                                       NUMBER 13-07-426-CV

                                     COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


                         IN THE MATTER OF M.A.H., A JUVENILE


                       On appeal from County Court at Law No. 1
                              of Calhoun County, Texas,
                             Sitting as a Juvenile Court.


                                 MEMORANDUM OPINION

                      Before Justices Yañez, Rodriguez, and Vela
                        Memorandum Opinion by Justice Vela

      M.A.H., a juvenile, pleaded true to the offense of indecency with a child by

exposure1 and was placed on probation for one year. During his probation, the State filed

a motion to modify disposition, and the court extended his probation for an additional six

months and committed him to the Pegasus School, which discharged him without a


      1
          See T EX . P EN AL C OD E A N N . § 21.11(a)(2) (Vernon 2003).
successful completion of the treatment program. During his extended probationary period,

the State filed a second motion to modify disposition, and after a hearing, the court revoked

his probation and committed him to the Texas Youth Commission (T.Y.C.). By two issues,

M.A.H. argues the trial court erred in revoking his probation because the revocation

resulted from the violation of a condition too vague for enforcement, and the evidence was

legally insufficient to support revocation. We affirm.

                           I. Vagueness of Probation Condition

       In issue one, M.A.H. contends the trial court erred in revoking his probation because

the revocation resulted from the violation of a condition too vague for enforcement. In

Rickels, the court of criminal appeals restated its holding that “a defendant must complain

at trial to the [community supervision] conditions he finds objectionable.” Rickels v. State,

108 S.W.3d 900, 902 (Tex. Crim. App. 2003) (internal quotations omitted). By failing to

object to the terms and conditions of probation at trial, a defendant affirmatively waives any

complaints he or she may have had. Id.; Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim.

App. 1999). Here, the record does not reflect M.A.H. objected to the complained-of

probation condition at any time other than on appeal. Accordingly, we hold M.A.H. failed

to preserve this complaint for review. See Speth, 6 S.W.3d at 535 (holding defendant

could not complain of community-supervision conditions for first time on appeal). Issue

one is overruled.

                               II. Sufficiency of the Evidence

       In issue two, M.A.H. contends the evidence is legally insufficient to show he violated

a probation condition.

A. Standard of Review

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        Juvenile courts are vested with broad discretion in determining whether to modify

the disposition of children found to have engaged in delinquent conduct. In re C.S., 198

S.W.3d 855, 857 (Tex. App.–Dallas 2006, no pet.); In re P.L., 106 S.W.3d 334, 337 (Tex.

App.–Dallas 2003, no pet.). The trial court abuses its discretion if it acts unreasonably or

arbitrarily. In re P.L., 106 S.W.3d at 337. In reviewing an order modifying disposition, we

examine the entire record to determine whether the trial court acted unreasonably or

arbitrarily or without reference to any guiding rules or principle. In re C.S., 198 S.W.3d at

857; In re P.L., 106 S.W.3d at 337.

        Under section 54.05(f) of the Texas Family Code, the trial court may modify a

disposition to commit a child to T.Y.C. if, after a hearing, it finds by a preponderance of the

evidence that the child violated a reasonable and lawful order of the court. TEX . FAM . CODE

ANN . § 54.05(f) (Vernon Supp. 2008); In re J.M., 133 S.W.3d 721, 724 (Tex. App.–Corpus

Christi 2003, no pet.).2             In a probation-revocation case, the State meets the

preponderance-of-the-evidence standard when the greater weight of the credible evidence

creates a reasonable belief that the defendant violated a condition of his or her probation

as alleged. See Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983); Johnson

v. State, 943 S.W.2d 83, 85 (Tex. App.–Houston [1st Dist.] 1997, no pet.). Furthermore,

the trial court is the sole trier of fact at a probation-revocation hearing and determines the

credibility of the witnesses and the weight to be given to their testimony. See Johnson, 943

S.W.2d at 85. The evidence is examined in the light most favorable to the trial court’s


        2
          In In re J.M., we stated that “[a] juvenile court m ay m odify its prior disposition and order that [a]
juvenile be com m itted to the Texas Youth Com m ission if the court finds by a preponderance of the evidence
that the child violated a reasonable and lawful order of the court.” In re J.M., 133 S.W .3d 721, 724 (Tex.
App.–Corpus Christi 2003, no pet.) (internal quotations om itted).

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order. See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Johnson, 943

S.W.2d at 85.

B. The State’s First Motion to Modify Disposition

       The applicable probation conditions stated: “You [M.A.H.] are required to attend any

counseling or treatment in which the Juvenile Services Department feels is necessary for

your best interest in your rehabilitative effort;” and “The Juvenile-Respondent [M.A.H.] shall

be committed to the Texas Youth Commission if Pegasus is unable to accept him.” On

November 8, 2006, pursuant to the State’s first motion to modify disposition, the trial court

signed an “ORDER MODIFYING DISPOSITION WITH PLACEMENT” that stated, in

relevant part:

       The Court finds, by a preponderance of the evidence, that the Juvenile
       Respondent, [M.A.H.], has violated a reasonable and lawful order of this
       Court, to-wit:

       H. REHABILITATION AND TREATMENT:
       2. You are required to attend any counseling or treatment in which the
       Juvenile Services Department feels is necessary for your best interest in your
       rehabilitative efforts.

              On or about September 26, 2006, [M.A.H.] failed to abide by
       treatment program regulations. [M.A.H.] has received ninety-five (95) incident
       reports since admission to include escape risk, danger to self, danger to
       others, neglect in therapy, disruption of program and threat staff/peers etc.

       The order reflects that the court extended M.A.H.’s probationary period for an

additional six months. The order further stated: “THE COURT FINDS that the best interest

of the Juvenile-Respondent and the community will be served by placing the Juvenile-

Respondent outside the child’s home and committing the Juvenile-Respondent to the care,

custody and control of Pegasus . . . .” In addition, this order stated that M.A.H. “is hereby

committed to Pegasus . . . for a period of not less than three (3) months, but no more than

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six (6) months, or until said child is successfully discharged by the facility.”

C. Hearing on State’s Second Motion to Modify Disposition

       On February 7, 2007, the State filed its second motion to modify disposition,

alleging, in relevant part, that on November 8, 2006, the court “held a modification of

disposition hearing,” at the conclusion of which the court placed M.A.H. “on probation for

an additional period of six (6) months under the conditions set forth by this Court in the

Order Modifying Disposition.”3 The motion further alleged that M.A.H. violated the terms

and conditions of his probation as follows: “You are required to attend any counseling or

treatment in which the Juvenile Services Department feels is necessary for your best

interest in your rehabilitative efforts. On or about January 25, 2007, [M.A.H.], failed to

successfully complete placement and was unsuccessfully discharged.”

       On June 15, 2007, the trial court held a hearing on the State’s second motion to

modify disposition.4 The sole witness at the hearing was Cindy Rains, the Chief Juvenile

Probation Officer for Calhoun County.                   She testified that two of M.A.H.’s probation

conditions were that he attend Pegasus School until successfully discharged by the facility

and that he obey the rules and regulations of that school and perform according to his

ability. She further testified that his assignment to Pegasus by her department was

“[t]herapeutic in purpose” and that he “was attending Pegasus for their sex offender

treatment program.”            When the prosecutor asked her, “[W]as [M.A.H.] successfully

discharged by Pegasus School?”, she replied, “No, sir. He was not.”



       3
           Em phasis in original.

       4
           See T EX . F AM . C OD E A N N . § 54.05 (Vernon Supp. 2008).

                                                          5
       On redirect-examination, the State asked Ms. Rains:

       Q.        Ms. Rains, they [Pegasus] contacted you to pick up [M.A.H.]; is that
                 correct?

       A.        Yes, sir, they did.

       Q.        And at that time you were informed that it was an unsuccessful
                 discharge?

       A.        Yes.

Her testimony showed that law enforcement picked M.A.H. up from the Pegasus School

on January 25, 2007.

       M.A.H. did not testify, and the defense called no witnesses to testify on his behalf.

       After hearing Rains’s testimony, the trial court referred to its previous order

modifying disposition with placement and stated in open court: “[I]n this order he [M.A.H.]

was ordered to be committed to Pegasus until successfully discharged” and “[t]he Court

will find that there’s no reasonable alternative. I placed him in Pegasus, and we are out

of alternatives. I’ll place him in T.Y.C.”

       After the hearing, the trial court signed an “ORDER MODIFYING DISPOSITION

WITH COMMITMENT TO THE TEXAS YOUTH COMMISSION,” in which it stated, in

relevant part:

       The Court finds, by preponderance of the evidence, that the Juvenile-
       Respondent, [M.A.H.], has violated a reasonable and lawful order of this
       Court, to-wit:

       H. REHABILITATION AND TREATMENT:
       2. You are required to attend any counseling or treatment in which the
       Juvenile Services Department feels is necessary for your best interest in your
       rehabilitative efforts.

             On or about January 25, 2007, [M.A.H.], failed to successfully
       complete placement and was unsuccessfully discharged.

                                              6
The order committed M.A.H. to the care, custody, and control of T.Y.C.

D. Analysis

       As a condition of probation, M.A.H. was required to attend any counseling or

treatment in which the Juvenile Services Department felt was necessary for his best

interest in his rehabilitative efforts. The 2006 order modifying disposition with placement

extended his probation for an additional six months and committed him to Pegasus “for a

period of not less than three (3) months, but no more than six (6) months, or until said child

is successfully discharged by the facility.” Rains testified that M.A.H. was placed in the

Pegasus School for therapeutic purposes, and he was supposed to attend its sex-offender

treatment program. However, according to Rains, M.A.H. was unsuccessfully discharged

from the program offered at the Pegasus School. His unsuccessful discharge from the

Pegasus School occurred prior to the expiration of his commitment period of not less than

three months but no more than six months.              Because M.A.H. was unsuccessfully

discharged from the Pegasus School, the court could find by a preponderance of the

evidence that he violated its 2006 order modifying disposition with placement.

Furthermore, the court could find by a preponderance of the evidence that M.A.H. failed

to successfully complete placement and was unsuccessfully discharged and, therefore, did

not attend the required counseling or treatment which the Juvenile Services Department

felt was necessary for his best interest in his rehabilitative effort; in this case, the required

sex-offender therapy which M.A.H. was supposed to attend at the Pegasus School.

Accordingly, we hold that M.A.H. violated a probation condition and that he violated a

reasonable and lawful order of the court. Therefore, M.A.H. has failed to show the court

abused its broad discretion by revoking his probation and committing him to T.Y.C. Issue

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two is overruled.

       In addition, pending before this Court is appellant’s motion for personal bond. The

motion for personal bond is here by DENIED by this Court.

                                      III. Conclusion

       The trial court’s judgment is affirmed.




                                                   ROSE VELA
                                                   Justice



Concurring Memorandum Opinion
by Justice Yañez.

Memorandum Opinion delivered and
filed this 28th day of August, 2008.




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