TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00376-CV
In the Matter of J. M.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-14,888, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
Appellant J.M., a juvenile, appeals from a trial-court order revoking his probation and committing him to the Texas Youth Commission. J.M. asserts three points of error. He complains that the trial court erred by finding he violated conditions of his probation when the conditions were not included in the court's disposition order. J.M. also claims the trial court erred by revoking his probation when there was insufficient evidence to prove beyond a reasonable doubt that (1) he received notice of his conditions of probation and that (2) he violated a condition of his probation: that he obey staff at the Leadership Academy. We will affirm the trial court's judgment.
BACKGROUND
On February 14, 1996, the trial court conducted a hearing on the State's first amended original petition alleging J.M. had engaged in delinquent conduct. The court found J.M. had committed two counts of unauthorized use of a motor vehicle. The court placed him on probation for one year at the CATS program (1) known as the Leadership Academy. The dispositional order of probation stated that J.M. be placed on probation at the CATS program "until successfully discharged and under the attached notes of probation." On April 23, 1996, the State filed a motion to modify J.M.'s disposition, alleging that he violated one of the conditions of his probation by refusing to obey the staff and rules of the Leadership Academy, resulting in his being discharged before successful completion of the program. After a hearing on the State's motion, the trial court modified the disposition order by revoking J.M.'s probation and committing him to the custody of the Texas Youth Commission. J.M. appeals from the trial court's judgment.
DISCUSSION
In his first point of error, J.M. claims that the trial court violated section 54.04(f) of the Texas Family Code by failing to include the conditions of his probation in the dispositional order. Specifically, J.M. asserts that, although the trial court refers in the dispositional order to the "attached rules of probation," no rules of probation were attached. Therefore, J.M. argues the court erred in finding he violated his conditions of probation. Section 54.04(f) of the Family Code states:
The court shall state specifically in the order its reasons for the disposition and shall furnish a copy of the order to the child. If the child is placed on probation, the terms of the probation shall be written in the order.
Tex. Fam. Code Ann. § 54.04(f) (West 1996). J.M. asserts that this is a mandatory requirement and such a violation is reversible error.
After reviewing the record, it is clear that J.M. waived error by failing to object at the trial court level about the absence of any terms of probation. J.M. raises his claim that the trial court violated section 54.04(f) of the Family Code for the first time on appeal. A party who desires to preserve error for appeal must present the trial court with a "timely request, objection or motion, stating the specific grounds for the ruling [the party] desire[s] the court to make . . . ." Tex. R. App. P. 52(a). The party must also obtain a ruling on that request, objection, or motion. Id. Generally, an appellant who fails to preserve error before the trial court cannot bring that error before an appellate court. See Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987); see also Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1982) ("It is a general rule that appellate courts will not consider any error which counsel for accused could have called, but did not call, to the attention of the trial court at the time when such error could have been avoided or corrected by the trial court.").
The record shows that J.M. had several opportunities to object to the absence of any terms of probation, but failed to do so. More importantly, J.M. did not complain that he was unaware of his conditions of probation (1) when his dispositional order of probation was written and signed by the trial court, (2) when the State filed its motion to modify disposition, or (3) at the hearing on the State's motion to modify J.M.'s disposition. The State's motion to modify disposition clearly states that among said terms and conditions of probation was rule two--Obey staff at the Leadership Academy. The motion states that J.M. violated this rule of probation because he did not "obey the staff at the Leadership Academy as he was discharged on April 16, 1996, from the program for not following the program rules."
At the hearing on the State's motion to modify disposition, the trial court asked J.M. if it was true that he was placed on probation at the Leadership Academy for a year and given certain probation rules to follow. J.M. answered in the affirmative. A manager at the Leadership Academy testified that he and a shift supervisor brought J.M. back to detention less than a month after he was admitted to the Academy because he was not following rules and participating in the program. The manager testified that J.M. was aware that he violated a rule by keeping contraband items, i.e., rubber insulation, a metal bracket, and a metal plate under his bed. Although J.M. testified that he did not put the contraband in his room, he also testified that he admitted to others on two separate occasions that he had put the contraband under his bed. Throughout his testimony, J.M. never objected that he was unaware of the rules of the Academy or conditions of his probation.
J.M. did not preserve error in the trial court; therefore this court cannot consider his point of error unless the trial court committed fundamental error. Courts will find fundamental error "only in those rare instances in which the record shows on its face that the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes and constitution of this state." Cox v. Johnson, 638 S.W.2d 867, 868 (Tex. 1982). In this case, neither of these requirements for fundamental error are present. J.M. waived the right to raise this error on appeal by failing to object or give the trial court the opportunity to correct the alleged error.
Even if J.M. had preserved his point of error, we would overrule it because it is clear from the record that when J.M. was placed on probation the trial court ordered him to successfully complete the program at Leadership Academy. The trial court's dispositional order of probation states that J.M. be placed on probation at the Leadership Academy "until successfully discharged." Implicit in the order modifying J.M.'s probation is that J.M. could not both break the rules of the program and successfully complete the program. In addition, the order states that J.M.'s term of probation is one year to expire on February, 14, 1997. Taken together, these recitations satisfy section 54.04(f)'s requirement that terms of the probation be written in the order. The trial court did not err in failing to include the terms of probation in the order; therefore, we overrule J.M.'s first point of error.
In his second and third points of error, J.M. contends the evidence is insufficient to support the trial court's decision to revoke his probation. J.M. argues the State did not prove beyond a reasonable doubt that (1) J.M. was ever given notice of his conditions of probation and (2) one of the conditions of probation was that J.M. obey staff at the Leadership Academy. We disagree.
In reviewing a sufficiency of the evidence point in a juvenile case, the appellate court is required to consider all of the evidence in order to determine whether the evidence supporting the finding is either so weak or the evidence to the contrary so overwhelming that the finding should be set aside and a new trial ordered. In re L.G., 728 S.W.2d 939, 943 (Tex. App.--Austin 1987, writ ref'd n.r.e.). Before January 1, 1996, the State was required to prove beyond a reasonable doubt that a juvenile violated a term of probation. Thereafter, the State's burden lessened. Now the State must prove "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) (West 1996). J.M. asserts that we should apply the earlier standard because both the underlying offenses for his probation occurred in 1995, when the greater burden was still in effect. To support his argument, J.M. relies on a juvenile law article by Professor Robert O. Dawson. (2)
We need not decide which standard governs because, under either standard, the State has met its burden. We have reviewed all of the evidence, much of which has already been outlined, and find it sufficient to support a finding that J.M. was given notice that one of the conditions was that he obey the rules at the Leadership Academy in order to successfully complete the program there. In light of our discussion of J.M.'s first point of error, we find that the State has proved that the child violated his probation by failing to follow the rules at Leadership Academy and more importantly, failing to successfully complete the program. We overrule J.M.'s second and third point of error.
CONCLUSION
Having overruled J.M.'s three points of error, we affirm the judgment of the trial court.
Mack Kidd, Justice
Before Justices Powers, Jones and Kidd
Affirmed
Filed: May 8, 1997
Do Not Publish
1. CATS is an acronym for Community Assess/Treat Sanctions.
2. Robert O. Dawson, Texas Juvenile Law, An Analysis of Juvenile Statutory and Case Law for Texas Juvenile Justice Officials 209-210 (4th ed. 1996).
nt of error unless the trial court committed fundamental error. Courts will find fundamental error "only in those rare instances in which the record shows on its face that the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes and constitution of this state." Cox v. Johnson, 638 S.W.2d 867, 868 (Tex. 1982). In this case, neither of these requirements for fundamental error are present. J.M. waived the right to raise this error on appeal by failing to object or give the trial court the opportunity to correct the alleged error.
Even if J.M. had preserved his point of error, we would overrule it because it is clear from the record that when J.M. was placed on probation the trial court ordered him to successfully complete the program at Leadership Academy. The trial court's dispositional order of probation states that J.M. be placed on probation at the Leadership Academy "until successfully discharged." Implicit in the order modifying J.M.'s probation is that J.M. could not both break the rules of the program and successfully complete the program. In addition, the order states that J.M.'s term of probation is one year to expire on February, 14, 1997. Taken together, these recitations satisfy section 54.04(f)'s requirement that terms of the probation be written in the order. The trial court did not err in failing to include the terms of probation in the order; therefore, we overrule J.M.'s first point of error.
In his second and third points of error, J.M. contends the evidence is insufficient to support the trial court's decision to revoke his probation. J.M. argues the State did not prove beyond a reasonable doubt that (1) J.M. was ever given notice of his conditions of probation and (2) one of the conditions of probation was that J.M. obey staff at the Leadership Academy. We disagree.
In reviewing a sufficiency of the evidence point in a juvenile case, the appellate court is required to consider all of the evidence in order to determine whether the evidence supporting the finding is either so weak or the evidence to the contrary so overwhelming that the finding should be set aside and a new trial ordered. In re L.G., 728 S.W.2d 939, 943 (Tex. App.--Austin 1987, writ ref'd n.r.e.). Before January 1, 1996, the State was required to prove beyond a reasonable doubt that a juvenile violated a term of probation. Thereafter, the State's burden lessened. Now the State must prove "by a preponderance of the evidence that the child violated a reasonable and lawful order of the court." Tex. Fam. Code An