, we hold the juvenile court did not abuse its discretion in

committing J.A. to TYC.

                                           CONCLUSION

       The juvenile court’s order is affirmed.

                                                       Catherine Stone, Chief Justice




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